\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Caleigh WOOD, Plaintiff - Appellant, and John Wood; Melissa Wood, on Behalf of Her Minor Child, C.W., Plaintiffs, v. Evelyn ARNOLD; Shannon Morris, Defendants - Appellees, and Board of Education of Charles County; Charles County Public Schools, Defendants, Christian Action Network, Amicus Supporting Appellant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-11\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1430\\n\\n\\nCALEIGH WOOD,\\n\\n Plaintiff - Appellant,\\n\\nand\\n\\nJOHN WOOD; MELISSA WOOD, on behalf of her minor child, C.W.,\\n\\n Plaintiffs,\\n\\n v.\\n\\nEVELYN ARNOLD; SHANNON MORRIS,\\n\\n Defendants - Appellees,\\n\\nand\\n\\nBOARD OF EDUCATION OF CHARLES COUNTY; CHARLES COUNTY\\nPUBLIC SCHOOLS,\\n\\n Defendants,\\n\\n------------------------------\\n\\nCHRISTIAN ACTION NETWORK,\\n\\n Amicus Supporting Appellant.\\n\\n\\nAppeal from the United States District Court for the District of Maryland, at Greenbelt.\\nGeorge Jarrod Hazel, District Judge. (8:16-cv-00239-GJH)\\n\\fArgued: December 11, 2018 Decided: February 11, 2019\\n\\n\\nBefore KEENAN, WYNN, and HARRIS, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Wynn\\nand Judge Harris joined.\\n\\n\\nARGUED: Kate Oliveri, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, for\\nAppellant. Andrew G. Scott, PESSIN KATZ LAW, P.A., Towson, Maryland, for\\nAppellees. ON BRIEF: B. Tyler Brooks, Richard Thompson, THOMAS MORE LAW\\nCENTER, Ann Arbor, Michigan, for Appellant. Edmund J. O’Meally, Lisa Y. Settles,\\nPESSIN KATZ LAW, P.A., Towson, Maryland, for Appellees. David W.T. Carroll,\\nCARROLL, UCKER & HEMMER LLC, Columbus, Ohio, for Amicus Curiae.\\n\\n\\n\\n\\n 2\\n\\fBARBARA MILANO KEENAN, Circuit Judge:\\n\\n In this case, we consider whether two statements concerning Islamic beliefs,\\n\\npresented as part of a high school world history class, violated a student’s First\\n\\nAmendment rights under either the Establishment Clause or the Free Speech Clause. The\\n\\nstudent, Caleigh Wood, contends that school officials Evelyn Arnold and Shannon Morris\\n\\n(the defendants) used the statements about Islam to endorse that religion over\\n\\nChristianity, and compelled Wood against her will to profess a belief in Islam.\\n\\n Upon our review, we conclude that the challenged coursework materials, viewed\\n\\nin the context in which they were presented, did not violate Wood’s First Amendment\\n\\nrights, because they did not impermissibly endorse any religion and did not compel Wood\\n\\nto profess any belief. We therefore affirm the district court’s judgment awarding\\n\\nsummary judgment in favor of the defendants.\\n\\n\\n\\n I.\\n\\n During the 2014-2015 school year, Wood was an eleventh-grade student at La\\n\\nPlata High School, a public high school in Charles County, Maryland. Arnold was La\\n\\nPlata’s principal, and Morris was employed as one of the school’s vice-principals.\\n\\n As an eleventh-grade student, Wood was required to take a world history course,\\n\\nwhich was part of the school’s social studies curriculum. The year-long course covered\\n\\ntime periods from the year “1500 to the [p]resent.” Among the topics covered in the\\n\\ncourse were the Renaissance and Reformation, the Enlightenment period, the Industrial\\n\\n\\n\\n 3\\n\\fRevolution, and World Wars I and II. The topics were divided into separate units, with\\n\\neach unit generally being taught over a period of between ten and twenty days.\\n\\n The smallest unit of the world history course, encompassing five days, was\\n\\nentitled “The Muslim World.” The unit was “designed to explore, among other things,\\n\\nformation of Middle Eastern empires including the basic concepts of the Islamic faith and\\n\\nhow it along with politics, culture, economics, and geography contributed to the\\n\\ndevelopment of those empires.”\\n\\n As part of the “Muslim World” unit, Wood’s teacher presented the students with a\\n\\nPowerPoint slide entitled “Islam Today,” which contrasted “peaceful Islam” with “radical\\n\\nfundamental Islam.” The slide contained the statement that “Most Muslim’s [sic] faith is\\n\\nstronger than the average Christian” (the comparative faith statement) (underlining in\\n\\noriginal). The school’s content specialist, Jack Tuttle, testified that use of the\\n\\ncomparative faith statement was inappropriate, and that he would have advised a teacher\\n\\nwho was considering teaching this statement “[n]ot to do that.”\\n\\n Wood also was required to complete a worksheet summarizing the lesson on\\n\\nIslam. The worksheet addressed topics such as the growth and expansion of Islam, the\\n\\n“beliefs and practices” of Islam, and the links between Islam, Judaism, and Christianity.\\n\\nPart of the worksheet required the students to “fill in the blanks” to complete certain\\n\\ninformation comprising the “Five Pillars” of Islam. Included in that assignment was the\\n\\nstatement: “There is no god but Allah and Muhammad is the messenger of Allah[,]” a\\n\\n\\n\\n\\n 4\\n\\fportion of a declaration known as the shahada (the shahada assignment). 1 For ease of\\n\\nreference, we collectively refer to the comparative faith statement and the shahada\\n\\nassignment as the “challenged materials.”\\n\\n Wood’s father objected to the use of the challenged materials. He asserted to the\\n\\ndefendants that Islam should not be taught in the public school and demanded that his\\n\\ndaughter be given alternative assignments. He directed his daughter to refuse to complete\\n\\nany assignment associated with Islam on the ground that she was not required to “do\\n\\nanything that violated [her] Christian beliefs.” Wood’s failure to complete the\\n\\nassignments that, in her view, “promot[ed] Islam,” resulted in Wood receiving a lower\\n\\npercentage grade for the course but did not affect her final letter grade.\\n\\n Wood later sued the defendants, 2 alleging that they violated the Establishment\\n\\nClause by “impermissibly endors[ing] and advanc[ing] the Islamic religion.” Wood\\n\\nfurther alleged that the defendants violated the Free Speech Clause of the First\\n\\nAmendment by requiring her to complete the shahada assignment, thereby “depriv[ing]\\n\\n[her] of her right to be free from government compelled speech.” 3 The district court\\n\\ngranted the defendants’ motion for summary judgment. Wood now appeals.\\n\\n\\n 1\\n The underlined words reflect the parts of the statement that the students were\\nrequired to complete.\\n 2\\n At the time the complaint was filed, Wood was a minor. Therefore, the suit was\\ninitially brought on Wood’s behalf by her parents. The complaint later was amended to\\nname Wood as a plaintiff once she reached the age of majority.\\n 3\\n Wood’s father also asserted separate claims for retaliation under the First\\nAmendment and due process violations related to Arnold’s decision to ban him from the\\n(Continued)\\n 5\\n\\f II.\\n\\n We review the district court’s award of summary judgment de novo. See Buxton\\n\\nv. Kurtinitis, 862 F.3d 423, 427 (4th Cir. 2017). Wood contends that the district court\\n\\nerred in awarding summary judgment to the defendants on both her Establishment Clause\\n\\nclaim and her Free Speech Clause claim. We address each claim in turn.\\n\\n A.\\n\\n We begin with Wood’s Establishment Clause claim. Wood contends that through\\n\\nthe comparative faith statement, “Most Muslim’s [sic] faith is stronger than the average\\n\\nChristian,” the defendants endorsed a view of Islam over Christianity in violation of the\\n\\nEstablishment Clause. Wood also argues that the assignment requiring students to write a\\n\\nportion of the shahada impermissibly advanced the Islamic religion and compelled Wood\\n\\nto “den[y] the very existence of her God.” According to Wood, the challenged materials\\n\\nlacked any secular purpose and had the “effect of promoting and endorsing Islam.” We\\n\\ndisagree with Wood’s argument.\\n\\n The Establishment Clause provides that “Congress shall make no law respecting\\n\\nan establishment of religion, or prohibiting the free exercise thereof.” U.S. Const.\\n\\namend. I, cl. 1. In evaluating an Establishment Clause claim, we apply the three-prong\\n\\ntest set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971). See Mellen v. Bunting, 327\\n\\n\\n\\n\\nLa Plata High School premises. Those claims were dismissed by the district court, and\\nhave not been pursued on appeal.\\n\\n 6\\n\\fF.3d 355, 370 (4th Cir. 2003) (“[W]e have emphasized that the Lemon test guides our\\n\\nanalysis of Establishment Clause challenges.”); Koenick v. Felton, 190 F.3d 259, 264 (4th\\n\\nCir. 1999) (“[T]his Court must rely on Lemon in evaluating the constitutionality of\\n\\n[government action] under the Establishment Clause.” (internal quotation marks and\\n\\ncitation omitted)). Under this test, to withstand First Amendment scrutiny, “government\\n\\nconduct (1) must be driven in part by a secular purpose; (2) must have a primary effect\\n\\nthat neither advances nor inhibits religion; and (3) must not excessively entangle church\\n\\nand State.” Moss v. Spartanburg Cty. Sch. Dist. 7, 683 F.3d 599, 608 (4th Cir. 2012)\\n\\n(citing Lemon, 403 U.S. at 612-13). The government violates the Establishment Clause if\\n\\nthe challenged action fails any one of the Lemon factors. Buxton, 862 F.3d at 432\\n\\n(quoting Edwards v. Aguillard, 482 U.S. 578, 583 (1987)).\\n\\n 1.\\n\\n Before applying the Lemon test, we must determine the proper scope of our\\n\\ninquiry, namely, whether we should examine the challenged materials in isolation or in\\n\\nthe broader context of the world history curriculum. Wood asserts that we must analyze\\n\\neach statement on its own, apart from the subject matter of the class. We disagree with\\n\\nWood’s contention.\\n\\n The Supreme Court has emphasized that for purposes of an Establishment Clause\\n\\nanalysis, context is crucial. See County of Allegheny v. ACLU Greater Pittsburgh\\n\\nChapter, 492 U.S. 573, 597 (1989) (“[T]he effect of the government’s use of religious\\n\\nsymbolism depends on its context.”), abrogated on other grounds by Town of Greece v.\\n\\nGalloway, 572 U.S. 565 (2014). To “[f]ocus exclusively on the religious component of\\n\\n 7\\n\\fany activity would inevitably lead to [the activity’s] invalidation under the Establishment\\n\\nClause.” Lynch v. Donnelly, 465 U.S. 668, 679-80 (1984). Thus, when determining the\\n\\npurpose or primary effect of challenged religious content, courts, including this Circuit,\\n\\nconsistently have examined the entire context surrounding the challenged practice, rather\\n\\nthan only reviewing the contested portion. See Lambeth v. Bd. of Comm’rs of Davidson\\n\\nCty., 407 F.3d 266, 271 (4th Cir. 2005); see also Freedom from Religion Found., Inc. v.\\n\\nCity of Warren, 707 F.3d 686, 692-93 (6th Cir. 2013); Croft v. Perry, 624 F.3d 157, 168\\n\\n(5th Cir. 2010); Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680, 688-89 (7th Cir.\\n\\n1994); Cammack v. Waihee, 932 F.2d 765, 787 (9th Cir. 1991); Smith v. Bd. of Sch.\\n\\nComm’rs of Mobile Cty., 827 F.2d 684, 692 (11th Cir. 1987).\\n\\n Indeed, common sense dictates a context-driven approach. Viewing the\\n\\nchallenged statements in isolation would violate the analysis mandated by the Supreme\\n\\nCourt in Lemon. As we have stated, Lemon first requires us to consider whether teaching\\n\\nthe challenged materials had some secular purpose. Moss, 683 F.3d at 608. Such a\\n\\ndetermination can only be made by considering the academic framework in which those\\n\\nmaterials were presented. See McCreary County v. ACLU, 545 U.S. 844, 862 (2005);\\n\\nAdland v. Russ, 307 F.3d 471, 481 (6th Cir. 2002) (“[C]ontext is critically important in\\n\\nevaluating a state’s proffered secular purpose.”). And in requiring us to determine\\n\\nwhether the primary effect of the challenged materials was to advance or inhibit religion,\\n\\nMoss, 683 F.3d at 608, Lemon necessarily requires consideration of the contextual setting\\n\\nin which those materials were used, see Lambeth, 407 F.3d at 271 (explaining that the\\n\\n“proper analysis” of Lemon’s second prong requires examining the effect of a religious\\n\\n 8\\n\\fdisplay “in its particular setting”). Thus, any attempt on our part to strip statements from\\n\\ntheir context invariably would lead to confusion and misinterpretation when applying the\\n\\nLemon test.\\n\\n Manifestly, if courts were to find an Establishment Clause violation every time\\n\\nthat a student or parent thought that a single statement by a teacher either advanced or\\n\\ndisapproved of a religion, instruction in our public schools “would be reduced to the\\n\\nlowest common denominator.” Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d\\n\\n1373, 1379 (9th Cir. 1994). Such a focus on isolated statements effectively would\\n\\ntransform each student, parent, and by extension, the courts, into de facto “curriculum\\n\\nreview committee[s],” monitoring every sentence for a constitutional violation. Id.\\n\\n School authorities, not the courts, are charged with the responsibility of deciding\\n\\nwhat speech is appropriate in the classroom. See Hazelwood Sch. Dist. v. Kuhlmeier, 484\\n\\nU.S. 260, 267 (1988) (citing Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683\\n\\n(1986)). Although schools are not “immune from the sweep of the First Amendment,”\\n\\nacademic freedom is itself a concern of that amendment. Healy v. James, 408 U.S. 169,\\n\\n180-81 (1972); see also Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226\\n\\n(1985); Keyishian v. Bd. of Regents of Univ. of the State of N.Y., 385 U.S. 589, 603\\n\\n(1967). Such academic freedom would not long survive in an environment in which\\n\\ncourts micromanage school curricula and parse singular statements made by teachers.\\n\\nBecause the challenged materials were presented as part of Wood’s world history\\n\\ncurriculum, it is in that context that we examine them.\\n\\n 2.\\n\\n 9\\n\\f The first prong of the Lemon test asks whether the government’s conduct has an\\n\\n“adequate secular object.” McCreary County, 545 U.S. at 865. This directive requires an\\n\\n“inquiry into the subjective intentions of the government.” Mellen, 327 F.3d at 372\\n\\n(emphasis added). This part of the Lemon test imposes a “fairly low hurdle,” requiring\\n\\nthe government to show that it had a “plausible secular purpose” for its action. Glassman\\n\\nv. Arlington County, 628 F.3d 140, 146 (4th Cir. 2010). Notably, the government’s\\n\\npurpose need not be “exclusively secular.” Brown v. Gilmore, 258 F.3d 265, 276 (4th\\n\\nCir. 2001) (citations omitted). Rather, it is only “[w]hen the government acts with the\\n\\nostensible and predominant purpose of advancing religion” that it violates the\\n\\nEstablishment Clause’s “touchstone” principle of religious neutrality. McCreary County,\\n\\n545 U.S. at 860 (emphasis added). So long as the proffered secular purpose is “genuine,\\n\\nnot a sham, and not merely secondary to a religious objective,” that purpose will satisfy\\n\\nLemon’s first prong. Id. at 864; see Lambeth, 407 F.3d at 270 (“A legitimate secular\\n\\npurpose is . . . sufficient to pass muster under the first prong of the Lemon test, unless the\\n\\nalleged secular purpose is in fact pretextual.”).\\n\\n The Supreme Court has recognized the secular value of studying religion on a\\n\\ncomparative basis. See, e.g., Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 255\\n\\n(1963) (“[I]t might well be said that one’s education is not complete without a study of\\n\\ncomparative religion or the history of religion and its relationship to the advancement of\\n\\ncivilization.”). In this case, the comparative faith statement was part of an academic unit\\n\\nin which students studied Middle Eastern empires and the role of Islam. The unit did not\\n\\nfocus exclusively on Islam’s core principles, but explored “among other things, formation\\n\\n 10\\n\\fof Middle Eastern empires including the basic concepts of the Islamic faith and how it\\n\\nalong with politics, culture, economics, and geography contributed to the development of\\n\\nthose empires.” Nothing in the record indicates that the comparative faith statement was\\n\\nmade with a subjective purpose of advancing Islam over Christianity, or for any other\\n\\npredominately religious purpose. Nor does the record show that the proffered secular\\n\\npurpose of teaching about Muslim empires in the context of world history was pretextual.\\n\\nSee Lambeth, 407 F.3d at 270. Thus, on its face, the comparative faith statement was\\n\\nintroduced for a genuine secular purpose.\\n\\n Similarly, the shahada assignment was a tool designed to assess the students’\\n\\nunderstanding of the lesson on Islam. In total, the worksheet included 17 questions with\\n\\n27 blank entries to be completed by the students on the history of Islam, “beliefs and\\n\\npractices” of Muslims, and links between Islam, Judaism, and Christianity. The students\\n\\nwere not required to memorize the shahada, to recite it, or even to write the complete\\n\\nstatement of faith. Instead, the worksheet included a variety of factual information\\n\\nrelated to Islam and merely asked the students to demonstrate their understanding of the\\n\\nmaterial by completing the partial sentences. This is precisely the sort of academic\\n\\nexercise that the Supreme Court has indicated would not run afoul of the Establishment\\n\\nClause. See Schempp, 374 U.S. at 225 (“Nothing we have said here indicates that such\\n\\nstudy . . . of religion, when presented objectively as part of a secular program of\\n\\neducation, may not be effected consistently with the First Amendment.” (emphasis\\n\\nadded)). Because the school had a predominately secular purpose in teaching world\\n\\n\\n\\n 11\\n\\fhistory, we conclude that both the comparative faith statement and the shahada\\n\\nassignment satisfy the first prong of Lemon.\\n\\n 3.\\n\\n To meet the second prong of Lemon, the challenged government action “must\\n\\nhave a primary effect that neither advances nor inhibits religion.” Moss, 683 F.3d at 608.\\n\\nThis requirement sets an objective standard, which “measure[s] whether the principal\\n\\neffect of government action is to suggest government preference for a particular religious\\n\\nview or for religion in general.” Mellen, 327 F.3d at 374 (citation omitted). We have\\n\\n“refine[d]” this analysis by incorporating the Supreme Court’s “endorsement test,” which\\n\\nasks whether a reasonable, informed observer would conclude that government, by its\\n\\naction, has endorsed a particular religion or religion generally. See id.; see also County of\\n\\nAllegheny, 492 U.S. at 592-94 (adopting the endorsement test in the Establishment\\n\\nClause context). Thus, in this Circuit, the primary effect prong asks whether,\\n\\n“irrespective of government’s actual purpose,” a reasonable, informed observer would\\n\\nunderstand that “the practice under review in fact conveys a message of endorsement or\\n\\ndisapproval” of a religion. Mellen, 327 F.3d at 374 (citation omitted). We presume that a\\n\\n“reasonable observer in the endorsement inquiry” is “aware of the history and context of\\n\\nthe . . . forum in which the religious speech takes place.” Good News Club v. Milford\\n\\nCent. Sch., 533 U.S. 98, 119 (2001) (quoting Capitol Square Review & Advisory Bd. v.\\n\\nPinette, 515 U.S. 753, 779-80 (1995) (O’Connor, J., concurring in part and concurring in\\n\\nthe judgment)).\\n\\n\\n\\n 12\\n\\f The use of both the comparative faith statement and the shahada assignment in\\n\\nWood’s world history class involved no more than having the class read, discuss, and\\n\\nthink about Islam. The comparative faith statement appeared on a slide under the\\n\\nheading “Peaceful Islam v. Radical Fundamental Islam.” The slide itself did not\\n\\nadvocate any belief system but instead focused on the development of Islamic\\n\\nfundamentalism as a political force. And the shahada assignment appeared on the\\n\\nstudent worksheet under the heading “Beliefs and Practices: The Five Pillars.” Thus, the\\n\\nassignment asked the students to identify the tenets of Islam, but did not suggest that a\\n\\nstudent should adopt those beliefs as her own.\\n\\n This is not a case in which students were being asked to participate in a daily\\n\\nreligious exercise, see Lee v. Weisman, 505 U.S. 577, 598-99 (1992) (holding that\\n\\nrequiring students to stand for graduation prayer constituted compelled participation in\\n\\nreligious ritual); Engel v. Vitale, 370 U.S. 421, 424-25 (1962) (striking down state-\\n\\nsponsored prayer due to the inherently religious nature of prayer), or a case in which\\n\\nIslamic beliefs were posted on a classroom wall without explanation, see Stone v.\\n\\nGraham, 449 U.S. 39, 41-42 (1980) (holding that posting the Ten Commandments on a\\n\\npublic school classroom wall violated the Establishment Clause). Rather, the challenged\\n\\nmaterials were “integrated into the school curriculum” and were directly relevant to the\\n\\nsecular lessons being taught. Stone, 449 U.S. at 41-42. These types of educational\\n\\n\\n\\n\\n 13\\n\\fmaterials, which identify the views of a particular religion, 4 do not amount to an\\n\\nendorsement of religion. See id.; see also Parker v. Hurley, 514 F.3d 87, 106 (1st Cir.\\n\\n2008) (“Public schools are not obliged to shield individual students from ideas which\\n\\npotentially are religiously offensive, particularly when the school imposes no requirement\\n\\nthat the student agree with or affirm those ideas.”). A reasonable observer, aware of the\\n\\nworld history curriculum being taught, would not view the challenged materials as\\n\\ncommunicating a message of endorsement.\\n\\n Additionally, we note that the challenged materials constituted only a very small\\n\\npart of the school’s world history curriculum. As we have explained, we must view the\\n\\neffect of the challenged materials within the context in which they were used. See\\n\\nLambeth, 407 F.3d at 271 (examining the primary effect of a religious display “in its\\n\\nparticular setting”). Wood does not argue that the world history class itself advanced any\\n\\nreligion. Indeed, she readily admits that it is permissible to teach “how the Islamic faith\\n\\ncontributed to the development of politics, culture, and geography.” As a matter of\\n\\ncommon sense, an objective observer would not perceive a singular statement such as the\\n\\n 4\\n Although scholars could debate endlessly the content of the comparative faith\\nstatement and its suitability for use in an educational context, the “primary effect” prong\\nof the Lemon test “must be assessed objectively.” Mellen, 327 F.3d at 374. Thus,\\nWood’s argument that the comparative faith statement is a “subjective, biased statement”\\nabout Islam is outside the bounds of our consideration whether use of the statement was\\nconstitutional. For the same reason, Wood’s contention that she viewed the comparative\\nfaith statement as offensive, and that some school officials thought the statement was\\ninappropriate, is unavailing. See Lee, 505 U.S. at 597 (“We do not hold that every state\\naction implicating religion is invalid if one or a few citizens find it offensive.”); Brown,\\n27 F.3d at 1383 (“[A] child’s subjective perception that a state action disapproves of or is\\nhostile toward his or her religion is not, by itself, sufficient to establish an Establishment\\nClause violation.”).\\n\\n 14\\n\\fcomparative faith statement, or a lone question about a religion’s core principle on a fill-\\n\\nin-the-blank assignment, as an endorsement or disapproval of religion. Therefore, we\\n\\nconclude that the primary effect of both the comparative faith statement and the shahada\\n\\nassignment was to teach comparative religion, not to endorse any religious belief.\\n\\nAccordingly, the use of the challenged materials satisfies Lemon’s second prong.\\n\\n 4.\\n\\n The final prong of the Lemon test asks whether the government’s action created\\n\\n“an excessive entanglement between government and religion,” Lambeth, 407 F.3d at\\n\\n272-73 (internal quotation marks omitted), which “is a question of kind and degree,”\\n\\nLynch, 465 U.S. at 684. Excessive entanglement “typically” involves “the government’s\\n\\n‘invasive monitoring’ of certain activities in order to prevent religious speech,” or the\\n\\nfunding of religious schools or instruction. Buxton, 862 F.3d at 433; Comm. for Pub. Ed.\\n\\n& Religious Liberty v. Nyquist, 413 U.S. 756, 770 (1973) (“Primary among those evils\\n\\n[targeted by the Establishment Clause] have been sponsorship, financial support, and\\n\\nactive involvement of the sovereign in religious activity.” (citation omitted)). Excessive\\n\\nentanglement may also be shown when the government’s entanglement has “the effect of\\n\\nadvancing or inhibiting religion.” See Agostini v. Felton, 521 U.S. 203, 232-33 (1997).\\n\\n We need not dwell long on the entanglement prong. As already discussed, neither\\n\\nthe comparative faith statement nor the shahada assignment advanced or inhibited any\\n\\nreligion. And there is no evidence in the record that these materials were obtained from a\\n\\nreligious institution or benefited any such institution. Finally, there is no evidence that\\n\\nuse of the challenged materials resulted in “invasive monitoring” of activities to prevent\\n\\n 15\\n\\for advance religious speech. See, e.g., Bd. of Educ. of Westside Cmty. Sch. v. Mergens,\\n\\n496 U.S. 226, 253 (1990). Under the world history curriculum, it appears that lessons on\\n\\nthe Muslim world constituted, at most, five days of a year-long course. Thus, we\\n\\nconclude that neither the comparative faith statement nor the shahada assignment\\n\\nresulted in an excessive entanglement with religion. Because the challenged materials\\n\\nsatisfy all three prongs of the Lemon test, we hold that the district court properly granted\\n\\nsummary judgment to the defendants on Wood’s Establishment Clause claim. 5\\n\\n B.\\n\\n We next consider Wood’s Free Speech Clause challenge. Wood argues that the\\n\\ndefendants violated her free speech rights by requiring her to complete in writing two\\n\\nmissing words of a portion of the shahada, namely, that “[t]here is no god but Allah and\\n\\nMuhammad is the messenger of Allah.” In her view, “the curriculum implemented and\\n\\nsupervised by [d]efendants compelled [Wood] to confess by written word and deed her\\n\\nfaith in Allah.” We disagree with Wood’s position.\\n\\n Generally, when a governmental entity requires a person “to utter or distribute\\n\\nspeech bearing a particular message,” we subject that requirement to “rigorous scrutiny.”\\n\\nGreater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 879\\n\\n\\n 5\\n In Wood’s amended complaint, she objects to other portions of the world history\\ncurriculum, such as the fact that that Wood was “instructed from the text of the Qur’an,”\\nthat Wood was “instructed . . . that [r]ighteous women are . . . obedient” to men, and that\\nthe course devoted only a single day to the study of Christianity while multiple days were\\nspent studying Islam. Wood waived these arguments by failing to raise them in her\\nopening brief. Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A\\nparty waives an argument by failing to present it in its opening brief.”).\\n\\n 16\\n\\fF.3d 101, 107 (4th Cir. 2018) (citation omitted). In the public school setting, students do\\n\\nnot “shed their constitutional rights to freedom of speech or expression at the\\n\\nschoolhouse gate,” but retain their First Amendment rights “applied in light of the special\\n\\ncharacteristics of the school environment.” Tinker v. Des Moines Indep. Cmty. Sch. Dist.,\\n\\n393 U.S. 503, 506 (1969). However, the Supreme Court has emphasized that students’\\n\\nFirst Amendment rights in public schools “are not automatically coextensive with the\\n\\nrights of adults in other settings.” Kuhlmeier, 484 U.S. at 266.\\n\\n In considering the right against compelled speech in the public school context, the\\n\\nThird Circuit has explained:\\n\\n First Amendment jurisprudence recognizes that the educational process\\n itself may sometimes require a state actor to force a student to speak when\\n the student would rather refrain. A student may also be forced to speak or\\n write on a particular topic even though the student might prefer a different\\n topic. And while a public educational institution may not demand that a\\n student profess beliefs or views with which the student does not agree, a\\n school may in some circumstances require a student to state the arguments\\n that could be made in support of such beliefs or views.\\n\\nC.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 187 (3d Cir. 2005). We agree with the\\n\\nThird Circuit’s reasoning. Although a student’s right against compelled speech in a\\n\\npublic school may be asserted under various circumstances, that right has limited\\n\\napplication in a classroom setting in which a student is asked to study and discuss\\n\\nmaterials with which she disagrees.\\n\\n In the present case, the record is clear that the shahada assignment did not require\\n\\nWood to profess or accept the tenets of Islam. The students were not asked to recite the\\n\\nshahada, nor were they required to engage in any devotional practice related to Islam.\\n\\n\\n 17\\n\\fCf. W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 631-32 (1943) (distinguishing between\\n\\ncompelling students to declare a belief through mandatory recital of the pledge of\\n\\nallegiance, and “merely . . . acquaint[ing students] with the flag salute so that they may be\\n\\ninformed as to what it is or even what it means”). Instead, the shahada assignment\\n\\nrequired Wood to write only two words of the shahada as an academic exercise to\\n\\ndemonstrate her understanding of the world history curriculum. On these facts, we\\n\\nconclude that Wood’s First Amendment right against compelled speech was not violated.\\n\\n\\n\\n III.\\n\\n For these reasons, we affirm the district court’s judgment.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 18\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":558,"cells":{"id":{"kind":"number","value":4589849,"string":"4,589,849"},"name":{"kind":"string","value":"Eduardo Antonio RODRIGUEZ-ARIAS, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent."},"name_abbreviation":{"kind":"string","value":"Eduardo Rodriguez-Arias v. Matthew Whitaker"},"decision_date":{"kind":"string","value":"2019-02-12"},"docket_number":{"kind":"string","value":"17-2211"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before FLOYD and HARRIS, Circuit Judges, and Donald C. COGGINS, United States District Judge for the District of South Carolina, sitting by designation.\", \"parties\": \"\", \"opinions\": [{\"author\": \"FLOYD, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-2211\\n\\n\\nEDUARDO ANTONIO RODRIGUEZ-ARIAS,\\n\\n Petitioner,\\n\\n v.\\n\\nMATTHEW G. WHITAKER, Acting Attorney General,\\n\\n Respondent.\\n\\n\\nOn Petition for Review of an Order of the Board of Immigration Appeals.\\n\\n\\nArgued: October 30, 2018 Decided: February 12, 2019\\n\\n\\nBefore FLOYD and HARRIS, Circuit Judges, and Donald C. COGGINS, United States\\nDistrict Judge for the District of South Carolina, sitting by designation.\\n\\n\\nPetition for review granted; vacated and remanded by published opinion. Judge Floyd\\nwrote the opinion, in which Judge Harris and Judge Coggins joined.\\n\\n\\nARGUED: James Feroli, CATHOLIC CHARITIES IMMIGRATION LEGAL\\nSERVICES, Washington, D.C., for Petitioner. Margot Lynne Carter, UNITED STATES\\nDEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Jennifer\\nBibby-Gerth, CATHOLIC CHARITIES IMMIGRATION LEGAL SERVICES,\\nWashington, D.C., for Petitioner. Chad A. Readler, Acting Assistant Attorney General,\\nTerri J. Scadron, Assistant Director, Leslie McKay, Senior Litigation Counsel, Office of\\nImmigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,\\nWashington, D.C., for Respondent.\\n\\fFLOYD, Circuit Judge:\\n\\n Eduardo Rodriguez-Arias (Rodriguez), a native of El Salvador, petitions for review\\n\\nof the final order of the Board of Immigration Appeals (BIA) affirming the denial of his\\n\\nclaim for protection under the United Nations Convention Against Torture and Other Cruel,\\n\\nInhuman or Degrading Treatment or Punishment (CAT). We grant his petition for review\\n\\nof his CAT claim, vacate the BIA’s order with respect to that claim, and remand for further\\n\\nproceedings consistent with this opinion.\\n\\n\\n\\n I.\\n\\n Rodriguez fled El Salvador’s rampant gang-related violence and crime in 2005,\\n\\nwhen he unlawfully entered the United States as a twelve-year-old. At that time, his\\n\\ngrandparents were being extorted by the gangs, he himself had been robbed twice by them,\\n\\nand his teenage cousin had been killed after refusing to join them. The cause of\\n\\nRodriguez’s flight now forms part of the basis for his claim for relief: Rodriguez fears\\n\\nbeing returned to El Salvador due to the country’s continued high rate of gang-perpetrated\\n\\nviolence. But what’s more, he now also fears violence at the hands of anti-gang vigilante\\n\\ngroups and the state police because today he bears the insignia of gang affiliation on his\\n\\nbody—gang-related tattoos.\\n\\n After he arrived in the United States, Rodriguez moved to Maryland and joined\\n\\nSureños 13, a United States-based gang with no presence in El Salvador. Due to his\\n\\naffiliation with Sureños 13, Rodriguez obtained multiple tattoos that identify him as a gang\\n\\nmember. These include the word “Sureños” on his chest, the phrase “Brown Pride” on his\\n\\n 2\\n\\fstomach, “BPS” and “13” on his left hand, the letter “S” above each of his knees, and\\n\\n“BPS” on his back. A.R. 951–56. Although Rodriguez left Sureños 13 in 2011 or 2012,\\n\\nand has had a face tattoo removed, his other explicitly gang-related tattoos remain.\\n\\n After he was placed in removal proceedings, Rodriguez sought relief from removal\\n\\nunder the CAT. 1 He received an evidentiary hearing before an Immigration Judge (IJ) on\\n\\nMay 16, 2016. At the hearing, Rodriguez testified that he fears returning to El Salvador.\\n\\nBecause of his tattoos, he expects to be targeted by the violent gangs that plague the\\n\\ncountry, who will see him as a rival; by anti-gang vigilante groups, who engage in\\n\\nextrajudicial killings of gang members to protect their communities; and by the police, who\\n\\nuse extreme violence in their anti-gang efforts. Rodriguez explained in his testimony that\\n\\nin El Salvador, having tattoos is seen as an automatic sign of gang membership and people\\n\\ndo not bother investigating whether you are still an active gang member before harming\\n\\nyou. Confirming his fears, a friend of his who, like Rodriguez, had once belonged to\\n\\nSureños 13 was killed within a week after being deported to El Salvador.\\n\\n Indeed, Rodriguez testified that even after he left Sureños 13, his tattoos have made\\n\\nhim a target of violence at the hands of Salvadoran gangs operating in the United States.\\n\\nOn one occasion, he was chased by ten to twenty men dressed in blue, the color worn by\\n\\nthe notorious Mara Salvatrucha or MS-13 gang. On another occasion he was walking near\\n\\nhis home when an MS-13 member struck him with a bat, and on still another occasion\\n\\n\\n\\n 1\\n Rodriguez also applied for asylum and for withholding of removal but did not\\nappeal the denial of those forms of relief.\\n\\n 3\\n\\fsomeone hit him with a chair when he visited a restaurant frequented by MS-13 members.\\n\\nRodriguez has also been threatened by rival gangs while in immigration detention. An\\n\\nMS-13 member in detention told Rodriguez that as soon as he arrives in El Salvador, MS-\\n\\n13 will find him and kill him. Two members of the 18th Street gang told him that in El\\n\\nSalvador, 18th Street will look for him and will “have fun with” his body. A.R. 440.\\n\\n In addition to his own testimony, Rodriguez provided evidence from five expert\\n\\nwitnesses about how gang members or suspected gang members routinely experience\\n\\nextreme violence in El Salvador at the hands of other gangs, numerous vigilante groups,\\n\\nand police forces. He also produced the U.S. Department of State 2015 and 2014 Country\\n\\nReports on El Salvador, the asylum eligibility guidelines for El Salvador from the United\\n\\nNations High Commissioner for Refugees, and approximately thirty articles from various\\n\\nscholarly and news sources describing the appallingly violent conditions in El Salvador.\\n\\nIn all, he provided over 300 pages of documentation.\\n\\n The IJ denied Rodriguez’s application for relief. She devoted less than one page of\\n\\nher opinion to the CAT claim and limited her risk-of-torture analysis to the risks that\\n\\nRodriguez faced from gangs and the police. On appeal, the BIA remanded the case so that\\n\\nthe IJ could address Rodriguez’s risk of torture from vigilante groups as well. Nowhere in\\n\\nthe two-page remand order did the BIA state that the IJ’s original opinion had been vacated\\n\\nor reversed.\\n\\n On remand, Rodriguez provided additional country-conditions evidence relating to\\n\\nhis risk of torture in El Salvador. The IJ then issued a supplemental opinion, which\\n\\nincorporated her first opinion by reference and provided new analysis on only those topics\\n\\n 4\\n\\fthat the BIA had ordered addressed. The IJ again denied CAT relief, this time devoting\\n\\nthree pages to the topic. On Rodriguez’s second appeal, the BIA reviewed the IJ opinions\\n\\ntogether, adopted both, and supplemented them with additional reasoning. In the BIA’s\\n\\ntwo pages of CAT analysis, it did not refer specifically to any of the evidence provided by\\n\\nRodriguez. This petition for review timely followed.\\n\\n\\n\\n II.\\n\\n When making a CAT claim, the alien seeking relief has the burden to show that “it\\n\\nis more likely than not that he or she would be tortured” in the country of removal. 8 C.F.R.\\n\\n§ 1208.16(c)(2) (2012). Torture is defined as (1) “any act by which severe pain or\\n\\nsuffering, whether physical or mental, is intentionally inflicted on a person” in a manner\\n\\nthat is (2) “by or at the instigation of or with the consent or acquiescence of a public official\\n\\nor other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1) (2012). Public\\n\\nofficials acquiesce to torture when, “prior to the activity constituting torture, [they] have\\n\\nawareness of such activity and thereafter breach [their] legal responsibility to intervene to\\n\\nprevent such activity.” 8 C.F.R. § 1208.18(a)(7). Public officials breach their\\n\\nresponsibility to intervene when they engage in “willful blindness” or “turn a blind eye to\\n\\ntorture.” Suarez-Valenzuela v. Holder, 714 F.3d 241, 245 (4th Cir. 2013) (quoting\\n\\nOntunez–Tursios v. Ashcroft, 303 F.3d 341, 355 (5th Cir. 2002)). Public officials need not\\n\\nhave actual knowledge of torture to have engaged in willful blindness. Id. When\\n\\ndetermining whether the willful-blindness standard has been met, “immigration judges\\n\\nshould consider evidence of past torture, evidence of ‘gross, flagrant or mass violations of\\n\\n 5\\n\\fhuman rights,’ the country’s conditions, and whether the applicant could relocate to a part\\n\\nof the country where he or she is unlikely to be tortured.” Id. (quoting 8 C.F.R.\\n\\n§ 1208.16(c)(3) (2012)).\\n\\n In reviewing the denial of a CAT claim, we review the agency’s finding of fact for\\n\\nsubstantial evidence. See Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010). In the\\n\\nimmigration context, this standard means that “administrative findings of fact are\\n\\nconclusive unless any reasonable adjudicator would be compelled to conclude to the\\n\\ncontrary.” 8 U.S.C. § 1252(b)(4)(B) (2012); Suarez-Valenzuela, 714 F.3d at 245. Legal\\n\\ndeterminations, however, are reviewed de novo. Hui Zheng v. Holder, 562 F.3d 647, 651\\n\\n(4th Cir. 2009). Although the BIA may be granted Chevron deference when it decides\\n\\nmatters of statutory interpretation, such deference is not granted where, as here, the BIA\\n\\nissued a nonprecedential opinion authored by a single member. Martinez v. Holder, 740\\n\\nF.3d 902, 909 (4th Cir. 2014); Turkson, 667 F.3d at 527; see Chevron, U.S.A., Inc. v.\\n\\nNatural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).\\n\\n We may also overturn the BIA’s determinations if we conclude that the BIA abused\\n\\nits discretion. Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). “The BIA may be held\\n\\nto have abused its discretion if it failed to offer a reasoned explanation for its decision, or\\n\\nif it distorted or disregarded important aspects of the applicant’s claim.” Id. Finally,\\n\\nbecause the BIA here “adopted and supplemented an IJ decision, we are obliged to review\\n\\nboth rulings.” Id.\\n\\n\\n\\n III.\\n\\n 6\\n\\f In his petition for review, Rodriguez first argues that the BIA made a legal error\\n\\nwhen it denied him CAT relief because it failed to aggregate his risk of torture from all\\n\\nthree of the entities that he fears: gangs, vigilante groups, and the police. We agree.\\n\\n The CAT implementing regulations provide that when “assessing whether it is more\\n\\nlikely than not that an applicant would be tortured in the proposed country of removal, all\\n\\nevidence relevant to the possibility of future torture shall be considered.” 8 C.F.R.\\n\\n§ 1208.16(c)(3) (2012) (emphasis added). The Ninth Circuit has read this requirement to\\n\\nmean that “CAT claims must be considered in terms of the aggregate risk of torture from\\n\\nall sources, and not as separate, divisible CAT claims.” Quijada-Aguilar v. Lynch, 799\\n\\nF.3d 1303, 1308 (9th Cir. 2015). The Third Circuit agrees. In a case where the CAT\\n\\napplicant feared torture from two different entities, the Third Circuit explained that “[a]\\n\\nproper application of the regulations . . . merely requires [the applicant] to establish that it\\n\\nis more likely than not that he faces torture . . . when the two entities are considered\\n\\ntogether”—in other words, when “the cumulative probability of torture by the two entities\\n\\nexceeds 50%.” Kamara v. Attorney General, 420 F.3d 202, 213–14 (3d Cir. 2005)\\n\\n(demonstrating the aggregation analysis by adding a 27% likelihood of torture from one\\n\\nentity to a 28% of torture from another entity for a combined risk of torture of 55%, which\\n\\nmerited CAT relief); see also Matter of G-A-, 23 I. & N. Dec. 366, 366, 368 (BIA 2002)\\n\\n(en banc) (explaining in a case where the CAT applicant feared that he would be tortured\\n\\nbased on several factors, including “his religion, his ethnicity, the duration of his residence\\n\\nin the United States, and his drug-related convictions,” that “the evidence of record, when\\n\\nconsidered in the aggregate, supports the respondent’s contention that he would more\\n\\n 7\\n\\flikely than not be tortured upon his return to Iran” (emphasis added)). No other U.S. Courts\\n\\nof Appeals have disagreed with this analysis.\\n\\n We now join our sister circuits and hold that the risks of torture from all sources\\n\\nshould be combined when determining whether a CAT applicant is more likely than not to\\n\\nbe tortured in a particular country. That interpretation is most consistent with both the\\n\\nimplementing regulations and our treaty obligations not to return individuals to a country\\n\\nwhere they face a substantial risk of torture. See United States v. Belfast, 611 F.3d 783,\\n\\n806–07 (11th Cir. 2010) (explaining that “settled rules of treaty interpretation require that\\n\\nwe construe the CAT generously”); see also Pierre v. Gonzales, 502 F.3d 109, 114–16 (2d\\n\\nCir. 2007) (explaining that courts owe deference to the executive branch’s treaty\\n\\ninterpretation as expressed through implementing regulations). We therefore confirm that\\n\\nthe aggregation analysis described by the Ninth and Third Circuits is required when\\n\\nassessing an applicant’s risk of torture.\\n\\n While the government concedes that the BIA should have aggregated the risk of\\n\\ntorture that Rodriguez faces in El Salvador, it nevertheless argues that there was no error\\n\\nbelow because both the BIA and IJ did “consider Rodriguez’s claim for relief\\n\\ncumulatively.” Appellee Br. at 26. We disagree. In her first order, the IJ addressed only\\n\\nthe risks that Rodriguez faced from gangs and the police, with no mention of vigilante\\n\\ngroups. In her second order, the IJ simply stated: “Respondent has failed to demonstrate\\n\\nthat it is more likely than not that he would be tortured by vigilante groups[.]” A.R. 124.\\n\\nAt no point did she consider the aggregated risk caused by all three entities in unison by\\n\\n\\n\\n 8\\n\\fadding the probability of torture from each entity and determining whether that sum\\n\\nexceeded 50%.\\n\\n The BIA, in turn, devoted no space in its final order to aggregating risk. Instead, it\\n\\nasserted the rule that “[a]n alien’s eligibility for [CAT] protection cannot be established by\\n\\nstringing together a series of suppositions to show that it is more likely than not that torture\\n\\nwill result,” unless the evidence “establish[es] that each step in the hypothetical chain of\\n\\nevents is more likely than not to happen,” citing a BIA opinion as support. A.R. 007. Then,\\n\\nwithout citing to or describing any of Rodriguez’s evidence, the BIA simply stated:\\n\\n“[Rodriguez] has not shown that his hypothetical chain of events is more likely than not to\\n\\nhappen.” A.R. 008. But Rodriguez never attempted to prove a string of events. Instead,\\n\\nhe has consistently asserted that due to his tattoos, he fears torture from three separate\\n\\nentities: police, gangs, and vigilante groups. The proper response to Rodriguez’s fears is\\n\\nto add the amount of risk that each group poses to him and then determine whether that\\n\\nsum is greater than 50%. The BIA failed to do that analysis here, necessitating remand. 2\\n\\n\\n 2\\n The BIA also cited two cases to support its determination that Rodriguez’s tattoos\\nwould not put him at substantial risk of torture in El Salvador. The Court is not persuaded\\nby these cases for several reasons. First, CAT claims are highly fact specific, which means\\nthat one applicant may be able to show a substantial risk of torture in El Salvador due to\\nhis tattoos while another may not. Huang v. Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2004).\\nSecond, the cases cited by the BIA are readily distinguishable. In Castillo-Pena v. Holder,\\n482 F. App’x 847 (4th Cir. 2012), the Court found that an unrepresented applicant had\\nfailed to show that it was more likely than not that he would be tortured by Salvadoran\\npolice because of his tattoos. The case did not address the combined risks posed by police,\\nvigilante groups, and gangs in El Salvador. Id. at 848. In the second, Andrade v. Lynch,\\n798 F.3d 1242 (9th Cir. 2015), the Ninth Circuit affirmed the BIA’s denial of CAT relief\\nto a Salvadoran applicant who had two discreet non-gang-related tattoos. Id. at 1245.\\nHowever, those tattoos—which were merely his and his girlfriend’s initials—do not pose\\n(Continued)\\n 9\\n\\f IV.\\n\\n Rodriguez also argues that the BIA and IJ erred by (1) failing to meaningfully\\n\\nengage with the live testimony and over 300 pages of documentary evidence that he\\n\\noriginally produced in support of his claim, and (2) failing to meaningfully consider the\\n\\nadditional evidence that he submitted on remand about the risk of torture that he faces in\\n\\nEl Salvador. We agree.\\n\\n It is an abuse of discretion for the BIA or IJ to arbitrarily ignore relevant evidence.\\n\\nBaharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009); Tassi, 660 F.3d at 719. “Those who\\n\\nflee persecution and seek refuge under our laws have the right to know that the evidence\\n\\nthey present of mistreatment in their home country will be fairly considered and weighed\\n\\nby those who decide their fate.” Baharon, 588 F.3d at 233. Therefore, it is this Court’s\\n\\nresponsibility to “ensure that unrebutted, legally significant evidence is not arbitrarily\\n\\nignored by the factfinder.” Id. Moreover, the BIA’s or IJ’s failure to engage with an\\n\\napplicant’s evidence hampers our ability to meaningfully review what was decided below.\\n\\nZelaya v. Holder, 668 F.3d 159, 168 (4th Cir. 2012). Hence, a wholesale “failure [by] the\\n\\n\\n\\nthe same level of risk as the plentiful and conspicuous gang tattoos on Rodriguez. Indeed,\\nthe case most similar to the one at bar was not even cited by the BIA and supports\\nRodriguez’s CAT claim here. In Cole v. Holder, 659 F.3d 762 (9th Cir. 2011), a former\\ngang member with conspicuous gang tattoos on his face, calves, arms, and back sought\\nCAT relief because he feared that he would be tortured by the gangs, police forces, and\\nanti-gang death squads in his native Honduras. Id. at 765. The Ninth Circuit vacated and\\nremanded the BIA’s denial of CAT relief because it determined that the BIA had failed to\\naggregate the risk of torture that these three entities posed to an individual with multiple\\nand conspicuous gang tattoos. Id. at 775.\\n\\n 10\\n\\fIJ and BIA to consider evidence of country conditions constitutes reversible error.”\\n\\nAguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010); see also Ai Hua Chen v.\\n\\nHolder, 742 F.3d 171, 179 (4th Cir. 2014) (explaining that the IJ and BIA must “offer a\\n\\nspecific, cogent reason for rejecting evidence”).\\n\\n The IJ did not meaningfully address the evidence that Rodriguez provided about\\n\\ncountry conditions in El Salvador, especially the Salvadoran government’s behavior\\n\\ntowards gang members and suspected gang members. In her first opinion, she\\n\\nacknowledged that there are “some instances of torture of gang members and former gang\\n\\nmembers by the police in El Salvador,” but then asserted that the “evidence does not\\n\\nsupport” the likelihood that the harm inflicted on Rodriguez would be with the\\n\\ngovernment’s acquiescence. A.R. 372. There was no other analysis. In her second\\n\\nopinion, the IJ admitted that “[t]he evidence does indicate that Salvadoran authorities have\\n\\nrecently failed to address many instances of vigilante violence.” A.R. 125. But she again\\n\\nfound that Rodriguez’s evidence was insufficient, this time because Salvadoran law\\n\\n“prohibits extrajudicial killings and violence” and there have been some efforts by the\\n\\ngovernment to investigate extrajudicial killings. A.R. 125. The IJ did not address\\n\\nRodriguez’s extensive evidence about the government’s willingness to use torture on\\n\\nsuspected gang members or its willingness to turn a blind eye to the extreme violence\\n\\nbetween rival gangs and between gangs and vigilante groups. This evidence included:\\n\\n 1) El Salvador passed a law in November 2013 that protects police officers who\\n kill in the line of duty, which resulted in a spike of extrajudicial killings, A.R.\\n 536;\\n 2) Salvadoran police officers routinely drop off suspected gang members in a rival\\n gang’s territory so that they will be tortured or killed by the rival gang, A.R. 536;\\n\\n 11\\n\\f 3) While El Salvador has announced investigations of several extrajudicial killings,\\n the 2015 Country Report stated that these investigations have not resulted in any\\n convictions, A.R. 605;\\n 4) In January 2016, there were 738 murders in El Salvador, of which 28.6% were\\n of alleged gang members, despite the fact that less than 2% of Salvadorans are\\n in gangs, A.R. 567.\\n\\n The IJ’s failure to meaningfully engage with Rodriguez’s evidence was not\\n\\nremedied on appeal. In its review, both originally and after remand, the BIA did not engage\\n\\nwith Rodriguez’s evidence at all.\\n\\n This wholesale failure to fully consider Rodriguez’s country-conditions evidence\\n\\nconstitutes reversible error. Denying Rodriguez’s claim for CAT relief required more—\\n\\nmuch more—from both the BIA and the IJ. On remand, the BIA must interact seriously\\n\\nwith the full panoply of the risk-of-torture evidence submitted by Rodriguez, recognizing\\n\\nthat “country conditions alone can play a decisive role in granting relief under the [CAT].”\\n\\nKamalthus v. I.N.S., 251 F.3d 1279, 1280 (9th Cir. 2001); Aguilar-Ramos v. Holder, 594\\n\\nF.3d 701, 705 (9th Cir. 2010) (“[A] CAT applicant may satisfy his burden with evidence\\n\\nof country conditions alone.”). When a man’s life is on the line, he is entitled to know that\\n\\nthe court deciding his claim reviewed all his evidence, understood it, and had a cogent,\\n\\narticulable basis for its determination that his evidence was insufficient. The BIA and IJ\\n\\nboth failed to provide such a cogent, articulable basis here.\\n\\n\\n\\n\\n 12\\n\\f V.\\n\\n In conclusion, we grant Rodriguez’s petition for review of his CAT claim, vacate\\n\\nthe BIA’s decision with respect to that claim, and remand for further proceedings consistent\\n\\nwith this opinion.\\n\\n\\n\\n PETITION FOR REVIEW GRANTED; VACATED AND REMANDED\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4367102/\", \"author_raw\": \"FLOYD, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"FLOYD"},"judge2":{"kind":"string","value":"HARRIS"},"judge3":{"kind":"string","value":"DONALD C COGGINS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"FLOYD\": \", Circuit\", \"HARRIS\": \", Circuit\", \"C COGGINS\": \", United States District\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4589849/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Eduardo Antonio RODRIGUEZ-ARIAS, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-12\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-2211\n\n\nEDUARDO ANTONIO RODRIGUEZ-ARIAS,\n\n Petitioner,\n\n v.\n\nMATTHEW G. WHITAKER, Acting Attorney General,\n\n Respondent.\n\n\nOn Petition for Review of an Order of the Board of Immigration Appeals.\n\n\nArgued: October 30, 2018 Decided: February 12, 2019\n\n\nBefore FLOYD and HARRIS, Circuit Judges, and Donald C. COGGINS, United States\nDistrict Judge for the District of South Carolina, sitting by designation.\n\n\nPetition for review granted; vacated and remanded by published opinion. Judge Floyd\nwrote the opinion, in which Judge Harris and Judge Coggins joined.\n\n\nARGUED: James Feroli, CATHOLIC CHARITIES IMMIGRATION LEGAL\nSERVICES, Washington, D.C., for Petitioner. Margot Lynne Carter, UNITED STATES\nDEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Jennifer\nBibby-Gerth, CATHOLIC CHARITIES IMMIGRATION LEGAL SERVICES,\nWashington, D.C., for Petitioner. Chad A. Readler, Acting Assistant Attorney General,\nTerri J. Scadron, Assistant Director, Leslie McKay, Senior Litigation Counsel, Office of\nImmigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,\nWashington, D.C., for Respondent.\n\fFLOYD, Circuit Judge:\n\n Eduardo Rodriguez-Arias (Rodriguez), a native of El Salvador, petitions for review\n\nof the final order of the Board of Immigration Appeals (BIA) affirming the denial of his\n\nclaim for protection under the United Nations Convention Against Torture and Other Cruel,\n\nInhuman or Degrading Treatment or Punishment (CAT). We grant his petition for review\n\nof his CAT claim, vacate the BIA’s order with respect to that claim, and remand for further\n\nproceedings consistent with this opinion.\n\n\n\n I.\n\n Rodriguez fled El Salvador’s rampant gang-related violence and crime in 2005,\n\nwhen he unlawfully entered the United States as a twelve-year-old. At that time, his\n\ngrandparents were being extorted by the gangs, he himself had been robbed twice by them,\n\nand his teenage cousin had been killed after refusing to join them. The cause of\n\nRodriguez’s flight now forms part of the basis for his claim for relief: Rodriguez fears\n\nbeing returned to El Salvador due to the country’s continued high rate of gang-perpetrated\n\nviolence. But what’s more, he now also fears violence at the hands of anti-gang vigilante\n\ngroups and the state police because today he bears the insignia of gang affiliation on his\n\nbody—gang-related tattoos.\n\n After he arrived in the United States, Rodriguez moved to Maryland and joined\n\nSureños 13, a United States-based gang with no presence in El Salvador. Due to his\n\naffiliation with Sureños 13, Rodriguez obtained multiple tattoos that identify him as a gang\n\nmember. These include the word “Sureños” on his chest, the phrase “Brown Pride” on his\n\n 2\n\fstomach, “BPS” and “13” on his left hand, the letter “S” above each of his knees, and\n\n“BPS” on his back. A.R. 951–56. Although Rodriguez left Sureños 13 in 2011 or 2012,\n\nand has had a face tattoo removed, his other explicitly gang-related tattoos remain.\n\n After he was placed in removal proceedings, Rodriguez sought relief from removal\n\nunder the CAT. 1 He received an evidentiary hearing before an Immigration Judge (IJ) on\n\nMay 16, 2016. At the hearing, Rodriguez testified that he fears returning to El Salvador.\n\nBecause of his tattoos, he expects to be targeted by the violent gangs that plague the\n\ncountry, who will see him as a rival; by anti-gang vigilante groups, who engage in\n\nextrajudicial killings of gang members to protect their communities; and by the police, who\n\nuse extreme violence in their anti-gang efforts. Rodriguez explained in his testimony that\n\nin El Salvador, having tattoos is seen as an automatic sign of gang membership and people\n\ndo not bother investigating whether you are still an active gang member before harming\n\nyou. Confirming his fears, a friend of his who, like Rodriguez, had once belonged to\n\nSureños 13 was killed within a week after being deported to El Salvador.\n\n Indeed, Rodriguez testified that even after he left Sureños 13, his tattoos have made\n\nhim a target of violence at the hands of Salvadoran gangs operating in the United States.\n\nOn one occasion, he was chased by ten to twenty men dressed in blue, the color worn by\n\nthe notorious Mara Salvatrucha or MS-13 gang. On another occasion he was walking near\n\nhis home when an MS-13 member struck him with a bat, and on still another occasion\n\n\n\n 1\n Rodriguez also applied for asylum and for withholding of removal but did not\nappeal the denial of those forms of relief.\n\n 3\n\fsomeone hit him with a chair when he visited a restaurant frequented by MS-13 members.\n\nRodriguez has also been threatened by rival gangs while in immigration detention. An\n\nMS-13 member in detention told Rodriguez that as soon as he arrives in El Salvador, MS-\n\n13 will find him and kill him. Two members of the 18th Street gang told him that in El\n\nSalvador, 18th Street will look for him and will “have fun with” his body. A.R. 440.\n\n In addition to his own testimony, Rodriguez provided evidence from five expert\n\nwitnesses about how gang members or suspected gang members routinely experience\n\nextreme violence in El Salvador at the hands of other gangs, numerous vigilante groups,\n\nand police forces. He also produced the U.S. Department of State 2015 and 2014 Country\n\nReports on El Salvador, the asylum eligibility guidelines for El Salvador from the United\n\nNations High Commissioner for Refugees, and approximately thirty articles from various\n\nscholarly and news sources describing the appallingly violent conditions in El Salvador.\n\nIn all, he provided over 300 pages of documentation.\n\n The IJ denied Rodriguez’s application for relief. She devoted less than one page of\n\nher opinion to the CAT claim and limited her risk-of-torture analysis to the risks that\n\nRodriguez faced from gangs and the police. On appeal, the BIA remanded the case so that\n\nthe IJ could address Rodriguez’s risk of torture from vigilante groups as well. Nowhere in\n\nthe two-page remand order did the BIA state that the IJ’s original opinion had been vacated\n\nor reversed.\n\n On remand, Rodriguez provided additional country-conditions evidence relating to\n\nhis risk of torture in El Salvador. The IJ then issued a supplemental opinion, which\n\nincorporated her first opinion by reference and provided new analysis on only those topics\n\n 4\n\fthat the BIA had ordered addressed. The IJ again denied CAT relief, this time devoting\n\nthree pages to the topic. On Rodriguez’s second appeal, the BIA reviewed the IJ opinions\n\ntogether, adopted both, and supplemented them with additional reasoning. In the BIA’s\n\ntwo pages of CAT analysis, it did not refer specifically to any of the evidence provided by\n\nRodriguez. This petition for review timely followed.\n\n\n\n II.\n\n When making a CAT claim, the alien seeking relief has the burden to show that “it\n\nis more likely than not that he or she would be tortured” in the country of removal. 8 C.F.R.\n\n§ 1208.16(c)(2) (2012). Torture is defined as (1) “any act by which severe pain or\n\nsuffering, whether physical or mental, is intentionally inflicted on a person” in a manner\n\nthat is (2) “by or at the instigation of or with the consent or acquiescence of a public official\n\nor other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1) (2012). Public\n\nofficials acquiesce to torture when, “prior to the activity constituting torture, [they] have\n\nawareness of such activity and thereafter breach [their] legal responsibility to intervene to\n\nprevent such activity.” 8 C.F.R. § 1208.18(a)(7). Public officials breach their\n\nresponsibility to intervene when they engage in “willful blindness” or “turn a blind eye to\n\ntorture.” Suarez-Valenzuela v. Holder, 714 F.3d 241, 245 (4th Cir. 2013) (quoting\n\nOntunez–Tursios v. Ashcroft, 303 F.3d 341, 355 (5th Cir. 2002)). Public officials need not\n\nhave actual knowledge of torture to have engaged in willful blindness. Id. When\n\ndetermining whether the willful-blindness standard has been met, “immigration judges\n\nshould consider evidence of past torture, evidence of ‘gross, flagrant or mass violations of\n\n 5\n\fhuman rights,’ the country’s conditions, and whether the applicant could relocate to a part\n\nof the country where he or she is unlikely to be tortured.” Id. (quoting 8 C.F.R.\n\n§ 1208.16(c)(3) (2012)).\n\n In reviewing the denial of a CAT claim, we review the agency’s finding of fact for\n\nsubstantial evidence. See Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010). In the\n\nimmigration context, this standard means that “administrative findings of fact are\n\nconclusive unless any reasonable adjudicator would be compelled to conclude to the\n\ncontrary.” 8 U.S.C. § 1252(b)(4)(B) (2012); Suarez-Valenzuela, 714 F.3d at 245. Legal\n\ndeterminations, however, are reviewed de novo. Hui Zheng v. Holder, 562 F.3d 647, 651\n\n(4th Cir. 2009). Although the BIA may be granted Chevron deference when it decides\n\nmatters of statutory interpretation, such deference is not granted where, as here, the BIA\n\nissued a nonprecedential opinion authored by a single member. Martinez v. Holder, 740\n\nF.3d 902, 909 (4th Cir. 2014); Turkson, 667 F.3d at 527; see Chevron, U.S.A., Inc. v.\n\nNatural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).\n\n We may also overturn the BIA’s determinations if we conclude that the BIA abused\n\nits discretion. Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). “The BIA may be held\n\nto have abused its discretion if it failed to offer a reasoned explanation for its decision, or\n\nif it distorted or disregarded important aspects of the applicant’s claim.” Id. Finally,\n\nbecause the BIA here “adopted and supplemented an IJ decision, we are obliged to review\n\nboth rulings.” Id.\n\n\n\n III.\n\n 6\n\f In his petition for review, Rodriguez first argues that the BIA made a legal error\n\nwhen it denied him CAT relief because it failed to aggregate his risk of torture from all\n\nthree of the entities that he fears: gangs, vigilante groups, and the police. We agree.\n\n The CAT implementing regulations provide that when “assessing whether it is more\n\nlikely than not that an applicant would be tortured in the proposed country of removal, all\n\nevidence relevant to the possibility of future torture shall be considered.” 8 C.F.R.\n\n§ 1208.16(c)(3) (2012) (emphasis added). The Ninth Circuit has read this requirement to\n\nmean that “CAT claims must be considered in terms of the aggregate risk of torture from\n\nall sources, and not as separate, divisible CAT claims.” Quijada-Aguilar v. Lynch, 799\n\nF.3d 1303, 1308 (9th Cir. 2015). The Third Circuit agrees. In a case where the CAT\n\napplicant feared torture from two different entities, the Third Circuit explained that “[a]\n\nproper application of the regulations . . . merely requires [the applicant] to establish that it\n\nis more likely than not that he faces torture . . . when the two entities are considered\n\ntogether”—in other words, when “the cumulative probability of torture by the two entities\n\nexceeds 50%.” Kamara v. Attorney General, 420 F.3d 202, 213–14 (3d Cir. 2005)\n\n(demonstrating the aggregation analysis by adding a 27% likelihood of torture from one\n\nentity to a 28% of torture from another entity for a combined risk of torture of 55%, which\n\nmerited CAT relief); see also Matter of G-A-, 23 I. & N. Dec. 366, 366, 368 (BIA 2002)\n\n(en banc) (explaining in a case where the CAT applicant feared that he would be tortured\n\nbased on several factors, including “his religion, his ethnicity, the duration of his residence\n\nin the United States, and his drug-related convictions,” that “the evidence of record, when\n\nconsidered in the aggregate, supports the respondent’s contention that he would more\n\n 7\n\flikely than not be tortured upon his return to Iran” (emphasis added)). No other U.S. Courts\n\nof Appeals have disagreed with this analysis.\n\n We now join our sister circuits and hold that the risks of torture from all sources\n\nshould be combined when determining whether a CAT applicant is more likely than not to\n\nbe tortured in a particular country. That interpretation is most consistent with both the\n\nimplementing regulations and our treaty obligations not to return individuals to a country\n\nwhere they face a substantial risk of torture. See United States v. Belfast, 611 F.3d 783,\n\n806–07 (11th Cir. 2010) (explaining that “settled rules of treaty interpretation require that\n\nwe construe the CAT generously”); see also Pierre v. Gonzales, 502 F.3d 109, 114–16 (2d\n\nCir. 2007) (explaining that courts owe deference to the executive branch’s treaty\n\ninterpretation as expressed through implementing regulations). We therefore confirm that\n\nthe aggregation analysis described by the Ninth and Third Circuits is required when\n\nassessing an applicant’s risk of torture.\n\n While the government concedes that the BIA should have aggregated the risk of\n\ntorture that Rodriguez faces in El Salvador, it nevertheless argues that there was no error\n\nbelow because both the BIA and IJ did “consider Rodriguez’s claim for relief\n\ncumulatively.” Appellee Br. at 26. We disagree. In her first order, the IJ addressed only\n\nthe risks that Rodriguez faced from gangs and the police, with no mention of vigilante\n\ngroups. In her second order, the IJ simply stated: “Respondent has failed to demonstrate\n\nthat it is more likely than not that he would be tortured by vigilante groups[.]” A.R. 124.\n\nAt no point did she consider the aggregated risk caused by all three entities in unison by\n\n\n\n 8\n\fadding the probability of torture from each entity and determining whether that sum\n\nexceeded 50%.\n\n The BIA, in turn, devoted no space in its final order to aggregating risk. Instead, it\n\nasserted the rule that “[a]n alien’s eligibility for [CAT] protection cannot be established by\n\nstringing together a series of suppositions to show that it is more likely than not that torture\n\nwill result,” unless the evidence “establish[es] that each step in the hypothetical chain of\n\nevents is more likely than not to happen,” citing a BIA opinion as support. A.R. 007. Then,\n\nwithout citing to or describing any of Rodriguez’s evidence, the BIA simply stated:\n\n“[Rodriguez] has not shown that his hypothetical chain of events is more likely than not to\n\nhappen.” A.R. 008. But Rodriguez never attempted to prove a string of events. Instead,\n\nhe has consistently asserted that due to his tattoos, he fears torture from three separate\n\nentities: police, gangs, and vigilante groups. The proper response to Rodriguez’s fears is\n\nto add the amount of risk that each group poses to him and then determine whether that\n\nsum is greater than 50%. The BIA failed to do that analysis here, necessitating remand. 2\n\n\n 2\n The BIA also cited two cases to support its determination that Rodriguez’s tattoos\nwould not put him at substantial risk of torture in El Salvador. The Court is not persuaded\nby these cases for several reasons. First, CAT claims are highly fact specific, which means\nthat one applicant may be able to show a substantial risk of torture in El Salvador due to\nhis tattoos while another may not. Huang v. Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2004).\nSecond, the cases cited by the BIA are readily distinguishable. In Castillo-Pena v. Holder,\n482 F. App’x 847 (4th Cir. 2012), the Court found that an unrepresented applicant had\nfailed to show that it was more likely than not that he would be tortured by Salvadoran\npolice because of his tattoos. The case did not address the combined risks posed by police,\nvigilante groups, and gangs in El Salvador. Id. at 848. In the second, Andrade v. Lynch,\n798 F.3d 1242 (9th Cir. 2015), the Ninth Circuit affirmed the BIA’s denial of CAT relief\nto a Salvadoran applicant who had two discreet non-gang-related tattoos. Id. at 1245.\nHowever, those tattoos—which were merely his and his girlfriend’s initials—do not pose\n(Continued)\n 9\n\f IV.\n\n Rodriguez also argues that the BIA and IJ erred by (1) failing to meaningfully\n\nengage with the live testimony and over 300 pages of documentary evidence that he\n\noriginally produced in support of his claim, and (2) failing to meaningfully consider the\n\nadditional evidence that he submitted on remand about the risk of torture that he faces in\n\nEl Salvador. We agree.\n\n It is an abuse of discretion for the BIA or IJ to arbitrarily ignore relevant evidence.\n\nBaharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009); Tassi, 660 F.3d at 719. “Those who\n\nflee persecution and seek refuge under our laws have the right to know that the evidence\n\nthey present of mistreatment in their home country will be fairly considered and weighed\n\nby those who decide their fate.” Baharon, 588 F.3d at 233. Therefore, it is this Court’s\n\nresponsibility to “ensure that unrebutted, legally significant evidence is not arbitrarily\n\nignored by the factfinder.” Id. Moreover, the BIA’s or IJ’s failure to engage with an\n\napplicant’s evidence hampers our ability to meaningfully review what was decided below.\n\nZelaya v. Holder, 668 F.3d 159, 168 (4th Cir. 2012). Hence, a wholesale “failure [by] the\n\n\n\nthe same level of risk as the plentiful and conspicuous gang tattoos on Rodriguez. Indeed,\nthe case most similar to the one at bar was not even cited by the BIA and supports\nRodriguez’s CAT claim here. In Cole v. Holder, 659 F.3d 762 (9th Cir. 2011), a former\ngang member with conspicuous gang tattoos on his face, calves, arms, and back sought\nCAT relief because he feared that he would be tortured by the gangs, police forces, and\nanti-gang death squads in his native Honduras. Id. at 765. The Ninth Circuit vacated and\nremanded the BIA’s denial of CAT relief because it determined that the BIA had failed to\naggregate the risk of torture that these three entities posed to an individual with multiple\nand conspicuous gang tattoos. Id. at 775.\n\n 10\n\fIJ and BIA to consider evidence of country conditions constitutes reversible error.”\n\nAguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010); see also Ai Hua Chen v.\n\nHolder, 742 F.3d 171, 179 (4th Cir. 2014) (explaining that the IJ and BIA must “offer a\n\nspecific, cogent reason for rejecting evidence”).\n\n The IJ did not meaningfully address the evidence that Rodriguez provided about\n\ncountry conditions in El Salvador, especially the Salvadoran government’s behavior\n\ntowards gang members and suspected gang members. In her first opinion, she\n\nacknowledged that there are “some instances of torture of gang members and former gang\n\nmembers by the police in El Salvador,” but then asserted that the “evidence does not\n\nsupport” the likelihood that the harm inflicted on Rodriguez would be with the\n\ngovernment’s acquiescence. A.R. 372. There was no other analysis. In her second\n\nopinion, the IJ admitted that “[t]he evidence does indicate that Salvadoran authorities have\n\nrecently failed to address many instances of vigilante violence.” A.R. 125. But she again\n\nfound that Rodriguez’s evidence was insufficient, this time because Salvadoran law\n\n“prohibits extrajudicial killings and violence” and there have been some efforts by the\n\ngovernment to investigate extrajudicial killings. A.R. 125. The IJ did not address\n\nRodriguez’s extensive evidence about the government’s willingness to use torture on\n\nsuspected gang members or its willingness to turn a blind eye to the extreme violence\n\nbetween rival gangs and between gangs and vigilante groups. This evidence included:\n\n 1) El Salvador passed a law in November 2013 that protects police officers who\n kill in the line of duty, which resulted in a spike of extrajudicial killings, A.R.\n 536;\n 2) Salvadoran police officers routinely drop off suspected gang members in a rival\n gang’s territory so that they will be tortured or killed by the rival gang, A.R. 536;\n\n 11\n\f 3) While El Salvador has announced investigations of several extrajudicial killings,\n the 2015 Country Report stated that these investigations have not resulted in any\n convictions, A.R. 605;\n 4) In January 2016, there were 738 murders in El Salvador, of which 28.6% were\n of alleged gang members, despite the fact that less than 2% of Salvadorans are\n in gangs, A.R. 567.\n\n The IJ’s failure to meaningfully engage with Rodriguez’s evidence was not\n\nremedied on appeal. In its review, both originally and after remand, the BIA did not engage\n\nwith Rodriguez’s evidence at all.\n\n This wholesale failure to fully consider Rodriguez’s country-conditions evidence\n\nconstitutes reversible error. Denying Rodriguez’s claim for CAT relief required more—\n\nmuch more—from both the BIA and the IJ. On remand, the BIA must interact seriously\n\nwith the full panoply of the risk-of-torture evidence submitted by Rodriguez, recognizing\n\nthat “country conditions alone can play a decisive role in granting relief under the [CAT].”\n\nKamalthus v. I.N.S., 251 F.3d 1279, 1280 (9th Cir. 2001); Aguilar-Ramos v. Holder, 594\n\nF.3d 701, 705 (9th Cir. 2010) (“[A] CAT applicant may satisfy his burden with evidence\n\nof country conditions alone.”). When a man’s life is on the line, he is entitled to know that\n\nthe court deciding his claim reviewed all his evidence, understood it, and had a cogent,\n\narticulable basis for its determination that his evidence was insufficient. The BIA and IJ\n\nboth failed to provide such a cogent, articulable basis here.\n\n\n\n\n 12\n\f V.\n\n In conclusion, we grant Rodriguez’s petition for review of his CAT claim, vacate\n\nthe BIA’s decision with respect to that claim, and remand for further proceedings consistent\n\nwith this opinion.\n\n\n\n PETITION FOR REVIEW GRANTED; VACATED AND REMANDED\n\n\n\n\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Eduardo Antonio RODRIGUEZ-ARIAS, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-12\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-2211\\n\\n\\nEDUARDO ANTONIO RODRIGUEZ-ARIAS,\\n\\n Petitioner,\\n\\n v.\\n\\nMATTHEW G. WHITAKER, Acting Attorney General,\\n\\n Respondent.\\n\\n\\nOn Petition for Review of an Order of the Board of Immigration Appeals.\\n\\n\\nArgued: October 30, 2018 Decided: February 12, 2019\\n\\n\\nBefore FLOYD and HARRIS, Circuit Judges, and Donald C. COGGINS, United States\\nDistrict Judge for the District of South Carolina, sitting by designation.\\n\\n\\nPetition for review granted; vacated and remanded by published opinion. Judge Floyd\\nwrote the opinion, in which Judge Harris and Judge Coggins joined.\\n\\n\\nARGUED: James Feroli, CATHOLIC CHARITIES IMMIGRATION LEGAL\\nSERVICES, Washington, D.C., for Petitioner. Margot Lynne Carter, UNITED STATES\\nDEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Jennifer\\nBibby-Gerth, CATHOLIC CHARITIES IMMIGRATION LEGAL SERVICES,\\nWashington, D.C., for Petitioner. Chad A. Readler, Acting Assistant Attorney General,\\nTerri J. Scadron, Assistant Director, Leslie McKay, Senior Litigation Counsel, Office of\\nImmigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,\\nWashington, D.C., for Respondent.\\n\\fFLOYD, Circuit Judge:\\n\\n Eduardo Rodriguez-Arias (Rodriguez), a native of El Salvador, petitions for review\\n\\nof the final order of the Board of Immigration Appeals (BIA) affirming the denial of his\\n\\nclaim for protection under the United Nations Convention Against Torture and Other Cruel,\\n\\nInhuman or Degrading Treatment or Punishment (CAT). We grant his petition for review\\n\\nof his CAT claim, vacate the BIA’s order with respect to that claim, and remand for further\\n\\nproceedings consistent with this opinion.\\n\\n\\n\\n I.\\n\\n Rodriguez fled El Salvador’s rampant gang-related violence and crime in 2005,\\n\\nwhen he unlawfully entered the United States as a twelve-year-old. At that time, his\\n\\ngrandparents were being extorted by the gangs, he himself had been robbed twice by them,\\n\\nand his teenage cousin had been killed after refusing to join them. The cause of\\n\\nRodriguez’s flight now forms part of the basis for his claim for relief: Rodriguez fears\\n\\nbeing returned to El Salvador due to the country’s continued high rate of gang-perpetrated\\n\\nviolence. But what’s more, he now also fears violence at the hands of anti-gang vigilante\\n\\ngroups and the state police because today he bears the insignia of gang affiliation on his\\n\\nbody—gang-related tattoos.\\n\\n After he arrived in the United States, Rodriguez moved to Maryland and joined\\n\\nSureños 13, a United States-based gang with no presence in El Salvador. Due to his\\n\\naffiliation with Sureños 13, Rodriguez obtained multiple tattoos that identify him as a gang\\n\\nmember. These include the word “Sureños” on his chest, the phrase “Brown Pride” on his\\n\\n 2\\n\\fstomach, “BPS” and “13” on his left hand, the letter “S” above each of his knees, and\\n\\n“BPS” on his back. A.R. 951–56. Although Rodriguez left Sureños 13 in 2011 or 2012,\\n\\nand has had a face tattoo removed, his other explicitly gang-related tattoos remain.\\n\\n After he was placed in removal proceedings, Rodriguez sought relief from removal\\n\\nunder the CAT. 1 He received an evidentiary hearing before an Immigration Judge (IJ) on\\n\\nMay 16, 2016. At the hearing, Rodriguez testified that he fears returning to El Salvador.\\n\\nBecause of his tattoos, he expects to be targeted by the violent gangs that plague the\\n\\ncountry, who will see him as a rival; by anti-gang vigilante groups, who engage in\\n\\nextrajudicial killings of gang members to protect their communities; and by the police, who\\n\\nuse extreme violence in their anti-gang efforts. Rodriguez explained in his testimony that\\n\\nin El Salvador, having tattoos is seen as an automatic sign of gang membership and people\\n\\ndo not bother investigating whether you are still an active gang member before harming\\n\\nyou. Confirming his fears, a friend of his who, like Rodriguez, had once belonged to\\n\\nSureños 13 was killed within a week after being deported to El Salvador.\\n\\n Indeed, Rodriguez testified that even after he left Sureños 13, his tattoos have made\\n\\nhim a target of violence at the hands of Salvadoran gangs operating in the United States.\\n\\nOn one occasion, he was chased by ten to twenty men dressed in blue, the color worn by\\n\\nthe notorious Mara Salvatrucha or MS-13 gang. On another occasion he was walking near\\n\\nhis home when an MS-13 member struck him with a bat, and on still another occasion\\n\\n\\n\\n 1\\n Rodriguez also applied for asylum and for withholding of removal but did not\\nappeal the denial of those forms of relief.\\n\\n 3\\n\\fsomeone hit him with a chair when he visited a restaurant frequented by MS-13 members.\\n\\nRodriguez has also been threatened by rival gangs while in immigration detention. An\\n\\nMS-13 member in detention told Rodriguez that as soon as he arrives in El Salvador, MS-\\n\\n13 will find him and kill him. Two members of the 18th Street gang told him that in El\\n\\nSalvador, 18th Street will look for him and will “have fun with” his body. A.R. 440.\\n\\n In addition to his own testimony, Rodriguez provided evidence from five expert\\n\\nwitnesses about how gang members or suspected gang members routinely experience\\n\\nextreme violence in El Salvador at the hands of other gangs, numerous vigilante groups,\\n\\nand police forces. He also produced the U.S. Department of State 2015 and 2014 Country\\n\\nReports on El Salvador, the asylum eligibility guidelines for El Salvador from the United\\n\\nNations High Commissioner for Refugees, and approximately thirty articles from various\\n\\nscholarly and news sources describing the appallingly violent conditions in El Salvador.\\n\\nIn all, he provided over 300 pages of documentation.\\n\\n The IJ denied Rodriguez’s application for relief. She devoted less than one page of\\n\\nher opinion to the CAT claim and limited her risk-of-torture analysis to the risks that\\n\\nRodriguez faced from gangs and the police. On appeal, the BIA remanded the case so that\\n\\nthe IJ could address Rodriguez’s risk of torture from vigilante groups as well. Nowhere in\\n\\nthe two-page remand order did the BIA state that the IJ’s original opinion had been vacated\\n\\nor reversed.\\n\\n On remand, Rodriguez provided additional country-conditions evidence relating to\\n\\nhis risk of torture in El Salvador. The IJ then issued a supplemental opinion, which\\n\\nincorporated her first opinion by reference and provided new analysis on only those topics\\n\\n 4\\n\\fthat the BIA had ordered addressed. The IJ again denied CAT relief, this time devoting\\n\\nthree pages to the topic. On Rodriguez’s second appeal, the BIA reviewed the IJ opinions\\n\\ntogether, adopted both, and supplemented them with additional reasoning. In the BIA’s\\n\\ntwo pages of CAT analysis, it did not refer specifically to any of the evidence provided by\\n\\nRodriguez. This petition for review timely followed.\\n\\n\\n\\n II.\\n\\n When making a CAT claim, the alien seeking relief has the burden to show that “it\\n\\nis more likely than not that he or she would be tortured” in the country of removal. 8 C.F.R.\\n\\n§ 1208.16(c)(2) (2012). Torture is defined as (1) “any act by which severe pain or\\n\\nsuffering, whether physical or mental, is intentionally inflicted on a person” in a manner\\n\\nthat is (2) “by or at the instigation of or with the consent or acquiescence of a public official\\n\\nor other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1) (2012). Public\\n\\nofficials acquiesce to torture when, “prior to the activity constituting torture, [they] have\\n\\nawareness of such activity and thereafter breach [their] legal responsibility to intervene to\\n\\nprevent such activity.” 8 C.F.R. § 1208.18(a)(7). Public officials breach their\\n\\nresponsibility to intervene when they engage in “willful blindness” or “turn a blind eye to\\n\\ntorture.” Suarez-Valenzuela v. Holder, 714 F.3d 241, 245 (4th Cir. 2013) (quoting\\n\\nOntunez–Tursios v. Ashcroft, 303 F.3d 341, 355 (5th Cir. 2002)). Public officials need not\\n\\nhave actual knowledge of torture to have engaged in willful blindness. Id. When\\n\\ndetermining whether the willful-blindness standard has been met, “immigration judges\\n\\nshould consider evidence of past torture, evidence of ‘gross, flagrant or mass violations of\\n\\n 5\\n\\fhuman rights,’ the country’s conditions, and whether the applicant could relocate to a part\\n\\nof the country where he or she is unlikely to be tortured.” Id. (quoting 8 C.F.R.\\n\\n§ 1208.16(c)(3) (2012)).\\n\\n In reviewing the denial of a CAT claim, we review the agency’s finding of fact for\\n\\nsubstantial evidence. See Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010). In the\\n\\nimmigration context, this standard means that “administrative findings of fact are\\n\\nconclusive unless any reasonable adjudicator would be compelled to conclude to the\\n\\ncontrary.” 8 U.S.C. § 1252(b)(4)(B) (2012); Suarez-Valenzuela, 714 F.3d at 245. Legal\\n\\ndeterminations, however, are reviewed de novo. Hui Zheng v. Holder, 562 F.3d 647, 651\\n\\n(4th Cir. 2009). Although the BIA may be granted Chevron deference when it decides\\n\\nmatters of statutory interpretation, such deference is not granted where, as here, the BIA\\n\\nissued a nonprecedential opinion authored by a single member. Martinez v. Holder, 740\\n\\nF.3d 902, 909 (4th Cir. 2014); Turkson, 667 F.3d at 527; see Chevron, U.S.A., Inc. v.\\n\\nNatural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).\\n\\n We may also overturn the BIA’s determinations if we conclude that the BIA abused\\n\\nits discretion. Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). “The BIA may be held\\n\\nto have abused its discretion if it failed to offer a reasoned explanation for its decision, or\\n\\nif it distorted or disregarded important aspects of the applicant’s claim.” Id. Finally,\\n\\nbecause the BIA here “adopted and supplemented an IJ decision, we are obliged to review\\n\\nboth rulings.” Id.\\n\\n\\n\\n III.\\n\\n 6\\n\\f In his petition for review, Rodriguez first argues that the BIA made a legal error\\n\\nwhen it denied him CAT relief because it failed to aggregate his risk of torture from all\\n\\nthree of the entities that he fears: gangs, vigilante groups, and the police. We agree.\\n\\n The CAT implementing regulations provide that when “assessing whether it is more\\n\\nlikely than not that an applicant would be tortured in the proposed country of removal, all\\n\\nevidence relevant to the possibility of future torture shall be considered.” 8 C.F.R.\\n\\n§ 1208.16(c)(3) (2012) (emphasis added). The Ninth Circuit has read this requirement to\\n\\nmean that “CAT claims must be considered in terms of the aggregate risk of torture from\\n\\nall sources, and not as separate, divisible CAT claims.” Quijada-Aguilar v. Lynch, 799\\n\\nF.3d 1303, 1308 (9th Cir. 2015). The Third Circuit agrees. In a case where the CAT\\n\\napplicant feared torture from two different entities, the Third Circuit explained that “[a]\\n\\nproper application of the regulations . . . merely requires [the applicant] to establish that it\\n\\nis more likely than not that he faces torture . . . when the two entities are considered\\n\\ntogether”—in other words, when “the cumulative probability of torture by the two entities\\n\\nexceeds 50%.” Kamara v. Attorney General, 420 F.3d 202, 213–14 (3d Cir. 2005)\\n\\n(demonstrating the aggregation analysis by adding a 27% likelihood of torture from one\\n\\nentity to a 28% of torture from another entity for a combined risk of torture of 55%, which\\n\\nmerited CAT relief); see also Matter of G-A-, 23 I. & N. Dec. 366, 366, 368 (BIA 2002)\\n\\n(en banc) (explaining in a case where the CAT applicant feared that he would be tortured\\n\\nbased on several factors, including “his religion, his ethnicity, the duration of his residence\\n\\nin the United States, and his drug-related convictions,” that “the evidence of record, when\\n\\nconsidered in the aggregate, supports the respondent’s contention that he would more\\n\\n 7\\n\\flikely than not be tortured upon his return to Iran” (emphasis added)). No other U.S. Courts\\n\\nof Appeals have disagreed with this analysis.\\n\\n We now join our sister circuits and hold that the risks of torture from all sources\\n\\nshould be combined when determining whether a CAT applicant is more likely than not to\\n\\nbe tortured in a particular country. That interpretation is most consistent with both the\\n\\nimplementing regulations and our treaty obligations not to return individuals to a country\\n\\nwhere they face a substantial risk of torture. See United States v. Belfast, 611 F.3d 783,\\n\\n806–07 (11th Cir. 2010) (explaining that “settled rules of treaty interpretation require that\\n\\nwe construe the CAT generously”); see also Pierre v. Gonzales, 502 F.3d 109, 114–16 (2d\\n\\nCir. 2007) (explaining that courts owe deference to the executive branch’s treaty\\n\\ninterpretation as expressed through implementing regulations). We therefore confirm that\\n\\nthe aggregation analysis described by the Ninth and Third Circuits is required when\\n\\nassessing an applicant’s risk of torture.\\n\\n While the government concedes that the BIA should have aggregated the risk of\\n\\ntorture that Rodriguez faces in El Salvador, it nevertheless argues that there was no error\\n\\nbelow because both the BIA and IJ did “consider Rodriguez’s claim for relief\\n\\ncumulatively.” Appellee Br. at 26. We disagree. In her first order, the IJ addressed only\\n\\nthe risks that Rodriguez faced from gangs and the police, with no mention of vigilante\\n\\ngroups. In her second order, the IJ simply stated: “Respondent has failed to demonstrate\\n\\nthat it is more likely than not that he would be tortured by vigilante groups[.]” A.R. 124.\\n\\nAt no point did she consider the aggregated risk caused by all three entities in unison by\\n\\n\\n\\n 8\\n\\fadding the probability of torture from each entity and determining whether that sum\\n\\nexceeded 50%.\\n\\n The BIA, in turn, devoted no space in its final order to aggregating risk. Instead, it\\n\\nasserted the rule that “[a]n alien’s eligibility for [CAT] protection cannot be established by\\n\\nstringing together a series of suppositions to show that it is more likely than not that torture\\n\\nwill result,” unless the evidence “establish[es] that each step in the hypothetical chain of\\n\\nevents is more likely than not to happen,” citing a BIA opinion as support. A.R. 007. Then,\\n\\nwithout citing to or describing any of Rodriguez’s evidence, the BIA simply stated:\\n\\n“[Rodriguez] has not shown that his hypothetical chain of events is more likely than not to\\n\\nhappen.” A.R. 008. But Rodriguez never attempted to prove a string of events. Instead,\\n\\nhe has consistently asserted that due to his tattoos, he fears torture from three separate\\n\\nentities: police, gangs, and vigilante groups. The proper response to Rodriguez’s fears is\\n\\nto add the amount of risk that each group poses to him and then determine whether that\\n\\nsum is greater than 50%. The BIA failed to do that analysis here, necessitating remand. 2\\n\\n\\n 2\\n The BIA also cited two cases to support its determination that Rodriguez’s tattoos\\nwould not put him at substantial risk of torture in El Salvador. The Court is not persuaded\\nby these cases for several reasons. First, CAT claims are highly fact specific, which means\\nthat one applicant may be able to show a substantial risk of torture in El Salvador due to\\nhis tattoos while another may not. Huang v. Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2004).\\nSecond, the cases cited by the BIA are readily distinguishable. In Castillo-Pena v. Holder,\\n482 F. App’x 847 (4th Cir. 2012), the Court found that an unrepresented applicant had\\nfailed to show that it was more likely than not that he would be tortured by Salvadoran\\npolice because of his tattoos. The case did not address the combined risks posed by police,\\nvigilante groups, and gangs in El Salvador. Id. at 848. In the second, Andrade v. Lynch,\\n798 F.3d 1242 (9th Cir. 2015), the Ninth Circuit affirmed the BIA’s denial of CAT relief\\nto a Salvadoran applicant who had two discreet non-gang-related tattoos. Id. at 1245.\\nHowever, those tattoos—which were merely his and his girlfriend’s initials—do not pose\\n(Continued)\\n 9\\n\\f IV.\\n\\n Rodriguez also argues that the BIA and IJ erred by (1) failing to meaningfully\\n\\nengage with the live testimony and over 300 pages of documentary evidence that he\\n\\noriginally produced in support of his claim, and (2) failing to meaningfully consider the\\n\\nadditional evidence that he submitted on remand about the risk of torture that he faces in\\n\\nEl Salvador. We agree.\\n\\n It is an abuse of discretion for the BIA or IJ to arbitrarily ignore relevant evidence.\\n\\nBaharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009); Tassi, 660 F.3d at 719. “Those who\\n\\nflee persecution and seek refuge under our laws have the right to know that the evidence\\n\\nthey present of mistreatment in their home country will be fairly considered and weighed\\n\\nby those who decide their fate.” Baharon, 588 F.3d at 233. Therefore, it is this Court’s\\n\\nresponsibility to “ensure that unrebutted, legally significant evidence is not arbitrarily\\n\\nignored by the factfinder.” Id. Moreover, the BIA’s or IJ’s failure to engage with an\\n\\napplicant’s evidence hampers our ability to meaningfully review what was decided below.\\n\\nZelaya v. Holder, 668 F.3d 159, 168 (4th Cir. 2012). Hence, a wholesale “failure [by] the\\n\\n\\n\\nthe same level of risk as the plentiful and conspicuous gang tattoos on Rodriguez. Indeed,\\nthe case most similar to the one at bar was not even cited by the BIA and supports\\nRodriguez’s CAT claim here. In Cole v. Holder, 659 F.3d 762 (9th Cir. 2011), a former\\ngang member with conspicuous gang tattoos on his face, calves, arms, and back sought\\nCAT relief because he feared that he would be tortured by the gangs, police forces, and\\nanti-gang death squads in his native Honduras. Id. at 765. The Ninth Circuit vacated and\\nremanded the BIA’s denial of CAT relief because it determined that the BIA had failed to\\naggregate the risk of torture that these three entities posed to an individual with multiple\\nand conspicuous gang tattoos. Id. at 775.\\n\\n 10\\n\\fIJ and BIA to consider evidence of country conditions constitutes reversible error.”\\n\\nAguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010); see also Ai Hua Chen v.\\n\\nHolder, 742 F.3d 171, 179 (4th Cir. 2014) (explaining that the IJ and BIA must “offer a\\n\\nspecific, cogent reason for rejecting evidence”).\\n\\n The IJ did not meaningfully address the evidence that Rodriguez provided about\\n\\ncountry conditions in El Salvador, especially the Salvadoran government’s behavior\\n\\ntowards gang members and suspected gang members. In her first opinion, she\\n\\nacknowledged that there are “some instances of torture of gang members and former gang\\n\\nmembers by the police in El Salvador,” but then asserted that the “evidence does not\\n\\nsupport” the likelihood that the harm inflicted on Rodriguez would be with the\\n\\ngovernment’s acquiescence. A.R. 372. There was no other analysis. In her second\\n\\nopinion, the IJ admitted that “[t]he evidence does indicate that Salvadoran authorities have\\n\\nrecently failed to address many instances of vigilante violence.” A.R. 125. But she again\\n\\nfound that Rodriguez’s evidence was insufficient, this time because Salvadoran law\\n\\n“prohibits extrajudicial killings and violence” and there have been some efforts by the\\n\\ngovernment to investigate extrajudicial killings. A.R. 125. The IJ did not address\\n\\nRodriguez’s extensive evidence about the government’s willingness to use torture on\\n\\nsuspected gang members or its willingness to turn a blind eye to the extreme violence\\n\\nbetween rival gangs and between gangs and vigilante groups. This evidence included:\\n\\n 1) El Salvador passed a law in November 2013 that protects police officers who\\n kill in the line of duty, which resulted in a spike of extrajudicial killings, A.R.\\n 536;\\n 2) Salvadoran police officers routinely drop off suspected gang members in a rival\\n gang’s territory so that they will be tortured or killed by the rival gang, A.R. 536;\\n\\n 11\\n\\f 3) While El Salvador has announced investigations of several extrajudicial killings,\\n the 2015 Country Report stated that these investigations have not resulted in any\\n convictions, A.R. 605;\\n 4) In January 2016, there were 738 murders in El Salvador, of which 28.6% were\\n of alleged gang members, despite the fact that less than 2% of Salvadorans are\\n in gangs, A.R. 567.\\n\\n The IJ’s failure to meaningfully engage with Rodriguez’s evidence was not\\n\\nremedied on appeal. In its review, both originally and after remand, the BIA did not engage\\n\\nwith Rodriguez’s evidence at all.\\n\\n This wholesale failure to fully consider Rodriguez’s country-conditions evidence\\n\\nconstitutes reversible error. Denying Rodriguez’s claim for CAT relief required more—\\n\\nmuch more—from both the BIA and the IJ. On remand, the BIA must interact seriously\\n\\nwith the full panoply of the risk-of-torture evidence submitted by Rodriguez, recognizing\\n\\nthat “country conditions alone can play a decisive role in granting relief under the [CAT].”\\n\\nKamalthus v. I.N.S., 251 F.3d 1279, 1280 (9th Cir. 2001); Aguilar-Ramos v. Holder, 594\\n\\nF.3d 701, 705 (9th Cir. 2010) (“[A] CAT applicant may satisfy his burden with evidence\\n\\nof country conditions alone.”). When a man’s life is on the line, he is entitled to know that\\n\\nthe court deciding his claim reviewed all his evidence, understood it, and had a cogent,\\n\\narticulable basis for its determination that his evidence was insufficient. The BIA and IJ\\n\\nboth failed to provide such a cogent, articulable basis here.\\n\\n\\n\\n\\n 12\\n\\f V.\\n\\n In conclusion, we grant Rodriguez’s petition for review of his CAT claim, vacate\\n\\nthe BIA’s decision with respect to that claim, and remand for further proceedings consistent\\n\\nwith this opinion.\\n\\n\\n\\n PETITION FOR REVIEW GRANTED; VACATED AND REMANDED\\n\\n\\n\\n\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":559,"cells":{"id":{"kind":"number","value":4591332,"string":"4,591,332"},"name":{"kind":"string","value":"NORFOLK SOUTHERN RAILWAY COMPANY, Plaintiff - Appellant, v. CITY OF ROANOKE, a Virginia Municipality, Defendant - Appellee, and Chesapeake Bay Foundation, Intervenor/Defendant - Appellee."},"name_abbreviation":{"kind":"string","value":"Norfolk Southern Railway v. City of Roanoke"},"decision_date":{"kind":"string","value":"2019-02-15"},"docket_number":{"kind":"string","value":"18-1060"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Wilkinson, Wynn, Diaz\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888025/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"030concurrence\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888026/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"030concurrence\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888027/\", \"author_raw\": \"\"}, {\"author\": \"DIAZ, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1060\\n\\n\\nNORFOLK SOUTHERN RAILWAY COMPANY,\\n\\n Plaintiff − Appellant,\\n\\n v.\\n\\nCITY OF ROANOKE, a Virginia Municipality,\\n\\n Defendant – Appellee,\\n\\n and\\n\\nCHESAPEAKE BAY FOUNDATION,\\n\\n Intervenor/Defendant − Appellee.\\n\\n\\nAppeal from the United States District Court for the Western District of Virginia, at\\nRoanoke. Glen E. Conrad, District Judge. (7:16-cv-00176-GEC)\\n\\n\\nArgued: November 1, 2018 Decided: February 15, 2019\\n\\n\\nBefore WILKINSON, WYNN, and DIAZ, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Wilkinson\\nand Judge Wynn joined. Judge Wilkinson and Judge Wynn wrote separate concurring\\nopinions.\\n\\n\\nARGUED: Gary A. Bryant, WILLCOX & SAVAGE, P.C., Norfolk, Virginia, for\\nAppellant. Monica Taylor Monday, GENTRY LOCKE, Roanoke, Virginia; Jon Alan\\n\\nMueller, CHESAPEAKE BAY FOUNDATION, Annapolis, Maryland, for Appellees.\\nON BRIEF: Gregory J. Haley, Scott A. Stephenson, GENTRY LOCKE, Roanoke,\\nVirginia; Daniel J. Callaghan, OFFICE OF THE CITY ATTORNEY FOR THE CITY\\nOF ROANOKE, Roanoke, Virginia, for Appellee City of Roanoke. Alayna Chuney,\\nBrittany Wright, CHESAPEAKE BAY FOUNDATION, INC., Annapolis, Maryland, for\\nAppellee Chesapeake Bay Foundation, Inc.\\n\\n\\n\\n\\n 2\\n\\nDIAZ, Circuit Judge:\\n\\n Plaintiff Norfolk Southern Railway appeals the district court’s order granting\\n\\nsummary judgment for Defendant City of Roanoke, Virginia and Defendant-Intervenor\\n\\nChesapeake Bay Foundation in this lawsuit alleging discriminatory taxation in violation\\n\\nof the Railroad Revitalization and Regulatory Reform Act of 1976. The district court\\n\\nconcluded that the City’s stormwater management charge is a fee, rather than a tax. This\\n\\ndistinction matters because only taxes are subject to challenge under the Act. For the\\n\\nreasons that follow, we affirm.\\n\\n\\n\\n I.\\n\\n A.\\n\\n The City of Roanoke operates a stormwater management system that includes\\n\\ngutters, storm drains, channels, retention basins, and other infrastructure. The system\\n\\ncollects stormwater and diverts it into the Roanoke River or one of its thirteen tributaries\\n\\nin the City.\\n\\n To operate its system, the City must hold a permit issued by Virginia’s\\n\\nDepartment of Environmental Quality pursuant to the federal Clean Water Act and\\n\\nEnvironmental Protection Agency regulations. Such permits “require controls to reduce\\n\\nthe discharge of pollutants to the maximum extent practicable, including management\\n\\npractices, control techniques and system, design and engineering methods, and such other\\n\\nprovisions as the [EPA] or the State determines appropriate for the control of such\\n\\npollutants.” 33 U.S.C. § 1342(p)(3)(B)(iii). The City’s permit requires it to implement\\n\\n\\n 3\\n\\nsix “minimum control measures” and meet Total Maximum Daily Load (“TMDL”)\\n\\nlimits, among other requirements. 1\\n\\n To facilitate compliance with applicable state and federal stormwater regulations,\\n\\nVirginia law authorizes municipalities to establish stormwater utilities and enact\\n\\nstormwater management charges. Va. Code Ann. § 15.2.2114. These charges must be\\n\\nenacted “by ordinance,” and must “be based upon an analysis that demonstrates the\\n\\nrational relationship between the amount charged and the services provided.” Id.\\n\\n§ 15.2.2144(A), (B). Localities must also provide for full or partial waivers of charges to\\n\\nproperty owners who engage in certain stormwater management practices. Id. § 15.2-\\n\\n2114(D). Income from the charges “shall be dedicated special revenue . . . and may be\\n\\nused only to pay or recover costs for” seven purposes related to stormwater management.\\n\\nId. § 15.2-2114(A).\\n\\n In 2013, the Roanoke City Council enacted an ordinance establishing a\\n\\nStormwater Management Utility and a stormwater utility charge. The City Council found\\n\\nthat “an adequate, sustainable source of revenue for stormwater management activities is\\n\\nnecessary to protect the general health, safety, and welfare of the residents of the city.”\\n\\nRoanoke, Va., Code § 11.5-2. The Council also found that “parcels . . . with higher\\n\\namounts of impervious surfaces contribute greater amounts of stormwater and pollutants\\n\\n 1\\n Minimum control measures include various means of reducing pollutants to\\ncomply with the Clean Water Act, from public outreach and participation to system\\noperation and maintenance. EPA, National Pollutant Discharge Elimination System—\\nRegulations for Revision of the Water Pollution Control Program Addressing Storm\\nWater Discharges, 64 Fed. Reg. 68,722, 68,752 (Dec. 8, 1999). TMDLs limit total\\ndischarges of specified pollutants based on water quality criteria. 33 U.S.C. § 1313(d).\\n\\n\\n 4\\n\\nto the city’s stormwater management system and that the owners of such parcels should\\n\\ncarry a proportionate burden of the cost of such system.” Id. Therefore, the Council\\n\\nchose to base the charge on “a parcel’s impervious surface cover.” Id.\\n\\n The ordinance imposes the stormwater management charge on all “improved\\n\\nparcels,” id. § 11.5-3(a), meaning all parcels with 250 square feet or more of impervious\\n\\nsurface, id. § 11.5-10(e). An impervious surface is one that significantly impedes or\\n\\nprevents “the natural infiltration of water into the soil.” Id. § 11.5-10(d). Approximately\\n\\n86% of the parcels in the City are considered improved parcels subject to the charge.\\n\\nJ.A. 57.\\n\\n Owners of improved parcels may apply for credits against the charge imposed\\n\\nupon them. Roanoke, Va., Code § 11.5-7. Credits are available for various stormwater\\n\\nmanagement activities that reduce, control, or treat stormwater runoff from improved\\n\\nparcels, such as installing rain gardens or pervious asphalt. Id.; see J.A. 135–36. The\\n\\nmaximum credit allowed for a given parcel is 50% of the total charge. Id. § 11.5-7(b)(1).\\n\\n All revenue from the charge is deposited into a stormwater utility enterprise fund,\\n\\nwhich is separate from the City’s general fund. The enterprise fund may only be used for\\n\\nsix stormwater management-related purposes listed in Va. Code Ann. § 15.2-2114(A).\\n\\nSince it was established, the Utility has used all revenue from the charge for stormwater\\n\\nmanagement.\\n\\n B.\\n\\n Norfolk Southern is one of the City’s largest property owners, and it holds one of\\n\\nthe City’s largest improved parcels. In 2017, it was assessed a stormwater charge of\\n\\n\\n 5\\n\\n$416,748.28 for that parcel. Much of Norfolk Southern’s property is covered by railroad\\n\\ntrack and ballast. Ballast is the crushed stone surface beneath railroad tracks that\\n\\nstabilizes the tracks and drains stormwater away from them.\\n\\n Norfolk Southern claims that its ballasted property should be exempt from the\\n\\ncharge. It contends that ballast is at least as pervious to stormwater runoff as lawns,\\n\\nwhich are not considered impervious surfaces and are not subject to the charge.\\n\\n C.\\n\\n Following unsuccessful attempts to exempt the ballasted property from the charge,\\n\\nNorfolk Southern sued the City, alleging that the stormwater management charge is a\\n\\ndiscriminatory tax in violation of the Railroad Revitalization and Regulatory Reform Act\\n\\nof 1976 (the “4-R Act”), 49 U.S.C. § 11501. Under the 4-R Act, states and localities may\\n\\nnot impose any “tax that discriminates against a rail carrier.” Id. § 11501(b)(4). Norfolk\\n\\nSouthern alleges that the City’s stormwater management charge does just that because it\\n\\ntreats ballasted property differently from lawns, even though the two are, in the railroad’s\\n\\nview, equally pervious to stormwater.\\n\\n Following a period of discovery, the district court granted Defendants’ motion for\\n\\nsummary judgment, concluding that although it is “admittedly a close question,” the\\n\\ncharge is not subject to the 4-R Act’s requirements because it is a fee rather than a tax.\\n\\nNorfolk S. Railway Co. v. City of Roanoke, No. 7:16 CV 00176, 2017 WL 6599008, at\\n\\n*8–9 (W.D. Va. Dec. 26, 2017). We review the district court’s decision de novo. Valero\\n\\nTerrestrial Corp. v. Caffrey, 205 F.3d 130, 133 (4th Cir. 2000).\\n\\n\\n\\n\\n 6\\n\\n II.\\n\\n Because the 4-R Act applies only to taxes, not fees, we must determine whether\\n\\nthe charge in this case is closer to (1) a paradigmatic tax, which “is imposed by a\\n\\nlegislature upon many, or all, citizens” and “raises money, contributed to a general fund,\\n\\nand spent for the benefit of the entire community,” or (2) a paradigmatic regulatory fee,\\n\\nwhich “is imposed by an agency upon those subject to its regulation,” and serves\\n\\nregulatory purposes by disincentivizing conduct or raising money to defray regulatory\\n\\nexpenses. San Juan Cellular Tel. Co. v. Pub. Serv. Comm’n, 967 F.2d 683, 685 (1st Cir.\\n\\n1992). In answering this question, we are aided by the three-part framework suggested in\\n\\nSan Juan Cellular and adopted by this court in Valero, 205 F.3d at 134. 2 This framework\\n\\nfocuses on “(1) what entity imposes the charge; (2) what population is subject to the\\n\\ncharge; and (3) what purposes are served by the use of the monies obtained by the\\n\\ncharge.” Id. If the charge falls “somewhere in the middle” between a classic tax and a\\n\\nclassic fee, the most important of these considerations is the charge’s purpose. Id.\\n\\n\\n\\n\\n 2\\n Defendants urge us not to apply the San Juan Cellular framework to this 4-R Act\\ncase because it was developed in cases that concerned different statutes. Nothing about\\nthe framework, however, is statute-specific. As Judge Wynn aptly notes in his\\nconcurring opinion, it merely provides flexible and versatile guidance in assessing where\\na particular charge sits on the tax-fee continuum. Indeed, San Juan Cellular aimed to\\nsynthesize the general approach that courts had taken to distinguish taxes from fees “in a\\nvariety of statutory contexts.” 967 F.2d at 685.\\n\\n\\n\\n 7\\n\\n A.\\n\\n We first consider who sets the charge. A charge is more likely to be a tax if it’s\\n\\nimposed by the legislature, rather than an administrative agency. Valero, 205 F.3d at\\n\\n134. Here, this factor suggests that the charge is a tax because it’s imposed by Roanoke’s\\n\\nlegislative body, the City Council. 3\\n\\n B.\\n\\n Under the second San Juan Cellular factor, a charge is more likely to be a tax if it\\n\\nis imposed on a broad segment of the public. GenOn Mid-Atl., LLC v. Montgomery\\n\\nCounty, 650 F.3d 1021, 1024 (4th Cir. 2011). And assessment of a tax is often based\\n\\n“solely on ability to pay,” as measured by a payor’s property or income, rather than tied\\n\\nto the receipt of a particular benefit or the imposition of a regulatory burden. Nat’l Cable\\n\\nTelevision Ass’n, Inc v. United States, 415 U.S. 336, 341 (1974); see DIRECTV, Inc. v.\\n\\nTolson, 513 F.3d 119, 126 n.3 (4th Cir. 2008) (discussing the significance of whether an\\n\\nassessment is tied to income). By contrast, the classic fee is imposed only upon persons\\n\\nsubject to regulation by a particular agency. Valero, 205 F.3d at 134.\\n\\n\\n\\n 3\\n As Defendants point out, the Virginia statute authorizing the charge requires that\\nit be passed through ordinance by the City Council. This makes the Council somewhat\\nless like an autonomous legislature and somewhat more like an administrative agency\\nimplementing the state statute, which itself forms a part of the Clean Water Act’s\\ncomprehensive regulatory scheme. But the authorizing statute still requires legislative\\ndecision-making through passage of an ordinance. The Council’s decision acts as a\\ncheck on the regulatory program, in much the same way that legislatures’ appropriations\\ndecisions can check agencies’ regulatory programs. Thus, we consider the Council to\\nhave acted in a predominantly legislative capacity for purposes of the first factor.\\n\\n\\n\\n 8\\n\\n This factor suggested that the charge was a tax in Valero, where it was imposed\\n\\nupon persons disposing waste at landfills, who in turn passed the cost on to their\\n\\ncustomers, thereby spreading it “to a significantly wider portion of the population.” Id.;\\n\\naccord DIRECTV, 513 F.3d at 125–26. In GenOn, however, we concluded that a carbon\\n\\nemission charge was a fee rather than a tax primarily because the charge applied to only\\n\\none entity. 650 F.3d at 1024. 4\\n\\n Here, the second factor is largely inconclusive. On the one hand, the stormwater\\n\\nmanagement charge applies to a broad class of property owners, suggesting that it is a\\n\\ntax. But on the other hand, it isn’t assessed solely on the basis of property ownership.\\n\\nRather, the amount assessed is proportional to the amount of impervious surface on an\\n\\nowner’s property. And property owners may receive credits against the assessment if\\n\\nthey engage in certain stormwater management practices. These features suggest that the\\n\\ncharge is a measure of the stormwater management obligations that each parcel imposes\\n\\nupon the City, rather than a measure of ability to pay. And this makes the charge more\\n\\nlike a fee. These features also distinguish the stormwater management charge from the\\n\\ncharge in Valero, which applied to all waste disposers regardless of their contribution to\\n\\n\\n\\n\\n 4\\n Courts have differed as to how the second factor applies to stormwater\\nmanagement charges. Compare DeKalb County v. United States, 108 Fed. Cl. 681, 700–\\n01 (2013) (concluding that the second factor suggested a stormwater management charge\\nwas a tax), and McLeod v. Columbia County, 254 F. Supp. 2d 1340, 1346 (S.D. Ga.\\n2003) (same), with Homewood Vill., LLC v. Unified Gov’t of Athens-Clarke County, 132\\nF. Supp. 3d 1376, 1381 (M.D. Ga. 2015) (reaching the opposite conclusion).\\n\\n\\n\\n 9\\n\\nthe burden that the charge was designed to address—closing underfunded landfills. On\\n\\nbalance then, this second factor is effectively a wash as to the nature of the charge.\\n\\n C.\\n\\n Under the third San Juan Cellular factor—which is the most important one in\\n\\nclose cases—a charge is more likely to be a tax if its primary purpose is to raise revenue\\n\\nfor general government activity that benefits the entire community. 967 F.2d at 685–86.\\n\\nThis is true even if the revenue is placed into a special fund and segregated from general\\n\\nrevenue, as long as “the special fund is used to benefit the population at large.” Valero,\\n\\n205 F.3d at 135. Conversely, a charge is more likely to be a fee if it’s used to provide\\n\\nindividualized benefits or to defray an agency’s costs of regulating. San Juan Cellular,\\n\\n967 F.2d at 685–86. A charge will also be considered a fee if its primary purpose is to\\n\\nregulate conduct by making it more expensive (even if the charge also raises revenue).\\n\\nS.C. ex rel. Tindal v. Block, 717 F.2d 874, 887 (4th Cir. 1983).\\n\\n The third factor pointed to the charge being a tax in Valero, where the funds\\n\\ncollected were used to support the closure of underfunded landfills in an environmentally\\n\\nsound manner that complied with EPA regulations. 205 F.3d at 134–35. The charge’s\\n\\npurpose was to protect the state’s groundwater, which benefitted the general public. Id.\\n\\nAnd in United States v. City of Huntington, the charge’s purpose suggested it was a tax\\n\\nwhere the charge paid for “core government services” including fire and flood protection\\n\\nand street maintenance. 999 F.2d 71, 73 (4th Cir. 1993).\\n\\n On the other hand, the charge’s purpose suggested it was a fee in San Juan\\n\\nCellular, where the funds were used to regulate cell phone providers. 967 F.2d at 686.\\n\\n\\n 10\\n\\nThe court noted that there need not be an exact match between the charge assessed and\\n\\nthe agency’s expenditures on a particular regulated firm. Id. at 686–87. In GenOn, we\\n\\nfound that a carbon emission charge was “plainly regulatory,” just like a classic fee,\\n\\nbecause it “create[d] disincentives for GenOn to continue polluting and provide[d] funds\\n\\nfor others to reduce their carbon dioxide emissions.” 650 F.3d at 1025.\\n\\n Courts have reached different results in applying the third factor to stormwater\\n\\nmanagement charges. In DeKalb County, the court concluded that the third factor\\n\\nsuggested the charge was a tax because the benefits of stormwater management—flood\\n\\nprevention and abatement of water pollution—were shared broadly by the general public.\\n\\n108 Fed. Cl. at 701. The court also noted that the assessment of a stormwater charge is\\n\\nbased “not on the benefits derived by the payor, but by the anticipated burden that its\\n\\nproperty imposes on the stormwater system.” Id. at 703. And the charge couldn’t be\\n\\nconsidered a voluntary user fee because property owners couldn’t decline stormwater\\n\\nservices. Id. at 704–06. The McLeod court reached a similar result, noting that “[s]torm\\n\\nwater management was and is the type of service that is often funded through general tax\\n\\nrevenue.” 254 F. Supp. 2d at 1347–48. The Homewood Village court, however, reached\\n\\nthe opposite conclusion, noting that although all residents receive a benefit from\\n\\nstormwater management, “those paying the charge receive a special benefit” because the\\n\\ncounty treats polluted water on their properties, facilitating compliance with state and\\n\\nfederal requirements. 132 F. Supp. 3d at 1381 (citing Homewood Vill., LLC v. Unified\\n\\nGov’t of Athens-Clarke County, 739 S.E.2d 316, 318 (Ga. 2013)).\\n\\n\\n\\n\\n 11\\n\\n Norfolk Southern argues that Roanoke’s stormwater management charge serves\\n\\ntwo purposes that both benefit the general public: reducing water pollution and improving\\n\\nflood control. It analogizes these purposes to maintaining the safety of the state’s\\n\\ngroundwater, which we held to be a public benefit in Valero. Defendants respond that\\n\\nthey are obligated by law to operate a stormwater management system and to use all\\n\\nrevenue generated from the charge for specific stormwater management activities. Thus,\\n\\nalthough the charge may benefit the public, its primary purpose is to satisfy regulatory\\n\\nrequirements. 5 Norfolk Southern’s rejoinder is that the charge isn’t regulatory in the\\n\\nsense recognized by San Juan Cellular because the City is a regulated entity, rather than\\n\\na regulator. The railroad notes that the stormwater Utility doesn’t directly regulate its\\n\\nactivity or issue any permit for its stormwater discharges.\\n\\n We think the charge’s purpose is more consistent with that of a fee than a tax,\\n\\nbecause the charge forms part of a comprehensive regulatory scheme. Although\\n\\nmunicipalities may have traditionally provided stormwater management as a public\\n\\nbenefit at the discretion of their legislatures, the Clean Water Act’s regulatory scheme\\n\\nnow requires the City to take myriad concrete actions to reduce discharges and pollutant\\n\\nconcentrations—many of them relating directly to runoff from Norfolk Southern’s\\n\\n\\n\\n\\n 5\\n Defendants also note that all revenue from the charge is placed into a segregated\\nenterprise fund, rather than the City’s general fund. But standing alone, the fact that\\nrevenue from the charge is placed in a special fund is “immaterial.” Valero, 205 F.3d at\\n135.\\n\\n\\n\\n 12\\n\\nproperty and the waters that receive it. See, e.g., J.A. 140–44, 169–80, 262, 284–86,\\n\\n554–58.\\n\\n What’s more, if the City elects to assess a charge to offset the costs of complying\\n\\nwith these regulatory obligations, it must do so consistent with the state authorizing\\n\\nstatute, Va. Code Ann. § 15.2-2114. This statute restricts the funds to specific uses\\n\\nrelated to stormwater management, and it requires that the charge incentivize stormwater\\n\\nmanagement practices by crediting property owners who adopt them. Id. § 15.2-2114(D).\\n\\nThese requirements have removed much of the legislative discretion that was\\n\\ntraditionally associated with stormwater management. The City is now a participant in a\\n\\ncomprehensive scheme regulating stormwater management and the assessment of charges\\n\\nto pay for it.\\n\\n Of course, the City doesn’t directly regulate Norfolk Southern or other stormwater\\n\\ndischargers, nor does it issue permits for their discharges. Thus, rather than defraying the\\n\\nCity’s costs of regulating, the charge primarily defrays the City’s costs of complying with\\n\\nregulations imposed upon it. At bottom, however, a classic regulatory fee is designed to\\n\\naddress harmful impacts of otherwise permissible activities, and to ensure that the actors\\n\\nresponsible for those impacts bear the costs of addressing them. That is exactly the\\n\\nfunction served by Roanoke’s stormwater management charge, which ensures that\\n\\nowners of impervious surfaces bear the cost of managing stormwater runoff.\\n\\n In sum, the charge is part of a regulatory scheme, rooted in the Clean Water Act,\\n\\nwhose purpose is to remedy the environmental harms associated with stormwater runoff\\n\\nand to hold stormwater dischargers responsible for footing the bill. EPA’s regulations\\n\\n\\n 13\\n\\nensure that the harms of stormwater discharge are addressed, and the City levies a charge\\n\\n(as directed by the state) upon those whose activity creates the need for regulation. The\\n\\ncharge also serves the regulatory function of incentivizing property owners to reduce the\\n\\namount of impervious surface on their land and engage in stormwater management\\n\\npractices that qualify them for credits.\\n\\n As a result, the third San Juan Cellular factor suggests that the charge is a fee.\\n\\n D.\\n\\n Finally, we consider the three San Juan Cellular factors collectively, in light of all\\n\\nthe relevant circumstances, to decide whether the City’s stormwater management charge\\n\\nis a tax subject to the 4-R Act’s requirements, or a fee beyond the reach of those\\n\\nrequirements. As the district court acknowledged, this is a “close question.” Norfolk S.,\\n\\n2017 WL 6599008, at *8. The first factor suggests that the charge is a tax because it’s\\n\\nimposed by the legislature. The second factor is largely inconclusive because the charge\\n\\nis levied upon most properties but based on contributions to stormwater runoff rather than\\n\\nability to pay. The third factor suggests that the charge is a fee because it forms part of a\\n\\ncomprehensive regulatory scheme.\\n\\n Applying the principle we articulated in Valero, 205 F.3d at 134, we give the third\\n\\nfactor controlling weight here because the charge’s regulatory purpose provides a better\\n\\nindication of its overall nature than the body that implemented it or the class of persons it\\n\\nis levied upon. See also Club Ass’n of W. Va., Inc. v. Wise, 293 F.3d 723, 726 (4th Cir.\\n\\n2002) (applying this principle). Accordingly, we conclude that the charge is a fee, rather\\n\\n\\n\\n\\n 14\\n\\nthan a tax subject to the 4-R Act’s requirements. The district court correctly granted\\n\\nDefendants’ motion for summary judgment.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 15\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4368585/\", \"author_raw\": \"DIAZ, Circuit Judge:\"}, {\"author\": \"WILKINSON, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"WILKINSON, Circuit Judge, concurring:\\n\\n I am happy to concur in Judge Diaz’s fine opinion. For the reasons given in that\\n\\nopinion, I agree that the charge levied on Norfolk Southern by the City of Roanoke is a\\n\\nfee and not a tax. I write separately to describe how this case fits into the larger story of\\n\\nenvironmental restoration.\\n\\n I.\\n\\n Captain John Smith’s party could hardly convey to readers the “abundance of fish\\n\\nlying so thicke” that exceeded any river in Europe: “Neither better fish, more plenty, or\\n\\nvariety, had any of us ever seene, in any place swimming in the water, then in the Bay of\\n\\nChesapeack ….” Walter Russell & Anas Todkill et al., The Accidents That Happened in\\n\\nthe Discoverie of the Bay, in 1 The Complete Works of Captain John Smith (1580-1631)\\n\\n224, 228 (Philip L. Barbour ed., 1986). Before the arrival of Captain Smith, the\\n\\nAlgonquin Indians recognized the extraordinary productivity of the Bay, terming it\\n\\n“Chesepioc,” meaning “great shellfish bay.” Christopher P. White, The Chesapeake Bay\\n\\nField Guide, 3 (1989). More than a century later, in 1728, William Byrd II wrote that\\n\\n“one might believe, when he sees such terrible amounts of them, that there was as great a\\n\\nsupply of herring as there is water. In a word, it is unbelievable, indeed, indescribable,\\n\\nand also incomprehensible, what quantity is found there. One must behold oneself.”\\n\\nWilliam Byrd, The Newly Discovered Eden 78 (Richmond C. Beatty & William J.\\n\\nMulloy eds., trans., 1940).\\n\\n Today, one no longer can. Instead of fish, we quantify phosphorus, nitrogen,\\n\\nsediment, and other pollutants. Clouds of sediment and algal blooms blot out the sun,\\n\\n 16\\n\\nleaving the subaqueous flora starved for photosynthetic fuel. U.S. Environmental\\n\\nProtection Agency, Chesapeake Bay: Introduction to an Ecosystem, 4 (Kathryn\\n\\nReshetiloff ed., 1995). As the underwater grasses die for lack of sun, the fauna that rely\\n\\non them begin to die as well. Id. Microscopic zooplankton and small invertebrates that\\n\\nfeed on the grasses are deprived of their food. Alice Jane Lippson and Robert L. Lippson,\\n\\nLife in the Chesapeake Bay, 175, 192 (2006). In turn, species of fish and fowl that feed\\n\\non these creatures lose their food as well. Id. Blue crabs lose a safe place to hide after\\n\\nthey shed their hard shells during their seasonal molting. Christopher P. White,\\n\\nChesapeake Bay: A Field Guide, 84 (1989). And fish like menhaden and croakers, which\\n\\nuse the grasses as protective nurseries, are deprived of a safe place to nurture their young.\\n\\nAlice Jane Lippson and Robert L. Lippson, Life in the Chesapeake Bay, 190 (2006).\\n\\nThose fish that remain suffer from contamination by metals like chromium and mercury\\n\\nor organic contaminants like PCBs and pesticides. Karl Blankenship, “Report finds\\n\\nevidence of toxic contaminants impacting fish,” Bay Journal (January 1, 2013).\\n\\n But all that has happened, and is happening, need not always happen. And therein\\n\\nlies the future of Virginia’s waters and the Bay.\\n\\n II.\\n\\n Restoring damaged waters like the Chesapeake Bay requires sustained effort,\\n\\nentailing cooperation and coordination among the federal government, “[s]tate and local\\n\\ngovernments, the enterprise of the private sector, and . . . all the people who make this\\n\\nregion their home.” Exec. Order No. 13508, 74 Fed. Reg. 23099, 23100 (May 12, 2009).\\n\\nChesapeake Bay restoration would be impossible without stitching together the efforts of\\n\\n 17\\n\\na vast number of people from diverse walks of life: cattle farmers in West Virginia, lawn\\n\\ncare specialists in New York, and golf course operators in Pennsylvania, to name a few,\\n\\nnot to mention countless public servants—town managers, environmental experts,\\n\\nCooperative Extension agents. All share a common goal and corresponding common\\n\\nburdens.\\n\\n The response to the problem of stormwater runoff demonstrates the necessity of\\n\\ncooperation between all levels of government and private actors. Stormwater is of\\n\\nparticular concern to environmental restoration: when it falls on impervious surfaces like\\n\\nstreets or parking lots, it picks up pollutants like motor oil, animal waste, or just plain\\n\\ndirt, and washes them into the local streams. These pollutants contain chemical\\n\\ncontaminants and the nutrients that feed algal blooms. They make their way through\\n\\nstreams and tributaries, causing harm along the way, until they collect in the estuary\\n\\nwhere the rivers meet the ocean. William H. Funk, “Virginia Artificial Wetland a Game-\\n\\nChanger for Stormwater Pollution,” Chesapeake Bay Magazine (June 13, 2017).\\n\\n The scheme that regulates stormwater runoff begins with the federal government\\n\\nwhich, through the Clean Water Act, mandates that states set water quality standards that\\n\\nany given river must meet. 33 U.S.C. § 1313. If the river does not meet the water quality\\n\\nstandards, the state government steps in and works with the EPA to put the river on a\\n\\n“pollution diet” or Total Maximum Daily Load (TMDL). Id. The TMDL establishes the\\n\\ntotal amount of each pollutant that is allowed to drain into the river, and slowly reduces\\n\\nthat amount to a level consistent with federally mandated water quality standards. Id. One\\n\\nof the ways the state then implements the TMDL is by adjusting the permits it gives to\\n\\n 18\\n\\nentities within the river’s watershed so that the total amount of pollution these entities are\\n\\nallowed to drain into the river is below the overall limit. Local governments must obtain\\n\\none of these permits to manage the flow of stormwater from their sewer system into local\\n\\nwaterways.\\n\\n The City of Roanoke’s stormwater clean-up scheme, which is governed by its\\n\\npermit, is what’s at issue here. While not in the Bay’s watershed, the Roanoke River is\\n\\nitself worthy of protection, and the City of Roanoke’s program is a prime example of the\\n\\ntype of stormwater remediation efforts that localities in the Bay’s watershed must enact.\\n\\nA ruling for Norfolk Southern here would have deleterious implications for comparable\\n\\nmunicipal stormwater programs that are within the Bay’s watershed like Richmond,\\n\\nCharlottesville, and Lynchburg. Richmond, Va., Code art. V., § 14-336 (2017);\\n\\nLynchburg, Va., Code art. V., § 16.2-56 (2018); Charlottesville, Va. Code art. VI., § 10-\\n\\n104 (2018). And so while this case does not deal directly with the Chesapeake’s waters,\\n\\nits health is very much at stake here.\\n\\n Under its permit, the City of Roanoke has the burden of reducing stormwater\\n\\npollution, but it can only do this with the cooperation of its residents. In addition to\\n\\nmaintaining its sewer infrastructure, the City coordinates with local “watershed\\n\\nassociations, environmental advisory committees, and other environmental\\n\\norganizations.” J.A. 156. The City also helps its residents install features like rain gardens\\n\\nand detention ponds that soak up the stormwater rather than allowing it to drain\\n\\nimmediately into the river. And, importantly, the City relies on its residents to help fund\\n\\nits stormwater clean-up efforts through the fee at issue here.\\n\\n 19\\n\\n III.\\n\\n In seeking to avoid paying a fee that the City uses to fund its stormwater clean-up\\n\\nscheme, Norfolk Southern, one of the largest property owners in Roanoke, is seeking to\\n\\nabsolve itself of responsibility. Stormwater runs off the railroad’s property into the City’s\\n\\nsewer system. The City must then treat and manage this water to comply with its permit.\\n\\nThis costs money. If the City could not charge a fee to Norfolk Southern, Roanoke\\n\\nwould bear the burden of managing the railroad’s runoff alone. Erroneously deeming this\\n\\nfee a tax under the Railroad Revitalization and Regulatory Reform Act would, as the\\n\\nrailroad knows, run the decided risk of limiting its contribution to the broader project of\\n\\nstormwater management. The City would thus lose important revenue needed to offset\\n\\nthe costs of building and maintaining municipal gutters and drains, monitoring pollution\\n\\nlevels, policing illegal discharges of polluted water, and educating the public on proper\\n\\nenvironmental practices. Norfolk Southern would, in effect, be shifting its burden to the\\n\\nCity. What we have here is the irony of a railroad seeking a free ride.\\n\\n This is unacceptable. As Judge Diaz aptly notes, “the charge is part of a regulatory\\n\\nscheme, rooted in the Clean Water Act, whose purpose is to remedy the environmental\\n\\nharms associated with stormwater runoff and to hold stormwater dischargers responsible\\n\\nfor footing the bill.” Maj. Op. at 13. The arteries of the Chesapeake Bay wend through\\n\\nsix states, including three in the Fourth Circuit (Maryland, West Virginia, and Virginia).\\n\\nNumerous localities in the Bay’s watershed have clean-up schemes with fees comparable\\n\\nto Roanoke’s. Norfolk Southern’s position would put these projects at risk.\\n\\n\\n\\n 20\\n\\n Our rivers and estuaries are complex, interconnected ecosystems. It follows,\\n\\ntherefore, that efforts to restore them are correspondingly complex and interconnected.\\n\\nWithout the cooperation of all levels of government, as well as of private companies and\\n\\ncitizens, our waters will continue to be compromised by pollution. The restoration effort\\n\\nimposes burdens on many people; happily, the benefits of clean waters (economic;\\n\\nhealth; scenic; recreational) accrue to just as many if not more. Everyone, including the\\n\\nowners and employees of Norfolk Southern, are better off when our streams run clear and\\n\\nestuarine flora and fauna are flourishing. It is only fair to ask those who benefit to\\n\\nshoulder some of the burden.\\n\\n No one is so naïve as to believe that the Chesapeake Bay can be restored to the\\n\\npristine condition viewed by John Smith and William Byrd, or that the Roanoke River\\n\\nand its tributaries such as Peters Creek and Tinker Creek can be restored to the condition\\n\\nin which this country’s earliest inhabitants found them. We would be fortunate to\\n\\npreserve a wholesome fraction of what once there was. This case is but a tiny chapter in\\n\\nthe story of our nation’s effort to reconcile the just demands of development with the\\n\\nimperative of preserving an environment that can help make productive enterprise worth\\n\\nhaving. A reversal here might seem just a small setback. But a series of such setbacks\\n\\naccelerates rather than retards the degradation of the natural world. We happily accepted\\n\\nthe abundance that came down from our forebears. How then can we impoverish the\\n\\nenvironment for those who come after?\\n\\n\\n\\n\\n 21\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4368585/\", \"author_raw\": \"WILKINSON, Circuit Judge, concurring\"}, {\"author\": \"WYNN, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"WYNN, Circuit Judge, concurring:\\n\\n I concur in the majority opinion’s determination that the City of Roanoke’s\\n\\nstormwater assessment constitutes a “fee,” rather than a “tax,” and therefore is not subject\\n\\nto the provision in the Railroad Revitalization and Reform Act (the “4-R Act”)\\n\\nprohibiting state and municipal “tax[es]” that discriminate against rail carriers. 49 U.S.C.\\n\\n§ 11501(b)(4). The assessment is connected to a federal regulatory program, is designed\\n\\nto defray the costs of that program, and encourages property owners to take steps to\\n\\nadvance the program’s regulatory objectives, and therefore serves “primarily . . .\\n\\nregulatory or punitive purposes, making it a ‘fee.’” GenOn Mid-Atlantic, LLC v.\\n\\nMontgomery Cty., Md., 650 F.3d 1021, 1023 (4th Cir. 2011) (internal quotation marks\\n\\nomitted).\\n\\n The analytical framework used in this matter derives from the First Circuit’s\\n\\ndecision in San Juan Cellular Telephone Co. v. Public Svc. Comm’n, 967 F.2d 683, 685\\n\\n(1st Cir. 1992) (Breyer, J.). The framework in that case has been used to distinguish\\n\\n“taxes” from “fees” for purposes of the Tax Injunction Act, 28 U.S.C. § 1341. See\\n\\nValero Terrestrial Corp. v. Caffrey, 205 F.3d 130, 134 (4th Cir. 2000).\\n\\n Here, we apply that Tax Injunction Act precedent to interpret whether an\\n\\nassessment is a “tax” or “fee” under the 4-R Act. In doing so, we recognize that this\\n\\nCourt has held that “we must examine the explicit factual circumstances that transcend\\n\\nthe literal meaning of the terminology and ask whether the charge is levied primarily for\\n\\nrevenue raising purposes, making it a ‘tax,’ or whether it is assessed primary for\\n\\nregulatory or punitive purposes, making it a ‘fee.’” GenOn, 650 F.3d at 1023 (internal\\n\\n 22\\n\\nquotation marks omitted). “[B]roader-based taxes . . . sustain the essential flow of\\n\\nrevenue to the state (or local) government [whereas] fees . . . are connected to some\\n\\nregulatory scheme.” Collins Holding Corp. v. Jasper Cty., S.C., 123 F.3d 797, 800 (4th\\n\\nCir. 1997). And this Court’s long-standing precedent makes clear that “[t]he proper\\n\\nanalysis to arrive at the real nature of the assessment is to examine all the facts and\\n\\ncircumstances and assess them on the basis of economic realities.” United States v. City\\n\\nof Huntington, W. Va., 999 F.2d 71, 73 (4th Cir. 1993) (internal quotation marks and\\n\\nalterations omitted).\\n\\n Thus, determining whether an assessment amounts to a tax or fee turns on “all the\\n\\nfacts and circumstances.” Id. Nonetheless, this Court, and other courts, have\\n\\ncharacterized San Juan Cellular as identifying three “factors” that bear on the resolution\\n\\nof that question: “(1) what entity imposes the charge; (2) what population is subject to the\\n\\ncharge; and (3) what purposes are served by the use of the monies obtained by the\\n\\ncharge.” Valero, 205 F.3d at 134. But San Juan Cellular did not enumerate a “three-\\n\\nfactor” test—which instead came from a Ninth Circuit opinion purporting to distill the\\n\\nanalysis in San Juan Cellular. See Bidart Bros. v. Cal. Apple Comm’n, 73 F.3d 925, 931\\n\\n(9th Cir. 1996). Rather, San Juan Cellular highlighted three “facts of th[e] case”—which\\n\\n“facts” the Ninth Circuit later denominated as “factors”—because those facts indicated\\n\\nthat the assessment at issue was “close to the ‘fee’ end of the spectrum,” “with a\\n\\nparadigmatic tax at one end and a paradigmatic fee at the other.” 967 F.2d at 686. The\\n\\ncourt had no reason to address other “circumstances” that might be relevant in\\n\\ndistinguishing a tax from a fee because they were not present in the case. Id.\\n\\n 23\\n\\n Significantly, our Tax Injunction Act decisions distinguishing between taxes and\\n\\nfees have not always rigorously adhered to the three-factor analytical framework. See,\\n\\ne.g., GenOn, 650 F.3d at 1023–24 (placing little weight on first factor, and characterizing\\n\\nthree factor framework as an “aid” in resolving governing question of whether\\n\\nassessment is for revenue raising purposes or regulatory purposes); Collins, 123 F.3d at\\n\\n797 (citing San Juan Cellular, but only addressing two of the three factors, and\\n\\ncharacterizing the third factor—the “purpose and ultimate use of the assessment”—as\\n\\n“the heart of the inquiry”).\\n\\n I write separately to point out that reducing a “totality-of-the-circumstances”\\n\\ninquiry into a “three-factor test” poses substantial risks. It elevates the significance of\\n\\nenumerated factors, relative to non-enumerated factors. It suggests that the enumerated\\n\\nfactors warrant equal significance in the ultimate weighing, notwithstanding that some\\n\\nfacts may be more important than others. It also discourages courts from considering\\n\\nfactors that are not enumerated in the test, but may be highly relevant in a particular case.\\n\\nAnd it serves as an invitation to lower courts to simply tick through the enumerated\\n\\nfactors and determine whether more factors favor treating an assessment as a tax or a fee.\\n\\nBut “a score of [2] to [1] decides a baseball game,” Remington Hybrid Seed Co., 495 F.3d\\n\\n403, 407 (7th Cir. 2007), not a multi-factorial balancing test, let alone a totality-of-the-\\n\\nfacts-and-circumstances test, like that used to determine whether an assessment\\n\\nconstitutes a tax or fee, cf. Hexom v. Or. Dep’t of Transp., 177 F.3d 1134, 1137 (9th Cir.\\n\\n1999) (explaining that cases applying the San Juan Cellular test “take a practical and\\n\\n\\n\\n 24\\n\\nsensible approach. They do not apply a set of rigid rules or elements and then reach a\\n\\nmechanical conclusion”).\\n\\n In this case, we conclude that the first two factors have little or no bearing on our\\n\\nultimate determination that the assessment at issue constitutes a fee. Additionally, the\\n\\ndecisive third factor—which appears to be coextensive with the purpose of the entire\\n\\nthree-factor inquiry—encompasses numerous considerations that bear significant weight\\n\\nin the ultimate determination—such as whether the funds are kept in a segregated fund\\n\\nand whether the assessment incentivizes decisions that advance the program’s regulatory\\n\\nobjectives—but which are not elevated to separate “factors” in the three-factor\\n\\nframework. Thus, though we characterize our analytical framework as a “three factor\\n\\ntest,” the analysis adheres moreso to the governing “totality-of-the-circumstances”\\n\\ninquiry.\\n\\n In sum, the three “factors” from San Juan Cellular provide helpful guidance in\\n\\nanalyzing the fundamental question of whether an assessment serves revenue raising\\n\\npurposes, and therefore is a tax, or serves a regulatory purpose, and therefore is a fee.\\n\\nBut the “heart of the inquiry” remains “the purpose and ultimate use of the assessment.”\\n\\nCollins, 123 F.3d at 797. The majority opinion engages in a thorough and persuasive\\n\\nanalysis of numerous facts and circumstances bearing on that question and concludes the\\n\\nassessment is a fee. Accordingly, I concur.\\n\\n\\n\\n\\n 25\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4368585/\", \"author_raw\": \"WYNN, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"WILKINSON"},"judge2":{"kind":"string","value":"WYNN"},"judge3":{"kind":"string","value":"DIAZ"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":6,"string":"6"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":4,"string":"4"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4591332/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":2,"string":"2"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: NORFOLK SOUTHERN RAILWAY COMPANY, Plaintiff - Appellant, v. CITY OF ROANOKE, a Virginia Municipality, Defendant - Appellee, and Chesapeake Bay Foundation, Intervenor/Defendant - Appellee.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1060\n\n\nNORFOLK SOUTHERN RAILWAY COMPANY,\n\n Plaintiff − Appellant,\n\n v.\n\nCITY OF ROANOKE, a Virginia Municipality,\n\n Defendant – Appellee,\n\n and\n\nCHESAPEAKE BAY FOUNDATION,\n\n Intervenor/Defendant − Appellee.\n\n\nAppeal from the United States District Court for the Western District of Virginia, at\nRoanoke. Glen E. Conrad, District Judge. (7:16-cv-00176-GEC)\n\n\nArgued: November 1, 2018 Decided: February 15, 2019\n\n\nBefore WILKINSON, WYNN, and DIAZ, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Wilkinson\nand Judge Wynn joined. Judge Wilkinson and Judge Wynn wrote separate concurring\nopinions.\n\n\nARGUED: Gary A. Bryant, WILLCOX & SAVAGE, P.C., Norfolk, Virginia, for\nAppellant. Monica Taylor Monday, GENTRY LOCKE, Roanoke, Virginia; Jon Alan\n\nMueller, CHESAPEAKE BAY FOUNDATION, Annapolis, Maryland, for Appellees.\nON BRIEF: Gregory J. Haley, Scott A. Stephenson, GENTRY LOCKE, Roanoke,\nVirginia; Daniel J. Callaghan, OFFICE OF THE CITY ATTORNEY FOR THE CITY\nOF ROANOKE, Roanoke, Virginia, for Appellee City of Roanoke. Alayna Chuney,\nBrittany Wright, CHESAPEAKE BAY FOUNDATION, INC., Annapolis, Maryland, for\nAppellee Chesapeake Bay Foundation, Inc.\n\n\n\n\n 2\n\nDIAZ, Circuit Judge:\n\n Plaintiff Norfolk Southern Railway appeals the district court’s order granting\n\nsummary judgment for Defendant City of Roanoke, Virginia and Defendant-Intervenor\n\nChesapeake Bay Foundation in this lawsuit alleging discriminatory taxation in violation\n\nof the Railroad Revitalization and Regulatory Reform Act of 1976. The district court\n\nconcluded that the City’s stormwater management charge is a fee, rather than a tax. This\n\ndistinction matters because only taxes are subject to challenge under the Act. For the\n\nreasons that follow, we affirm.\n\n\n\n I.\n\n A.\n\n The City of Roanoke operates a stormwater management system that includes\n\ngutters, storm drains, channels, retention basins, and other infrastructure. The system\n\ncollects stormwater and diverts it into the Roanoke River or one of its thirteen tributaries\n\nin the City.\n\n To operate its system, the City must hold a permit issued by Virginia’s\n\nDepartment of Environmental Quality pursuant to the federal Clean Water Act and\n\nEnvironmental Protection Agency regulations. Such permits “require controls to reduce\n\nthe discharge of pollutants to the maximum extent practicable, including management\n\npractices, control techniques and system, design and engineering methods, and such other\n\nprovisions as the [EPA] or the State determines appropriate for the control of such\n\npollutants.” 33 U.S.C. § 1342(p)(3)(B)(iii). The City’s permit requires it to implement\n\n\n 3\n\nsix “minimum control measures” and meet Total Maximum Daily Load (“TMDL”)\n\nlimits, among other requirements. 1\n\n To facilitate compliance with applicable state and federal stormwater regulations,\n\nVirginia law authorizes municipalities to establish stormwater utilities and enact\n\nstormwater management charges. Va. Code Ann. § 15.2.2114. These charges must be\n\nenacted “by ordinance,” and must “be based upon an analysis that demonstrates the\n\nrational relationship between the amount charged and the services provided.” Id.\n\n§ 15.2.2144(A), (B). Localities must also provide for full or partial waivers of charges to\n\nproperty owners who engage in certain stormwater management practices. Id. § 15.2-\n\n2114(D). Income from the charges “shall be dedicated special revenue . . . and may be\n\nused only to pay or recover costs for” seven purposes related to stormwater management.\n\nId. § 15.2-2114(A).\n\n In 2013, the Roanoke City Council enacted an ordinance establishing a\n\nStormwater Management Utility and a stormwater utility charge. The City Council found\n\nthat “an adequate, sustainable source of revenue for stormwater management activities is\n\nnecessary to protect the general health, safety, and welfare of the residents of the city.”\n\nRoanoke, Va., Code § 11.5-2. The Council also found that “parcels . . . with higher\n\namounts of impervious surfaces contribute greater amounts of stormwater and pollutants\n\n 1\n Minimum control measures include various means of reducing pollutants to\ncomply with the Clean Water Act, from public outreach and participation to system\noperation and maintenance. EPA, National Pollutant Discharge Elimination System—\nRegulations for Revision of the Water Pollution Control Program Addressing Storm\nWater Discharges, 64 Fed. Reg. 68,722, 68,752 (Dec. 8, 1999). TMDLs limit total\ndischarges of specified pollutants based on water quality criteria. 33 U.S.C. § 1313(d).\n\n\n 4\n\nto the city’s stormwater management system and that the owners of such parcels should\n\ncarry a proportionate burden of the cost of such system.” Id. Therefore, the Council\n\nchose to base the charge on “a parcel’s impervious surface cover.” Id.\n\n The ordinance imposes the stormwater management charge on all “improved\n\nparcels,” id. § 11.5-3(a), meaning all parcels with 250 square feet or more of impervious\n\nsurface, id. § 11.5-10(e). An impervious surface is one that significantly impedes or\n\nprevents “the natural infiltration of water into the soil.” Id. § 11.5-10(d). Approximately\n\n86% of the parcels in the City are considered improved parcels subject to the charge.\n\nJ.A. 57.\n\n Owners of improved parcels may apply for credits against the charge imposed\n\nupon them. Roanoke, Va., Code § 11.5-7. Credits are available for various stormwater\n\nmanagement activities that reduce, control, or treat stormwater runoff from improved\n\nparcels, such as installing rain gardens or pervious asphalt. Id.; see J.A. 135–36. The\n\nmaximum credit allowed for a given parcel is 50% of the total charge. Id. § 11.5-7(b)(1).\n\n All revenue from the charge is deposited into a stormwater utility enterprise fund,\n\nwhich is separate from the City’s general fund. The enterprise fund may only be used for\n\nsix stormwater management-related purposes listed in Va. Code Ann. § 15.2-2114(A).\n\nSince it was established, the Utility has used all revenue from the charge for stormwater\n\nmanagement.\n\n B.\n\n Norfolk Southern is one of the City’s largest property owners, and it holds one of\n\nthe City’s largest improved parcels. In 2017, it was assessed a stormwater charge of\n\n\n 5\n\n$416,748.28 for that parcel. Much of Norfolk Southern’s property is covered by railroad\n\ntrack and ballast. Ballast is the crushed stone surface beneath railroad tracks that\n\nstabilizes the tracks and drains stormwater away from them.\n\n Norfolk Southern claims that its ballasted property should be exempt from the\n\ncharge. It contends that ballast is at least as pervious to stormwater runoff as lawns,\n\nwhich are not considered impervious surfaces and are not subject to the charge.\n\n C.\n\n Following unsuccessful attempts to exempt the ballasted property from the charge,\n\nNorfolk Southern sued the City, alleging that the stormwater management charge is a\n\ndiscriminatory tax in violation of the Railroad Revitalization and Regulatory Reform Act\n\nof 1976 (the “4-R Act”), 49 U.S.C. § 11501. Under the 4-R Act, states and localities may\n\nnot impose any “tax that discriminates against a rail carrier.” Id. § 11501(b)(4). Norfolk\n\nSouthern alleges that the City’s stormwater management charge does just that because it\n\ntreats ballasted property differently from lawns, even though the two are, in the railroad’s\n\nview, equally pervious to stormwater.\n\n Following a period of discovery, the district court granted Defendants’ motion for\n\nsummary judgment, concluding that although it is “admittedly a close question,” the\n\ncharge is not subject to the 4-R Act’s requirements because it is a fee rather than a tax.\n\nNorfolk S. Railway Co. v. City of Roanoke, No. 7:16 CV 00176, 2017 WL 6599008, at\n\n*8–9 (W.D. Va. Dec. 26, 2017). We review the district court’s decision de novo. Valero\n\nTerrestrial Corp. v. Caffrey, 205 F.3d 130, 133 (4th Cir. 2000).\n\n\n\n\n 6\n\n II.\n\n Because the 4-R Act applies only to taxes, not fees, we must determine whether\n\nthe charge in this case is closer to (1) a paradigmatic tax, which “is imposed by a\n\nlegislature upon many, or all, citizens” and “raises money, contributed to a general fund,\n\nand spent for the benefit of the entire community,” or (2) a paradigmatic regulatory fee,\n\nwhich “is imposed by an agency upon those subject to its regulation,” and serves\n\nregulatory purposes by disincentivizing conduct or raising money to defray regulatory\n\nexpenses. San Juan Cellular Tel. Co. v. Pub. Serv. Comm’n, 967 F.2d 683, 685 (1st Cir.\n\n1992). In answering this question, we are aided by the three-part framework suggested in\n\nSan Juan Cellular and adopted by this court in Valero, 205 F.3d at 134. 2 This framework\n\nfocuses on “(1) what entity imposes the charge; (2) what population is subject to the\n\ncharge; and (3) what purposes are served by the use of the monies obtained by the\n\ncharge.” Id. If the charge falls “somewhere in the middle” between a classic tax and a\n\nclassic fee, the most important of these considerations is the charge’s purpose. Id.\n\n\n\n\n 2\n Defendants urge us not to apply the San Juan Cellular framework to this 4-R Act\ncase because it was developed in cases that concerned different statutes. Nothing about\nthe framework, however, is statute-specific. As Judge Wynn aptly notes in his\nconcurring opinion, it merely provides flexible and versatile guidance in assessing where\na particular charge sits on the tax-fee continuum. Indeed, San Juan Cellular aimed to\nsynthesize the general approach that courts had taken to distinguish taxes from fees “in a\nvariety of statutory contexts.” 967 F.2d at 685.\n\n\n\n 7\n\n A.\n\n We first consider who sets the charge. A charge is more likely to be a tax if it’s\n\nimposed by the legislature, rather than an administrative agency. Valero, 205 F.3d at\n\n134. Here, this factor suggests that the charge is a tax because it’s imposed by Roanoke’s\n\nlegislative body, the City Council. 3\n\n B.\n\n Under the second San Juan Cellular factor, a charge is more likely to be a tax if it\n\nis imposed on a broad segment of the public. GenOn Mid-Atl., LLC v. Montgomery\n\nCounty, 650 F.3d 1021, 1024 (4th Cir. 2011). And assessment of a tax is often based\n\n“solely on ability to pay,” as measured by a payor’s property or income, rather than tied\n\nto the receipt of a particular benefit or the imposition of a regulatory burden. Nat’l Cable\n\nTelevision Ass’n, Inc v. United States, 415 U.S. 336, 341 (1974); see DIRECTV, Inc. v.\n\nTolson, 513 F.3d 119, 126 n.3 (4th Cir. 2008) (discussing the significance of whether an\n\nassessment is tied to income). By contrast, the classic fee is imposed only upon persons\n\nsubject to regulation by a particular agency. Valero, 205 F.3d at 134.\n\n\n\n 3\n As Defendants point out, the Virginia statute authorizing the charge requires that\nit be passed through ordinance by the City Council. This makes the Council somewhat\nless like an autonomous legislature and somewhat more like an administrative agency\nimplementing the state statute, which itself forms a part of the Clean Water Act’s\ncomprehensive regulatory scheme. But the authorizing statute still requires legislative\ndecision-making through passage of an ordinance. The Council’s decision acts as a\ncheck on the regulatory program, in much the same way that legislatures’ appropriations\ndecisions can check agencies’ regulatory programs. Thus, we consider the Council to\nhave acted in a predominantly legislative capacity for purposes of the first factor.\n\n\n\n 8\n\n This factor suggested that the charge was a tax in Valero, where it was imposed\n\nupon persons disposing waste at landfills, who in turn passed the cost on to their\n\ncustomers, thereby spreading it “to a significantly wider portion of the population.” Id.;\n\naccord DIRECTV, 513 F.3d at 125–26. In GenOn, however, we concluded that a carbon\n\nemission charge was a fee rather than a tax primarily because the charge applied to only\n\none entity. 650 F.3d at 1024. 4\n\n Here, the second factor is largely inconclusive. On the one hand, the stormwater\n\nmanagement charge applies to a broad class of property owners, suggesting that it is a\n\ntax. But on the other hand, it isn’t assessed solely on the basis of property ownership.\n\nRather, the amount assessed is proportional to the amount of impervious surface on an\n\nowner’s property. And property owners may receive credits against the assessment if\n\nthey engage in certain stormwater management practices. These features suggest that the\n\ncharge is a measure of the stormwater management obligations that each parcel imposes\n\nupon the City, rather than a measure of ability to pay. And this makes the charge more\n\nlike a fee. These features also distinguish the stormwater management charge from the\n\ncharge in Valero, which applied to all waste disposers regardless of their contribution to\n\n\n\n\n 4\n Courts have differed as to how the second factor applies to stormwater\nmanagement charges. Compare DeKalb County v. United States, 108 Fed. Cl. 681, 700–\n01 (2013) (concluding that the second factor suggested a stormwater management charge\nwas a tax), and McLeod v. Columbia County, 254 F. Supp. 2d 1340, 1346 (S.D. Ga.\n2003) (same), with Homewood Vill., LLC v. Unified Gov’t of Athens-Clarke County, 132\nF. Supp. 3d 1376, 1381 (M.D. Ga. 2015) (reaching the opposite conclusion).\n\n\n\n 9\n\nthe burden that the charge was designed to address—closing underfunded landfills. On\n\nbalance then, this second factor is effectively a wash as to the nature of the charge.\n\n C.\n\n Under the third San Juan Cellular factor—which is the most important one in\n\nclose cases—a charge is more likely to be a tax if its primary purpose is to raise revenue\n\nfor general government activity that benefits the entire community. 967 F.2d at 685–86.\n\nThis is true even if the revenue is placed into a special fund and segregated from general\n\nrevenue, as long as “the special fund is used to benefit the population at large.” Valero,\n\n205 F.3d at 135. Conversely, a charge is more likely to be a fee if it’s used to provide\n\nindividualized benefits or to defray an agency’s costs of regulating. San Juan Cellular,\n\n967 F.2d at 685–86. A charge will also be considered a fee if its primary purpose is to\n\nregulate conduct by making it more expensive (even if the charge also raises revenue).\n\nS.C. ex rel. Tindal v. Block, 717 F.2d 874, 887 (4th Cir. 1983).\n\n The third factor pointed to the charge being a tax in Valero, where the funds\n\ncollected were used to support the closure of underfunded landfills in an environmentally\n\nsound manner that complied with EPA regulations. 205 F.3d at 134–35. The charge’s\n\npurpose was to protect the state’s groundwater, which benefitted the general public. Id.\n\nAnd in United States v. City of Huntington, the charge’s purpose suggested it was a tax\n\nwhere the charge paid for “core government services” including fire and flood protection\n\nand street maintenance. 999 F.2d 71, 73 (4th Cir. 1993).\n\n On the other hand, the charge’s purpose suggested it was a fee in San Juan\n\nCellular, where the funds were used to regulate cell phone providers. 967 F.2d at 686.\n\n\n 10\n\nThe court noted that there need not be an exact match between the charge assessed and\n\nthe agency’s expenditures on a particular regulated firm. Id. at 686–87. In GenOn, we\n\nfound that a carbon emission charge was “plainly regulatory,” just like a classic fee,\n\nbecause it “create[d] disincentives for GenOn to continue polluting and provide[d] funds\n\nfor others to reduce their carbon dioxide emissions.” 650 F.3d at 1025.\n\n Courts have reached different results in applying the third factor to stormwater\n\nmanagement charges. In DeKalb County, the court concluded that the third factor\n\nsuggested the charge was a tax because the benefits of stormwater management—flood\n\nprevention and abatement of water pollution—were shared broadly by the general public.\n\n108 Fed. Cl. at 701. The court also noted that the assessment of a stormwater charge is\n\nbased “not on the benefits derived by the payor, but by the anticipated burden that its\n\nproperty imposes on the stormwater system.” Id. at 703. And the charge couldn’t be\n\nconsidered a voluntary user fee because property owners couldn’t decline stormwater\n\nservices. Id. at 704–06. The McLeod court reached a similar result, noting that “[s]torm\n\nwater management was and is the type of service that is often funded through general tax\n\nrevenue.” 254 F. Supp. 2d at 1347–48. The Homewood Village court, however, reached\n\nthe opposite conclusion, noting that although all residents receive a benefit from\n\nstormwater management, “those paying the charge receive a special benefit” because the\n\ncounty treats polluted water on their properties, facilitating compliance with state and\n\nfederal requirements. 132 F. Supp. 3d at 1381 (citing Homewood Vill., LLC v. Unified\n\nGov’t of Athens-Clarke County, 739 S.E.2d 316, 318 (Ga. 2013)).\n\n\n\n\n 11\n\n Norfolk Southern argues that Roanoke’s stormwater management charge serves\n\ntwo purposes that both benefit the general public: reducing water pollution and improving\n\nflood control. It analogizes these purposes to maintaining the safety of the state’s\n\ngroundwater, which we held to be a public benefit in Valero. Defendants respond that\n\nthey are obligated by law to operate a stormwater management system and to use all\n\nrevenue generated from the charge for specific stormwater management activities. Thus,\n\nalthough the charge may benefit the public, its primary purpose is to satisfy regulatory\n\nrequirements. 5 Norfolk Southern’s rejoinder is that the charge isn’t regulatory in the\n\nsense recognized by San Juan Cellular because the City is a regulated entity, rather than\n\na regulator. The railroad notes that the stormwater Utility doesn’t directly regulate its\n\nactivity or issue any permit for its stormwater discharges.\n\n We think the charge’s purpose is more consistent with that of a fee than a tax,\n\nbecause the charge forms part of a comprehensive regulatory scheme. Although\n\nmunicipalities may have traditionally provided stormwater management as a public\n\nbenefit at the discretion of their legislatures, the Clean Water Act’s regulatory scheme\n\nnow requires the City to take myriad concrete actions to reduce discharges and pollutant\n\nconcentrations—many of them relating directly to runoff from Norfolk Southern’s\n\n\n\n\n 5\n Defendants also note that all revenue from the charge is placed into a segregated\nenterprise fund, rather than the City’s general fund. But standing alone, the fact that\nrevenue from the charge is placed in a special fund is “immaterial.” Valero, 205 F.3d at\n135.\n\n\n\n 12\n\nproperty and the waters that receive it. See, e.g., J.A. 140–44, 169–80, 262, 284–86,\n\n554–58.\n\n What’s more, if the City elects to assess a charge to offset the costs of complying\n\nwith these regulatory obligations, it must do so consistent with the state authorizing\n\nstatute, Va. Code Ann. § 15.2-2114. This statute restricts the funds to specific uses\n\nrelated to stormwater management, and it requires that the charge incentivize stormwater\n\nmanagement practices by crediting property owners who adopt them. Id. § 15.2-2114(D).\n\nThese requirements have removed much of the legislative discretion that was\n\ntraditionally associated with stormwater management. The City is now a participant in a\n\ncomprehensive scheme regulating stormwater management and the assessment of charges\n\nto pay for it.\n\n Of course, the City doesn’t directly regulate Norfolk Southern or other stormwater\n\ndischargers, nor does it issue permits for their discharges. Thus, rather than defraying the\n\nCity’s costs of regulating, the charge primarily defrays the City’s costs of complying with\n\nregulations imposed upon it. At bottom, however, a classic regulatory fee is designed to\n\naddress harmful impacts of otherwise permissible activities, and to ensure that the actors\n\nresponsible for those impacts bear the costs of addressing them. That is exactly the\n\nfunction served by Roanoke’s stormwater management charge, which ensures that\n\nowners of impervious surfaces bear the cost of managing stormwater runoff.\n\n In sum, the charge is part of a regulatory scheme, rooted in the Clean Water Act,\n\nwhose purpose is to remedy the environmental harms associated with stormwater runoff\n\nand to hold stormwater dischargers responsible for footing the bill. EPA’s regulations\n\n\n 13\n\nensure that the harms of stormwater discharge are addressed, and the City levies a charge\n\n(as directed by the state) upon those whose activity creates the need for regulation. The\n\ncharge also serves the regulatory function of incentivizing property owners to reduce the\n\namount of impervious surface on their land and engage in stormwater management\n\npractices that qualify them for credits.\n\n As a result, the third San Juan Cellular factor suggests that the charge is a fee.\n\n D.\n\n Finally, we consider the three San Juan Cellular factors collectively, in light of all\n\nthe relevant circumstances, to decide whether the City’s stormwater management charge\n\nis a tax subject to the 4-R Act’s requirements, or a fee beyond the reach of those\n\nrequirements. As the district court acknowledged, this is a “close question.” Norfolk S.,\n\n2017 WL 6599008, at *8. The first factor suggests that the charge is a tax because it’s\n\nimposed by the legislature. The second factor is largely inconclusive because the charge\n\nis levied upon most properties but based on contributions to stormwater runoff rather than\n\nability to pay. The third factor suggests that the charge is a fee because it forms part of a\n\ncomprehensive regulatory scheme.\n\n Applying the principle we articulated in Valero, 205 F.3d at 134, we give the third\n\nfactor controlling weight here because the charge’s regulatory purpose provides a better\n\nindication of its overall nature than the body that implemented it or the class of persons it\n\nis levied upon. See also Club Ass’n of W. Va., Inc. v. Wise, 293 F.3d 723, 726 (4th Cir.\n\n2002) (applying this principle). Accordingly, we conclude that the charge is a fee, rather\n\n\n\n\n 14\n\nthan a tax subject to the 4-R Act’s requirements. The district court correctly granted\n\nDefendants’ motion for summary judgment.\n\n AFFIRMED\n\n\n\n\n 15\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: NORFOLK SOUTHERN RAILWAY COMPANY, Plaintiff - Appellant, v. CITY OF ROANOKE, a Virginia Municipality, Defendant - Appellee, and Chesapeake Bay Foundation, Intervenor/Defendant - Appellee.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1060\\n\\n\\nNORFOLK SOUTHERN RAILWAY COMPANY,\\n\\n Plaintiff − Appellant,\\n\\n v.\\n\\nCITY OF ROANOKE, a Virginia Municipality,\\n\\n Defendant – Appellee,\\n\\n and\\n\\nCHESAPEAKE BAY FOUNDATION,\\n\\n Intervenor/Defendant − Appellee.\\n\\n\\nAppeal from the United States District Court for the Western District of Virginia, at\\nRoanoke. Glen E. Conrad, District Judge. (7:16-cv-00176-GEC)\\n\\n\\nArgued: November 1, 2018 Decided: February 15, 2019\\n\\n\\nBefore WILKINSON, WYNN, and DIAZ, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Wilkinson\\nand Judge Wynn joined. Judge Wilkinson and Judge Wynn wrote separate concurring\\nopinions.\\n\\n\\nARGUED: Gary A. Bryant, WILLCOX & SAVAGE, P.C., Norfolk, Virginia, for\\nAppellant. Monica Taylor Monday, GENTRY LOCKE, Roanoke, Virginia; Jon Alan\\n\\nMueller, CHESAPEAKE BAY FOUNDATION, Annapolis, Maryland, for Appellees.\\nON BRIEF: Gregory J. Haley, Scott A. Stephenson, GENTRY LOCKE, Roanoke,\\nVirginia; Daniel J. Callaghan, OFFICE OF THE CITY ATTORNEY FOR THE CITY\\nOF ROANOKE, Roanoke, Virginia, for Appellee City of Roanoke. Alayna Chuney,\\nBrittany Wright, CHESAPEAKE BAY FOUNDATION, INC., Annapolis, Maryland, for\\nAppellee Chesapeake Bay Foundation, Inc.\\n\\n\\n\\n\\n 2\\n\\nDIAZ, Circuit Judge:\\n\\n Plaintiff Norfolk Southern Railway appeals the district court’s order granting\\n\\nsummary judgment for Defendant City of Roanoke, Virginia and Defendant-Intervenor\\n\\nChesapeake Bay Foundation in this lawsuit alleging discriminatory taxation in violation\\n\\nof the Railroad Revitalization and Regulatory Reform Act of 1976. The district court\\n\\nconcluded that the City’s stormwater management charge is a fee, rather than a tax. This\\n\\ndistinction matters because only taxes are subject to challenge under the Act. For the\\n\\nreasons that follow, we affirm.\\n\\n\\n\\n I.\\n\\n A.\\n\\n The City of Roanoke operates a stormwater management system that includes\\n\\ngutters, storm drains, channels, retention basins, and other infrastructure. The system\\n\\ncollects stormwater and diverts it into the Roanoke River or one of its thirteen tributaries\\n\\nin the City.\\n\\n To operate its system, the City must hold a permit issued by Virginia’s\\n\\nDepartment of Environmental Quality pursuant to the federal Clean Water Act and\\n\\nEnvironmental Protection Agency regulations. Such permits “require controls to reduce\\n\\nthe discharge of pollutants to the maximum extent practicable, including management\\n\\npractices, control techniques and system, design and engineering methods, and such other\\n\\nprovisions as the [EPA] or the State determines appropriate for the control of such\\n\\npollutants.” 33 U.S.C. § 1342(p)(3)(B)(iii). The City’s permit requires it to implement\\n\\n\\n 3\\n\\nsix “minimum control measures” and meet Total Maximum Daily Load (“TMDL”)\\n\\nlimits, among other requirements. 1\\n\\n To facilitate compliance with applicable state and federal stormwater regulations,\\n\\nVirginia law authorizes municipalities to establish stormwater utilities and enact\\n\\nstormwater management charges. Va. Code Ann. § 15.2.2114. These charges must be\\n\\nenacted “by ordinance,” and must “be based upon an analysis that demonstrates the\\n\\nrational relationship between the amount charged and the services provided.” Id.\\n\\n§ 15.2.2144(A), (B). Localities must also provide for full or partial waivers of charges to\\n\\nproperty owners who engage in certain stormwater management practices. Id. § 15.2-\\n\\n2114(D). Income from the charges “shall be dedicated special revenue . . . and may be\\n\\nused only to pay or recover costs for” seven purposes related to stormwater management.\\n\\nId. § 15.2-2114(A).\\n\\n In 2013, the Roanoke City Council enacted an ordinance establishing a\\n\\nStormwater Management Utility and a stormwater utility charge. The City Council found\\n\\nthat “an adequate, sustainable source of revenue for stormwater management activities is\\n\\nnecessary to protect the general health, safety, and welfare of the residents of the city.”\\n\\nRoanoke, Va., Code § 11.5-2. The Council also found that “parcels . . . with higher\\n\\namounts of impervious surfaces contribute greater amounts of stormwater and pollutants\\n\\n 1\\n Minimum control measures include various means of reducing pollutants to\\ncomply with the Clean Water Act, from public outreach and participation to system\\noperation and maintenance. EPA, National Pollutant Discharge Elimination System—\\nRegulations for Revision of the Water Pollution Control Program Addressing Storm\\nWater Discharges, 64 Fed. Reg. 68,722, 68,752 (Dec. 8, 1999). TMDLs limit total\\ndischarges of specified pollutants based on water quality criteria. 33 U.S.C. § 1313(d).\\n\\n\\n 4\\n\\nto the city’s stormwater management system and that the owners of such parcels should\\n\\ncarry a proportionate burden of the cost of such system.” Id. Therefore, the Council\\n\\nchose to base the charge on “a parcel’s impervious surface cover.” Id.\\n\\n The ordinance imposes the stormwater management charge on all “improved\\n\\nparcels,” id. § 11.5-3(a), meaning all parcels with 250 square feet or more of impervious\\n\\nsurface, id. § 11.5-10(e). An impervious surface is one that significantly impedes or\\n\\nprevents “the natural infiltration of water into the soil.” Id. § 11.5-10(d). Approximately\\n\\n86% of the parcels in the City are considered improved parcels subject to the charge.\\n\\nJ.A. 57.\\n\\n Owners of improved parcels may apply for credits against the charge imposed\\n\\nupon them. Roanoke, Va., Code § 11.5-7. Credits are available for various stormwater\\n\\nmanagement activities that reduce, control, or treat stormwater runoff from improved\\n\\nparcels, such as installing rain gardens or pervious asphalt. Id.; see J.A. 135–36. The\\n\\nmaximum credit allowed for a given parcel is 50% of the total charge. Id. § 11.5-7(b)(1).\\n\\n All revenue from the charge is deposited into a stormwater utility enterprise fund,\\n\\nwhich is separate from the City’s general fund. The enterprise fund may only be used for\\n\\nsix stormwater management-related purposes listed in Va. Code Ann. § 15.2-2114(A).\\n\\nSince it was established, the Utility has used all revenue from the charge for stormwater\\n\\nmanagement.\\n\\n B.\\n\\n Norfolk Southern is one of the City’s largest property owners, and it holds one of\\n\\nthe City’s largest improved parcels. In 2017, it was assessed a stormwater charge of\\n\\n\\n 5\\n\\n$416,748.28 for that parcel. Much of Norfolk Southern’s property is covered by railroad\\n\\ntrack and ballast. Ballast is the crushed stone surface beneath railroad tracks that\\n\\nstabilizes the tracks and drains stormwater away from them.\\n\\n Norfolk Southern claims that its ballasted property should be exempt from the\\n\\ncharge. It contends that ballast is at least as pervious to stormwater runoff as lawns,\\n\\nwhich are not considered impervious surfaces and are not subject to the charge.\\n\\n C.\\n\\n Following unsuccessful attempts to exempt the ballasted property from the charge,\\n\\nNorfolk Southern sued the City, alleging that the stormwater management charge is a\\n\\ndiscriminatory tax in violation of the Railroad Revitalization and Regulatory Reform Act\\n\\nof 1976 (the “4-R Act”), 49 U.S.C. § 11501. Under the 4-R Act, states and localities may\\n\\nnot impose any “tax that discriminates against a rail carrier.” Id. § 11501(b)(4). Norfolk\\n\\nSouthern alleges that the City’s stormwater management charge does just that because it\\n\\ntreats ballasted property differently from lawns, even though the two are, in the railroad’s\\n\\nview, equally pervious to stormwater.\\n\\n Following a period of discovery, the district court granted Defendants’ motion for\\n\\nsummary judgment, concluding that although it is “admittedly a close question,” the\\n\\ncharge is not subject to the 4-R Act’s requirements because it is a fee rather than a tax.\\n\\nNorfolk S. Railway Co. v. City of Roanoke, No. 7:16 CV 00176, 2017 WL 6599008, at\\n\\n*8–9 (W.D. Va. Dec. 26, 2017). We review the district court’s decision de novo. Valero\\n\\nTerrestrial Corp. v. Caffrey, 205 F.3d 130, 133 (4th Cir. 2000).\\n\\n\\n\\n\\n 6\\n\\n II.\\n\\n Because the 4-R Act applies only to taxes, not fees, we must determine whether\\n\\nthe charge in this case is closer to (1) a paradigmatic tax, which “is imposed by a\\n\\nlegislature upon many, or all, citizens” and “raises money, contributed to a general fund,\\n\\nand spent for the benefit of the entire community,” or (2) a paradigmatic regulatory fee,\\n\\nwhich “is imposed by an agency upon those subject to its regulation,” and serves\\n\\nregulatory purposes by disincentivizing conduct or raising money to defray regulatory\\n\\nexpenses. San Juan Cellular Tel. Co. v. Pub. Serv. Comm’n, 967 F.2d 683, 685 (1st Cir.\\n\\n1992). In answering this question, we are aided by the three-part framework suggested in\\n\\nSan Juan Cellular and adopted by this court in Valero, 205 F.3d at 134. 2 This framework\\n\\nfocuses on “(1) what entity imposes the charge; (2) what population is subject to the\\n\\ncharge; and (3) what purposes are served by the use of the monies obtained by the\\n\\ncharge.” Id. If the charge falls “somewhere in the middle” between a classic tax and a\\n\\nclassic fee, the most important of these considerations is the charge’s purpose. Id.\\n\\n\\n\\n\\n 2\\n Defendants urge us not to apply the San Juan Cellular framework to this 4-R Act\\ncase because it was developed in cases that concerned different statutes. Nothing about\\nthe framework, however, is statute-specific. As Judge Wynn aptly notes in his\\nconcurring opinion, it merely provides flexible and versatile guidance in assessing where\\na particular charge sits on the tax-fee continuum. Indeed, San Juan Cellular aimed to\\nsynthesize the general approach that courts had taken to distinguish taxes from fees “in a\\nvariety of statutory contexts.” 967 F.2d at 685.\\n\\n\\n\\n 7\\n\\n A.\\n\\n We first consider who sets the charge. A charge is more likely to be a tax if it’s\\n\\nimposed by the legislature, rather than an administrative agency. Valero, 205 F.3d at\\n\\n134. Here, this factor suggests that the charge is a tax because it’s imposed by Roanoke’s\\n\\nlegislative body, the City Council. 3\\n\\n B.\\n\\n Under the second San Juan Cellular factor, a charge is more likely to be a tax if it\\n\\nis imposed on a broad segment of the public. GenOn Mid-Atl., LLC v. Montgomery\\n\\nCounty, 650 F.3d 1021, 1024 (4th Cir. 2011). And assessment of a tax is often based\\n\\n“solely on ability to pay,” as measured by a payor’s property or income, rather than tied\\n\\nto the receipt of a particular benefit or the imposition of a regulatory burden. Nat’l Cable\\n\\nTelevision Ass’n, Inc v. United States, 415 U.S. 336, 341 (1974); see DIRECTV, Inc. v.\\n\\nTolson, 513 F.3d 119, 126 n.3 (4th Cir. 2008) (discussing the significance of whether an\\n\\nassessment is tied to income). By contrast, the classic fee is imposed only upon persons\\n\\nsubject to regulation by a particular agency. Valero, 205 F.3d at 134.\\n\\n\\n\\n 3\\n As Defendants point out, the Virginia statute authorizing the charge requires that\\nit be passed through ordinance by the City Council. This makes the Council somewhat\\nless like an autonomous legislature and somewhat more like an administrative agency\\nimplementing the state statute, which itself forms a part of the Clean Water Act’s\\ncomprehensive regulatory scheme. But the authorizing statute still requires legislative\\ndecision-making through passage of an ordinance. The Council’s decision acts as a\\ncheck on the regulatory program, in much the same way that legislatures’ appropriations\\ndecisions can check agencies’ regulatory programs. Thus, we consider the Council to\\nhave acted in a predominantly legislative capacity for purposes of the first factor.\\n\\n\\n\\n 8\\n\\n This factor suggested that the charge was a tax in Valero, where it was imposed\\n\\nupon persons disposing waste at landfills, who in turn passed the cost on to their\\n\\ncustomers, thereby spreading it “to a significantly wider portion of the population.” Id.;\\n\\naccord DIRECTV, 513 F.3d at 125–26. In GenOn, however, we concluded that a carbon\\n\\nemission charge was a fee rather than a tax primarily because the charge applied to only\\n\\none entity. 650 F.3d at 1024. 4\\n\\n Here, the second factor is largely inconclusive. On the one hand, the stormwater\\n\\nmanagement charge applies to a broad class of property owners, suggesting that it is a\\n\\ntax. But on the other hand, it isn’t assessed solely on the basis of property ownership.\\n\\nRather, the amount assessed is proportional to the amount of impervious surface on an\\n\\nowner’s property. And property owners may receive credits against the assessment if\\n\\nthey engage in certain stormwater management practices. These features suggest that the\\n\\ncharge is a measure of the stormwater management obligations that each parcel imposes\\n\\nupon the City, rather than a measure of ability to pay. And this makes the charge more\\n\\nlike a fee. These features also distinguish the stormwater management charge from the\\n\\ncharge in Valero, which applied to all waste disposers regardless of their contribution to\\n\\n\\n\\n\\n 4\\n Courts have differed as to how the second factor applies to stormwater\\nmanagement charges. Compare DeKalb County v. United States, 108 Fed. Cl. 681, 700–\\n01 (2013) (concluding that the second factor suggested a stormwater management charge\\nwas a tax), and McLeod v. Columbia County, 254 F. Supp. 2d 1340, 1346 (S.D. Ga.\\n2003) (same), with Homewood Vill., LLC v. Unified Gov’t of Athens-Clarke County, 132\\nF. Supp. 3d 1376, 1381 (M.D. Ga. 2015) (reaching the opposite conclusion).\\n\\n\\n\\n 9\\n\\nthe burden that the charge was designed to address—closing underfunded landfills. On\\n\\nbalance then, this second factor is effectively a wash as to the nature of the charge.\\n\\n C.\\n\\n Under the third San Juan Cellular factor—which is the most important one in\\n\\nclose cases—a charge is more likely to be a tax if its primary purpose is to raise revenue\\n\\nfor general government activity that benefits the entire community. 967 F.2d at 685–86.\\n\\nThis is true even if the revenue is placed into a special fund and segregated from general\\n\\nrevenue, as long as “the special fund is used to benefit the population at large.” Valero,\\n\\n205 F.3d at 135. Conversely, a charge is more likely to be a fee if it’s used to provide\\n\\nindividualized benefits or to defray an agency’s costs of regulating. San Juan Cellular,\\n\\n967 F.2d at 685–86. A charge will also be considered a fee if its primary purpose is to\\n\\nregulate conduct by making it more expensive (even if the charge also raises revenue).\\n\\nS.C. ex rel. Tindal v. Block, 717 F.2d 874, 887 (4th Cir. 1983).\\n\\n The third factor pointed to the charge being a tax in Valero, where the funds\\n\\ncollected were used to support the closure of underfunded landfills in an environmentally\\n\\nsound manner that complied with EPA regulations. 205 F.3d at 134–35. The charge’s\\n\\npurpose was to protect the state’s groundwater, which benefitted the general public. Id.\\n\\nAnd in United States v. City of Huntington, the charge’s purpose suggested it was a tax\\n\\nwhere the charge paid for “core government services” including fire and flood protection\\n\\nand street maintenance. 999 F.2d 71, 73 (4th Cir. 1993).\\n\\n On the other hand, the charge’s purpose suggested it was a fee in San Juan\\n\\nCellular, where the funds were used to regulate cell phone providers. 967 F.2d at 686.\\n\\n\\n 10\\n\\nThe court noted that there need not be an exact match between the charge assessed and\\n\\nthe agency’s expenditures on a particular regulated firm. Id. at 686–87. In GenOn, we\\n\\nfound that a carbon emission charge was “plainly regulatory,” just like a classic fee,\\n\\nbecause it “create[d] disincentives for GenOn to continue polluting and provide[d] funds\\n\\nfor others to reduce their carbon dioxide emissions.” 650 F.3d at 1025.\\n\\n Courts have reached different results in applying the third factor to stormwater\\n\\nmanagement charges. In DeKalb County, the court concluded that the third factor\\n\\nsuggested the charge was a tax because the benefits of stormwater management—flood\\n\\nprevention and abatement of water pollution—were shared broadly by the general public.\\n\\n108 Fed. Cl. at 701. The court also noted that the assessment of a stormwater charge is\\n\\nbased “not on the benefits derived by the payor, but by the anticipated burden that its\\n\\nproperty imposes on the stormwater system.” Id. at 703. And the charge couldn’t be\\n\\nconsidered a voluntary user fee because property owners couldn’t decline stormwater\\n\\nservices. Id. at 704–06. The McLeod court reached a similar result, noting that “[s]torm\\n\\nwater management was and is the type of service that is often funded through general tax\\n\\nrevenue.” 254 F. Supp. 2d at 1347–48. The Homewood Village court, however, reached\\n\\nthe opposite conclusion, noting that although all residents receive a benefit from\\n\\nstormwater management, “those paying the charge receive a special benefit” because the\\n\\ncounty treats polluted water on their properties, facilitating compliance with state and\\n\\nfederal requirements. 132 F. Supp. 3d at 1381 (citing Homewood Vill., LLC v. Unified\\n\\nGov’t of Athens-Clarke County, 739 S.E.2d 316, 318 (Ga. 2013)).\\n\\n\\n\\n\\n 11\\n\\n Norfolk Southern argues that Roanoke’s stormwater management charge serves\\n\\ntwo purposes that both benefit the general public: reducing water pollution and improving\\n\\nflood control. It analogizes these purposes to maintaining the safety of the state’s\\n\\ngroundwater, which we held to be a public benefit in Valero. Defendants respond that\\n\\nthey are obligated by law to operate a stormwater management system and to use all\\n\\nrevenue generated from the charge for specific stormwater management activities. Thus,\\n\\nalthough the charge may benefit the public, its primary purpose is to satisfy regulatory\\n\\nrequirements. 5 Norfolk Southern’s rejoinder is that the charge isn’t regulatory in the\\n\\nsense recognized by San Juan Cellular because the City is a regulated entity, rather than\\n\\na regulator. The railroad notes that the stormwater Utility doesn’t directly regulate its\\n\\nactivity or issue any permit for its stormwater discharges.\\n\\n We think the charge’s purpose is more consistent with that of a fee than a tax,\\n\\nbecause the charge forms part of a comprehensive regulatory scheme. Although\\n\\nmunicipalities may have traditionally provided stormwater management as a public\\n\\nbenefit at the discretion of their legislatures, the Clean Water Act’s regulatory scheme\\n\\nnow requires the City to take myriad concrete actions to reduce discharges and pollutant\\n\\nconcentrations—many of them relating directly to runoff from Norfolk Southern’s\\n\\n\\n\\n\\n 5\\n Defendants also note that all revenue from the charge is placed into a segregated\\nenterprise fund, rather than the City’s general fund. But standing alone, the fact that\\nrevenue from the charge is placed in a special fund is “immaterial.” Valero, 205 F.3d at\\n135.\\n\\n\\n\\n 12\\n\\nproperty and the waters that receive it. See, e.g., J.A. 140–44, 169–80, 262, 284–86,\\n\\n554–58.\\n\\n What’s more, if the City elects to assess a charge to offset the costs of complying\\n\\nwith these regulatory obligations, it must do so consistent with the state authorizing\\n\\nstatute, Va. Code Ann. § 15.2-2114. This statute restricts the funds to specific uses\\n\\nrelated to stormwater management, and it requires that the charge incentivize stormwater\\n\\nmanagement practices by crediting property owners who adopt them. Id. § 15.2-2114(D).\\n\\nThese requirements have removed much of the legislative discretion that was\\n\\ntraditionally associated with stormwater management. The City is now a participant in a\\n\\ncomprehensive scheme regulating stormwater management and the assessment of charges\\n\\nto pay for it.\\n\\n Of course, the City doesn’t directly regulate Norfolk Southern or other stormwater\\n\\ndischargers, nor does it issue permits for their discharges. Thus, rather than defraying the\\n\\nCity’s costs of regulating, the charge primarily defrays the City’s costs of complying with\\n\\nregulations imposed upon it. At bottom, however, a classic regulatory fee is designed to\\n\\naddress harmful impacts of otherwise permissible activities, and to ensure that the actors\\n\\nresponsible for those impacts bear the costs of addressing them. That is exactly the\\n\\nfunction served by Roanoke’s stormwater management charge, which ensures that\\n\\nowners of impervious surfaces bear the cost of managing stormwater runoff.\\n\\n In sum, the charge is part of a regulatory scheme, rooted in the Clean Water Act,\\n\\nwhose purpose is to remedy the environmental harms associated with stormwater runoff\\n\\nand to hold stormwater dischargers responsible for footing the bill. EPA’s regulations\\n\\n\\n 13\\n\\nensure that the harms of stormwater discharge are addressed, and the City levies a charge\\n\\n(as directed by the state) upon those whose activity creates the need for regulation. The\\n\\ncharge also serves the regulatory function of incentivizing property owners to reduce the\\n\\namount of impervious surface on their land and engage in stormwater management\\n\\npractices that qualify them for credits.\\n\\n As a result, the third San Juan Cellular factor suggests that the charge is a fee.\\n\\n D.\\n\\n Finally, we consider the three San Juan Cellular factors collectively, in light of all\\n\\nthe relevant circumstances, to decide whether the City’s stormwater management charge\\n\\nis a tax subject to the 4-R Act’s requirements, or a fee beyond the reach of those\\n\\nrequirements. As the district court acknowledged, this is a “close question.” Norfolk S.,\\n\\n2017 WL 6599008, at *8. The first factor suggests that the charge is a tax because it’s\\n\\nimposed by the legislature. The second factor is largely inconclusive because the charge\\n\\nis levied upon most properties but based on contributions to stormwater runoff rather than\\n\\nability to pay. The third factor suggests that the charge is a fee because it forms part of a\\n\\ncomprehensive regulatory scheme.\\n\\n Applying the principle we articulated in Valero, 205 F.3d at 134, we give the third\\n\\nfactor controlling weight here because the charge’s regulatory purpose provides a better\\n\\nindication of its overall nature than the body that implemented it or the class of persons it\\n\\nis levied upon. See also Club Ass’n of W. Va., Inc. v. Wise, 293 F.3d 723, 726 (4th Cir.\\n\\n2002) (applying this principle). Accordingly, we conclude that the charge is a fee, rather\\n\\n\\n\\n\\n 14\\n\\nthan a tax subject to the 4-R Act’s requirements. The district court correctly granted\\n\\nDefendants’ motion for summary judgment.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 15\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":560,"cells":{"id":{"kind":"number","value":4591792,"string":"4,591,792"},"name":{"kind":"string","value":"HANNAH P., Plaintiff-Appellant, v. Daniel COATS, Director of the Office of the Director of National Intelligence McLean, VA, Defendant-Appellee, and Mark Ewing, in His Personal Capacity McLean, VA, Defendant."},"name_abbreviation":{"kind":"string","value":"Hannah P. v. Daniel Coats"},"decision_date":{"kind":"string","value":"2019-02-19"},"docket_number":{"kind":"string","value":"17-1943"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Gregory, Thacker, Quattlebaum\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888034/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"035concurrenceinpart\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888035/\", \"author_raw\": \"\"}, {\"author\": \"THACKER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n\\n No. 17-1943\\n\\n\\nHANNAH P.,\\n\\n Plaintiff - Appellant,\\n\\n v.\\n\\nDANIEL COATS, Director of the Office of The Director of National Intelligence\\nMcLean, VA,\\n\\n Defendant - Appellee,\\n\\n and\\n\\nMARK EWING, in his personal capacity McLean, VA,\\n\\n Defendant.\\n\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nAlexandria. Claude M. Hilton, Senior District Judge. (1:16-cv-01030-CMH-IDD)\\n\\n\\nArgued: October 31, 2018 Decided: February 19, 2019\\n\\n\\nBefore GREGORY, Chief Judge, THACKER and QUATTLEBAUM, Circuit Judges.\\n\\n\\nAffirmed in part, vacated in part, and remanded by published opinion. Judge Thacker\\nwrote the opinion, in which Judge Quattlebaum joined. Chief Judge Gregory wrote a\\nseparate opinion concurring in part and dissenting in part.\\n\\nARGUED: Timothy Bosson, BOSSON LEGAL GROUP, Fairfax, Virginia, for\\nAppellant. Caroline D. Lopez, UNITED STATES DEPARTMENT OF JUSTICE,\\nWashington, D.C., for Appellee. ON BRIEF: Chad A. Readler, Principal Deputy\\nAssistant Attorney General, Marleigh D. Dover, Civil Division, UNITED STATES\\nDEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente, United States\\nAttorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for\\nAppellee.\\n\\n\\n\\n\\n 2\\n\\nTHACKER, Circuit Judge:\\n\\n Appellant Hannah P. 1 (“Hannah”), a former employee of the Office of the Director\\n\\nof National Intelligence (“Appellee”), asserts that Appellee discriminated against her\\n\\npursuant to the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701, et\\n\\nseq., and violated the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C.\\n\\n§ 2601, et seq., by not hiring her for a permanent position. The district court granted\\n\\nsummary judgment in Appellee’s favor as to all claims.\\n\\n For the reasons explained below, we affirm the district court’s judgment as to the\\n\\nRehabilitation Act and FMLA retaliation claims. However, because a genuine issue of\\n\\nmaterial fact remains as to whether Hannah provided notice of her disability and interest\\n\\nin FMLA leave sufficient to trigger Appellee’s duty to inquire, we hold that summary\\n\\njudgment as to Hannah’s FMLA interference claim was not warranted. Accordingly, we\\n\\nvacate that part of the district court’s judgment and remand Hannah’s FMLA interference\\n\\nclaim for further proceedings.\\n\\n I.\\n\\n A.\\n\\n In March 2011, Appellee hired Hannah for a five-year term as an operations\\n\\nanalyst. In that position, Hannah participated in “long-term, in-depth studies into issues\\n\\n\\n\\n\\n 1\\n Pursuant to a protective order, Hannah is identified by her first name and last\\ninitial.\\n\\n\\n\\n 3\\n\\nthat had particular budgetary importance for the [c]ommunity.” J.A. 18. 2 Hannah\\n\\ngenerally received glowing reviews from her supervisors. See, e.g., id. at 412 (describing\\n\\nHannah’s performance prior to 2015 as “outstanding” and noting her “energy/drive,\\n\\ntechnical competence, superb communication and networking skills, and superior\\n\\nanalytic tradecraft”); id. at 350 (describing Hannah as “a high-performing employee”); id.\\n\\nat 391–410 (describing, repeatedly, various elements of Hannah’s performance as\\n\\n“excellent” and “outstanding”).\\n\\n B.\\n\\n A few months after she was hired, Hannah was diagnosed with depression.\\n\\nHannah immediately informed at least two of her supervisors of her diagnosis, but she\\n\\ndid not request any accommodations at that time. Hannah treated her depression by\\n\\nseeing a counselor and a psychiatrist and by taking prescribed medication.\\n\\n In November 2013, Hannah was assigned to coordinate the responses of the\\n\\nNational Intelligence Director and Principal Deputy Director to Edward Snowden’s\\n\\nunauthorized disclosures. 3 This role was “high stress” and required “frequent long hours\\n\\nand weekend work coupled with meeting tight deadlines and dealing with a demanding\\n\\n 2\\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this\\nappeal.\\n 3\\n In 2013, National Security Agency subcontractor Edward Snowden leaked “the\\nbiggest cache of top-secret documents in history,” which revealed numerous global\\nsurveillance programs run by the United States government. Ewen MacAskill & Alex\\nHern, Edward Snowden: ‘The People Are Still Powerless, but Now They’re Aware,’\\nGuardian (June 4, 2018), https://www.theguardian.com/us-news/2018/jun/04/edward-\\nsnowden-people-still-powerless-but-aware.\\n\\n\\n\\n 4\\n\\n[National Security Council] customer.” J.A. 412. In fact, to accommodate the schedule\\n\\nchange that this role required, Appellee moved Hannah to a “maxi flex” schedule. Id. at\\n\\n350–51. A “maxi flex” schedule requires an analyst to work a certain number of hours --\\n\\n80 hours over a two-week period -- but does not dictate the exact hours that the analyst\\n\\nmust work per day. For Hannah, that meant starting and ending work later than\\n\\ntraditional business hours.\\n\\n The Snowden assignment lasted 18 months and completed in January 2015.\\n\\nHowever, Hannah continued her atypical working hours beyond the completion of the\\n\\nSnowden assignment. Hannah’s supervisor “was expecting” that when the Snowden\\n\\nassignment ended, Hannah’s hours “might become more normal.” J.A. 353. However,\\n\\nfor the first few months, he did not communicate with Hannah about returning to normal\\n\\nbusiness hours. Rather, he explained, he was “primarily concerned about establishing\\n\\nwhat [Hannah’s] next task was going to be.” Id.\\n\\n By March 2015, Hannah’s co-workers perceived her schedule to be “erratic.” J.A.\\n\\n413. Hannah arrived to work well after normal business hours and racked up numerous\\n\\nunplanned absences. On some occasions Hannah was “extremely late,” sometimes\\n\\narriving after 2 PM. Id. On other occasions Hannah was unreachable for hours, often\\n\\nmissing and failing to return “repeated phone calls to her cell and home phone.” Id.\\n\\nWhen Hannah’s supervisors were able to reach her, they noted that she seemed “either\\n\\nlethargic or almost unconcerned” about her lateness and absences. Id. They also noted\\n\\nthat her demeanor was “sad, very flat, and almost trance like.” Id. Around that time,\\n\\nHannah informed her supervisors that she “had a recent change in medication.” Id.\\n\\n\\n 5\\n\\n C.\\n\\n 1.\\n\\n Appellee made some accommodations for Hannah following the Snowden\\n\\nassignment. First, after consulting with Hannah in January 2015, Appellee lightened\\n\\nHannah’s workload “to give her a chance to decompress” from the stress of the Snowden\\n\\nassignment. J.A. 413 (internal quotation marks omitted). Second, multiple of Hannah’s\\n\\nsupervisors had “informal counseling sessions” with her “to discuss any issues that she\\n\\nmight be having” and to “urge her” to notify them if she was going to be late or absent.\\n\\nId.\\n\\n On March 19, 2015, one of Hannah’s supervisors met with Hannah directly to\\n\\naddress her attendance issues. Together, Hannah and her supervisors developed a plan to\\n\\nreconcile Hannah’s depression with Appellee’s staffing needs. According to that plan,\\n\\nHannah was to arrive to work by 10 AM. If she was going to be absent or later than 10\\n\\nAM, Hannah was to contact one of her supervisors in advance. If Hannah had not arrived\\n\\nat work or contacted a supervisor by 11 AM, a supervisor would call her to determine\\n\\nwhen she would arrive.\\n\\n But, Hannah did not follow the plan. For example, the very next day after she and\\n\\nher supervisors developed the plan, Hannah emailed her supervisors at 11:05 AM to\\n\\ninform them that she would be arriving after 12 PM. Similarly, on March 31, Hannah\\n\\nemailed her supervisors at 11:56 AM to inform them that she would not be coming into\\n\\nwork at all that day. On April 1, after Hannah had not arrived to work or contacted her\\n\\nsupervisors, Hannah’s second-level supervisor called her at 12:30 PM, at which time\\n\\n\\n 6\\n\\nHannah reported “being unable to just get going.” J.A. 413. Later that day, when\\n\\nHannah finally arrived to work, her supervisor informed her that the plan they created\\n\\nwas not working.\\n\\n At that same time, her supervisor revised the plan to require Hannah to arrive at\\n\\nwork by 10 AM or report to her supervisors in advance if she was going to be late or\\n\\nabsent. This “put the onus” on Hannah to contact her supervisors, rather than asking her\\n\\nsupervisors to contact her if she had not arrived at work by 11 AM. J.A. 90. Hannah\\n\\nfailed to follow this modified plan as well. In fact, she failed to comply on April 2 and\\n\\nApril 3, the two days following the meeting where the plan was modified.\\n\\n According to Appellee, Hannah’s timeliness and attendance issues impacted her\\n\\nperformance, the performance of her peers, and the performance of her supervisors. Per\\n\\nAppellee, Hannah’s “erratic” schedule was “noted by her teammates” and affected “unit\\n\\ncohesion.” J.A. 413. Hannah’s failure to report her tardiness and absences as well as her\\n\\nunresponsiveness required her management team to spend “significant time and energy”\\n\\ntracking her down. Id. Additionally, because of Hannah’s absences, Hannah’s\\n\\nsupervisors were often forced to assign work that might have been assigned to Hannah to\\n\\nother analysts.\\n\\n 2.\\n\\n On April 9, 2015, just three weeks after the initial work plan was developed to\\n\\nattempt to accommodate Hannah’s needs, Hannah again met with her supervisors. At\\n\\nthis meeting, Hannah’s supervisors informed her that they were referring her to the\\n\\nEmployee Assistance Program (“EAP”). EAP is a voluntary counseling service for\\n\\n\\n 7\\n\\nemployees and their family members that provides “free, confidential, short-term mental\\n\\nhealth[,] financial, and addictions counseling and referral to cleared community\\n\\nproviders.” J.A. 132. Hannah’s supervisors made an EAP appointment for her for the\\n\\nfollowing day, Friday, April 10. At that time, Hannah explained to her supervisors that\\n\\nher psychiatrist recommended she take four weeks of medical leave. But, Hannah’s\\n\\nsupervisors insisted that she would need to meet with EAP before they could approve her\\n\\nrequest for medical leave.\\n\\n On the next business day following Hannah’s EAP session -- Monday, April 13 --\\n\\nHannah’s supervisor told Hannah he was willing to authorize her to take medical leave.\\n\\nHowever, at that point, Hannah informed her supervisor that her leave request was “on\\n\\nhold,” without further explanation. J.A. 170, 178.\\n\\n On April 16, Hannah’s supervisor noted in an email that he had an “extended” 40-\\n\\nminute discussion with Hannah’s EAP psychologist. J.A. 604. Hannah alleges that the\\n\\nEAP psychologist “shared with [Hannah’s supervisor] details of what Hannah had\\n\\nrevealed in confidence at the EAP sessions.” Appellant’s Br. 17. Specifically, Hannah\\n\\nalleges that the EAP psychologist told her supervisor that Hannah was concerned about\\n\\nAppellee’s records retention policies, and that Hannah’s “difficulties in getting to work\\n\\nwere the result of a lack of motivation, not related to depression.” J.A. 540.\\n\\n 3.\\n\\n Despite Hannah’s participation in EAP, her attendance problems persisted. For\\n\\nexample, on April 13, 2015, Hannah emailed her supervisors at 10:58 AM to inform them\\n\\nthat she would arrive to work by 11:30 AM. Similarly, on April 14, Hannah emailed her\\n\\n\\n 8\\n\\nsupervisors at 11:08 AM to inform them that she would arrive to work by 12 PM. That\\n\\nday, Hannah’s supervisors were not able to confirm her arrival to work until after 1:50\\n\\nPM.\\n\\n A week after advising her supervisors that her leave request was “on hold,” on\\n\\nApril 21, Hannah renewed her request for four weeks of medical leave. Hannah’s\\n\\nsupervisors approved that request on May 5. They required her to use her annual leave to\\n\\naccount for four-fifths of the four week leave period, and allowed her one day of sick\\n\\nleave per week to make up the rest. Hannah began her leave the day it was approved.\\n\\n On May 4, the day before Hannah began her leave of absence, Hannah’s\\n\\nsupervisors gave her a letter of expectations. That letter confirmed the revised attendance\\n\\nand reporting plan. This plan required Hannah to arrive to work by 10 AM or report to\\n\\nher supervisors by 9:30 AM if she was going to be late or absent.\\n\\n 4.\\n\\n During this time, Hannah applied for three permanent positions within the Office\\n\\nof the Director of National Intelligence. In February 2015, Hannah interviewed for two\\n\\npermanent positions for which she was not selected. Shortly before taking her leave of\\n\\nabsence in May 2015, Hannah applied for a third full-time position, the Program Mission\\n\\nManager Cyber Position (“Cyber position”). She was interviewed for the Cyber position\\n\\non June 9, eight days after she returned from leave, and the interview panel recommended\\n\\nher for the position. Her application was then forwarded to Appellee’s Chief\\n\\nManagement Officer, Mark Ewing, who recommended that Hannah not be selected for\\n\\nthe position “at this time,” stating that Hannah’s “recent performance is not consistent\\n\\n\\n 9\\n\\nwith a potentially good employee.” J.A. 232. Hannah was informed that her application\\n\\nhad been rejected in early July 2015, and she did not apply for any other positions.\\n\\nHannah completed her five-year term with Appellee in March 2016.\\n\\n D.\\n\\n Hannah exhausted her administrative remedies and filed this lawsuit on August 12,\\n\\n2016. She alleged that Appellee violated the Rehabilitation Act in five ways: (1) failing\\n\\nto accommodate her mental illness; (2) creating a hostile work environment; (3) requiring\\n\\nher to undergo a medical examination; (4) disclosing her confidential medical\\n\\ninformation; and (5) refusing to hire her for the Cyber position. Additionally, Hannah\\n\\nalleged that Appellee violated the FMLA in two ways: (1) by interfering with her ability\\n\\nto take medical leave; and (2) by retaliating against her when she took medical leave.\\n\\nAfter the close of discovery, Appellee moved for summary judgment on all counts. The\\n\\ndistrict court granted that motion on July 27, 2017. Hannah filed this timely notice of\\n\\nappeal challenging the district court’s decisions on all but the hostile work environment\\n\\nclaim.\\n\\n II.\\n\\n We review a district court’s decision to grant summary judgment de novo. See\\n\\nVannoy v. Fed. Reserve Bank of Richmond, 827 F.3d 296, 300 (4th Cir. 2016). In doing\\n\\nso, this court applies the same standard as the district court. See id. That standard\\n\\nrequires the court to grant summary judgment where “there is no genuine dispute as to\\n\\nany material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.\\n\\nP. 56(a); see also Vannoy, 827 F.3d at 300. We construe the evidence in the light most\\n\\n\\n 10\\n\\nfavorable to Hannah, the nonmovant, and we draw all reasonable inferences in her favor.\\n\\nSee Vannoy, 827 F.3d at 300.\\n\\n III.\\n\\n Hannah asserts that Appellee violated the Rehabilitation Act by failing to\\n\\naccommodate her depression, wrongfully requiring her to undergo a medical\\n\\nexamination, unlawfully disclosing her confidential medical information, and refusing to\\n\\nhire her for the Cyber position. Additionally, Hannah asserts that Appellee interfered\\n\\nwith and retaliated against her for using leave under the FMLA. We will address each of\\n\\nthese claims in turn.\\n\\n A.\\n\\n Rehabilitation Act Claims\\n\\n The Rehabilitation Act prohibits federal agencies from discriminating against its\\n\\nemployees on the basis of disability. See 29 U.S.C. § 794. For the reasons explained\\n\\nbelow, Hannah failed to satisfy her burden on each of her claims under the Rehabilitation\\n\\nAct. Specifically, Hannah failed to: (1) demonstrate that Appellee failed to accommodate\\n\\nher depression; (2) demonstrate that Appellee’s EAP amounted to a required medical\\n\\nexamination; (3) demonstrate that Appellee disclosed or misused confidential medical\\n\\ninformation; and (4) rebut Appellee’s legitimate, nondiscriminatory reason for rejecting\\n\\nher application for a permanent position.\\n\\n\\n\\n\\n 11\\n\\n 1.\\n\\n Reasonable Accommodation\\n\\n Turning first to Hannah’s claim that Appellee failed to accommodate her\\n\\ndepression, the district court correctly concluded that Hannah did not establish a prima\\n\\nfacie case because Hannah failed to demonstrate that Appellee refused to make a\\n\\nreasonable accommodation.\\n\\n To establish a prima facie claim of failure to accommodate under the\\n\\nRehabilitation Act, a plaintiff must demonstrate that (1) she was a qualified person with a\\n\\ndisability; (2) the employer had notice of the disability; (3) the plaintiff could perform the\\n\\nessential functions of the position with a reasonable accommodation; and (4) the\\n\\nemployer nonetheless refused to make the accommodation. See Reyazuddin v.\\n\\nMontgomery Cty., 789 F.3d 407, 414 (4th Cir. 2015). The district court concluded that\\n\\nHannah could not establish the fourth element -- specifically, the district court\\n\\ndetermined that Appellee provided Hannah with at least two reasonable accommodations.\\n\\nAnd, on appeal, the parties dispute only the fourth element.\\n\\n Here, as detailed above, Appellee provided Hannah with a reasonable\\n\\naccommodation. When Hannah failed to follow that plan, Hannah’s supervisors\\n\\nattempted a new accommodation -- referring Hannah to EAP. Yet, despite Hannah’s\\n\\nparticipation in EAP, her attendance problems persisted.\\n\\n Hannah argues that Appellee’s accommodations were not reasonable for two\\n\\nreasons. First, she claims that the accommodation was improperly rescinded when her\\n\\nsupervisors concluded that the first plan was not working. Hannah asserts that the\\n\\n\\n 12\\n\\nRehabilitation Act requires a collaborative process. Hannah argues that rather than\\n\\ncollaborating with her to identify a workable accommodation, Appellee unilaterally\\n\\ndecided that the first plan was not working, then unilaterally decided that Hannah should\\n\\nparticipate in EAP counseling instead. Although employers have a duty to engage with\\n\\ntheir employees in an “interactive process to identify a reasonable accommodation,”\\n\\nWilson v. Dollar Gen. Corp., 717 F.3d 337, 346 (4th Cir. 2013), the employer “has the\\n\\nultimate discretion to choose between effective accommodations.” Reyazuddin, 789 F.3d\\n\\nat 415–16 (citing Hankins v. Gap, Inc., 84 F.3d 797, 800 (6th Cir. 1996)). Nonetheless,\\n\\neven under Hannah’s view of the record, Appellee did, in fact, collaborate with Hannah\\n\\nin establishing the first accommodation and only acted unilaterally when that\\n\\naccommodation did not work.\\n\\n Second, Hannah claims that a reasonable accommodation that she requested -- a\\n\\nleave of absence -- was improperly delayed. Hannah posits that she “suffered immense\\n\\nemotional stress during this one month lapse of [Appellee’s] compliance with the law.”\\n\\nAppellant’s Br. 37. This argument is without merit and is not supported by the record,\\n\\neven when viewed in the light most favorable to Hannah. Hannah first requested the\\n\\nleave of absence on April 9, 2015. Then, on April 13 -- just two business days later --\\n\\nHannah withdrew her request without explanation, telling her supervisor that her leave\\n\\nrequest was “on hold.” J.A. 170, 178. Hannah then renewed her request for leave on\\n\\nApril 21, and her request was approved on May 5. Thus, there was no “one month\\n\\nlapse,” since Hannah’s request was “on hold” for nine days of that time.\\n\\n\\n\\n\\n 13\\n\\n During the remaining gap between Hannah’s request for leave and Appellee’s\\n\\napproval of that request, Appellee referred Hannah to its counseling service. The\\n\\nRehabilitation Act does not require an employer to provide the exact accommodation that\\n\\nan employee requests. See Reyazuddin, 789 F.3d at 415 (“An employer may reasonably\\n\\naccommodate an employee without providing the exact accommodation that the\\n\\nemployee requested.”). Further, the record demonstrates that Hannah’s supervisors were\\n\\nactively considering her request for leave during that time, and they did ultimately\\n\\napprove it less than a month after she first requested leave.\\n\\n For these reasons, granting summary judgment to Appellee on Hannah’s\\n\\nreasonable accommodation claim was proper.\\n\\n 2.\\n\\n Required Medical Examination\\n\\n Under the Rehabilitation Act, an employer “shall not require a medical\\n\\nexamination and shall not make inquiries of an employee as to whether such employee is\\n\\nan individual with a disability or as to the nature or severity of the disability, unless such\\n\\nexamination or inquiry is shown to be job-related and consistent with business necessity.”\\n\\n42 U.S.C. § 12112(d)(4)(A).\\n\\n\\n\\n\\n 14\\n\\n a.\\n\\n Examination of a Job Applicant\\n\\n As an initial matter, Hannah’s arguments related to pre-employment medical\\n\\nexaminations under the Rehabilitation Act 4 miss the mark because Hannah was a current\\n\\nemployee, not a job applicant. Although Appellee knew Hannah was considering\\n\\napplying for permanent positions with Appellee at the time she was referred to EAP, she\\n\\nhad not yet done so. The evidence is clear that Appellee referred Hannah to EAP in lieu\\n\\nof disciplining her for her attendance issues in her then-current position, rather than as a\\n\\npre-employment medical examination. Moreover, the fact that Hannah’s attendance\\n\\nissues may have been related to her stress and frustration surrounding obtaining\\n\\npermanent employment with Appellee does not transform her EAP referral into a pre-\\n\\nemployment medical examination.\\n\\n b.\\n\\n Examination of a Current Employee\\n\\n Further, Hannah failed to demonstrate, much less create a genuine issue of\\n\\nmaterial fact, that EAP constituted a prohibited medical examination of a current\\n\\nemployee. We note that EAP’s policies make clear that EAP is intended to be used as a\\n\\nvoluntary counseling service, and not as a mandatory medical examination that would\\n\\n\\n 4\\n Subject to certain exceptions, an employer “shall not conduct a medical\\nexamination or make inquiries of a job applicant as to whether such applicant is an\\nindividual with a disability or as to the nature or severity of such disability.” 42 U.S.C.\\n§ 12112(d)(2)(A).\\n\\n\\n\\n 15\\n\\nviolate the Rehabilitation Act. See J.A. 130 (“[U]tilizing EAP is always voluntary and\\n\\ntherefore the employee has the right to decline to attend treatment, even if management-\\n\\nreferred.”). Additionally, Hannah’s EAP counselor repeatedly stated that she did not\\n\\nconduct a medical examination:\\n\\n I did not conduct a medical examination of [Hannah], and I\\n did not conduct a mental health evaluation or diagnostic\\n assessment because a) [Hannah] informed me she was already\\n in treatment and b) . . . it is not in EAP’s purview to conduct a\\n medical evaluation. I did not administer any medical or\\n mental health tests or diagnostic assessment tools for the\\n same reason. I was [n]ot tasked to diagnose or provide a\\n second opinion; my role was to facilitate communication\\n between [Hannah] and Management to resolve the problem\\n presented in the Management Referral -- namely, improving\\n attendance and notifying management when not attending\\n work.\\n\\nId. at 188 (emphasis omitted).\\n\\n However, even if EAP constituted a mandatory medical examination under the\\n\\nfacts of this case, summary judgment to Appellee was still appropriate on this claim\\n\\nbecause Hannah’s referral to EAP was “job-related and consistent with business\\n\\nnecessity.” 42 U.S.C. § 12112(d)(4)(A). As we have stated, “whether a mental\\n\\nexamination was ‘job-related and consistent with business necessity’ is an objective\\n\\ninquiry.” Pence v. Tenneco Auto. Operating Co., 169 F. App’x 808, 812 (4th Cir. 2006).\\n\\n“We therefore do not resolve any dispute about what [Appellee’s] subjective motivations\\n\\nwere for having [Hannah] examined by the EAP.” Id. An employer’s request for a\\n\\nmedical examination is job-related and consistent with business necessity when: “(1) the\\n\\nemployee requests an accommodation; (2) the employee’s ability to perform the essential\\n\\n\\n\\n 16\\n\\nfunctions of the job is impaired; or (3) the employee poses a direct threat to himself or\\n\\nothers.” Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 623 (6th Cir. 2014).\\n\\n Here, the evidence, even when viewed in the light most favorable to Hannah,\\n\\nsupports granting summary judgment because Appellee had a reasonable belief that\\n\\nHannah’s ability to perform the essential functions of her job was impaired by her\\n\\nrepeated issues with attendance and timely reporting. Hannah attempts to refute this by\\n\\nasserting that her job performance was excellent, but job performance alone does not\\n\\ncreate a genuine issue of material fact. Attendance was also an essential function of\\n\\nHannah’s job, one the record amply demonstrates she was unable to fulfill when Appellee\\n\\nreferred her to EAP. As we have stated:\\n\\n In addition to possessing the skills necessary to perform the\\n job in question, an employee must be willing and able to\\n demonstrate these skills by coming to work on a regular basis.\\n Except in the unusual case where an employee can effectively\\n perform all work-related duties at home, an employee “who\\n does not come to work cannot perform any of his job\\n functions, essential or otherwise.” Therefore, a regular and\\n reliable level of attendance is a necessary element of most\\n jobs.\\n\\nTyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (quoting\\n\\nWimbley v. Bolger, 642 F. Supp. 481, 485 (W.D. Tenn. 1986), aff’d, 831 F.2d 298 (6th\\n\\nCir. 1987)) (emphasis in original); see also Denman v. Davey Tree Expert Co., 266 F.\\n\\nApp’x 377, 380 (6th Cir. 2007) (“Job performance is separate from the ability to show up\\n\\nfor work, an essential function of [Hannah’s] position.”).\\n\\n\\n\\n\\n 17\\n\\n Accordingly, Appellee did not violate the Rehabilitation Act by referring Hannah\\n\\nto EAP, and the district court properly granted summary judgment to Appellee on this\\n\\nclaim.\\n\\n 3.\\n\\n Confidential Medical Information\\n\\n Under the Rehabilitation Act, an employer may “conduct voluntary medical\\n\\nexaminations, including voluntary medical histories, which are part of an employee\\n\\nhealth program” and may “make inquiries into the ability of an employee to perform job-\\n\\nrelated functions.” 42 U.S.C. § 12112(d)(4)(B). Any “information obtained regarding\\n\\nthe medical condition or history of the applicant” -- that is, medical information -- must\\n\\nbe “collected and maintained on separate forms and in separate medical files and [must\\n\\nbe] treated as a confidential medical record.” Id. § 12112(d)(3)(B); see also id.\\n\\n§ 12112(d)(4)(C).\\n\\n Hannah alleges two separate Rehabilitation Act violations regarding her medical\\n\\ninformation: first, that Hannah’s supervisors wrongfully sought and disclosed\\n\\nconfidential medical information elicited from Hannah, and second, that the EAP\\n\\npsychologist wrongfully disclosed confidential medical information gathered from the\\n\\nEAP session to Hannah’s supervisors. In both instances, the district court correctly\\n\\ndetermined that Hannah failed to demonstrate that Appellee violated the Rehabilitation\\n\\nAct.\\n\\n\\n\\n\\n 18\\n\\n a.\\n\\n Disclosures by Supervisors\\n\\n Hannah asserts that her supervisors disclosed her confidential medical information\\n\\nby writing in her EAP referral memo, “[e]arly in her tenure . . . and reaffirmed recently,\\n\\n[Hannah] informed us that she was meeting with a psychiatrist and counselor and taking\\n\\nmedication for depression.” J.A. 413. Notably, Hannah voluntarily disclosed her\\n\\ndepression diagnosis to her supervisors. The Rehabilitation Act does not protect\\n\\ninformation shared voluntarily. See Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143, 155\\n\\n(4th Cir. 2012) (finding the district court properly granted summary judgment on a\\n\\nconfidentiality claim brought under the Rehabilitation Act because the record “clearly\\n\\nshow[ed]” that the appellant “disclosed his medical condition voluntarily”). Indeed,\\n\\nHannah voluntarily told at least four of her supervisors that she had been diagnosed with\\n\\ndepression. See J.A. 179 (Hannah’s interrogatory responses) (“I disclosed my diagnosis\\n\\nof depression to my supervisors Kelly G. in summer 2011, Ann W. in fall 2014; Art Z. in\\n\\nMarch 2015, and Roy P. in March 2015.”).\\n\\n Hannah argues that these disclosures were not voluntary because they were made\\n\\nin response to inquiries about her disability. But the evidence does not support or create\\n\\na genuine issue of fact about that argument. The record indicates that only the March\\n\\n2015 disclosure was made in response to an inquiry, and that inquiry was not medical -- it\\n\\nwas about her attendance. See J.A. 23 (Hannah’s deposition testimony) (“[H]e was\\n\\nconcerned about unpredictability in my schedule. . . . I told him at that time I had\\n\\ndepression.”).\\n\\n\\n 19\\n\\n Hannah asserts that this inquiry about her attendance was de facto an inquiry into\\n\\nher depression because (according to Hannah) the inquiring supervisor knew she was\\n\\ndepressed and knew her attendance issues were linked to her depression. Hannah cites\\n\\nonly out-of-circuit cases for the proposition that asking a question “likely to elicit”\\n\\ninformation about a disability amounts to a medical inquiry. See Harrison v. Benchmark\\n\\nElecs. Huntsville, Inc., 593 F.3d 1206, 1216 (11th Cir. 2010) (concluding that whether an\\n\\ninquiry following a failed drug test was likely to elicit information about a disability in\\n\\nviolation of the Americans with Disabilities Act (“ADA”) 5 presented a question of fact\\n\\nfor a jury to resolve); Fleming v. State Univ. of N.Y., 502 F. Supp. 2d 324, 338 (E.D.N.Y.\\n\\n2007) (concluding the plaintiff pled facts sufficient to state a claim for failure to\\n\\nconfidentially maintain medical information under the ADA where the plaintiff alleged\\n\\nthat his disclosure of his sickle cell anemia was not voluntary because his supervisor\\n\\ncalled him while he was in the hospital and asked him why he was there).\\n\\n First, the record does not support Hannah’s argument that the supervisor in\\n\\nquestion knew about Hannah’s depression before she disclosed it to him. Hannah points\\n\\nto the supervisor’s statement that when he spoke to Hannah on the phone before\\n\\nconfronting her about her attendance, “she didn’t sound well on the other end of the\\n\\nphone.” J.A. 466. Hannah also points to her supervisor’s statement that Hannah’s\\n\\n“demeanor [wa]s sad, very flat, and almost trance like.” Id. at 413. This is not enough to\\n\\n 5\\n “To the extent possible, we construe the ADA and Rehabilitation Act to impose\\nsimilar requirements.” Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 461\\n(4th Cir. 2012).\\n\\n\\n\\n 20\\n\\ncreate a genuine issue of material fact as to whether the inquiring supervisor knew\\n\\nHannah had been medically diagnosed with clinical depression, or whether by asking\\n\\nabout her attendance, the supervisor was fishing for medical information about Hannah’s\\n\\nillness.\\n\\n Second, even if Hannah’s supervisor had an inkling that Hannah may have had\\n\\ndepression, this is not evidence that he knew asking about her repeated absences and\\n\\ntardiness -- indisputably bad work behavior -- would elicit medical information related to\\n\\nher depression. Indeed, Hannah’s absences could have been the result of a world of\\n\\nother, nonmedical possibilities, such as transportation issues or oversleeping. Adopting\\n\\nHannah’s argument would require us to find that where an employer might know that a\\n\\nparticular bad work behavior is connected to a medical condition, the employer cannot\\n\\ninquire into the behavior without running afoul of the ADA and Rehabilitation Act’s\\n\\nprohibition on medical inquiries. We have held expressly the opposite: “[T]he ADA does\\n\\nnot require an employer to simply ignore an employee’s blatant and persistent\\n\\nmisconduct, even where that behavior is potentially tied to a medical condition.” Vannoy\\n\\nv. Fed. Reserve Bank of Richmond, 827 F.3d 296, 305 (4th Cir. 2016) (citing Jones v. Am.\\n\\nPostal Workers Union, 192 F.3d 417, 429 (4th Cir. 1999) (holding the ADA does not\\n\\n“require an employer to ignore such egregious misconduct by one of its employees, even\\n\\nif the misconduct was caused by the employee’s disability”)).\\n\\n\\n\\n\\n 21\\n\\n b.\\n\\n Disclosures by EAP Psychologist\\n\\n Hannah also argues that, in addition to her supervisors disclosing her depression\\n\\ndiagnosis internally, the EAP psychologist disclosed “additional, unique information\\n\\nfrom what Hannah had already told her supervisors.” Appellant’s Br. 51. Specifically,\\n\\nHannah alleges that the EAP psychologist told her supervisor that Hannah was concerned\\n\\nabout Appellee’s records retention policies, and that Hannah’s “difficulties in getting to\\n\\nwork were the result of a lack of motivation, not related to depression.” J.A. 540.\\n\\n Perhaps that is true. The record does indicate that the EAP psychologist shared\\n\\nsome information with Hannah’s supervisors and maybe it was unique information. See\\n\\nJ.A. 192 (EAP psychologist statement) (noting that the psychologist provided Hannah’s\\n\\nsupervisors updates regarding Hannah’s “EAP attendance” and “cooperation and\\n\\nprogress toward resolving the referral issues”). But there is no evidence that the EAP\\n\\npsychologist shared medical information. To the contrary, the EAP psychologist insisted,\\n\\nagain and again, that she did not share any confidential medical information. See id. at\\n\\n190 (noting that the psychologist, who is not a doctor, “did not disclose any confidential\\n\\nmedical information” to anyone). Of note, Hannah did not point to any evidence in the\\n\\nrecord contradicting the psychologist’s assertions.\\n\\n Therefore, the information shared by the EAP psychologist did not trigger the\\n\\nRehabilitation Act’s confidentiality protections because the record indicates that the EAP\\n\\npsychologist shared only nonmedical information.\\n\\n\\n\\n\\n 22\\n\\n c.\\n\\n Non-Reliance on Medical Information\\n\\n Finally, even if either Hannah’s supervisors or the EAP psychologist disclosed\\n\\nHannah’s medical information, Appellee still did not violate the Rehabilitation Act\\n\\nbecause Appellee did not rely on Hannah’s depression diagnosis or any other medical\\n\\ninformation in deciding not to hire Hannah for the Cyber position. Rather, the record\\n\\noverwhelmingly indicates that Appellee’s decision was based on Hannah’s attendance\\n\\nissues. Accordingly, Hannah has not demonstrated that Appellee violated the\\n\\nRehabilitation Act by disclosing or misusing confidential medical information.\\n\\n 4.\\n\\n Discrimination\\n\\n Rehabilitation Act claims for discrimination are reviewed under the McDonnell\\n\\nDouglas burden-shifting framework. See Laber v. Harvey, 438 F.3d 404, 430 (4th Cir.\\n\\n2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)); Perry v.\\n\\nComput. Scis. Corp., 429 F. App’x 218, 219–20 (4th Cir. 2011). Under that framework,\\n\\nHannah has the initial burden of establishing a prima facie case of discrimination. See\\n\\nPerry, 429 F. App’x at 220. To establish this prima facie case, Hannah must show that:\\n\\n(1) she is disabled; (2) she was otherwise qualified for the position; and (3) she suffered\\n\\nan adverse employment action solely on the basis of her disability. See id. (citing\\n\\nConstantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir.\\n\\n2005)).\\n\\n\\n\\n\\n 23\\n\\n If Hannah establishes a prima facie case, the burden shifts to Appellee to provide a\\n\\nlegitimate, nondiscriminatory reason for its conduct. See Perry, 429 F. App’x at 220. If\\n\\nAppellee provides such a reason, Hannah “bears the ultimate burden of persuasion” and\\n\\n“must show by a preponderance of the evidence that the proffered reason was a pretext\\n\\nfor discrimination.” Id.\\n\\n a.\\n\\n Establishing Pretext\\n\\n Even assuming that Hannah established a prima facie case of discrimination\\n\\n(which Appellee disputes), she cannot succeed on her claim that Appellee discriminated\\n\\nagainst her by not hiring her for a permanent position because she did not sufficiently\\n\\nrebut Appellee’s proffered reason for rejecting her application, as required under the final\\n\\nstep of the McDonnell Douglas burden-shifting framework. See Perry, 429 F. App’x at\\n\\n220.\\n\\n Appellee presented evidence demonstrating that Hannah’s perpetual issues with\\n\\nattendance, timeliness, and reporting absences to her superiors were the bases of its\\n\\ndecision not to hire her for the permanent position. Attempting to expose that\\n\\nexplanation as a ruse, Hannah pointed to a purported inconsistency between the sworn\\n\\nstatement that Mark Ewing provided during the Equal Employment Opportunity\\n\\nCommission (“EEOC”) investigation of Hannah’s case and an email he sent more than a\\n\\n\\n\\n\\n 24\\n\\nyear earlier. In the sworn statement, signed on April 26, 2016, 6 Ewing asserts he “had no\\n\\nknowledge of [Hannah’s] disability.” J.A. 650. But in the email, sent on June 30, 2015,\\n\\nEwing references two memos that he received from Hannah’s supervisors, both of which\\n\\nnote Hannah’s depression. See id. at 413 (April 9, 2015 memo) (“Early in her tenure . . .\\n\\nand reaffirmed recently, [Hannah] informed us that she was meeting with a psychiatrist\\n\\nand counselor and taking medication for depression.”); id. at 606 (April 23, 2015 memo)\\n\\n(“While . . . medical considerations (i.e., depression and/or ADD) do make this situation\\n\\nworse, these factors are under her control based upon treatment plans with her\\n\\npsychologist and psychiatric care providers.”). Underscoring the significance of this\\n\\ninconsistency, Hannah argues, is the fact that Ewing did not provide the June 30, 2015\\n\\nemail to the EEOC. Hannah argues that the inconsistency, coupled with Ewing’s failure\\n\\nto disclose the email evidencing the inconsistency, illustrates “clear pretext.” Appellant’s\\n\\nBr. 27.\\n\\n Despite Hannah’s arguments to the contrary, this apparent discrepancy does not\\n\\ncreate a genuine issue of material fact that Appellee’s proffered reason for rejecting\\n\\nHannah’s application is pretextual. First, nothing in the record indicates that Ewing had\\n\\nfirst-hand knowledge of Hannah’s disability. Although the memos mention that Hannah\\n\\nself-reported that she had depression, the second memo also describes Hannah’s\\n\\ndepression as “under her control.” J.A. 606. Indeed, Ewing’s email suggests that he did\\n\\n\\n 6\\n The excerpt of the statement that is included in the J.A. does not include the date.\\nThis date comes from Hannah’s brief. See Appellant’s Br. 26.\\n\\n\\n\\n 25\\n\\nnot know that Hannah had an ongoing disability. See J.A. 635 (“I am informed that EAP\\n\\nconcluded that [Hannah] does not have a medical problem, rather she is a disciplinary\\n\\nproblem.”).\\n\\n More significantly, Hannah’s asserted contradiction between Ewing’s EEOC\\n\\nstatements and his June 30, 2015 email do not create a genuine issue of material fact\\n\\nabout pretext because Ewing’s email and the memos written by Hannah’s supervisors\\n\\nfocus on Hannah’s attendance problems, not on her disability. See J.A. 413 (April 9,\\n\\n2015 memo) (noting that “[Hannah’s] schedule has become increasingly erratic” and that\\n\\n“frequent absences and late arrivals [have begun] to affect her assigned unit and\\n\\nindividual performance”); id. at 606 (April 23, 2015 memo) (describing Hannah’s history\\n\\nof attendance issues and Appellee’s attempts to accommodate Hannah and noting that,\\n\\ndespite those attempts, “[Hannah’s] late attendance has continued”); id. at 635–36\\n\\n(Ewing’s June 30, 2015 email) (detailing Hannah’s problem with “attendance at work,”\\n\\nnoting that Hannah’s “absences and late arrivals were affecting her assigned staff element\\n\\nand her individual performance,” and concluding that Hannah’s “recent performance is\\n\\nnot consistent with a potentially good employee.”).\\n\\n Accordingly, Hannah did not point to any genuine issue of material fact that\\n\\nAppellee’s purported basis for not hiring her was merely a pretext for discriminating\\n\\nagainst her on the basis of her depression.\\n\\n\\n\\n\\n 26\\n\\n b.\\n\\n Appellee’s Nondiscriminatory Explanation\\n\\n i.\\n\\n Moreover, the record indicates that Appellee’s proffered explanation for not hiring\\n\\nHannah for the Cyber position is genuine, legitimate, and nondiscriminatory.\\n\\n As the district court concluded, a continuous attendance issue is a legitimate\\n\\nreason for withholding an employment benefit. See Tyndall, 31 F.3d at 213 (finding an\\n\\nemployee who cannot satisfy their employer’s attendance policy cannot be considered\\n\\n“qualified” for the purposes of the ADA). Hannah might have been exceptionally\\n\\ntalented and substantively good at her job, but as noted above, “[i]n addition to\\n\\npossessing the skills necessary to perform the job in question, an employee must be\\n\\nwilling and able to demonstrate these skills by coming to work on a regular basis.” Id.\\n\\n Hannah asserts that “serious questions of fact exist as to whether Hannah even had\\n\\n‘significant attendance and reporting problems.’” Appellant’s Br. 28. But the record\\n\\nevidences no less than 13 attendance issues that occurred in the 46 days between\\n\\nAppellee’s first attempt to accommodate Hannah on March 19, 2015, and the revised\\n\\nplan made on May 4, 2015. Compare J.A. 114, 174 (noting Appellee’s March 19, 2015\\n\\nmeeting with her supervisor and original accommodation asking her to arrive at work by\\n\\n10 AM or report to a supervisor), with id. at 556 (indicating four unexcused absences and\\n\\n\\n\\n\\n 27\\n\\nnine late arrivals between March 19 and April 29 that Appellee failed to timely report). 7\\n\\nIn light of Hannah’s failure to arrive or call in before 10 AM 13 times in 46 days, there is\\n\\nno genuine issue of material fact about Hannah’s significant attendance and reporting\\n\\nproblem.\\n\\n ii.\\n\\n Hannah also argues that because her disability was the cause of her attendance\\n\\nissues, Appellee could not withhold an employment benefit from her on that basis. We\\n\\nhave no doubt that Hannah’s struggle with depression was the cause of her attendance\\n\\nissues, and we are sympathetic to the toll this condition took on a highly talented\\n\\n\\n 7\\n The record reflects the following late arrivals and absences for Hannah between\\nMarch 19, 2015, and May 4, 2015: (1) April 2: Hannah emailed at 11:02 AM indicating\\nshe would arrive to work by 12 PM; (2) April 8: Hannah emailed at 11:05 AM indicating\\nshe would arrive to work by 12 PM; Hannah emailed again at 1:55 PM indicating she\\nwould not be coming in that day; (3) April 9: Hannah emailed at 11:11 AM indicating her\\ncar was towed and she would arrive at work by 1 PM; (4) April 13: Hannah emailed at\\n10:58 AM indicating she would arrive at work by 11:30 AM; (5) April 14: Hannah\\nemailed at 11:08 AM indicating she would arrive at work by 12 PM; (6) April 16:\\nHannah’s supervisor emailed Hannah at 10:18 AM looking for her; when Hannah was\\nreached at 11 AM, she indicated she would arrive to work by 12 PM; (7) April 20:\\nHannah emailed at 10:45 AM indicating she would arrive to work by 11:30 AM;\\nHannah’s supervisor confirmed her arrival at 12:50 PM; (8) April 22: Hannah emailed at\\n11:01 AM indicating she would arrive at work after 12 PM; Hannah emailed again at\\n12:41 PM indicating she would arrive at 1 PM due to traffic; (9) April 23: Hannah\\nemailed at 10:59 AM indicating she would arrive at work by 12 PM; Hannah emailed\\nagain at 12:56 PM indicating she would not be coming in that day due to a migraine; (10)\\nApril 24: Hannah emailed at 11:02 AM indicating she would arrive at work in the\\nafternoon; Hannah later called at 3:24 PM indicating she would not be coming in that\\nday; (11) April 27: Hannah’s supervisor emailed indicating Hannah arrived at work by 11\\nAM; (12) April 28: Hannah emailed at 10:52 AM indicating she would arrive at work by\\n11:30 AM; (13) April 29: Hannah emailed at 11:49 AM indicating she would not come in\\nto work that day. See J.A. 556.\\n\\n\\n\\n 28\\n\\nemployee. However, Appellee was nevertheless permitted to take Hannah’s attendance\\n\\nissues into account in its decision whether to hire her for the Cyber position. To reiterate,\\n\\nthe Rehabilitation Act “does not require an employer to simply ignore an employee’s\\n\\nblatant and persistent misconduct, even where that behavior is potentially tied to a\\n\\nmedical condition.” Vannoy, 827 F.3d at 305; cf. Martinson v. Kinney Shoe Corp., 104\\n\\nF.3d 683, 686 n.3 (4th Cir. 1997) (“Misconduct -- even misconduct related to a disability\\n\\n-- is not itself a disability, and an employer is free to fire an employee on that basis.”).\\n\\n iii.\\n\\n Finally, Hannah argues that by the time Appellee made the decision not to hire\\n\\nher, her attendance had improved. She asserts that between returning from her leave of\\n\\nabsence on June 1, 2015, and learning that she was not selected for the permanent\\n\\nposition on June 17, 2015, she “had shown she was able to perform the essential\\n\\nfunctions of the job and had no current attendance issues.” Appellant’s Br. 32.\\n\\n Hannah is correct that in a failure to hire case, the relevant inquiry is the\\n\\ncandidate’s performance “at the time of the employment decision or in the immediate\\n\\nfuture.” Lamb v. Qualex, Inc., 33 F. App’x 49, 57 (4th Cir. 2002). However, Appellee\\n\\nwas not required to consider the two weeks before the decision was made in a vacuum.\\n\\nMoreover, it is not the job of this court to decide whether Appellee made the right choice\\n\\nby not hiring Hannah for the Cyber position. Rather, our job is simply to decide whether\\n\\nAppellee made an illegal choice. See Feldman v. Law Enf’t Assocs. Corp., 752 F.3d 339,\\n\\n350 (4th Cir. 2014) (explaining that we do not “sit as a kind of super-personnel\\n\\ndepartment weighing the prudence of employment decisions”).\\n\\n\\n 29\\n\\n Because Hannah not did demonstrate that Appellee’s purported basis for not hiring\\n\\nher was merely a pretext for discriminating against her on the basis of her depression, and\\n\\nbecause Hannah’s attendance problem was a legitimate and nondiscriminatory reason to\\n\\nnot hire her, we conclude that summary judgment was appropriate on her Rehabilitation\\n\\nAct discrimination claim.\\n\\n B.\\n\\n FMLA Claims\\n\\n The FMLA gives employees with qualifying medical conditions the right to take\\n\\nup to 12 weeks of leave during a 12-month period “[b]ecause of a serious health\\n\\ncondition that makes the employee unable to perform the functions of” her job. 29\\n\\nU.S.C. § 2612(a)(1)(D). “The employee has an accompanying right to return to the same\\n\\nor an equivalent position at the conclusion of the leave period.” Reed v. Buckeye Fire\\n\\nEquip., 241 F. App’x 917, 923 (4th Cir. 2007) (citing 29 U.S.C. § 2614(a)(1)).\\n\\n As discussed below, as to Hannah’s FMLA interference claim, Hannah illustrates\\n\\na genuine issue of material fact regarding the notice of her depression and her desire to\\n\\ntake a leave of absence. But, for the same reasons Hannah’s Rehabilitation Act\\n\\ndiscrimination claim fails, Hannah’s FMLA retaliation claim fails as well.\\n\\n 1.\\n\\n Interference\\n\\n a.\\n\\n The district court incorrectly concluded that Hannah’s disclosure of her depression\\n\\nwas not sufficient to put Appellee on notice that Hannah could have qualified for FMLA\\n\\n\\n 30\\n\\nprotections. Accordingly, summary judgment was not warranted as to Hannah’s FMLA\\n\\ninterference claim.\\n\\n “An employee is mandated to provide notice to her employer when she requires\\n\\nFMLA leave.” Brushwood v. Wachovia Bank, N.A., 520 F. App’x 154, 157 (4th Cir.\\n\\n2013) (quoting Rhoads v. FDIC, 257 F.3d 373, 382 (4th Cir. 2001)). That said, an\\n\\nemployee need not specifically invoke the FMLA to benefit from its protections. See\\n\\nDotson v. Pfizer, Inc., 558 F.3d 284, 295 (4th Cir. 2009). Proper notice does not require\\n\\n“any magic words.” Id. Indeed, “[w]hen an employee seeks leave for the first time for\\n\\na[n] FMLA-qualifying reason, the employee need not expressly assert rights under the\\n\\nFMLA or even mention the FMLA.” 29 C.F.R. § 825.302. Proper notice merely “makes\\n\\nthe employer aware” that the employee needs potentially FMLA-qualifying leave.\\n\\nBrushwood, 520 F. App’x at 157. And once the employer is on notice of the employee’s\\n\\nneed to take potentially FMLA-qualifying leave, “the responsibility falls on the employer\\n\\nto inquire further about whether the employee is seeking FMLA leave.” Dotson, 558\\n\\nF.3d at 295.\\n\\n A reasonable jury could find that Hannah’s disclosure of her depression and her\\n\\nApril 9, 2015 request for psychiatrist-recommended leave was sufficient to trigger\\n\\nAppellee’s responsibility to inquire further about whether Hannah was seeking FMLA\\n\\nleave. We have held that disclosure of a potentially FMLA-qualifying circumstance and\\n\\nan inquiry into leave options is sufficient to create a material question of fact regarding\\n\\nwhether an employee triggered her employer’s FMLA obligations. See Dotson, 558 F.3d\\n\\nat 291, 295 (finding that an employee informing his employer that he was adopting a\\n\\n\\n 31\\n\\nchild and speaking to a human resources representative about “taking leave during the\\n\\nadoption process” was sufficient to create a question of fact as to whether the employer’s\\n\\nFMLA-inquiry duties had been triggered).\\n\\n b.\\n\\n Here, Hannah informed her supervisors of her depression on multiple occasions.\\n\\nSee, e.g., J.A. 413 (April 9, 2015 memo from Hannah’s supervisors) (“Early in her tenure\\n\\n. . . and reaffirmed recently, [Hannah] informed us that she was meeting with a\\n\\npsychiatrist and counselor and taking medication for depression.”). 8 And on April 9,\\n\\n2015, Hannah explained to her supervisors that her psychiatrist recommended that she\\n\\ntake four weeks of medical leave. Hannah’s disclosures about her depression and her\\n\\npsychiatrist’s recommendation could lead a reasonable jury to find that Appellee was on\\n\\nnotice that Hannah was inquiring about potentially FMLA-qualifying leave, triggering\\n\\nAppellee’s responsibility to inquire further about whether Hannah was seeking FMLA\\n\\nleave. 9\\n\\n c.\\n\\n Appellee argues that Hannah’s interference claim fails because Hannah cannot\\n\\ndemonstrate that her depression was “a serious health condition.” Appellee’s Resp. 40–\\n\\n41; see also 29 U.S.C. § 2612(a)(1)(D). But that argument is premature. Appellee has\\n\\n 8\\n Indeed, Hannah’s supervisors had “grown increasingly alarmed at the overall\\nchange in [Hannah’s] demeanor.” J.A. 413.\\n 9\\n It is undisputed that Appellee did not inquire about whether the leave should be\\nclassified as FMLA-protected.\\n\\n\\n\\n 32\\n\\nnot shown that it made any inquiry into whether Hannah’s depression was an FMLA-\\n\\nqualifying serious health condition. Appellee’s argument “would allow it to use its own\\n\\nfailure to determine whether leave should be designated as FMLA-protected to block\\n\\nliability.” Dotson, 558 F.3d at 295. We have refused “to allow an employer to take\\n\\nadvantage of its own lapse in such a way.” Id.\\n\\n d.\\n\\n Additionally, Appellee’s failure to provide notice of the availability of FMLA\\n\\nleave prejudiced Hannah because if she had been aware of the availability of FMLA\\n\\nleave, she could have structured her leave differently. The FMLA “provides no relief\\n\\nunless the employee has been prejudiced by the violation.” Vannoy, 827 F.3d at 302\\n\\n(citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)). “Prejudice may\\n\\nbe gleaned from evidence that had the plaintiff received the required (but omitted)\\n\\ninformation regarding his FMLA rights, he would have structured his leave differently.”\\n\\nId.\\n\\n Here, the record contains evidence that if Hannah had known that the FMLA\\n\\nprotected her position, she would have used only sick leave for her leave of absence. See\\n\\nJ.A. 664 (Hannah’s declaration) (“Had I known I could have chosen to take sick leave for\\n\\nthe entire period, I would have elected to do so.”). Instead, she used a combination of\\n\\nsick leave and annual time to take four weeks off. According to Hannah, “[u]nlike\\n\\nannual leave, sick leave is not paid out at the end of an employee’s service, resulting in a\\n\\nloss of a benefit worth at least $20,000.” Id. Based on Hannah’s testimony, a jury could\\n\\n\\n\\n\\n 33\\n\\nfind that Hannah was prejudiced by Appellee’s failure to inquire into the availability of\\n\\nFMLA leave and thus interfered with her FMLA rights.\\n\\n For these reasons, Hannah has demonstrated a genuine issue of material fact that\\n\\nshould have precluded summary judgment on her FMLA interference claim.\\n\\n 2.\\n\\n Retaliation\\n\\n As for Hannah’s FMLA retaliation claim, however, the district court correctly\\n\\nconcluded that like her discrimination claim brought pursuant to the Rehabilitation Act,\\n\\nHannah did not sufficiently rebut Appellee’s legitimate, nonretaliatory reason for not\\n\\nhiring Hannah for the Cyber position.\\n\\n The FMLA prohibits employers from discriminating against an employee for\\n\\nexercising her FMLA rights. See 29 U.S.C. § 2615(a)(2). As relevant here, “employers\\n\\ncannot use the taking of FMLA leave as a negative factor in employment actions.” 29\\n\\nC.F.R. § 825.220(c). Courts analyze FMLA retaliation claims, like discrimination claims\\n\\nbrought pursuant to the Rehabilitation Act, under the McDonnell Douglas burden-shifting\\n\\nframework. See Laing v. Fed. Express Corp., 703 F.3d 713, 717 (4th Cir. 2013). To\\n\\nestablish a prima facie case of FMLA retaliation, a plaintiff must demonstrate that “(1)\\n\\nshe engaged in a protected activity; (2) her employer took an adverse employment action\\n\\nagainst her; and (3) there was a causal link between the two events.” Adams v. Anne\\n\\nArundel Cty. Pub. Schs., 789 F.3d 422, 429 (4th Cir. 2015) (internal quotation marks\\n\\nomitted). If the plaintiff establishes a prima facie case, the burden shifts to the defendant\\n\\nto provide a legitimate, nonretaliatory reason for taking the employment action at issue.\\n\\n\\n 34\\n\\nId. If the defendant does so, the burden shifts back to the plaintiff to demonstrate that the\\n\\ndefendant’s proffered reason is pretextual. Id.\\n\\n Even assuming Hannah demonstrated a prima facie case of FMLA retaliation,\\n\\nsummary judgment was proper because she failed to rebut Appellee’s legitimate,\\n\\nnonretaliatory reason for not hiring her for the Cyber position. Appellee asserts that it\\n\\nrelied on Hannah’s attendance issues in deciding not to hire her for the position, and the\\n\\nevidence in the record supports that assertion. See J.A. 635–36 (Ewing’s June 30, 2015\\n\\nemail expressing concerns about Hannah’s application for the Cyber position) (noting,\\n\\n“despite some apparently solid performance while on the Snowden project,” Appellee\\n\\nhad “a consistent history of issues with [Hannah] over many months” regarding Hannah’s\\n\\n“attendance at work and attitude”); id. at 219 (Ewing’s deposition testimony) (“The\\n\\nprimary reason that I was concerned [about Hannah’s application] was the fact that her\\n\\nconduct was extremely negative at the point of time we were making a hiring decision for\\n\\npermanent employment status.”). Hannah points to no evidence that adequately\\n\\nundermines Appellee’s proffered nonretaliatory reason for not hiring her. 10\\n\\n Accordingly, the district court properly granted summary judgment on Hannah’s\\n\\nFMLA retaliation claim.\\n\\n\\n 10\\n Hannah again argues, as she did in the context of her claim of discrimination\\nunder the Rehabilitation Act, that the “inconsistency” between the sworn statement\\nEwing provided during the EEOC investigation of Hannah’s case and an email he sent\\nmore than a year earlier exposes Appellee’s proffered reason for not hiring her for the\\npermanent position as pretextual. For the same reasons explained above, that argument\\nfails.\\n\\n\\n\\n 35\\n\\n IV.\\n\\n For these reasons, we affirm the judgment of the district court as to Hannah’s\\n\\nRehabilitation Act claims and FMLA retaliation claim. We vacate the grant of summary\\n\\njudgment as to Hannah’s FMLA interference claim because there is a genuine issue of\\n\\nfact as to whether Hannah’s disclosure of her depression was sufficient to put Appellee\\n\\non notice that Hannah could have qualified for FMLA protections. Accordingly, we\\n\\nremand for further proceedings as to that claim.\\n\\n AFFIRMED IN PART, VACATED IN PART, AND REMANDED\\n\\n\\n\\n\\n 36\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4369045/\", \"author_raw\": \"THACKER, Circuit Judge:\"}, {\"author\": \"GREGORY, Chief Judge, concurring\", \"type\": \"concurrence\", \"text\": \"GREGORY, Chief Judge, concurring in part and dissenting in part:\\n\\n Hannah P. was undisputedly an excellent intelligence officer. The Office of the\\n\\nDirector of National Intelligence (“ODNI”) entrusted her with the high-stress, high-\\n\\nprofile Edward Snowden case. She worked tirelessly and impeccably on that assignment,\\n\\nand ODNI praised her performance. For the duration of that assignment, Hannah kept\\n\\nnonconventional work hours with the knowledge and consent of her supervisors, and her\\n\\nattendance was not considered a problem.\\n\\n It was only after the Snowden project ended, and Hannah’s depression worsened,\\n\\nthat her supervisors found fault with her work hours, though she remained formally on a\\n\\nflexible schedule. When Hannah requested an accommodation for her depression—a\\n\\nleave of absence recommended by both of her medical professionals—Hannah’s\\n\\nsupervisors refused to timely grant the request. This was despite the fact that her\\n\\nsupervisors had offered to grant her leave just a few months earlier—before her\\n\\ndepression was triggered.\\n\\n The result of this was tragic. Hannah was denied a permanent position for which\\n\\nit is undisputed that she was exceptionally qualified and for which the interview panel\\n\\nunanimously selected her. ODNI concedes that Hannah’s depression qualifies as a\\n\\ndisability protected by the Rehabilitation Act. Yet, the employer denied Hannah, a\\n\\ndedicated and valuable employee, the protection that the law requires.\\n\\n The majority mistakenly fails to see the force of Hannah’s claims. Though the\\n\\nmajority cites repeatedly to our decision in Vannoy v. Federal Reserve Bank of\\n\\nRichmond, it fails to grapple with the stark distinctions between the “blatant and\\n\\n 37\\n\\npersistent misconduct” by the employee in that case and Hannah’s cooperative attempts\\n\\nto satisfy her supervisors’ expectations, despite the increasingly severe symptoms of her\\n\\ndisability. 827 F.3d 296, 300 (4th Cir. 2016).\\n\\n While I concur in Parts III.A.2.a, III.A.3, and III.B.1 of the Court’s opinion, I\\n\\ncannot agree that no genuine issue of material fact exists with respect to Hannah’s claims\\n\\nthat ODNI violated the Rehabilitation Act and Family and Medical Leave Act (“FMLA”)\\n\\nwhen it discriminated against her on the basis of her disability, failed to reasonably\\n\\naccommodate her depression, wrongfully required a medical examination of her as a\\n\\ncurrent employee, and chose not to hire her for permanent employment in retaliation for\\n\\nher FMLA-qualifying leave. I believe that several disputes of fact exist and that Hannah\\n\\nis entitled to her day in court. Therefore, I respectfully dissent with respect to those\\n\\nclaims.\\n\\n\\n\\n I.\\n\\n Hannah’s supervisors were informed early in her employment that she suffered\\n\\nfrom depression. She was under the treatment of a psychiatrist and a licensed clinical\\n\\nsocial worker and did not initially request any work accommodations because she “was\\n\\nadequately handling [her] depression at the time with medication and counseling.” J.A.\\n\\n19–20.\\n\\n Despite her depression, Hannah excelled at her job. In her position as the\\n\\ndisclosures coordinator for the Edward Snowden project, her “leadership, poise, and\\n\\nperformance were impeccable.” J.A. 412. She was described by her supervisors as “an\\n\\n 38\\n\\noutstanding employee combining energy/drive, technical competence, superb\\n\\ncommunication and networking skills, and superior analytic tradecraft.” Id. In short,\\n\\nHannah was considered “an invaluable intelligence officer and a future [Intelligence\\n\\nCommunity] leader.” Id.\\n\\n The high-profile Snowden project required long work hours, and Hannah was not\\n\\nrequired to maintain an established “core” hours schedule. Instead, she worked a “maxi\\n\\nflex” schedule, which permitted her to vary her schedule so long as she put in 80 hours of\\n\\nwork in each two-week period. J.A. 492–93. She often came in later than other ODNI\\n\\nemployees (around noon), but stayed later as well. J.A. 494.\\n\\n In November or December 2014, as the Snowden project was coming to a close,\\n\\nHannah’s supervisors encouraged her to take leave, a common practice for ODNI\\n\\nemployees “after finishing a burn-out job.” J.A. 173. Hannah did not take her\\n\\nsupervisors up on the offer, however, not only because she was interviewing for\\n\\npermanent employment, but also because “there was still ambiguity over whether the\\n\\n[Snowden] disclosures responsibilities had truly finished.” Id.\\n\\n During this time, Hannah’s depression became more serious. She had trouble\\n\\narriving at work before noon and had unscheduled absences. Hannah remained on a maxi\\n\\nflex schedule, however, and it was not until March 19, 2015, that she was informed that\\n\\nher attendance and arrival time were problematic. J.A. 461, 495. In fact, her first-line\\n\\nsupervisor had no concerns about her attendance or work hours in early 2015 and asked\\n\\nHannah to fill in as acting chief of their division while he was out of the office in late\\n\\nFebruary. J.A. 494–95, 498.\\n\\n 39\\n\\n When Hannah’s supervisor spoke with her about her work hours on March 19,\\n\\n2015, Hannah was not told that she was required to return to a “core” schedule. Rather,\\n\\nHannah and her first-line supervisor agreed that Hannah would either arrive at work by\\n\\n10:00 a.m. or contact her supervisors if she was unable to arrive by that time; if she\\n\\nneither arrived at work nor contacted the office by 11:00 a.m., her supervisor would reach\\n\\nout to her by phone. J.A. 114. Hannah’s second-line supervisor had no objection to the\\n\\narrangement; he “wanted to see what would happen.” J.A. 345.\\n\\n The day after making this arrangement, Hannah did not report for work by 10:00\\n\\na.m. When she did not arrive by 11:00 a.m., her supervisors did not call her. Instead, she\\n\\nemailed them at 11:05 a.m., advising she would be in around 12:30 p.m. J.A. 118.\\n\\n After that work day, Hannah began a pre-scheduled week-long leave during which\\n\\nshe was preoccupied with home renovations. J.A. 114. At the end of the week, she\\n\\nemailed her supervisors to inform them she would not be in Monday, the next business\\n\\nday, because of the renovations. J.A. 120. On Tuesday, Hannah emailed her supervisors\\n\\nnotifying them that she would not be in that day either. J.A. 122.\\n\\n On Wednesday, when Hannah did not come in by 10:00 a.m., Hannah’s second-\\n\\nline supervisor called her. J.A. 174. According to Hannah, her supervisor was “angry”\\n\\nand demanded to know why Hannah had not arrived. Id. Hannah apologized, explained\\n\\nshe was having trouble getting out of bed, and indicated that she would be in as soon as\\n\\npossible. Id. When she arrived at work, her supervisor told her that the arrangement they\\n\\nhad made “was not working.” J.A. 175. She was told that she was solely responsible for\\n\\ncontacting the office in the event she would be late or absent, and that her supervisors\\n\\n 40\\n\\nwould not be contacting her. J.A. 90. The arrangement had been in place for a total of\\n\\nfour days on which Hannah was scheduled to work.\\n\\n Hannah asked that her supervisors “give the current accommodation more time to\\n\\nwork.” J.A. 175. Her supervisor, who was aware of Hannah’s depression, insisted that\\n\\nHannah propose an alternative plan “right then.” Id. She was ultimately given “a day or\\n\\ntwo” to propose an alternative. Id.\\n\\n The next day, on April 2, 2015, Hannah emailed her supervisors at 11:02 a.m.,\\n\\nnotifying them that she would be in by noon. J.A. 124. That day, Hannah’s supervisors\\n\\nmet with ODNI’s Employee Management Relations Officer, the head of ODNI’s Equal\\n\\nEmployment Opportunity and Diversity Office, and the head of ODNI’s Human\\n\\nResources Division to discuss how to best address Hannah’s attendance and reporting.\\n\\nJ.A. 66, 128, 149. They collectively decided to refer Hannah to the Central Intelligence\\n\\nAgency’s Employee Assistance Program (“EAP”). 1 J.A. 326–29. Although Hannah’s\\n\\nsupervisors were well aware of her depression, she was referred to the EAP to “help\\n\\nidentify what her challenges were and provide her any support she needed,” such as\\n\\n“accommodation with work hours, . . . counseling or any other type of support.” J.A.\\n\\n139–40.\\n\\n\\n\\n\\n 1\\n Hannah was referred to the CIA’s EAP program because ODNI did not have one\\nof its own. The EAP provides employees with “free, confidential, short-term mental\\nhealth[,] financial, and addictions counseling and referral to cleared community\\nproviders.” J.A. 132.\\n\\n\\n 41\\n\\n Hannah’s supervisors drafted a memorandum, which they dated April 9, 2015,\\n\\nreferring Hannah to the EAP. The memo outlined Hannah’s “impressive capabilities”\\n\\nand her work with ODNI, commented on her recent attendance, and explained that\\n\\nHannah had disclosed to her supervisors that she was meeting with a psychiatrist and\\n\\ncounselor and taking medication for depression. J.A. 412–13. The memo also noted:\\n\\n Hannah has indicated that she is struggling to get out of bed\\n in the morning and admits to feeling almost paralyzed. She\\n has also indicated that she had a recent change in medication\\n and that the upheaval in her living arrangements negatively\\n impacted some of her physical coping mechanisms.\\n\\nJ.A. 413. The memo explained that “as senior intelligence officials,” Hannah’s\\n\\nsupervisors “ha[d] a duty to identify and if possible help vulnerable employees.” J.A.\\n\\n414.\\n\\n Meanwhile, Hannah met with her psychiatrist and counselor. Both professionals\\n\\nagreed that Hannah should take four weeks of leave. J.A. 175. Accordingly, Hannah met\\n\\nwith her supervisors on April 9, 2015 and requested a four-week leave of absence. J.A.\\n\\n424, 449, 468. Her supervisors did not ask her for any medical documentation to support\\n\\nthe leave request because they expected to receive a “quick answer” from EAP. J.A. 95.\\n\\nThey also believed that Hannah’s medical providers did not have “the expertise to\\n\\nprovide” an opinion on “all of the items” that they were planning to submit to EPA. Id.\\n\\n Hannah’s supervisors denied her leave request; they had already determined\\n\\nbefore meeting with Hannah that if Hannah asked for leave, they would “defer that\\n\\ndecision until after meeting with EAP.” J.A. 422. One of Hannah’s supervisors\\n\\nexplained in her deposition that she “wanted to get a sense [Hannah] was in a good\\n\\n 42\\n\\nplace.” J.A. 431. According to that supervisor, the “rationale” of the group that decided\\n\\nto refer Hannah to EAP first was:\\n\\n If this were . . . a bad behavior problem, there would\\n be no need to grant immediate leave.\\n\\n If it were a medical mental health problem, the thought\\n was, granting leave and isolating [Hannah] from day-to-day\\n contact with her coworkers and her managers when we didn’t\\n know her state of mind and how much medical care she was\\n receiving could, potentially, be dangerous.\\n\\nJ.A. 422–23. Hannah’s second-line supervisor told her that the decision was made\\n\\nbecause of concern that “since [Hannah] was a single woman if [she] took leave [she]\\n\\nwould be home by [herself] and that could make [her] depression worse.” J.A. 176. It\\n\\nwas made clear that Hannah was required to attend EAP counseling; if she refused, her\\n\\ntemporary position would be deemed “as excess” and she would lose her job\\n\\n“immediately.” Id.\\n\\n Hannah’s first-line supervisor disagreed with the others’ proposed course of\\n\\naction; he believed that the supervisors should not “substitute [their] judgment for\\n\\n[Hannah’s] doctor’s.” J.A. 504. Nonetheless, Hannah signed the memo to EAP and\\n\\nattended an appointment with an EAP counselor the next day, April 10, 2015.\\n\\n On Monday, April 13, 2015, Hannah met again with one of her supervisors to\\n\\ndiscuss her leave request. Her supervisor told her that her leave request was approved but\\n\\n“was pushing” her to take only two weeks off, not the four she had requested. J.A. 524,\\n\\n528. He explained that Hannah would have to submit to a medical evaluation if she\\n\\nwished to take leave beyond the two weeks. J.A. 524. Hannah felt uncomfortable with\\n\\n\\n 43\\n\\nher supervisor’s pushiness and confused about the status of her leave request so she\\n\\nresponded that her request was “on hold.” Id. She wanted to figure out what the EAP\\n\\ncounselor had told her supervisor and to confirm her legal options. Id.\\n\\n Hannah continued to arrive at work later than 10:00 a.m. during April 2015.\\n\\nDuring that month, Hannah also continued attending the EAP sessions. In those sessions,\\n\\nHannah testified, she was questioned about her medical history, her family’s medical\\n\\nhistory, and the medication she was taking and its dosage. J.A. 531–32. In the third\\n\\nsession, Hannah was given a diagnostic questionnaire “to assess depression or severity of\\n\\nthose sorts of things.” J.A. 534.\\n\\n On April 16, 2015, the EAP counselor had an extended forty-minute discussion\\n\\nwith Hannah’s second-line supervisor. During that discussion, the counselor disclosed\\n\\nthat Hannah’s “lack of motivation/inability to come to work” was primarily influenced by\\n\\nfeelings of frustration over not securing a permanent position at ODNI. J.A. 604. At\\n\\nsome point, the counselor also indicated that Hannah was not cooperating with the EAP\\n\\nprocess because she was spending “more than half the session at times” expressing\\n\\nconcerns over the record retention policy. J.A. 192.\\n\\n A week later, Hannah’s second-line supervisor circulated a status update via email\\n\\nto ODNI leadership outlining the information shared by the EAP counselor. That\\n\\ninformation included Hannah’s explained reasons for her inability to arrive punctually for\\n\\nwork, as well as Hannah’s concerns that the EAP process would “create a paper trail that\\n\\n[would] adversely impact her future employment and career.” J.A. 606. The email also\\n\\n\\n\\n 44\\n\\nindicated that the EAP counselor had identified “non-medical” factors as the primary\\n\\ncause of Hannah’s attendance problems. J.A. 607.\\n\\n On April 28, 2015, Hannah met with one of her supervisors and reiterated her\\n\\nrequest for four weeks of leave. J.A. 41. She was told that her leave request would be\\n\\napproved if she met with the EAP counselor once more on May 1, 2015 and signed a\\n\\nLetter of Expectations. J.A. 42. Hannah attended the May 1 appointment and signed the\\n\\nLetter of Expectations on May 4, 2015. J.A. 43. The Letter of Expectations provided\\n\\nthat, “[e]ffective immediately,” Hannah would begin work by 10:00 a.m. and would\\n\\ncontact her office no later than 9:30 a.m. in the event she would be late. J.A. 614.\\n\\n Beginning on May 5, 2015, Hannah took a four-week leave of absence. She\\n\\nreturned to work on June 1, 2015 and was immediately tasked with leading a significant\\n\\nstudy. J.A. 44–45. Her attendance problem “largely disappeared as Hannah responded to\\n\\nthe need for daily meetings all over the community.” J.A. 612.\\n\\n On June 9, 2015, Hannah interviewed for a permanent position with ODNI—\\n\\nProgram Mission Manager Cyber (“Cyber”), a job she had applied for at the end of April\\n\\nor beginning of May 2015. J.A. 620–21. She was unanimously selected by the interview\\n\\npanel as the most qualified candidate for the position. J.A. 206, 625. A week later, the\\n\\ninterview panel forwarded its recommendation to ODNI’s Chief Management Officer,\\n\\nMark Ewing. J.A. 206–07. Ewing was already aware of the decision to refer Hannah to\\n\\nthe EAP and had been consulted in that decision-making process. J.A. 216. As Ewing\\n\\ntestified, the EAP referral was intended not only to address Hannah’s issues with the\\n\\n\\n\\n 45\\n\\ntemporary job she had at the time; Ewing’s “concern was her conduct in relationship to\\n\\nbeing selected for a permanent government position.” J.A. 217, 585.\\n\\n Hannah’s application for the Cyber position stalled for several weeks, despite the\\n\\nfact that the approval process typically only took a few days. J.A. 443, 630. On June 25,\\n\\n2015, members of the interview panel began questioning the holdup. J.A. 633. In\\n\\nresponse, Ewing sent an email to the Principal Deputy Director of National Intelligence\\n\\n(“PDDNI”) recommending that Hannah not be approved for the Cyber position based on\\n\\nher recent attendance history. J.A. 635–36. Ewing also represented that the EAP\\n\\ncounselor had concluded that Hannah did not have a medical problem, “rather she is a\\n\\ndisciplinary problem.” J.A. 635.\\n\\n The PDDNI shared that email with the Director of National Intelligence (“DNI”).\\n\\nNeither the PDDNI nor the DNI approved Hannah for the permanent position. J.A. 722.\\n\\nOn July 7, 2015, Hannah was notified that she was not selected for the position. J.A.\\n\\n638. Hannah completed her temporary term at ODNI on March 27, 2016 as a high\\n\\nperformer, yet did not secure a permanent position with the department.\\n\\n\\n\\n II.\\n\\n A.\\n\\n I first take issue with the Court’s treatment of Hannah’s discrimination claim\\n\\nunder the Rehabilitation Act. The majority concludes that Hannah’s 13 “attendance\\n\\nissues” between March 19, 2015 and May 4, 2015 constituted a “significant attendance\\n\\nand reporting problem.” Maj. Op. at 27–28. Accordingly, the majority credits this\\n\\n 46\\n\\nproffered legitimate, non-discriminatory reason for ODNI’s failure to hire Hannah for the\\n\\npermanent Cyber position. 2 The majority also concludes that Hannah has failed to satisfy\\n\\nher burden at this stage of presenting sufficient evidence that ODNI’s explanation for\\n\\nrejecting her application is pretext for disability discrimination. Maj. Op. 24–26.\\n\\n I disagree with the majority’s conclusions for several reasons. Fundamentally,\\n\\nODNI’s proffered reason for not hiring Hannah reflects a misunderstanding of Hannah’s\\n\\ndisability. Among the most typical symptoms of depression are a loss of interest in\\n\\nnearly all activities, decreased energy, disturbed or irregular sleep, and an impaired\\n\\nability to function in one’s daily activities, including communicating with others. Jerry\\n\\nVon Talge, Ph. D., Major Depressive Disorder—Essential Features, 26 Am.\\n\\nJurisprudence Proof of Facts 1, § 12 (3d ed. 1994); Spangler v. Fed. Home Loan Bank of\\n\\nDes Moines, 278 F.3d 847, 853 (8th Cir. 2002) (“A jury could consider the difficulty one\\n\\nsuffering from depression has with communications . . . .”). “Even the smallest tasks\\n\\nseem to require substantial effort.” VonTalge, Major Depressive Disorder—Essential\\n\\nFeatures, 26 Am. Jurisprudence Proof of Facts 1, § 12. In Hannah’s case, although she\\n\\nwas taking medication to treat her depression, she was “unable to just get going.” J.A.\\n\\n413. She was “lethargic or almost unconcerned.” Id. Her demeanor was “sad, very flat,\\n\\nand almost trance like.” Id. Yet, Hannah came to work, and her job performance\\n\\nremained “excellent.” J.A. 408.\\n\\n\\n 2\\n ODNI does not dispute that Hannah’s depression qualifies as a disability under\\nthe Rehabilitation Act.\\n\\n\\n 47\\n\\n In light of the nature of Hannah’s disability and the record evidence, I am baffled\\n\\nby the majority’s conclusion that her conduct amounted to a “significant attendance and\\n\\nreporting problem” as a matter of law. Maj. Op. at 28; see Vannoy v. Fed. Reserve Bank\\n\\nof Richmond, 827 F.3d 296, 300 (4th Cir. 2016) (“Summary judgment is appropriate if\\n\\nthere is no genuine dispute as to any material fact and the movant is entitled to judgment\\n\\nas a matter of law.” (internal citations and quotation marks omitted)). Hannah’s behavior\\n\\nis far from the “blatant and persistent misconduct” that we have found to be lawful\\n\\ngrounds for adverse employment actions in this context. Vannoy, 827 F.3d at 305. In\\n\\nVannoy, for example, the employee, like Hannah, suffered from depression. Id. at 299.\\n\\nWe found that Vannoy’s employer had a legitimate, non-discriminatory reason to\\n\\nterminate his employment, despite his disability, when Vannoy had several unscheduled\\n\\nabsences from work; drove an employer vehicle for a three-day, out-of-state work\\n\\nassignment and stayed at a hotel paid for by his employer, yet did not once report for\\n\\nduty; refused to complete his portion of a performance improvement plan; and left work\\n\\nwithout authorization. Id. at 299–300, 305. It was in that context that we explained that\\n\\nthe Americans with Disabilities Act (“ADA”) “does not require an employer to simply\\n\\nignore an employee’s blatant and persistent misconduct, even where that behavior is\\n\\npotentially tied to a medical condition.” Id. at 305 (emphasis added); see also 29 U.S.C.\\n\\n§ 791(f) (incorporating ADA employment standards into section 501 of the\\n\\nRehabilitation Act).\\n\\n Unlike in Vannoy, the record here does not paint a picture of Hannah as an\\n\\ninsubordinate employee who refused to cooperate with her employer and blatantly\\n\\n 48\\n\\nmisused department resources. To the contrary, Hannah openly communicated with her\\n\\nsupervisors, even if she did so later in the day than they had expected. She informed her\\n\\nsupervisors of her depression and cooperated by attending the sessions with the EAP\\n\\ncounselor. During the 46-day period between the first accommodation and Hannah’s\\n\\nwritten agreement to begin work at a specified time, she had four unscheduled absences\\n\\nand came into work after 10:00 a.m. nine times. J.A. 556. On all but two occasions she\\n\\ncommunicated her anticipated schedule to ODNI. And on one of those two occasions,\\n\\nHannah arrived by 11:00 a.m., the time after which her supervisors were to contact her.\\n\\nId. During this time she actively worked with her medical professionals to design an\\n\\nalternative solution, and she requested, on more than one occasion, that ODNI grant the\\n\\nrecommended leave of absence. In fact, Hannah was absent only once and arrived after\\n\\n10:00 a.m. only twice before her initial leave request was denied. See id. Had her\\n\\nsupervisors granted her leave of absence on April 9 when she first requested it, many of\\n\\nher attendance issues would have been avoided. A jury could reasonably conclude that\\n\\nHannah’s late arrivals to work continued only because her depression was not effectively\\n\\naccommodated. See J.A. 175 (both medical professionals recommended four-week\\n\\nleave); J.A. 612 (noting Hannah’s attendance problem “largely disappeared” upon her\\n\\nreturn from leave). On this record, I find unfounded the characterization of Hannah’s\\n\\nconduct as blatant and persistent as a matter of law.\\n\\n Furthermore, Hannah has sufficiently shown that ODNI’s proffered reason for not\\n\\nhiring her—her attendance problems—may be pretext for disability discrimination. At\\n\\nthe summary judgment stage, Hannah need not conclusively prove discrimination. But\\n\\n 49\\n\\nshe must proffer sufficient evidence from which a reasonable jury could conclude that\\n\\nshe was in fact the victim of intentional discrimination by ODNI. Reyazuddin v.\\n\\nMontgomery Cty., Md., 789 F.3d 407, 419 (4th Cir. 2015). I would find that she has met\\n\\nthis burden for two reasons.\\n\\n First, as Hannah argues, questions of fact exist as to whether her attendance was a\\n\\nserious problem, or whether her attendance even violated any work-hours policy. The\\n\\nrecord suggests that it was not until May 4, 2015 that Hannah was given a formal time by\\n\\nwhich to arrive at work. See, e.g., J.A. 108 (“[D]ifferent people had different schedules\\n\\n. . . .”); id. (explaining that while most employees arrived at work around 9:00 a.m., there\\n\\nwas no “explicit” requirement to do so); J.A. 518 (denying that a “core hours\\n\\nexpectation” existed before September or October 2015). Although her supervisors told\\n\\nher on March 19, 2015 that she was to report by 10:00 a.m., they also initially agreed to\\n\\ncontact her if she did not report by 11:00 a.m. Had the 10:00 a.m. start time been deemed\\n\\na requirement, it would make little sense to have made any further arrangements. When\\n\\none of her supervisors attempted to unilaterally change that arrangement, he acceded to\\n\\nHannah’s request for time to propose an alternative. Hannah requested the doctor-\\n\\nrecommended leave of absence as an alternative, but she was never told that she was\\n\\nrequired to work specific hours; she remained formally on a maxi flex schedule. It was\\n\\nnot until the Letter of Expectation on May 4, 2015 that a formal start time was imposed.\\n\\nThe department itself did not move to “core” hours until October 2015. J.A. 518.\\n\\nTherefore, Hannah’s work schedule during the relevant time may have been “erratic,”\\n\\n\\n\\n 50\\n\\nMaj. Op. 26, but a reasonable jury could conclude that it did not violate any established\\n\\nwork-hours requirement. 3\\n\\n Second, I would find that Mark Ewing’s inconsistent statements regarding his\\n\\nknowledge of Hannah’s disability, coupled with the above evidence, are sufficient\\n\\nevidence of pretext to survive summary judgment. The majority emphasizes that Ewing\\n\\ndid not have first-hand knowledge of her condition and that he was informed that her\\n\\ndepression was under control. Maj. Op. 25. But depression is not like physical illnesses;\\n\\nit does not simply dissipate overnight. Its symptoms may be under control one day yet\\n\\ntriggered the very next. See Sidney H. Kennedy, M.D., A Review of Antidepressant\\n\\nTherapy in Primary Care: Current Practices and Future Directions, Primary Care\\n\\nCompanion for CNS Disorders, vol. 15(2), PCC.12r01420 (Apr. 11, 2013) (noting that\\n\\nmajor depressive disorder, the disease with which Hannah was diagnosed, is “chronic and\\n\\nepisodic” in nature). Indeed, Hannah was able to control her symptoms for years while\\n\\nworking at ODNI. Ewing was consulted by Hannah’s supervisors in connection with\\n\\ntheir decision to refer Hannah to EAP. J.A. 216. The EAP memo, a copy of which\\n\\nEwing possessed, explicitly stated: “[Hannah] informed us that she was meeting with a\\n\\npsychiatrist and counselor and taking medication for depression.” J.A. 413. And the\\n\\n\\n 3\\n Hannah’s supervisors testified that, because she arrived later than other\\nemployees, they were forced to reassign work that would have fallen to her. There is\\nevidence that the work assignments were made around 9:00 or 9:30 a.m. J.A. 108–09.\\nHad Hannah’s supervisors truly been concerned about being able to assign her work, one\\nwould expect the accommodation they offered to Hannah to have required her to come\\ninto the office by 9:00. No such requirement was ever made of her.\\n\\n\\n 51\\n\\nmemo implicitly made the connection between Hannah’s “struggling to get out of bed in\\n\\nthe morning” and recent upheavals in her life that “negatively impacted some of her\\n\\nphysical coping mechanisms.” Id. In fact, it noted that Hannah “appear[ed] to gain more\\n\\nenergy and become aware as the day progress[ed] into early evening.” Id. On this\\n\\nevidence, a reasonable jury could determine that Ewing was aware that Hannah’s\\n\\ndepression affected her ability to get to work by 10:00 a.m. and required medical\\n\\nintervention and that Ewing’s initial statement that he was unaware of her condition was\\n\\nintended to cover up the true reason for his desire not to hire her: her disability.\\n\\n In sum, because a reasonable jury could conclude on this record that Hannah’s\\n\\nattendance issues were far from “blatant and persistent misconduct,” Vannoy, 827 F.3d at\\n\\n305, and that ODNI’s proffered reason for failing to hire Hannah for the Cyber position\\n\\nwas pretext for discrimination on the basis of her disability, I would reverse the district\\n\\ncourt’s grant of summary judgment on the discrimination claim.\\n\\n B.\\n\\n I also take issue with the Court’s conclusion that no question exists as to the\\n\\nreasonableness of the accommodations made by ODNI. The reasonableness of an\\n\\naccommodation depends “on a good-faith effort to assess the employee’s needs and to\\n\\nrespond to them.” Feliberty v. Kemper Corp., 98 F.3d 274, 280 (7th Cir. 1996).\\n\\nImportantly, “a ‘reasonable accommodation’ is one that ‘effectively accommodates the\\n\\ndisabled employee’s limitations.’” Bellino v. Peters, 530 F.3d 543, 549 (7th Cir. 2008)\\n\\n(emphasis added) (citation omitted). In identifying a reasonable accommodation,\\n\\nemployers are required to engage in an interactive process with the disabled employee.\\n\\n 52\\n\\nSee 29 C.F.R. § 1630.2(o)(3); Jacobs v. N.C. Administrative Office of the Courts, 780\\n\\nF.3d 562, 581 (4th Cir. 2015) (“The ADA imposes upon employers a good-faith duty ‘to\\n\\nengage [with their employees] in an interactive process to identify a reasonable\\n\\naccommodation.’” (quoting Wilson v. Dollar Gen. Corp., 717 F.3d 337, 346 (4th Cir.\\n\\n2013))); Bellino, 530 F.3d at 548–50 (discussing ADA’s interactive-process requirement\\n\\nin the context of claim brought under section 501 of the Rehabilitation Act). It is only if\\n\\nan employer provides a reasonable accommodation that the employer’s failure to engage\\n\\nin an interactive process will not sustain a failure-to-accommodate claim. Jacobs, 780\\n\\nF.3d at 581.\\n\\n The majority finds that ODNI provided Hannah with two accommodations: (1)\\n\\nthe March 19, 2015 agreement that Hannah would report for work by 10:00 a.m., and (2)\\n\\nthe referral to EAP. Maj. Op. 12. I submit that questions of fact exist with respect to\\n\\nwhether ODNI made a good-faith effort to respond to Hannah’s needs and whether either\\n\\nof these accommodations was effective, i.e., whether the accommodations were\\n\\nreasonable. And because a question of fact exists as to that issue, I agree with Hannah\\n\\nthat a question also exists as to whether her employer engaged in the required interactive\\n\\nprocess.\\n\\n Hannah argues that her supervisors’ initial commitment to contact her if she did\\n\\nnot contact them or arrive by 11:00 a.m. was the sine qua non of the first\\n\\naccommodation. But Hannah’s supervisors allowed that accommodation to remain in\\n\\nplace for only four working days before unilaterally modifying it and, according to\\n\\nHannah, angrily pressuring her to propose an alternative accommodation on the spot.\\n\\n 53\\n\\nWhen Hannah did propose an alternative—four weeks of leave, as recommended by both\\n\\nof her treating medical professionals—her supervisors denied the request because they\\n\\nhad already decided that EAP counseling was more appropriate. Speculating that they\\n\\nknew better than both of Hannah’s medical professionals, her supervisors believed that\\n\\nher medical providers lacked “the expertise to provide” an opinion on “all of the items”\\n\\nthey wanted to submit to the EAP. J.A. 95. And while Hannah’s supervisors had\\n\\nsuggested that she take leave a few months earlier, prior to any signs that Hannah’s\\n\\ndisability would affect her ability to get into work in the morning, J.A. 173, they\\n\\nthreatened to terminate her employment if she did not first attend EAP sessions after she\\n\\nrequested medically recommended leave to cope with her depression, J.A. 176. On this\\n\\nevidence, the question of whether the first accommodation and the decision to require\\n\\nEAP counseling before granting medically recommended leave were made in good faith\\n\\nand were effective to address Hannah’s disability should be submitted to the jury, as\\n\\nreasonable minds could conclude that they were not.\\n\\n Likewise, the reasonableness of ODNI’s delay in granting Hannah leave should be\\n\\ndecided by a jury. Concededly, the short duration of the delay (from April 9, 2015 to\\n\\nMay 4, 2015) undercuts Hannah’s argument of unreasonableness. See Terrell v. USAir,\\n\\n132 F.3d 621, 628 (11th Cir. 1998) (finding that delay of three months in providing\\n\\naccommodation was reasonable). However, Hannah’s attendance—and the manifestation\\n\\nof her depression—was negatively impacted during the delay period; ODNI purposefully\\n\\n\\n\\n\\n 54\\n\\ndelayed her leave while she attended required EAP sessions 4; ODNI would have\\n\\nterminated Hannah’s temporary position if she failed to attend the EAP counseling 5; and\\n\\nMark Ewing intended to use the EAP sessions to gather information regarding Hannah’s\\n\\nsuitability for future employment. 6 Presented with this evidence, a reasonable jury could\\n\\nconclude that the delay was the result of ODNI’s bad faith. Feliberty, 98 F.3d at 280.\\n\\nThus, I would reverse the grant of summary judgment on Hannah’s reasonable\\n\\naccommodation claim.\\n\\n C.\\n\\n I would also reverse summary judgment on Hannah’s claim that she was subjected\\n\\nto an unlawful medical examination as a current employee.\\n\\n Under the Rehabilitation Act, “[a] covered entity shall not require a medical\\n\\nexamination and shall not make inquiries of an employee as to whether such employee is\\n\\nan individual with a disability or as to the nature and severity of the disability, unless\\n\\nsuch examination or inquiry is shown to be job-related and consistent with business\\n\\nnecessity.” 42 U.S.C. § 12112(d)(4)(A); 29 U.S.C. § 791(f).\\n\\n\\n 4\\n See J.A. 422 (“The recommendation of the group was if Hannah were to ask for\\nleave, we should defer that decision until after meeting with EAP.”); J.A. 176 (“EAP was\\nconcerned that since I was a single woman if I took leave I would be home by myself and\\nthat could make my depression worse.”).\\n 5\\n See J.A. 176 (Hannah’s statement that she was told she had “no choice” but to\\nattend the EAP sessions or her job would be terminated immediately).\\n 6\\n See J.A. 584–85 (Mark Ewing’s deposition testimony that EAP referral “wasn’t\\ninitially just about” Hannah’s temporary position but also because Ewing “knew she was\\nlooking for permanent employment”).\\n\\n\\n 55\\n\\n First, a clear dispute exists as to whether the EAP sessions constituted a required\\n\\nmedical examination under the Rehabilitation Act. Despite the voluntary nature of EAP\\n\\ncounseling highlighted by the majority, Maj. Op. 15, two of Hannah’s supervisors\\n\\ntestified that the sessions were in fact “mandatory.” J.A. 448, 474. As Hannah\\n\\nexplained, she was told by her supervisor that she had “no choice” in the matter and that\\n\\nif she did not participate in the EAP counseling, her temporary position with ODNI\\n\\nwould be declared “as excess” and she “would be out of a job immediately.” J.A. 176.\\n\\n The majority emphasizes the EAP counselor’s testimony that she did not conduct a\\n\\nmedical examination. Yet, the Court’s opinion says nothing about Hannah’s testimony\\n\\nregarding the substance of her sessions with the counselor. According to Hannah, she\\n\\nwas asked for a family medical history, questioned about her medication and dosage, and\\n\\neven administered a diagnostic tool used to assess depression. J.A. 531–32, 534.\\n\\n In light of this testimony, a reasonable jury could conclude that the EAP sessions\\n\\nwere in fact required and that the diagnostic tool constituted a “procedure or test that\\n\\nseeks information about an individual’s physical or mental impairments or health.”\\n\\nE.E.O.C., Enforcement Guidance: Disability–Related Inquiries and Medical\\n\\nExaminations of Employees Under the Americans with Disabilities Act (ADA) (EEOC\\n\\nNotice 915.002) (July 27, 2000). Likewise, a jury could determine that the questions\\n\\nasked during the sessions amounted to a “series of questions . . . likely to elicit\\n\\ninformation about a disability” and the scope of Hannah’s disability. Id.; Grenier v.\\n\\nCyanamid Plastics, Inc., 70 F.3d 667, 677 (1st Cir. 1995). As Hannah’s supervisors\\n\\nexplained, the decision to refer her to EAP was to determine whether her attendance was\\n\\n 56\\n\\ndue to “a medical mental health problem.” J.A. 422. Their decision was predicated on a\\n\\nconcern that granting Hannah the doctor-recommended leave could “make [her]\\n\\ndepression worse” and could even “be dangerous.” J.A. 176, 422–23. After meeting\\n\\nwith Hannah, the EAP counselor even suggested that Hannah could have bipolar\\n\\ndisorder. J.A. 601–02. If faced with this evidence, a reasonable jury could easily find\\n\\nthat the EAP sessions were in fact required medical examinations or disability-related\\n\\ninquiries.\\n\\n With respect to the second prong of our inquiry—whether the EAP sessions were\\n\\njob-related and consistent with business necessity—questions of fact also preclude\\n\\nsummary judgment. “[W]hether a mental examination was ‘job-related and consistent\\n\\nwith business necessity’ is an objective inquiry.” Pence v. Tenneco Auto. Operating Co.,\\n\\nInc., 169 F. App’x 808, 812 (4th Cir. 2006) (citing Tice v. Centre Area Transp. Auth.,\\n\\n247 F.3d 506, 518 (3d Cir. 2001)). It is the employer who bears the burden of proving\\n\\nthis prong. Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 623 (6th Cir. 2014). “A\\n\\nbusiness necessity must be based on more than ‘mere expediency,’ and will be found to\\n\\nexist where the employer can ‘identify legitimate, non-discriminatory reasons to doubt\\n\\nthe employee’s capacity to perform his or her duties.’” Coursey v. Univ. of Md. E. Shore,\\n\\n577 F. App’x 167, 173 (4th Cir. 2014) (citing Conroy v. N.Y. State Dep’t of Corr. Servs.,\\n\\n333 F.3d 88, 97–98 (2d Cir. 2003); Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir.\\n\\n2007)). A business necessity may also exist if a medical examination is necessary to\\n\\ndetermine “whether an employee’s absence or request for an absence is due to legitimate\\n\\n\\n\\n 57\\n\\nmedical reasons, when the employer has reason to suspect abuse of an attendance\\n\\npolicy.” Thomas, 483 F.3d at 527 (citing Conroy, 333 F.3d at 98).\\n\\n I would find that ODNI is not entitled to summary judgment because a reasonable\\n\\njury could conclude that the employer lacked a “reasonable belief based on objective\\n\\nevidence that [Hannah] was unable to perform the essential functions of her job or that\\n\\nshe posed a threat to herself or to others based on a medical condition.” Wright v. Ill.\\n\\nDep’t of Children and Family Servs., 798 F.3d 513, 524 (7th Cir. 2015); see also Kroll,\\n\\n763 F.3d at 623 (“[T]he individual who decides to require a medical examination must\\n\\nhave a reasonable belief based on objective evidence that the employee’s behavior\\n\\nthreatens a vital function of the business.” (citing Pence, 69 F. App’x at 812) (other\\n\\ncitation omitted)). It is undisputed that Hannah’s supervisors, as well as Mark Ewing,\\n\\nwere involved in the decision to refer Hannah to the EAP. Therefore, the question is\\n\\nwhether those supervisors had objective evidence that Hannah was unable to perform an\\n\\nessential function of her job. For the period including Hannah’s “egregious” attendance\\n\\nissues, she received an overall performance rating of 4.53 out of 5.00—a rating of\\n\\n“Excellent.” J.A. 406–10. Yet the majority concludes that her poor attendance precluded\\n\\nher from performing an essential function of her job.\\n\\n I submit that this conclusion cannot be reached as a matter of law on this record, a\\n\\nrecord that seriously calls into question ODNI’s sincerity in its assertion that Hannah was\\n\\nunable to perform an essential function of her job. For the entirety of Hannah’s time as\\n\\nthe disclosures coordinator on the Snowden project, she started work and left work later\\n\\nthan other ODNI employees. J.A. 25, 494. Although she came in later, she got the job\\n\\n 58\\n\\ndone, and she did it “impeccabl[y].” J.A. 412. She was able to manage her depression\\n\\nand worked long hours in a stressful environment while excelling. J.A. 19–20, 412. Her\\n\\nsupervisors had no qualm with her attendance, and aside from the maxi flex schedule,\\n\\nthere was no formal work-hours requirement in place. J.A. 492–94, 518. When that\\n\\nproject winded down in late 2014 and early 2015, Hannah’s supervisors did not institute\\n\\n“core” hours or otherwise formally remove Hannah from the maxi flex schedule. J.A.\\n\\n461, 518. In light of Hannah’s ODNI-sanctioned history of beginning her work day later\\n\\nthan others (a practice which simply continued into April 2015), the apparent lack of any\\n\\nformal policy requiring that her schedule be otherwise, and her consistent “excellent”\\n\\nperformance reviews, there is at the very least a question of fact regarding ODNI’s\\n\\n“reasonable belief based on objective evidence that [Hannah] was unable to perform the\\n\\nessential functions of her job.” Wright, 798 F.3d at 524.\\n\\n This is not to say that the essential functions of Hannah’s job did not include\\n\\nregular attendance. See Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th\\n\\nCir. 1994). However, as discussed above, a jury could reasonably conclude that ODNI\\n\\nhad no “reason to suspect abuse of an attendance policy,” Thomas, 483 F.3d at 527\\n\\n(citation omitted), when no such policy formally existed and when Hannah had been\\n\\nallowed for over a year to begin work later than other department employees. And\\n\\nalthough Hannah requested leave, her supervisors had decided before Hannah’s request\\n\\nthat they would defer a decision on any leave request until after the EAP referral because\\n\\nthey expected a “quick answer” from EAP. J.A. 95. But “mere expediency” is\\n\\ninsufficient to establish business necessity. Coursey, 577 F. App’x at 173.\\n\\n 59\\n\\n In light of these considerations, I would submit the issue of whether the EAP\\n\\nsessions were job-related and consistent with business necessity to the jury for resolution.\\n\\n D.\\n\\n Finally, I would reverse the district court’s grant of summary judgment on\\n\\nHannah’s FMLA retaliation claim. ODNI argues that Hannah cannot prove this claim\\n\\nbecause her non-selection for the Cyber position was due to “her significant attendance\\n\\nand reporting problems prior to her first leave request.” Resp. Br. 48. For largely the\\n\\nsame reasons that I would reverse with respect to Hannah’s discrimination-in-hiring\\n\\nclaim, I would find that there is sufficient evidence in the record to create a material issue\\n\\nof fact for the jury to decide on this claim.\\n\\n Hannah suffered from a disability, one that could effectively be accommodated\\n\\nwith leave. Unfortunately, her leave was granted only after she struggled to manage her\\n\\ndisability—a struggle which a reasonable jury could readily conclude did not violate any\\n\\nattendance policy. Despite Hannah’s rebound upon her return, ODNI used her late\\n\\narrivals during the time for which she requested but was denied leave as grounds for\\n\\ndenying her a permanent position, a position for which it is undisputed that she was\\n\\nexceptionally qualified. J.A. 623–25, 635–36. In essence, ODNI assigned Hannah to a\\n\\nhigh-stress position after which her depression worsened; delayed her request for FMLA-\\n\\nqualifying leave to accommodate her depression, thereby intensifying her symptoms;\\n\\nthen refused to hire her for a permanent role when she returned from leave. Because of\\n\\nthis, and for the reasons I articulate above, a jury could reasonably conclude that ODNI’s\\n\\nrejection of Hannah’s application for permanent employment was based on the exercise\\n\\n 60\\n\\nof her FMLA rights in requesting and taking a qualifying leave of absence to\\n\\naccommodate her disability.\\n\\n\\n\\n\\n 61\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4369045/\", \"author_raw\": \"GREGORY, Chief Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"GREGORY"},"judge2":{"kind":"string","value":"THACKER"},"judge3":{"kind":"string","value":"QUATTLEBAUM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4591792/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":1,"string":"1"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: HANNAH P., Plaintiff-Appellant, v. Daniel COATS, Director of the Office of the Director of National Intelligence McLean, VA, Defendant-Appellee, and Mark Ewing, in His Personal Capacity McLean, VA, Defendant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n\n No. 17-1943\n\n\nHANNAH P.,\n\n Plaintiff - Appellant,\n\n v.\n\nDANIEL COATS, Director of the Office of The Director of National Intelligence\nMcLean, VA,\n\n Defendant - Appellee,\n\n and\n\nMARK EWING, in his personal capacity McLean, VA,\n\n Defendant.\n\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nAlexandria. Claude M. Hilton, Senior District Judge. (1:16-cv-01030-CMH-IDD)\n\n\nArgued: October 31, 2018 Decided: February 19, 2019\n\n\nBefore GREGORY, Chief Judge, THACKER and QUATTLEBAUM, Circuit Judges.\n\n\nAffirmed in part, vacated in part, and remanded by published opinion. Judge Thacker\nwrote the opinion, in which Judge Quattlebaum joined. Chief Judge Gregory wrote a\nseparate opinion concurring in part and dissenting in part.\n\nARGUED: Timothy Bosson, BOSSON LEGAL GROUP, Fairfax, Virginia, for\nAppellant. Caroline D. Lopez, UNITED STATES DEPARTMENT OF JUSTICE,\nWashington, D.C., for Appellee. ON BRIEF: Chad A. Readler, Principal Deputy\nAssistant Attorney General, Marleigh D. Dover, Civil Division, UNITED STATES\nDEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente, United States\nAttorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for\nAppellee.\n\n\n\n\n 2\n\nTHACKER, Circuit Judge:\n\n Appellant Hannah P. 1 (“Hannah”), a former employee of the Office of the Director\n\nof National Intelligence (“Appellee”), asserts that Appellee discriminated against her\n\npursuant to the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701, et\n\nseq., and violated the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C.\n\n§ 2601, et seq., by not hiring her for a permanent position. The district court granted\n\nsummary judgment in Appellee’s favor as to all claims.\n\n For the reasons explained below, we affirm the district court’s judgment as to the\n\nRehabilitation Act and FMLA retaliation claims. However, because a genuine issue of\n\nmaterial fact remains as to whether Hannah provided notice of her disability and interest\n\nin FMLA leave sufficient to trigger Appellee’s duty to inquire, we hold that summary\n\njudgment as to Hannah’s FMLA interference claim was not warranted. Accordingly, we\n\nvacate that part of the district court’s judgment and remand Hannah’s FMLA interference\n\nclaim for further proceedings.\n\n I.\n\n A.\n\n In March 2011, Appellee hired Hannah for a five-year term as an operations\n\nanalyst. In that position, Hannah participated in “long-term, in-depth studies into issues\n\n\n\n\n 1\n Pursuant to a protective order, Hannah is identified by her first name and last\ninitial.\n\n\n\n 3\n\nthat had particular budgetary importance for the [c]ommunity.” J.A. 18. 2 Hannah\n\ngenerally received glowing reviews from her supervisors. See, e.g., id. at 412 (describing\n\nHannah’s performance prior to 2015 as “outstanding” and noting her “energy/drive,\n\ntechnical competence, superb communication and networking skills, and superior\n\nanalytic tradecraft”); id. at 350 (describing Hannah as “a high-performing employee”); id.\n\nat 391–410 (describing, repeatedly, various elements of Hannah’s performance as\n\n“excellent” and “outstanding”).\n\n B.\n\n A few months after she was hired, Hannah was diagnosed with depression.\n\nHannah immediately informed at least two of her supervisors of her diagnosis, but she\n\ndid not request any accommodations at that time. Hannah treated her depression by\n\nseeing a counselor and a psychiatrist and by taking prescribed medication.\n\n In November 2013, Hannah was assigned to coordinate the responses of the\n\nNational Intelligence Director and Principal Deputy Director to Edward Snowden’s\n\nunauthorized disclosures. 3 This role was “high stress” and required “frequent long hours\n\nand weekend work coupled with meeting tight deadlines and dealing with a demanding\n\n 2\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this\nappeal.\n 3\n In 2013, National Security Agency subcontractor Edward Snowden leaked “the\nbiggest cache of top-secret documents in history,” which revealed numerous global\nsurveillance programs run by the United States government. Ewen MacAskill & Alex\nHern, Edward Snowden: ‘The People Are Still Powerless, but Now They’re Aware,’\nGuardian (June 4, 2018), https://www.theguardian.com/us-news/2018/jun/04/edward-\nsnowden-people-still-powerless-but-aware.\n\n\n\n 4\n\n[National Security Council] customer.” J.A. 412. In fact, to accommodate the schedule\n\nchange that this role required, Appellee moved Hannah to a “maxi flex” schedule. Id. at\n\n350–51. A “maxi flex” schedule requires an analyst to work a certain number of hours --\n\n80 hours over a two-week period -- but does not dictate the exact hours that the analyst\n\nmust work per day. For Hannah, that meant starting and ending work later than\n\ntraditional business hours.\n\n The Snowden assignment lasted 18 months and completed in January 2015.\n\nHowever, Hannah continued her atypical working hours beyond the completion of the\n\nSnowden assignment. Hannah’s supervisor “was expecting” that when the Snowden\n\nassignment ended, Hannah’s hours “might become more normal.” J.A. 353. However,\n\nfor the first few months, he did not communicate with Hannah about returning to normal\n\nbusiness hours. Rather, he explained, he was “primarily concerned about establishing\n\nwhat [Hannah’s] next task was going to be.” Id.\n\n By March 2015, Hannah’s co-workers perceived her schedule to be “erratic.” J.A.\n\n413. Hannah arrived to work well after normal business hours and racked up numerous\n\nunplanned absences. On some occasions Hannah was “extremely late,” sometimes\n\narriving after 2 PM. Id. On other occasions Hannah was unreachable for hours, often\n\nmissing and failing to return “repeated phone calls to her cell and home phone.” Id.\n\nWhen Hannah’s supervisors were able to reach her, they noted that she seemed “either\n\nlethargic or almost unconcerned” about her lateness and absences. Id. They also noted\n\nthat her demeanor was “sad, very flat, and almost trance like.” Id. Around that time,\n\nHannah informed her supervisors that she “had a recent change in medication.” Id.\n\n\n 5\n\n C.\n\n 1.\n\n Appellee made some accommodations for Hannah following the Snowden\n\nassignment. First, after consulting with Hannah in January 2015, Appellee lightened\n\nHannah’s workload “to give her a chance to decompress” from the stress of the Snowden\n\nassignment. J.A. 413 (internal quotation marks omitted). Second, multiple of Hannah’s\n\nsupervisors had “informal counseling sessions” with her “to discuss any issues that she\n\nmight be having” and to “urge her” to notify them if she was going to be late or absent.\n\nId.\n\n On March 19, 2015, one of Hannah’s supervisors met with Hannah directly to\n\naddress her attendance issues. Together, Hannah and her supervisors developed a plan to\n\nreconcile Hannah’s depression with Appellee’s staffing needs. According to that plan,\n\nHannah was to arrive to work by 10 AM. If she was going to be absent or later than 10\n\nAM, Hannah was to contact one of her supervisors in advance. If Hannah had not arrived\n\nat work or contacted a supervisor by 11 AM, a supervisor would call her to determine\n\nwhen she would arrive.\n\n But, Hannah did not follow the plan. For example, the very next day after she and\n\nher supervisors developed the plan, Hannah emailed her supervisors at 11:05 AM to\n\ninform them that she would be arriving after 12 PM. Similarly, on March 31, Hannah\n\nemailed her supervisors at 11:56 AM to inform them that she would not be coming into\n\nwork at all that day. On April 1, after Hannah had not arrived to work or contacted her\n\nsupervisors, Hannah’s second-level supervisor called her at 12:30 PM, at which time\n\n\n 6\n\nHannah reported “being unable to just get going.” J.A. 413. Later that day, when\n\nHannah finally arrived to work, her supervisor informed her that the plan they created\n\nwas not working.\n\n At that same time, her supervisor revised the plan to require Hannah to arrive at\n\nwork by 10 AM or report to her supervisors in advance if she was going to be late or\n\nabsent. This “put the onus” on Hannah to contact her supervisors, rather than asking her\n\nsupervisors to contact her if she had not arrived at work by 11 AM. J.A. 90. Hannah\n\nfailed to follow this modified plan as well. In fact, she failed to comply on April 2 and\n\nApril 3, the two days following the meeting where the plan was modified.\n\n According to Appellee, Hannah’s timeliness and attendance issues impacted her\n\nperformance, the performance of her peers, and the performance of her supervisors. Per\n\nAppellee, Hannah’s “erratic” schedule was “noted by her teammates” and affected “unit\n\ncohesion.” J.A. 413. Hannah’s failure to report her tardiness and absences as well as her\n\nunresponsiveness required her management team to spend “significant time and energy”\n\ntracking her down. Id. Additionally, because of Hannah’s absences, Hannah’s\n\nsupervisors were often forced to assign work that might have been assigned to Hannah to\n\nother analysts.\n\n 2.\n\n On April 9, 2015, just three weeks after the initial work plan was developed to\n\nattempt to accommodate Hannah’s needs, Hannah again met with her supervisors. At\n\nthis meeting, Hannah’s supervisors informed her that they were referring her to the\n\nEmployee Assistance Program (“EAP”). EAP is a voluntary counseling service for\n\n\n 7\n\nemployees and their family members that provides “free, confidential, short-term mental\n\nhealth[,] financial, and addictions counseling and referral to cleared community\n\nproviders.” J.A. 132. Hannah’s supervisors made an EAP appointment for her for the\n\nfollowing day, Friday, April 10. At that time, Hannah explained to her supervisors that\n\nher psychiatrist recommended she take four weeks of medical leave. But, Hannah’s\n\nsupervisors insisted that she would need to meet with EAP before they could approve her\n\nrequest for medical leave.\n\n On the next business day following Hannah’s EAP session -- Monday, April 13 --\n\nHannah’s supervisor told Hannah he was willing to authorize her to take medical leave.\n\nHowever, at that point, Hannah informed her supervisor that her leave request was “on\n\nhold,” without further explanation. J.A. 170, 178.\n\n On April 16, Hannah’s supervisor noted in an email that he had an “extended” 40-\n\nminute discussion with Hannah’s EAP psychologist. J.A. 604. Hannah alleges that the\n\nEAP psychologist “shared with [Hannah’s supervisor] details of what Hannah had\n\nrevealed in confidence at the EAP sessions.” Appellant’s Br. 17. Specifically, Hannah\n\nalleges that the EAP psychologist told her supervisor that Hannah was concerned about\n\nAppellee’s records retention policies, and that Hannah’s “difficulties in getting to work\n\nwere the result of a lack of motivation, not related to depression.” J.A. 540.\n\n 3.\n\n Despite Hannah’s participation in EAP, her attendance problems persisted. For\n\nexample, on April 13, 2015, Hannah emailed her supervisors at 10:58 AM to inform them\n\nthat she would arrive to work by 11:30 AM. Similarly, on April 14, Hannah emailed her\n\n\n 8\n\nsupervisors at 11:08 AM to inform them that she would arrive to work by 12 PM. That\n\nday, Hannah’s supervisors were not able to confirm her arrival to work until after 1:50\n\nPM.\n\n A week after advising her supervisors that her leave request was “on hold,” on\n\nApril 21, Hannah renewed her request for four weeks of medical leave. Hannah’s\n\nsupervisors approved that request on May 5. They required her to use her annual leave to\n\naccount for four-fifths of the four week leave period, and allowed her one day of sick\n\nleave per week to make up the rest. Hannah began her leave the day it was approved.\n\n On May 4, the day before Hannah began her leave of absence, Hannah’s\n\nsupervisors gave her a letter of expectations. That letter confirmed the revised attendance\n\nand reporting plan. This plan required Hannah to arrive to work by 10 AM or report to\n\nher supervisors by 9:30 AM if she was going to be late or absent.\n\n 4.\n\n During this time, Hannah applied for three permanent positions within the Office\n\nof the Director of National Intelligence. In February 2015, Hannah interviewed for two\n\npermanent positions for which she was not selected. Shortly before taking her leave of\n\nabsence in May 2015, Hannah applied for a third full-time position, the Program Mission\n\nManager Cyber Position (“Cyber position”). She was interviewed for the Cyber position\n\non June 9, eight days after she returned from leave, and the interview panel recommended\n\nher for the position. Her application was then forwarded to Appellee’s Chief\n\nManagement Officer, Mark Ewing, who recommended that Hannah not be selected for\n\nthe position “at this time,” stating that Hannah’s “recent performance is not consistent\n\n\n 9\n\nwith a potentially good employee.” J.A. 232. Hannah was informed that her application\n\nhad been rejected in early July 2015, and she did not apply for any other positions.\n\nHannah completed her five-year term with Appellee in March 2016.\n\n D.\n\n Hannah exhausted her administrative remedies and filed this lawsuit on August 12,\n\n2016. She alleged that Appellee violated the Rehabilitation Act in five ways: (1) failing\n\nto accommodate her mental illness; (2) creating a hostile work environment; (3) requiring\n\nher to undergo a medical examination; (4) disclosing her confidential medical\n\ninformation; and (5) refusing to hire her for the Cyber position. Additionally, Hannah\n\nalleged that Appellee violated the FMLA in two ways: (1) by interfering with her ability\n\nto take medical leave; and (2) by retaliating against her when she took medical leave.\n\nAfter the close of discovery, Appellee moved for summary judgment on all counts. The\n\ndistrict court granted that motion on July 27, 2017. Hannah filed this timely notice of\n\nappeal challenging the district court’s decisions on all but the hostile work environment\n\nclaim.\n\n II.\n\n We review a district court’s decision to grant summary judgment de novo. See\n\nVannoy v. Fed. Reserve Bank of Richmond, 827 F.3d 296, 300 (4th Cir. 2016). In doing\n\nso, this court applies the same standard as the district court. See id. That standard\n\nrequires the court to grant summary judgment where “there is no genuine dispute as to\n\nany material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.\n\nP. 56(a); see also Vannoy, 827 F.3d at 300. We construe the evidence in the light most\n\n\n 10\n\nfavorable to Hannah, the nonmovant, and we draw all reasonable inferences in her favor.\n\nSee Vannoy, 827 F.3d at 300.\n\n III.\n\n Hannah asserts that Appellee violated the Rehabilitation Act by failing to\n\naccommodate her depression, wrongfully requiring her to undergo a medical\n\nexamination, unlawfully disclosing her confidential medical information, and refusing to\n\nhire her for the Cyber position. Additionally, Hannah asserts that Appellee interfered\n\nwith and retaliated against her for using leave under the FMLA. We will address each of\n\nthese claims in turn.\n\n A.\n\n Rehabilitation Act Claims\n\n The Rehabilitation Act prohibits federal agencies from discriminating against its\n\nemployees on the basis of disability. See 29 U.S.C. § 794. For the reasons explained\n\nbelow, Hannah failed to satisfy her burden on each of her claims under the Rehabilitation\n\nAct. Specifically, Hannah failed to: (1) demonstrate that Appellee failed to accommodate\n\nher depression; (2) demonstrate that Appellee’s EAP amounted to a required medical\n\nexamination; (3) demonstrate that Appellee disclosed or misused confidential medical\n\ninformation; and (4) rebut Appellee’s legitimate, nondiscriminatory reason for rejecting\n\nher application for a permanent position.\n\n\n\n\n 11\n\n 1.\n\n Reasonable Accommodation\n\n Turning first to Hannah’s claim that Appellee failed to accommodate her\n\ndepression, the district court correctly concluded that Hannah did not establish a prima\n\nfacie case because Hannah failed to demonstrate that Appellee refused to make a\n\nreasonable accommodation.\n\n To establish a prima facie claim of failure to accommodate under the\n\nRehabilitation Act, a plaintiff must demonstrate that (1) she was a qualified person with a\n\ndisability; (2) the employer had notice of the disability; (3) the plaintiff could perform the\n\nessential functions of the position with a reasonable accommodation; and (4) the\n\nemployer nonetheless refused to make the accommodation. See Reyazuddin v.\n\nMontgomery Cty., 789 F.3d 407, 414 (4th Cir. 2015). The district court concluded that\n\nHannah could not establish the fourth element -- specifically, the district court\n\ndetermined that Appellee provided Hannah with at least two reasonable accommodations.\n\nAnd, on appeal, the parties dispute only the fourth element.\n\n Here, as detailed above, Appellee provided Hannah with a reasonable\n\naccommodation. When Hannah failed to follow that plan, Hannah’s supervisors\n\nattempted a new accommodation -- referring Hannah to EAP. Yet, despite Hannah’s\n\nparticipation in EAP, her attendance problems persisted.\n\n Hannah argues that Appellee’s accommodations were not reasonable for two\n\nreasons. First, she claims that the accommodation was improperly rescinded when her\n\nsupervisors concluded that the first plan was not working. Hannah asserts that the\n\n\n 12\n\nRehabilitation Act requires a collaborative process. Hannah argues that rather than\n\ncollaborating with her to identify a workable accommodation, Appellee unilaterally\n\ndecided that the first plan was not working, then unilaterally decided that Hannah should\n\nparticipate in EAP counseling instead. Although employers have a duty to engage with\n\ntheir employees in an “interactive process to identify a reasonable accommodation,”\n\nWilson v. Dollar Gen. Corp., 717 F.3d 337, 346 (4th Cir. 2013), the employer “has the\n\nultimate discretion to choose between effective accommodations.” Reyazuddin, 789 F.3d\n\nat 415–16 (citing Hankins v. Gap, Inc., 84 F.3d 797, 800 (6th Cir. 1996)). Nonetheless,\n\neven under Hannah’s view of the record, Appellee did, in fact, collaborate with Hannah\n\nin establishing the first accommodation and only acted unilaterally when that\n\naccommodation did not work.\n\n Second, Hannah claims that a reasonable accommodation that she requested -- a\n\nleave of absence -- was improperly delayed. Hannah posits that she “suffered immense\n\nemotional stress during this one month lapse of [Appellee’s] compliance with the law.”\n\nAppellant’s Br. 37. This argument is without merit and is not supported by the record,\n\neven when viewed in the light most favorable to Hannah. Hannah first requested the\n\nleave of absence on April 9, 2015. Then, on April 13 -- just two business days later --\n\nHannah withdrew her request without explanation, telling her supervisor that her leave\n\nrequest was “on hold.” J.A. 170, 178. Hannah then renewed her request for leave on\n\nApril 21, and her request was approved on May 5. Thus, there was no “one month\n\nlapse,” since Hannah’s request was “on hold” for nine days of that time.\n\n\n\n\n 13\n\n During the remaining gap between Hannah’s request for leave and Appellee’s\n\napproval of that request, Appellee referred Hannah to its counseling service. The\n\nRehabilitation Act does not require an employer to provide the exact accommodation that\n\nan employee requests. See Reyazuddin, 789 F.3d at 415 (“An employer may reasonably\n\naccommodate an employee without providing the exact accommodation that the\n\nemployee requested.”). Further, the record demonstrates that Hannah’s supervisors were\n\nactively considering her request for leave during that time, and they did ultimately\n\napprove it less than a month after she first requested leave.\n\n For these reasons, granting summary judgment to Appellee on Hannah’s\n\nreasonable accommodation claim was proper.\n\n 2.\n\n Required Medical Examination\n\n Under the Rehabilitation Act, an employer “shall not require a medical\n\nexamination and shall not make inquiries of an employee as to whether such employee is\n\nan individual with a disability or as to the nature or severity of the disability, unless such\n\nexamination or inquiry is shown to be job-related and consistent with business necessity.”\n\n42 U.S.C. § 12112(d)(4)(A).\n\n\n\n\n 14\n\n a.\n\n Examination of a Job Applicant\n\n As an initial matter, Hannah’s arguments related to pre-employment medical\n\nexaminations under the Rehabilitation Act 4 miss the mark because Hannah was a current\n\nemployee, not a job applicant. Although Appellee knew Hannah was considering\n\napplying for permanent positions with Appellee at the time she was referred to EAP, she\n\nhad not yet done so. The evidence is clear that Appellee referred Hannah to EAP in lieu\n\nof disciplining her for her attendance issues in her then-current position, rather than as a\n\npre-employment medical examination. Moreover, the fact that Hannah’s attendance\n\nissues may have been related to her stress and frustration surrounding obtaining\n\npermanent employment with Appellee does not transform her EAP referral into a pre-\n\nemployment medical examination.\n\n b.\n\n Examination of a Current Employee\n\n Further, Hannah failed to demonstrate, much less create a genuine issue of\n\nmaterial fact, that EAP constituted a prohibited medical examination of a current\n\nemployee. We note that EAP’s policies make clear that EAP is intended to be used as a\n\nvoluntary counseling service, and not as a mandatory medical examination that would\n\n\n 4\n Subject to certain exceptions, an employer “shall not conduct a medical\nexamination or make inquiries of a job applicant as to whether such applicant is an\nindividual with a disability or as to the nature or severity of such disability.” 42 U.S.C.\n§ 12112(d)(2)(A).\n\n\n\n 15\n\nviolate the Rehabilitation Act. See J.A. 130 (“[U]tilizing EAP is always voluntary and\n\ntherefore the employee has the right to decline to attend treatment, even if management-\n\nreferred.”). Additionally, Hannah’s EAP counselor repeatedly stated that she did not\n\nconduct a medical examination:\n\n I did not conduct a medical examination of [Hannah], and I\n did not conduct a mental health evaluation or diagnostic\n assessment because a) [Hannah] informed me she was already\n in treatment and b) . . . it is not in EAP’s purview to conduct a\n medical evaluation. I did not administer any medical or\n mental health tests or diagnostic assessment tools for the\n same reason. I was [n]ot tasked to diagnose or provide a\n second opinion; my role was to facilitate communication\n between [Hannah] and Management to resolve the problem\n presented in the Management Referral -- namely, improving\n attendance and notifying management when not attending\n work.\n\nId. at 188 (emphasis omitted).\n\n However, even if EAP constituted a mandatory medical examination under the\n\nfacts of this case, summary judgment to Appellee was still appropriate on this claim\n\nbecause Hannah’s referral to EAP was “job-related and consistent with business\n\nnecessity.” 42 U.S.C. § 12112(d)(4)(A). As we have stated, “whether a mental\n\nexamination was ‘job-related and consistent with business necessity’ is an objective\n\ninquiry.” Pence v. Tenneco Auto. Operating Co., 169 F. App’x 808, 812 (4th Cir. 2006).\n\n“We therefore do not resolve any dispute about what [Appellee’s] subjective motivations\n\nwere for having [Hannah] examined by the EAP.” Id. An employer’s request for a\n\nmedical examination is job-related and consistent with business necessity when: “(1) the\n\nemployee requests an accommodation; (2) the employee’s ability to perform the essential\n\n\n\n 16\n\nfunctions of the job is impaired; or (3) the employee poses a direct threat to himself or\n\nothers.” Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 623 (6th Cir. 2014).\n\n Here, the evidence, even when viewed in the light most favorable to Hannah,\n\nsupports granting summary judgment because Appellee had a reasonable belief that\n\nHannah’s ability to perform the essential functions of her job was impaired by her\n\nrepeated issues with attendance and timely reporting. Hannah attempts to refute this by\n\nasserting that her job performance was excellent, but job performance alone does not\n\ncreate a genuine issue of material fact. Attendance was also an essential function of\n\nHannah’s job, one the record amply demonstrates she was unable to fulfill when Appellee\n\nreferred her to EAP. As we have stated:\n\n In addition to possessing the skills necessary to perform the\n job in question, an employee must be willing and able to\n demonstrate these skills by coming to work on a regular basis.\n Except in the unusual case where an employee can effectively\n perform all work-related duties at home, an employee “who\n does not come to work cannot perform any of his job\n functions, essential or otherwise.” Therefore, a regular and\n reliable level of attendance is a necessary element of most\n jobs.\n\nTyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (quoting\n\nWimbley v. Bolger, 642 F. Supp. 481, 485 (W.D. Tenn. 1986), aff’d, 831 F.2d 298 (6th\n\nCir. 1987)) (emphasis in original); see also Denman v. Davey Tree Expert Co., 266 F.\n\nApp’x 377, 380 (6th Cir. 2007) (“Job performance is separate from the ability to show up\n\nfor work, an essential function of [Hannah’s] position.”).\n\n\n\n\n 17\n\n Accordingly, Appellee did not violate the Rehabilitation Act by referring Hannah\n\nto EAP, and the district court properly granted summary judgment to Appellee on this\n\nclaim.\n\n 3.\n\n Confidential Medical Information\n\n Under the Rehabilitation Act, an employer may “conduct voluntary medical\n\nexaminations, including voluntary medical histories, which are part of an employee\n\nhealth program” and may “make inquiries into the ability of an employee to perform job-\n\nrelated functions.” 42 U.S.C. § 12112(d)(4)(B). Any “information obtained regarding\n\nthe medical condition or history of the applicant” -- that is, medical information -- must\n\nbe “collected and maintained on separate forms and in separate medical files and [must\n\nbe] treated as a confidential medical record.” Id. § 12112(d)(3)(B); see also id.\n\n§ 12112(d)(4)(C).\n\n Hannah alleges two separate Rehabilitation Act violations regarding her medical\n\ninformation: first, that Hannah’s supervisors wrongfully sought and disclosed\n\nconfidential medical information elicited from Hannah, and second, that the EAP\n\npsychologist wrongfully disclosed confidential medical information gathered from the\n\nEAP session to Hannah’s supervisors. In both instances, the district court correctly\n\ndetermined that Hannah failed to demonstrate that Appellee violated the Rehabilitation\n\nAct.\n\n\n\n\n 18\n\n a.\n\n Disclosures by Supervisors\n\n Hannah asserts that her supervisors disclosed her confidential medical information\n\nby writing in her EAP referral memo, “[e]arly in her tenure . . . and reaffirmed recently,\n\n[Hannah] informed us that she was meeting with a psychiatrist and counselor and taking\n\nmedication for depression.” J.A. 413. Notably, Hannah voluntarily disclosed her\n\ndepression diagnosis to her supervisors. The Rehabilitation Act does not protect\n\ninformation shared voluntarily. See Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143, 155\n\n(4th Cir. 2012) (finding the district court properly granted summary judgment on a\n\nconfidentiality claim brought under the Rehabilitation Act because the record “clearly\n\nshow[ed]” that the appellant “disclosed his medical condition voluntarily”). Indeed,\n\nHannah voluntarily told at least four of her supervisors that she had been diagnosed with\n\ndepression. See J.A. 179 (Hannah’s interrogatory responses) (“I disclosed my diagnosis\n\nof depression to my supervisors Kelly G. in summer 2011, Ann W. in fall 2014; Art Z. in\n\nMarch 2015, and Roy P. in March 2015.”).\n\n Hannah argues that these disclosures were not voluntary because they were made\n\nin response to inquiries about her disability. But the evidence does not support or create\n\na genuine issue of fact about that argument. The record indicates that only the March\n\n2015 disclosure was made in response to an inquiry, and that inquiry was not medical -- it\n\nwas about her attendance. See J.A. 23 (Hannah’s deposition testimony) (“[H]e was\n\nconcerned about unpredictability in my schedule. . . . I told him at that time I had\n\ndepression.”).\n\n\n 19\n\n Hannah asserts that this inquiry about her attendance was de facto an inquiry into\n\nher depression because (according to Hannah) the inquiring supervisor knew she was\n\ndepressed and knew her attendance issues were linked to her depression. Hannah cites\n\nonly out-of-circuit cases for the proposition that asking a question “likely to elicit”\n\ninformation about a disability amounts to a medical inquiry. See Harrison v. Benchmark\n\nElecs. Huntsville, Inc., 593 F.3d 1206, 1216 (11th Cir. 2010) (concluding that whether an\n\ninquiry following a failed drug test was likely to elicit information about a disability in\n\nviolation of the Americans with Disabilities Act (“ADA”) 5 presented a question of fact\n\nfor a jury to resolve); Fleming v. State Univ. of N.Y., 502 F. Supp. 2d 324, 338 (E.D.N.Y.\n\n2007) (concluding the plaintiff pled facts sufficient to state a claim for failure to\n\nconfidentially maintain medical information under the ADA where the plaintiff alleged\n\nthat his disclosure of his sickle cell anemia was not voluntary because his supervisor\n\ncalled him while he was in the hospital and asked him why he was there).\n\n First, the record does not support Hannah’s argument that the supervisor in\n\nquestion knew about Hannah’s depression before she disclosed it to him. Hannah points\n\nto the supervisor’s statement that when he spoke to Hannah on the phone before\n\nconfronting her about her attendance, “she didn’t sound well on the other end of the\n\nphone.” J.A. 466. Hannah also points to her supervisor’s statement that Hannah’s\n\n“demeanor [wa]s sad, very flat, and almost trance like.” Id. at 413. This is not enough to\n\n 5\n “To the extent possible, we construe the ADA and Rehabilitation Act to impose\nsimilar requirements.” Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 461\n(4th Cir. 2012).\n\n\n\n 20\n\ncreate a genuine issue of material fact as to whether the inquiring supervisor knew\n\nHannah had been medically diagnosed with clinical depression, or whether by asking\n\nabout her attendance, the supervisor was fishing for medical information about Hannah’s\n\nillness.\n\n Second, even if Hannah’s supervisor had an inkling that Hannah may have had\n\ndepression, this is not evidence that he knew asking about her repeated absences and\n\ntardiness -- indisputably bad work behavior -- would elicit medical information related to\n\nher depression. Indeed, Hannah’s absences could have been the result of a world of\n\nother, nonmedical possibilities, such as transportation issues or oversleeping. Adopting\n\nHannah’s argument would require us to find that where an employer might know that a\n\nparticular bad work behavior is connected to a medical condition, the employer cannot\n\ninquire into the behavior without running afoul of the ADA and Rehabilitation Act’s\n\nprohibition on medical inquiries. We have held expressly the opposite: “[T]he ADA does\n\nnot require an employer to simply ignore an employee’s blatant and persistent\n\nmisconduct, even where that behavior is potentially tied to a medical condition.” Vannoy\n\nv. Fed. Reserve Bank of Richmond, 827 F.3d 296, 305 (4th Cir. 2016) (citing Jones v. Am.\n\nPostal Workers Union, 192 F.3d 417, 429 (4th Cir. 1999) (holding the ADA does not\n\n“require an employer to ignore such egregious misconduct by one of its employees, even\n\nif the misconduct was caused by the employee’s disability”)).\n\n\n\n\n 21\n\n b.\n\n Disclosures by EAP Psychologist\n\n Hannah also argues that, in addition to her supervisors disclosing her depression\n\ndiagnosis internally, the EAP psychologist disclosed “additional, unique information\n\nfrom what Hannah had already told her supervisors.” Appellant’s Br. 51. Specifically,\n\nHannah alleges that the EAP psychologist told her supervisor that Hannah was concerned\n\nabout Appellee’s records retention policies, and that Hannah’s “difficulties in getting to\n\nwork were the result of a lack of motivation, not related to depression.” J.A. 540.\n\n Perhaps that is true. The record does indicate that the EAP psychologist shared\n\nsome information with Hannah’s supervisors and maybe it was unique information. See\n\nJ.A. 192 (EAP psychologist statement) (noting that the psychologist provided Hannah’s\n\nsupervisors updates regarding Hannah’s “EAP attendance” and “cooperation and\n\nprogress toward resolving the referral issues”). But there is no evidence that the EAP\n\npsychologist shared medical information. To the contrary, the EAP psychologist insisted,\n\nagain and again, that she did not share any confidential medical information. See id. at\n\n190 (noting that the psychologist, who is not a doctor, “did not disclose any confidential\n\nmedical information” to anyone). Of note, Hannah did not point to any evidence in the\n\nrecord contradicting the psychologist’s assertions.\n\n Therefore, the information shared by the EAP psychologist did not trigger the\n\nRehabilitation Act’s confidentiality protections because the record indicates that the EAP\n\npsychologist shared only nonmedical information.\n\n\n\n\n 22\n\n c.\n\n Non-Reliance on Medical Information\n\n Finally, even if either Hannah’s supervisors or the EAP psychologist disclosed\n\nHannah’s medical information, Appellee still did not violate the Rehabilitation Act\n\nbecause Appellee did not rely on Hannah’s depression diagnosis or any other medical\n\ninformation in deciding not to hire Hannah for the Cyber position. Rather, the record\n\noverwhelmingly indicates that Appellee’s decision was based on Hannah’s attendance\n\nissues. Accordingly, Hannah has not demonstrated that Appellee violated the\n\nRehabilitation Act by disclosing or misusing confidential medical information.\n\n 4.\n\n Discrimination\n\n Rehabilitation Act claims for discrimination are reviewed under the McDonnell\n\nDouglas burden-shifting framework. See Laber v. Harvey, 438 F.3d 404, 430 (4th Cir.\n\n2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)); Perry v.\n\nComput. Scis. Corp., 429 F. App’x 218, 219–20 (4th Cir. 2011). Under that framework,\n\nHannah has the initial burden of establishing a prima facie case of discrimination. See\n\nPerry, 429 F. App’x at 220. To establish this prima facie case, Hannah must show that:\n\n(1) she is disabled; (2) she was otherwise qualified for the position; and (3) she suffered\n\nan adverse employment action solely on the basis of her disability. See id. (citing\n\nConstantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir.\n\n2005)).\n\n\n\n\n 23\n\n If Hannah establishes a prima facie case, the burden shifts to Appellee to provide a\n\nlegitimate, nondiscriminatory reason for its conduct. See Perry, 429 F. App’x at 220. If\n\nAppellee provides such a reason, Hannah “bears the ultimate burden of persuasion” and\n\n“must show by a preponderance of the evidence that the proffered reason was a pretext\n\nfor discrimination.” Id.\n\n a.\n\n Establishing Pretext\n\n Even assuming that Hannah established a prima facie case of discrimination\n\n(which Appellee disputes), she cannot succeed on her claim that Appellee discriminated\n\nagainst her by not hiring her for a permanent position because she did not sufficiently\n\nrebut Appellee’s proffered reason for rejecting her application, as required under the final\n\nstep of the McDonnell Douglas burden-shifting framework. See Perry, 429 F. App’x at\n\n220.\n\n Appellee presented evidence demonstrating that Hannah’s perpetual issues with\n\nattendance, timeliness, and reporting absences to her superiors were the bases of its\n\ndecision not to hire her for the permanent position. Attempting to expose that\n\nexplanation as a ruse, Hannah pointed to a purported inconsistency between the sworn\n\nstatement that Mark Ewing provided during the Equal Employment Opportunity\n\nCommission (“EEOC”) investigation of Hannah’s case and an email he sent more than a\n\n\n\n\n 24\n\nyear earlier. In the sworn statement, signed on April 26, 2016, 6 Ewing asserts he “had no\n\nknowledge of [Hannah’s] disability.” J.A. 650. But in the email, sent on June 30, 2015,\n\nEwing references two memos that he received from Hannah’s supervisors, both of which\n\nnote Hannah’s depression. See id. at 413 (April 9, 2015 memo) (“Early in her tenure . . .\n\nand reaffirmed recently, [Hannah] informed us that she was meeting with a psychiatrist\n\nand counselor and taking medication for depression.”); id. at 606 (April 23, 2015 memo)\n\n(“While . . . medical considerations (i.e., depression and/or ADD) do make this situation\n\nworse, these factors are under her control based upon treatment plans with her\n\npsychologist and psychiatric care providers.”). Underscoring the significance of this\n\ninconsistency, Hannah argues, is the fact that Ewing did not provide the June 30, 2015\n\nemail to the EEOC. Hannah argues that the inconsistency, coupled with Ewing’s failure\n\nto disclose the email evidencing the inconsistency, illustrates “clear pretext.” Appellant’s\n\nBr. 27.\n\n Despite Hannah’s arguments to the contrary, this apparent discrepancy does not\n\ncreate a genuine issue of material fact that Appellee’s proffered reason for rejecting\n\nHannah’s application is pretextual. First, nothing in the record indicates that Ewing had\n\nfirst-hand knowledge of Hannah’s disability. Although the memos mention that Hannah\n\nself-reported that she had depression, the second memo also describes Hannah’s\n\ndepression as “under her control.” J.A. 606. Indeed, Ewing’s email suggests that he did\n\n\n 6\n The excerpt of the statement that is included in the J.A. does not include the date.\nThis date comes from Hannah’s brief. See Appellant’s Br. 26.\n\n\n\n 25\n\nnot know that Hannah had an ongoing disability. See J.A. 635 (“I am informed that EAP\n\nconcluded that [Hannah] does not have a medical problem, rather she is a disciplinary\n\nproblem.”).\n\n More significantly, Hannah’s asserted contradiction between Ewing’s EEOC\n\nstatements and his June 30, 2015 email do not create a genuine issue of material fact\n\nabout pretext because Ewing’s email and the memos written by Hannah’s supervisors\n\nfocus on Hannah’s attendance problems, not on her disability. See J.A. 413 (April 9,\n\n2015 memo) (noting that “[Hannah’s] schedule has become increasingly erratic” and that\n\n“frequent absences and late arrivals [have begun] to affect her assigned unit and\n\nindividual performance”); id. at 606 (April 23, 2015 memo) (describing Hannah’s history\n\nof attendance issues and Appellee’s attempts to accommodate Hannah and noting that,\n\ndespite those attempts, “[Hannah’s] late attendance has continued”); id. at 635–36\n\n(Ewing’s June 30, 2015 email) (detailing Hannah’s problem with “attendance at work,”\n\nnoting that Hannah’s “absences and late arrivals were affecting her assigned staff element\n\nand her individual performance,” and concluding that Hannah’s “recent performance is\n\nnot consistent with a potentially good employee.”).\n\n Accordingly, Hannah did not point to any genuine issue of material fact that\n\nAppellee’s purported basis for not hiring her was merely a pretext for discriminating\n\nagainst her on the basis of her depression.\n\n\n\n\n 26\n\n b.\n\n Appellee’s Nondiscriminatory Explanation\n\n i.\n\n Moreover, the record indicates that Appellee’s proffered explanation for not hiring\n\nHannah for the Cyber position is genuine, legitimate, and nondiscriminatory.\n\n As the district court concluded, a continuous attendance issue is a legitimate\n\nreason for withholding an employment benefit. See Tyndall, 31 F.3d at 213 (finding an\n\nemployee who cannot satisfy their employer’s attendance policy cannot be considered\n\n“qualified” for the purposes of the ADA). Hannah might have been exceptionally\n\ntalented and substantively good at her job, but as noted above, “[i]n addition to\n\npossessing the skills necessary to perform the job in question, an employee must be\n\nwilling and able to demonstrate these skills by coming to work on a regular basis.” Id.\n\n Hannah asserts that “serious questions of fact exist as to whether Hannah even had\n\n‘significant attendance and reporting problems.’” Appellant’s Br. 28. But the record\n\nevidences no less than 13 attendance issues that occurred in the 46 days between\n\nAppellee’s first attempt to accommodate Hannah on March 19, 2015, and the revised\n\nplan made on May 4, 2015. Compare J.A. 114, 174 (noting Appellee’s March 19, 2015\n\nmeeting with her supervisor and original accommodation asking her to arrive at work by\n\n10 AM or report to a supervisor), with id. at 556 (indicating four unexcused absences and\n\n\n\n\n 27\n\nnine late arrivals between March 19 and April 29 that Appellee failed to timely report). 7\n\nIn light of Hannah’s failure to arrive or call in before 10 AM 13 times in 46 days, there is\n\nno genuine issue of material fact about Hannah’s significant attendance and reporting\n\nproblem.\n\n ii.\n\n Hannah also argues that because her disability was the cause of her attendance\n\nissues, Appellee could not withhold an employment benefit from her on that basis. We\n\nhave no doubt that Hannah’s struggle with depression was the cause of her attendance\n\nissues, and we are sympathetic to the toll this condition took on a highly talented\n\n\n 7\n The record reflects the following late arrivals and absences for Hannah between\nMarch 19, 2015, and May 4, 2015: (1) April 2: Hannah emailed at 11:02 AM indicating\nshe would arrive to work by 12 PM; (2) April 8: Hannah emailed at 11:05 AM indicating\nshe would arrive to work by 12 PM; Hannah emailed again at 1:55 PM indicating she\nwould not be coming in that day; (3) April 9: Hannah emailed at 11:11 AM indicating her\ncar was towed and she would arrive at work by 1 PM; (4) April 13: Hannah emailed at\n10:58 AM indicating she would arrive at work by 11:30 AM; (5) April 14: Hannah\nemailed at 11:08 AM indicating she would arrive at work by 12 PM; (6) April 16:\nHannah’s supervisor emailed Hannah at 10:18 AM looking for her; when Hannah was\nreached at 11 AM, she indicated she would arrive to work by 12 PM; (7) April 20:\nHannah emailed at 10:45 AM indicating she would arrive to work by 11:30 AM;\nHannah’s supervisor confirmed her arrival at 12:50 PM; (8) April 22: Hannah emailed at\n11:01 AM indicating she would arrive at work after 12 PM; Hannah emailed again at\n12:41 PM indicating she would arrive at 1 PM due to traffic; (9) April 23: Hannah\nemailed at 10:59 AM indicating she would arrive at work by 12 PM; Hannah emailed\nagain at 12:56 PM indicating she would not be coming in that day due to a migraine; (10)\nApril 24: Hannah emailed at 11:02 AM indicating she would arrive at work in the\nafternoon; Hannah later called at 3:24 PM indicating she would not be coming in that\nday; (11) April 27: Hannah’s supervisor emailed indicating Hannah arrived at work by 11\nAM; (12) April 28: Hannah emailed at 10:52 AM indicating she would arrive at work by\n11:30 AM; (13) April 29: Hannah emailed at 11:49 AM indicating she would not come in\nto work that day. See J.A. 556.\n\n\n\n 28\n\nemployee. However, Appellee was nevertheless permitted to take Hannah’s attendance\n\nissues into account in its decision whether to hire her for the Cyber position. To reiterate,\n\nthe Rehabilitation Act “does not require an employer to simply ignore an employee’s\n\nblatant and persistent misconduct, even where that behavior is potentially tied to a\n\nmedical condition.” Vannoy, 827 F.3d at 305; cf. Martinson v. Kinney Shoe Corp., 104\n\nF.3d 683, 686 n.3 (4th Cir. 1997) (“Misconduct -- even misconduct related to a disability\n\n-- is not itself a disability, and an employer is free to fire an employee on that basis.”).\n\n iii.\n\n Finally, Hannah argues that by the time Appellee made the decision not to hire\n\nher, her attendance had improved. She asserts that between returning from her leave of\n\nabsence on June 1, 2015, and learning that she was not selected for the permanent\n\nposition on June 17, 2015, she “had shown she was able to perform the essential\n\nfunctions of the job and had no current attendance issues.” Appellant’s Br. 32.\n\n Hannah is correct that in a failure to hire case, the relevant inquiry is the\n\ncandidate’s performance “at the time of the employment decision or in the immediate\n\nfuture.” Lamb v. Qualex, Inc., 33 F. App’x 49, 57 (4th Cir. 2002). However, Appellee\n\nwas not required to consider the two weeks before the decision was made in a vacuum.\n\nMoreover, it is not the job of this court to decide whether Appellee made the right choice\n\nby not hiring Hannah for the Cyber position. Rather, our job is simply to decide whether\n\nAppellee made an illegal choice. See Feldman v. Law Enf’t Assocs. Corp., 752 F.3d 339,\n\n350 (4th Cir. 2014) (explaining that we do not “sit as a kind of super-personnel\n\ndepartment weighing the prudence of employment decisions”).\n\n\n 29\n\n Because Hannah not did demonstrate that Appellee’s purported basis for not hiring\n\nher was merely a pretext for discriminating against her on the basis of her depression, and\n\nbecause Hannah’s attendance problem was a legitimate and nondiscriminatory reason to\n\nnot hire her, we conclude that summary judgment was appropriate on her Rehabilitation\n\nAct discrimination claim.\n\n B.\n\n FMLA Claims\n\n The FMLA gives employees with qualifying medical conditions the right to take\n\nup to 12 weeks of leave during a 12-month period “[b]ecause of a serious health\n\ncondition that makes the employee unable to perform the functions of” her job. 29\n\nU.S.C. § 2612(a)(1)(D). “The employee has an accompanying right to return to the same\n\nor an equivalent position at the conclusion of the leave period.” Reed v. Buckeye Fire\n\nEquip., 241 F. App’x 917, 923 (4th Cir. 2007) (citing 29 U.S.C. § 2614(a)(1)).\n\n As discussed below, as to Hannah’s FMLA interference claim, Hannah illustrates\n\na genuine issue of material fact regarding the notice of her depression and her desire to\n\ntake a leave of absence. But, for the same reasons Hannah’s Rehabilitation Act\n\ndiscrimination claim fails, Hannah’s FMLA retaliation claim fails as well.\n\n 1.\n\n Interference\n\n a.\n\n The district court incorrectly concluded that Hannah’s disclosure of her depression\n\nwas not sufficient to put Appellee on notice that Hannah could have qualified for FMLA\n\n\n 30\n\nprotections. Accordingly, summary judgment was not warranted as to Hannah’s FMLA\n\ninterference claim.\n\n “An employee is mandated to provide notice to her employer when she requires\n\nFMLA leave.” Brushwood v. Wachovia Bank, N.A., 520 F. App’x 154, 157 (4th Cir.\n\n2013) (quoting Rhoads v. FDIC, 257 F.3d 373, 382 (4th Cir. 2001)). That said, an\n\nemployee need not specifically invoke the FMLA to benefit from its protections. See\n\nDotson v. Pfizer, Inc., 558 F.3d 284, 295 (4th Cir. 2009). Proper notice does not require\n\n“any magic words.” Id. Indeed, “[w]hen an employee seeks leave for the first time for\n\na[n] FMLA-qualifying reason, the employee need not expressly assert rights under the\n\nFMLA or even mention the FMLA.” 29 C.F.R. § 825.302. Proper notice merely “makes\n\nthe employer aware” that the employee needs potentially FMLA-qualifying leave.\n\nBrushwood, 520 F. App’x at 157. And once the employer is on notice of the employee’s\n\nneed to take potentially FMLA-qualifying leave, “the responsibility falls on the employer\n\nto inquire further about whether the employee is seeking FMLA leave.” Dotson, 558\n\nF.3d at 295.\n\n A reasonable jury could find that Hannah’s disclosure of her depression and her\n\nApril 9, 2015 request for psychiatrist-recommended leave was sufficient to trigger\n\nAppellee’s responsibility to inquire further about whether Hannah was seeking FMLA\n\nleave. We have held that disclosure of a potentially FMLA-qualifying circumstance and\n\nan inquiry into leave options is sufficient to create a material question of fact regarding\n\nwhether an employee triggered her employer’s FMLA obligations. See Dotson, 558 F.3d\n\nat 291, 295 (finding that an employee informing his employer that he was adopting a\n\n\n 31\n\nchild and speaking to a human resources representative about “taking leave during the\n\nadoption process” was sufficient to create a question of fact as to whether the employer’s\n\nFMLA-inquiry duties had been triggered).\n\n b.\n\n Here, Hannah informed her supervisors of her depression on multiple occasions.\n\nSee, e.g., J.A. 413 (April 9, 2015 memo from Hannah’s supervisors) (“Early in her tenure\n\n. . . and reaffirmed recently, [Hannah] informed us that she was meeting with a\n\npsychiatrist and counselor and taking medication for depression.”). 8 And on April 9,\n\n2015, Hannah explained to her supervisors that her psychiatrist recommended that she\n\ntake four weeks of medical leave. Hannah’s disclosures about her depression and her\n\npsychiatrist’s recommendation could lead a reasonable jury to find that Appellee was on\n\nnotice that Hannah was inquiring about potentially FMLA-qualifying leave, triggering\n\nAppellee’s responsibility to inquire further about whether Hannah was seeking FMLA\n\nleave. 9\n\n c.\n\n Appellee argues that Hannah’s interference claim fails because Hannah cannot\n\ndemonstrate that her depression was “a serious health condition.” Appellee’s Resp. 40–\n\n41; see also 29 U.S.C. § 2612(a)(1)(D). But that argument is premature. Appellee has\n\n 8\n Indeed, Hannah’s supervisors had “grown increasingly alarmed at the overall\nchange in [Hannah’s] demeanor.” J.A. 413.\n 9\n It is undisputed that Appellee did not inquire about whether the leave should be\nclassified as FMLA-protected.\n\n\n\n 32\n\nnot shown that it made any inquiry into whether Hannah’s depression was an FMLA-\n\nqualifying serious health condition. Appellee’s argument “would allow it to use its own\n\nfailure to determine whether leave should be designated as FMLA-protected to block\n\nliability.” Dotson, 558 F.3d at 295. We have refused “to allow an employer to take\n\nadvantage of its own lapse in such a way.” Id.\n\n d.\n\n Additionally, Appellee’s failure to provide notice of the availability of FMLA\n\nleave prejudiced Hannah because if she had been aware of the availability of FMLA\n\nleave, she could have structured her leave differently. The FMLA “provides no relief\n\nunless the employee has been prejudiced by the violation.” Vannoy, 827 F.3d at 302\n\n(citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)). “Prejudice may\n\nbe gleaned from evidence that had the plaintiff received the required (but omitted)\n\ninformation regarding his FMLA rights, he would have structured his leave differently.”\n\nId.\n\n Here, the record contains evidence that if Hannah had known that the FMLA\n\nprotected her position, she would have used only sick leave for her leave of absence. See\n\nJ.A. 664 (Hannah’s declaration) (“Had I known I could have chosen to take sick leave for\n\nthe entire period, I would have elected to do so.”). Instead, she used a combination of\n\nsick leave and annual time to take four weeks off. According to Hannah, “[u]nlike\n\nannual leave, sick leave is not paid out at the end of an employee’s service, resulting in a\n\nloss of a benefit worth at least $20,000.” Id. Based on Hannah’s testimony, a jury could\n\n\n\n\n 33\n\nfind that Hannah was prejudiced by Appellee’s failure to inquire into the availability of\n\nFMLA leave and thus interfered with her FMLA rights.\n\n For these reasons, Hannah has demonstrated a genuine issue of material fact that\n\nshould have precluded summary judgment on her FMLA interference claim.\n\n 2.\n\n Retaliation\n\n As for Hannah’s FMLA retaliation claim, however, the district court correctly\n\nconcluded that like her discrimination claim brought pursuant to the Rehabilitation Act,\n\nHannah did not sufficiently rebut Appellee’s legitimate, nonretaliatory reason for not\n\nhiring Hannah for the Cyber position.\n\n The FMLA prohibits employers from discriminating against an employee for\n\nexercising her FMLA rights. See 29 U.S.C. § 2615(a)(2). As relevant here, “employers\n\ncannot use the taking of FMLA leave as a negative factor in employment actions.” 29\n\nC.F.R. § 825.220(c). Courts analyze FMLA retaliation claims, like discrimination claims\n\nbrought pursuant to the Rehabilitation Act, under the McDonnell Douglas burden-shifting\n\nframework. See Laing v. Fed. Express Corp., 703 F.3d 713, 717 (4th Cir. 2013). To\n\nestablish a prima facie case of FMLA retaliation, a plaintiff must demonstrate that “(1)\n\nshe engaged in a protected activity; (2) her employer took an adverse employment action\n\nagainst her; and (3) there was a causal link between the two events.” Adams v. Anne\n\nArundel Cty. Pub. Schs., 789 F.3d 422, 429 (4th Cir. 2015) (internal quotation marks\n\nomitted). If the plaintiff establishes a prima facie case, the burden shifts to the defendant\n\nto provide a legitimate, nonretaliatory reason for taking the employment action at issue.\n\n\n 34\n\nId. If the defendant does so, the burden shifts back to the plaintiff to demonstrate that the\n\ndefendant’s proffered reason is pretextual. Id.\n\n Even assuming Hannah demonstrated a prima facie case of FMLA retaliation,\n\nsummary judgment was proper because she failed to rebut Appellee’s legitimate,\n\nnonretaliatory reason for not hiring her for the Cyber position. Appellee asserts that it\n\nrelied on Hannah’s attendance issues in deciding not to hire her for the position, and the\n\nevidence in the record supports that assertion. See J.A. 635–36 (Ewing’s June 30, 2015\n\nemail expressing concerns about Hannah’s application for the Cyber position) (noting,\n\n“despite some apparently solid performance while on the Snowden project,” Appellee\n\nhad “a consistent history of issues with [Hannah] over many months” regarding Hannah’s\n\n“attendance at work and attitude”); id. at 219 (Ewing’s deposition testimony) (“The\n\nprimary reason that I was concerned [about Hannah’s application] was the fact that her\n\nconduct was extremely negative at the point of time we were making a hiring decision for\n\npermanent employment status.”). Hannah points to no evidence that adequately\n\nundermines Appellee’s proffered nonretaliatory reason for not hiring her. 10\n\n Accordingly, the district court properly granted summary judgment on Hannah’s\n\nFMLA retaliation claim.\n\n\n 10\n Hannah again argues, as she did in the context of her claim of discrimination\nunder the Rehabilitation Act, that the “inconsistency” between the sworn statement\nEwing provided during the EEOC investigation of Hannah’s case and an email he sent\nmore than a year earlier exposes Appellee’s proffered reason for not hiring her for the\npermanent position as pretextual. For the same reasons explained above, that argument\nfails.\n\n\n\n 35\n\n IV.\n\n For these reasons, we affirm the judgment of the district court as to Hannah’s\n\nRehabilitation Act claims and FMLA retaliation claim. We vacate the grant of summary\n\njudgment as to Hannah’s FMLA interference claim because there is a genuine issue of\n\nfact as to whether Hannah’s disclosure of her depression was sufficient to put Appellee\n\non notice that Hannah could have qualified for FMLA protections. Accordingly, we\n\nremand for further proceedings as to that claim.\n\n AFFIRMED IN PART, VACATED IN PART, AND REMANDED\n\n\n\n\n 36\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: HANNAH P., Plaintiff-Appellant, v. Daniel COATS, Director of the Office of the Director of National Intelligence McLean, VA, Defendant-Appellee, and Mark Ewing, in His Personal Capacity McLean, VA, Defendant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n\\n No. 17-1943\\n\\n\\nHANNAH P.,\\n\\n Plaintiff - Appellant,\\n\\n v.\\n\\nDANIEL COATS, Director of the Office of The Director of National Intelligence\\nMcLean, VA,\\n\\n Defendant - Appellee,\\n\\n and\\n\\nMARK EWING, in his personal capacity McLean, VA,\\n\\n Defendant.\\n\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nAlexandria. Claude M. Hilton, Senior District Judge. (1:16-cv-01030-CMH-IDD)\\n\\n\\nArgued: October 31, 2018 Decided: February 19, 2019\\n\\n\\nBefore GREGORY, Chief Judge, THACKER and QUATTLEBAUM, Circuit Judges.\\n\\n\\nAffirmed in part, vacated in part, and remanded by published opinion. Judge Thacker\\nwrote the opinion, in which Judge Quattlebaum joined. Chief Judge Gregory wrote a\\nseparate opinion concurring in part and dissenting in part.\\n\\nARGUED: Timothy Bosson, BOSSON LEGAL GROUP, Fairfax, Virginia, for\\nAppellant. Caroline D. Lopez, UNITED STATES DEPARTMENT OF JUSTICE,\\nWashington, D.C., for Appellee. ON BRIEF: Chad A. Readler, Principal Deputy\\nAssistant Attorney General, Marleigh D. Dover, Civil Division, UNITED STATES\\nDEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente, United States\\nAttorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for\\nAppellee.\\n\\n\\n\\n\\n 2\\n\\nTHACKER, Circuit Judge:\\n\\n Appellant Hannah P. 1 (“Hannah”), a former employee of the Office of the Director\\n\\nof National Intelligence (“Appellee”), asserts that Appellee discriminated against her\\n\\npursuant to the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701, et\\n\\nseq., and violated the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C.\\n\\n§ 2601, et seq., by not hiring her for a permanent position. The district court granted\\n\\nsummary judgment in Appellee’s favor as to all claims.\\n\\n For the reasons explained below, we affirm the district court’s judgment as to the\\n\\nRehabilitation Act and FMLA retaliation claims. However, because a genuine issue of\\n\\nmaterial fact remains as to whether Hannah provided notice of her disability and interest\\n\\nin FMLA leave sufficient to trigger Appellee’s duty to inquire, we hold that summary\\n\\njudgment as to Hannah’s FMLA interference claim was not warranted. Accordingly, we\\n\\nvacate that part of the district court’s judgment and remand Hannah’s FMLA interference\\n\\nclaim for further proceedings.\\n\\n I.\\n\\n A.\\n\\n In March 2011, Appellee hired Hannah for a five-year term as an operations\\n\\nanalyst. In that position, Hannah participated in “long-term, in-depth studies into issues\\n\\n\\n\\n\\n 1\\n Pursuant to a protective order, Hannah is identified by her first name and last\\ninitial.\\n\\n\\n\\n 3\\n\\nthat had particular budgetary importance for the [c]ommunity.” J.A. 18. 2 Hannah\\n\\ngenerally received glowing reviews from her supervisors. See, e.g., id. at 412 (describing\\n\\nHannah’s performance prior to 2015 as “outstanding” and noting her “energy/drive,\\n\\ntechnical competence, superb communication and networking skills, and superior\\n\\nanalytic tradecraft”); id. at 350 (describing Hannah as “a high-performing employee”); id.\\n\\nat 391–410 (describing, repeatedly, various elements of Hannah’s performance as\\n\\n“excellent” and “outstanding”).\\n\\n B.\\n\\n A few months after she was hired, Hannah was diagnosed with depression.\\n\\nHannah immediately informed at least two of her supervisors of her diagnosis, but she\\n\\ndid not request any accommodations at that time. Hannah treated her depression by\\n\\nseeing a counselor and a psychiatrist and by taking prescribed medication.\\n\\n In November 2013, Hannah was assigned to coordinate the responses of the\\n\\nNational Intelligence Director and Principal Deputy Director to Edward Snowden’s\\n\\nunauthorized disclosures. 3 This role was “high stress” and required “frequent long hours\\n\\nand weekend work coupled with meeting tight deadlines and dealing with a demanding\\n\\n 2\\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this\\nappeal.\\n 3\\n In 2013, National Security Agency subcontractor Edward Snowden leaked “the\\nbiggest cache of top-secret documents in history,” which revealed numerous global\\nsurveillance programs run by the United States government. Ewen MacAskill & Alex\\nHern, Edward Snowden: ‘The People Are Still Powerless, but Now They’re Aware,’\\nGuardian (June 4, 2018), https://www.theguardian.com/us-news/2018/jun/04/edward-\\nsnowden-people-still-powerless-but-aware.\\n\\n\\n\\n 4\\n\\n[National Security Council] customer.” J.A. 412. In fact, to accommodate the schedule\\n\\nchange that this role required, Appellee moved Hannah to a “maxi flex” schedule. Id. at\\n\\n350–51. A “maxi flex” schedule requires an analyst to work a certain number of hours --\\n\\n80 hours over a two-week period -- but does not dictate the exact hours that the analyst\\n\\nmust work per day. For Hannah, that meant starting and ending work later than\\n\\ntraditional business hours.\\n\\n The Snowden assignment lasted 18 months and completed in January 2015.\\n\\nHowever, Hannah continued her atypical working hours beyond the completion of the\\n\\nSnowden assignment. Hannah’s supervisor “was expecting” that when the Snowden\\n\\nassignment ended, Hannah’s hours “might become more normal.” J.A. 353. However,\\n\\nfor the first few months, he did not communicate with Hannah about returning to normal\\n\\nbusiness hours. Rather, he explained, he was “primarily concerned about establishing\\n\\nwhat [Hannah’s] next task was going to be.” Id.\\n\\n By March 2015, Hannah’s co-workers perceived her schedule to be “erratic.” J.A.\\n\\n413. Hannah arrived to work well after normal business hours and racked up numerous\\n\\nunplanned absences. On some occasions Hannah was “extremely late,” sometimes\\n\\narriving after 2 PM. Id. On other occasions Hannah was unreachable for hours, often\\n\\nmissing and failing to return “repeated phone calls to her cell and home phone.” Id.\\n\\nWhen Hannah’s supervisors were able to reach her, they noted that she seemed “either\\n\\nlethargic or almost unconcerned” about her lateness and absences. Id. They also noted\\n\\nthat her demeanor was “sad, very flat, and almost trance like.” Id. Around that time,\\n\\nHannah informed her supervisors that she “had a recent change in medication.” Id.\\n\\n\\n 5\\n\\n C.\\n\\n 1.\\n\\n Appellee made some accommodations for Hannah following the Snowden\\n\\nassignment. First, after consulting with Hannah in January 2015, Appellee lightened\\n\\nHannah’s workload “to give her a chance to decompress” from the stress of the Snowden\\n\\nassignment. J.A. 413 (internal quotation marks omitted). Second, multiple of Hannah’s\\n\\nsupervisors had “informal counseling sessions” with her “to discuss any issues that she\\n\\nmight be having” and to “urge her” to notify them if she was going to be late or absent.\\n\\nId.\\n\\n On March 19, 2015, one of Hannah’s supervisors met with Hannah directly to\\n\\naddress her attendance issues. Together, Hannah and her supervisors developed a plan to\\n\\nreconcile Hannah’s depression with Appellee’s staffing needs. According to that plan,\\n\\nHannah was to arrive to work by 10 AM. If she was going to be absent or later than 10\\n\\nAM, Hannah was to contact one of her supervisors in advance. If Hannah had not arrived\\n\\nat work or contacted a supervisor by 11 AM, a supervisor would call her to determine\\n\\nwhen she would arrive.\\n\\n But, Hannah did not follow the plan. For example, the very next day after she and\\n\\nher supervisors developed the plan, Hannah emailed her supervisors at 11:05 AM to\\n\\ninform them that she would be arriving after 12 PM. Similarly, on March 31, Hannah\\n\\nemailed her supervisors at 11:56 AM to inform them that she would not be coming into\\n\\nwork at all that day. On April 1, after Hannah had not arrived to work or contacted her\\n\\nsupervisors, Hannah’s second-level supervisor called her at 12:30 PM, at which time\\n\\n\\n 6\\n\\nHannah reported “being unable to just get going.” J.A. 413. Later that day, when\\n\\nHannah finally arrived to work, her supervisor informed her that the plan they created\\n\\nwas not working.\\n\\n At that same time, her supervisor revised the plan to require Hannah to arrive at\\n\\nwork by 10 AM or report to her supervisors in advance if she was going to be late or\\n\\nabsent. This “put the onus” on Hannah to contact her supervisors, rather than asking her\\n\\nsupervisors to contact her if she had not arrived at work by 11 AM. J.A. 90. Hannah\\n\\nfailed to follow this modified plan as well. In fact, she failed to comply on April 2 and\\n\\nApril 3, the two days following the meeting where the plan was modified.\\n\\n According to Appellee, Hannah’s timeliness and attendance issues impacted her\\n\\nperformance, the performance of her peers, and the performance of her supervisors. Per\\n\\nAppellee, Hannah’s “erratic” schedule was “noted by her teammates” and affected “unit\\n\\ncohesion.” J.A. 413. Hannah’s failure to report her tardiness and absences as well as her\\n\\nunresponsiveness required her management team to spend “significant time and energy”\\n\\ntracking her down. Id. Additionally, because of Hannah’s absences, Hannah’s\\n\\nsupervisors were often forced to assign work that might have been assigned to Hannah to\\n\\nother analysts.\\n\\n 2.\\n\\n On April 9, 2015, just three weeks after the initial work plan was developed to\\n\\nattempt to accommodate Hannah’s needs, Hannah again met with her supervisors. At\\n\\nthis meeting, Hannah’s supervisors informed her that they were referring her to the\\n\\nEmployee Assistance Program (“EAP”). EAP is a voluntary counseling service for\\n\\n\\n 7\\n\\nemployees and their family members that provides “free, confidential, short-term mental\\n\\nhealth[,] financial, and addictions counseling and referral to cleared community\\n\\nproviders.” J.A. 132. Hannah’s supervisors made an EAP appointment for her for the\\n\\nfollowing day, Friday, April 10. At that time, Hannah explained to her supervisors that\\n\\nher psychiatrist recommended she take four weeks of medical leave. But, Hannah’s\\n\\nsupervisors insisted that she would need to meet with EAP before they could approve her\\n\\nrequest for medical leave.\\n\\n On the next business day following Hannah’s EAP session -- Monday, April 13 --\\n\\nHannah’s supervisor told Hannah he was willing to authorize her to take medical leave.\\n\\nHowever, at that point, Hannah informed her supervisor that her leave request was “on\\n\\nhold,” without further explanation. J.A. 170, 178.\\n\\n On April 16, Hannah’s supervisor noted in an email that he had an “extended” 40-\\n\\nminute discussion with Hannah’s EAP psychologist. J.A. 604. Hannah alleges that the\\n\\nEAP psychologist “shared with [Hannah’s supervisor] details of what Hannah had\\n\\nrevealed in confidence at the EAP sessions.” Appellant’s Br. 17. Specifically, Hannah\\n\\nalleges that the EAP psychologist told her supervisor that Hannah was concerned about\\n\\nAppellee’s records retention policies, and that Hannah’s “difficulties in getting to work\\n\\nwere the result of a lack of motivation, not related to depression.” J.A. 540.\\n\\n 3.\\n\\n Despite Hannah’s participation in EAP, her attendance problems persisted. For\\n\\nexample, on April 13, 2015, Hannah emailed her supervisors at 10:58 AM to inform them\\n\\nthat she would arrive to work by 11:30 AM. Similarly, on April 14, Hannah emailed her\\n\\n\\n 8\\n\\nsupervisors at 11:08 AM to inform them that she would arrive to work by 12 PM. That\\n\\nday, Hannah’s supervisors were not able to confirm her arrival to work until after 1:50\\n\\nPM.\\n\\n A week after advising her supervisors that her leave request was “on hold,” on\\n\\nApril 21, Hannah renewed her request for four weeks of medical leave. Hannah’s\\n\\nsupervisors approved that request on May 5. They required her to use her annual leave to\\n\\naccount for four-fifths of the four week leave period, and allowed her one day of sick\\n\\nleave per week to make up the rest. Hannah began her leave the day it was approved.\\n\\n On May 4, the day before Hannah began her leave of absence, Hannah’s\\n\\nsupervisors gave her a letter of expectations. That letter confirmed the revised attendance\\n\\nand reporting plan. This plan required Hannah to arrive to work by 10 AM or report to\\n\\nher supervisors by 9:30 AM if she was going to be late or absent.\\n\\n 4.\\n\\n During this time, Hannah applied for three permanent positions within the Office\\n\\nof the Director of National Intelligence. In February 2015, Hannah interviewed for two\\n\\npermanent positions for which she was not selected. Shortly before taking her leave of\\n\\nabsence in May 2015, Hannah applied for a third full-time position, the Program Mission\\n\\nManager Cyber Position (“Cyber position”). She was interviewed for the Cyber position\\n\\non June 9, eight days after she returned from leave, and the interview panel recommended\\n\\nher for the position. Her application was then forwarded to Appellee’s Chief\\n\\nManagement Officer, Mark Ewing, who recommended that Hannah not be selected for\\n\\nthe position “at this time,” stating that Hannah’s “recent performance is not consistent\\n\\n\\n 9\\n\\nwith a potentially good employee.” J.A. 232. Hannah was informed that her application\\n\\nhad been rejected in early July 2015, and she did not apply for any other positions.\\n\\nHannah completed her five-year term with Appellee in March 2016.\\n\\n D.\\n\\n Hannah exhausted her administrative remedies and filed this lawsuit on August 12,\\n\\n2016. She alleged that Appellee violated the Rehabilitation Act in five ways: (1) failing\\n\\nto accommodate her mental illness; (2) creating a hostile work environment; (3) requiring\\n\\nher to undergo a medical examination; (4) disclosing her confidential medical\\n\\ninformation; and (5) refusing to hire her for the Cyber position. Additionally, Hannah\\n\\nalleged that Appellee violated the FMLA in two ways: (1) by interfering with her ability\\n\\nto take medical leave; and (2) by retaliating against her when she took medical leave.\\n\\nAfter the close of discovery, Appellee moved for summary judgment on all counts. The\\n\\ndistrict court granted that motion on July 27, 2017. Hannah filed this timely notice of\\n\\nappeal challenging the district court’s decisions on all but the hostile work environment\\n\\nclaim.\\n\\n II.\\n\\n We review a district court’s decision to grant summary judgment de novo. See\\n\\nVannoy v. Fed. Reserve Bank of Richmond, 827 F.3d 296, 300 (4th Cir. 2016). In doing\\n\\nso, this court applies the same standard as the district court. See id. That standard\\n\\nrequires the court to grant summary judgment where “there is no genuine dispute as to\\n\\nany material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.\\n\\nP. 56(a); see also Vannoy, 827 F.3d at 300. We construe the evidence in the light most\\n\\n\\n 10\\n\\nfavorable to Hannah, the nonmovant, and we draw all reasonable inferences in her favor.\\n\\nSee Vannoy, 827 F.3d at 300.\\n\\n III.\\n\\n Hannah asserts that Appellee violated the Rehabilitation Act by failing to\\n\\naccommodate her depression, wrongfully requiring her to undergo a medical\\n\\nexamination, unlawfully disclosing her confidential medical information, and refusing to\\n\\nhire her for the Cyber position. Additionally, Hannah asserts that Appellee interfered\\n\\nwith and retaliated against her for using leave under the FMLA. We will address each of\\n\\nthese claims in turn.\\n\\n A.\\n\\n Rehabilitation Act Claims\\n\\n The Rehabilitation Act prohibits federal agencies from discriminating against its\\n\\nemployees on the basis of disability. See 29 U.S.C. § 794. For the reasons explained\\n\\nbelow, Hannah failed to satisfy her burden on each of her claims under the Rehabilitation\\n\\nAct. Specifically, Hannah failed to: (1) demonstrate that Appellee failed to accommodate\\n\\nher depression; (2) demonstrate that Appellee’s EAP amounted to a required medical\\n\\nexamination; (3) demonstrate that Appellee disclosed or misused confidential medical\\n\\ninformation; and (4) rebut Appellee’s legitimate, nondiscriminatory reason for rejecting\\n\\nher application for a permanent position.\\n\\n\\n\\n\\n 11\\n\\n 1.\\n\\n Reasonable Accommodation\\n\\n Turning first to Hannah’s claim that Appellee failed to accommodate her\\n\\ndepression, the district court correctly concluded that Hannah did not establish a prima\\n\\nfacie case because Hannah failed to demonstrate that Appellee refused to make a\\n\\nreasonable accommodation.\\n\\n To establish a prima facie claim of failure to accommodate under the\\n\\nRehabilitation Act, a plaintiff must demonstrate that (1) she was a qualified person with a\\n\\ndisability; (2) the employer had notice of the disability; (3) the plaintiff could perform the\\n\\nessential functions of the position with a reasonable accommodation; and (4) the\\n\\nemployer nonetheless refused to make the accommodation. See Reyazuddin v.\\n\\nMontgomery Cty., 789 F.3d 407, 414 (4th Cir. 2015). The district court concluded that\\n\\nHannah could not establish the fourth element -- specifically, the district court\\n\\ndetermined that Appellee provided Hannah with at least two reasonable accommodations.\\n\\nAnd, on appeal, the parties dispute only the fourth element.\\n\\n Here, as detailed above, Appellee provided Hannah with a reasonable\\n\\naccommodation. When Hannah failed to follow that plan, Hannah’s supervisors\\n\\nattempted a new accommodation -- referring Hannah to EAP. Yet, despite Hannah’s\\n\\nparticipation in EAP, her attendance problems persisted.\\n\\n Hannah argues that Appellee’s accommodations were not reasonable for two\\n\\nreasons. First, she claims that the accommodation was improperly rescinded when her\\n\\nsupervisors concluded that the first plan was not working. Hannah asserts that the\\n\\n\\n 12\\n\\nRehabilitation Act requires a collaborative process. Hannah argues that rather than\\n\\ncollaborating with her to identify a workable accommodation, Appellee unilaterally\\n\\ndecided that the first plan was not working, then unilaterally decided that Hannah should\\n\\nparticipate in EAP counseling instead. Although employers have a duty to engage with\\n\\ntheir employees in an “interactive process to identify a reasonable accommodation,”\\n\\nWilson v. Dollar Gen. Corp., 717 F.3d 337, 346 (4th Cir. 2013), the employer “has the\\n\\nultimate discretion to choose between effective accommodations.” Reyazuddin, 789 F.3d\\n\\nat 415–16 (citing Hankins v. Gap, Inc., 84 F.3d 797, 800 (6th Cir. 1996)). Nonetheless,\\n\\neven under Hannah’s view of the record, Appellee did, in fact, collaborate with Hannah\\n\\nin establishing the first accommodation and only acted unilaterally when that\\n\\naccommodation did not work.\\n\\n Second, Hannah claims that a reasonable accommodation that she requested -- a\\n\\nleave of absence -- was improperly delayed. Hannah posits that she “suffered immense\\n\\nemotional stress during this one month lapse of [Appellee’s] compliance with the law.”\\n\\nAppellant’s Br. 37. This argument is without merit and is not supported by the record,\\n\\neven when viewed in the light most favorable to Hannah. Hannah first requested the\\n\\nleave of absence on April 9, 2015. Then, on April 13 -- just two business days later --\\n\\nHannah withdrew her request without explanation, telling her supervisor that her leave\\n\\nrequest was “on hold.” J.A. 170, 178. Hannah then renewed her request for leave on\\n\\nApril 21, and her request was approved on May 5. Thus, there was no “one month\\n\\nlapse,” since Hannah’s request was “on hold” for nine days of that time.\\n\\n\\n\\n\\n 13\\n\\n During the remaining gap between Hannah’s request for leave and Appellee’s\\n\\napproval of that request, Appellee referred Hannah to its counseling service. The\\n\\nRehabilitation Act does not require an employer to provide the exact accommodation that\\n\\nan employee requests. See Reyazuddin, 789 F.3d at 415 (“An employer may reasonably\\n\\naccommodate an employee without providing the exact accommodation that the\\n\\nemployee requested.”). Further, the record demonstrates that Hannah’s supervisors were\\n\\nactively considering her request for leave during that time, and they did ultimately\\n\\napprove it less than a month after she first requested leave.\\n\\n For these reasons, granting summary judgment to Appellee on Hannah’s\\n\\nreasonable accommodation claim was proper.\\n\\n 2.\\n\\n Required Medical Examination\\n\\n Under the Rehabilitation Act, an employer “shall not require a medical\\n\\nexamination and shall not make inquiries of an employee as to whether such employee is\\n\\nan individual with a disability or as to the nature or severity of the disability, unless such\\n\\nexamination or inquiry is shown to be job-related and consistent with business necessity.”\\n\\n42 U.S.C. § 12112(d)(4)(A).\\n\\n\\n\\n\\n 14\\n\\n a.\\n\\n Examination of a Job Applicant\\n\\n As an initial matter, Hannah’s arguments related to pre-employment medical\\n\\nexaminations under the Rehabilitation Act 4 miss the mark because Hannah was a current\\n\\nemployee, not a job applicant. Although Appellee knew Hannah was considering\\n\\napplying for permanent positions with Appellee at the time she was referred to EAP, she\\n\\nhad not yet done so. The evidence is clear that Appellee referred Hannah to EAP in lieu\\n\\nof disciplining her for her attendance issues in her then-current position, rather than as a\\n\\npre-employment medical examination. Moreover, the fact that Hannah’s attendance\\n\\nissues may have been related to her stress and frustration surrounding obtaining\\n\\npermanent employment with Appellee does not transform her EAP referral into a pre-\\n\\nemployment medical examination.\\n\\n b.\\n\\n Examination of a Current Employee\\n\\n Further, Hannah failed to demonstrate, much less create a genuine issue of\\n\\nmaterial fact, that EAP constituted a prohibited medical examination of a current\\n\\nemployee. We note that EAP’s policies make clear that EAP is intended to be used as a\\n\\nvoluntary counseling service, and not as a mandatory medical examination that would\\n\\n\\n 4\\n Subject to certain exceptions, an employer “shall not conduct a medical\\nexamination or make inquiries of a job applicant as to whether such applicant is an\\nindividual with a disability or as to the nature or severity of such disability.” 42 U.S.C.\\n§ 12112(d)(2)(A).\\n\\n\\n\\n 15\\n\\nviolate the Rehabilitation Act. See J.A. 130 (“[U]tilizing EAP is always voluntary and\\n\\ntherefore the employee has the right to decline to attend treatment, even if management-\\n\\nreferred.”). Additionally, Hannah’s EAP counselor repeatedly stated that she did not\\n\\nconduct a medical examination:\\n\\n I did not conduct a medical examination of [Hannah], and I\\n did not conduct a mental health evaluation or diagnostic\\n assessment because a) [Hannah] informed me she was already\\n in treatment and b) . . . it is not in EAP’s purview to conduct a\\n medical evaluation. I did not administer any medical or\\n mental health tests or diagnostic assessment tools for the\\n same reason. I was [n]ot tasked to diagnose or provide a\\n second opinion; my role was to facilitate communication\\n between [Hannah] and Management to resolve the problem\\n presented in the Management Referral -- namely, improving\\n attendance and notifying management when not attending\\n work.\\n\\nId. at 188 (emphasis omitted).\\n\\n However, even if EAP constituted a mandatory medical examination under the\\n\\nfacts of this case, summary judgment to Appellee was still appropriate on this claim\\n\\nbecause Hannah’s referral to EAP was “job-related and consistent with business\\n\\nnecessity.” 42 U.S.C. § 12112(d)(4)(A). As we have stated, “whether a mental\\n\\nexamination was ‘job-related and consistent with business necessity’ is an objective\\n\\ninquiry.” Pence v. Tenneco Auto. Operating Co., 169 F. App’x 808, 812 (4th Cir. 2006).\\n\\n“We therefore do not resolve any dispute about what [Appellee’s] subjective motivations\\n\\nwere for having [Hannah] examined by the EAP.” Id. An employer’s request for a\\n\\nmedical examination is job-related and consistent with business necessity when: “(1) the\\n\\nemployee requests an accommodation; (2) the employee’s ability to perform the essential\\n\\n\\n\\n 16\\n\\nfunctions of the job is impaired; or (3) the employee poses a direct threat to himself or\\n\\nothers.” Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 623 (6th Cir. 2014).\\n\\n Here, the evidence, even when viewed in the light most favorable to Hannah,\\n\\nsupports granting summary judgment because Appellee had a reasonable belief that\\n\\nHannah’s ability to perform the essential functions of her job was impaired by her\\n\\nrepeated issues with attendance and timely reporting. Hannah attempts to refute this by\\n\\nasserting that her job performance was excellent, but job performance alone does not\\n\\ncreate a genuine issue of material fact. Attendance was also an essential function of\\n\\nHannah’s job, one the record amply demonstrates she was unable to fulfill when Appellee\\n\\nreferred her to EAP. As we have stated:\\n\\n In addition to possessing the skills necessary to perform the\\n job in question, an employee must be willing and able to\\n demonstrate these skills by coming to work on a regular basis.\\n Except in the unusual case where an employee can effectively\\n perform all work-related duties at home, an employee “who\\n does not come to work cannot perform any of his job\\n functions, essential or otherwise.” Therefore, a regular and\\n reliable level of attendance is a necessary element of most\\n jobs.\\n\\nTyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (quoting\\n\\nWimbley v. Bolger, 642 F. Supp. 481, 485 (W.D. Tenn. 1986), aff’d, 831 F.2d 298 (6th\\n\\nCir. 1987)) (emphasis in original); see also Denman v. Davey Tree Expert Co., 266 F.\\n\\nApp’x 377, 380 (6th Cir. 2007) (“Job performance is separate from the ability to show up\\n\\nfor work, an essential function of [Hannah’s] position.”).\\n\\n\\n\\n\\n 17\\n\\n Accordingly, Appellee did not violate the Rehabilitation Act by referring Hannah\\n\\nto EAP, and the district court properly granted summary judgment to Appellee on this\\n\\nclaim.\\n\\n 3.\\n\\n Confidential Medical Information\\n\\n Under the Rehabilitation Act, an employer may “conduct voluntary medical\\n\\nexaminations, including voluntary medical histories, which are part of an employee\\n\\nhealth program” and may “make inquiries into the ability of an employee to perform job-\\n\\nrelated functions.” 42 U.S.C. § 12112(d)(4)(B). Any “information obtained regarding\\n\\nthe medical condition or history of the applicant” -- that is, medical information -- must\\n\\nbe “collected and maintained on separate forms and in separate medical files and [must\\n\\nbe] treated as a confidential medical record.” Id. § 12112(d)(3)(B); see also id.\\n\\n§ 12112(d)(4)(C).\\n\\n Hannah alleges two separate Rehabilitation Act violations regarding her medical\\n\\ninformation: first, that Hannah’s supervisors wrongfully sought and disclosed\\n\\nconfidential medical information elicited from Hannah, and second, that the EAP\\n\\npsychologist wrongfully disclosed confidential medical information gathered from the\\n\\nEAP session to Hannah’s supervisors. In both instances, the district court correctly\\n\\ndetermined that Hannah failed to demonstrate that Appellee violated the Rehabilitation\\n\\nAct.\\n\\n\\n\\n\\n 18\\n\\n a.\\n\\n Disclosures by Supervisors\\n\\n Hannah asserts that her supervisors disclosed her confidential medical information\\n\\nby writing in her EAP referral memo, “[e]arly in her tenure . . . and reaffirmed recently,\\n\\n[Hannah] informed us that she was meeting with a psychiatrist and counselor and taking\\n\\nmedication for depression.” J.A. 413. Notably, Hannah voluntarily disclosed her\\n\\ndepression diagnosis to her supervisors. The Rehabilitation Act does not protect\\n\\ninformation shared voluntarily. See Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143, 155\\n\\n(4th Cir. 2012) (finding the district court properly granted summary judgment on a\\n\\nconfidentiality claim brought under the Rehabilitation Act because the record “clearly\\n\\nshow[ed]” that the appellant “disclosed his medical condition voluntarily”). Indeed,\\n\\nHannah voluntarily told at least four of her supervisors that she had been diagnosed with\\n\\ndepression. See J.A. 179 (Hannah’s interrogatory responses) (“I disclosed my diagnosis\\n\\nof depression to my supervisors Kelly G. in summer 2011, Ann W. in fall 2014; Art Z. in\\n\\nMarch 2015, and Roy P. in March 2015.”).\\n\\n Hannah argues that these disclosures were not voluntary because they were made\\n\\nin response to inquiries about her disability. But the evidence does not support or create\\n\\na genuine issue of fact about that argument. The record indicates that only the March\\n\\n2015 disclosure was made in response to an inquiry, and that inquiry was not medical -- it\\n\\nwas about her attendance. See J.A. 23 (Hannah’s deposition testimony) (“[H]e was\\n\\nconcerned about unpredictability in my schedule. . . . I told him at that time I had\\n\\ndepression.”).\\n\\n\\n 19\\n\\n Hannah asserts that this inquiry about her attendance was de facto an inquiry into\\n\\nher depression because (according to Hannah) the inquiring supervisor knew she was\\n\\ndepressed and knew her attendance issues were linked to her depression. Hannah cites\\n\\nonly out-of-circuit cases for the proposition that asking a question “likely to elicit”\\n\\ninformation about a disability amounts to a medical inquiry. See Harrison v. Benchmark\\n\\nElecs. Huntsville, Inc., 593 F.3d 1206, 1216 (11th Cir. 2010) (concluding that whether an\\n\\ninquiry following a failed drug test was likely to elicit information about a disability in\\n\\nviolation of the Americans with Disabilities Act (“ADA”) 5 presented a question of fact\\n\\nfor a jury to resolve); Fleming v. State Univ. of N.Y., 502 F. Supp. 2d 324, 338 (E.D.N.Y.\\n\\n2007) (concluding the plaintiff pled facts sufficient to state a claim for failure to\\n\\nconfidentially maintain medical information under the ADA where the plaintiff alleged\\n\\nthat his disclosure of his sickle cell anemia was not voluntary because his supervisor\\n\\ncalled him while he was in the hospital and asked him why he was there).\\n\\n First, the record does not support Hannah’s argument that the supervisor in\\n\\nquestion knew about Hannah’s depression before she disclosed it to him. Hannah points\\n\\nto the supervisor’s statement that when he spoke to Hannah on the phone before\\n\\nconfronting her about her attendance, “she didn’t sound well on the other end of the\\n\\nphone.” J.A. 466. Hannah also points to her supervisor’s statement that Hannah’s\\n\\n“demeanor [wa]s sad, very flat, and almost trance like.” Id. at 413. This is not enough to\\n\\n 5\\n “To the extent possible, we construe the ADA and Rehabilitation Act to impose\\nsimilar requirements.” Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 461\\n(4th Cir. 2012).\\n\\n\\n\\n 20\\n\\ncreate a genuine issue of material fact as to whether the inquiring supervisor knew\\n\\nHannah had been medically diagnosed with clinical depression, or whether by asking\\n\\nabout her attendance, the supervisor was fishing for medical information about Hannah’s\\n\\nillness.\\n\\n Second, even if Hannah’s supervisor had an inkling that Hannah may have had\\n\\ndepression, this is not evidence that he knew asking about her repeated absences and\\n\\ntardiness -- indisputably bad work behavior -- would elicit medical information related to\\n\\nher depression. Indeed, Hannah’s absences could have been the result of a world of\\n\\nother, nonmedical possibilities, such as transportation issues or oversleeping. Adopting\\n\\nHannah’s argument would require us to find that where an employer might know that a\\n\\nparticular bad work behavior is connected to a medical condition, the employer cannot\\n\\ninquire into the behavior without running afoul of the ADA and Rehabilitation Act’s\\n\\nprohibition on medical inquiries. We have held expressly the opposite: “[T]he ADA does\\n\\nnot require an employer to simply ignore an employee’s blatant and persistent\\n\\nmisconduct, even where that behavior is potentially tied to a medical condition.” Vannoy\\n\\nv. Fed. Reserve Bank of Richmond, 827 F.3d 296, 305 (4th Cir. 2016) (citing Jones v. Am.\\n\\nPostal Workers Union, 192 F.3d 417, 429 (4th Cir. 1999) (holding the ADA does not\\n\\n“require an employer to ignore such egregious misconduct by one of its employees, even\\n\\nif the misconduct was caused by the employee’s disability”)).\\n\\n\\n\\n\\n 21\\n\\n b.\\n\\n Disclosures by EAP Psychologist\\n\\n Hannah also argues that, in addition to her supervisors disclosing her depression\\n\\ndiagnosis internally, the EAP psychologist disclosed “additional, unique information\\n\\nfrom what Hannah had already told her supervisors.” Appellant’s Br. 51. Specifically,\\n\\nHannah alleges that the EAP psychologist told her supervisor that Hannah was concerned\\n\\nabout Appellee’s records retention policies, and that Hannah’s “difficulties in getting to\\n\\nwork were the result of a lack of motivation, not related to depression.” J.A. 540.\\n\\n Perhaps that is true. The record does indicate that the EAP psychologist shared\\n\\nsome information with Hannah’s supervisors and maybe it was unique information. See\\n\\nJ.A. 192 (EAP psychologist statement) (noting that the psychologist provided Hannah’s\\n\\nsupervisors updates regarding Hannah’s “EAP attendance” and “cooperation and\\n\\nprogress toward resolving the referral issues”). But there is no evidence that the EAP\\n\\npsychologist shared medical information. To the contrary, the EAP psychologist insisted,\\n\\nagain and again, that she did not share any confidential medical information. See id. at\\n\\n190 (noting that the psychologist, who is not a doctor, “did not disclose any confidential\\n\\nmedical information” to anyone). Of note, Hannah did not point to any evidence in the\\n\\nrecord contradicting the psychologist’s assertions.\\n\\n Therefore, the information shared by the EAP psychologist did not trigger the\\n\\nRehabilitation Act’s confidentiality protections because the record indicates that the EAP\\n\\npsychologist shared only nonmedical information.\\n\\n\\n\\n\\n 22\\n\\n c.\\n\\n Non-Reliance on Medical Information\\n\\n Finally, even if either Hannah’s supervisors or the EAP psychologist disclosed\\n\\nHannah’s medical information, Appellee still did not violate the Rehabilitation Act\\n\\nbecause Appellee did not rely on Hannah’s depression diagnosis or any other medical\\n\\ninformation in deciding not to hire Hannah for the Cyber position. Rather, the record\\n\\noverwhelmingly indicates that Appellee’s decision was based on Hannah’s attendance\\n\\nissues. Accordingly, Hannah has not demonstrated that Appellee violated the\\n\\nRehabilitation Act by disclosing or misusing confidential medical information.\\n\\n 4.\\n\\n Discrimination\\n\\n Rehabilitation Act claims for discrimination are reviewed under the McDonnell\\n\\nDouglas burden-shifting framework. See Laber v. Harvey, 438 F.3d 404, 430 (4th Cir.\\n\\n2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)); Perry v.\\n\\nComput. Scis. Corp., 429 F. App’x 218, 219–20 (4th Cir. 2011). Under that framework,\\n\\nHannah has the initial burden of establishing a prima facie case of discrimination. See\\n\\nPerry, 429 F. App’x at 220. To establish this prima facie case, Hannah must show that:\\n\\n(1) she is disabled; (2) she was otherwise qualified for the position; and (3) she suffered\\n\\nan adverse employment action solely on the basis of her disability. See id. (citing\\n\\nConstantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir.\\n\\n2005)).\\n\\n\\n\\n\\n 23\\n\\n If Hannah establishes a prima facie case, the burden shifts to Appellee to provide a\\n\\nlegitimate, nondiscriminatory reason for its conduct. See Perry, 429 F. App’x at 220. If\\n\\nAppellee provides such a reason, Hannah “bears the ultimate burden of persuasion” and\\n\\n“must show by a preponderance of the evidence that the proffered reason was a pretext\\n\\nfor discrimination.” Id.\\n\\n a.\\n\\n Establishing Pretext\\n\\n Even assuming that Hannah established a prima facie case of discrimination\\n\\n(which Appellee disputes), she cannot succeed on her claim that Appellee discriminated\\n\\nagainst her by not hiring her for a permanent position because she did not sufficiently\\n\\nrebut Appellee’s proffered reason for rejecting her application, as required under the final\\n\\nstep of the McDonnell Douglas burden-shifting framework. See Perry, 429 F. App’x at\\n\\n220.\\n\\n Appellee presented evidence demonstrating that Hannah’s perpetual issues with\\n\\nattendance, timeliness, and reporting absences to her superiors were the bases of its\\n\\ndecision not to hire her for the permanent position. Attempting to expose that\\n\\nexplanation as a ruse, Hannah pointed to a purported inconsistency between the sworn\\n\\nstatement that Mark Ewing provided during the Equal Employment Opportunity\\n\\nCommission (“EEOC”) investigation of Hannah’s case and an email he sent more than a\\n\\n\\n\\n\\n 24\\n\\nyear earlier. In the sworn statement, signed on April 26, 2016, 6 Ewing asserts he “had no\\n\\nknowledge of [Hannah’s] disability.” J.A. 650. But in the email, sent on June 30, 2015,\\n\\nEwing references two memos that he received from Hannah’s supervisors, both of which\\n\\nnote Hannah’s depression. See id. at 413 (April 9, 2015 memo) (“Early in her tenure . . .\\n\\nand reaffirmed recently, [Hannah] informed us that she was meeting with a psychiatrist\\n\\nand counselor and taking medication for depression.”); id. at 606 (April 23, 2015 memo)\\n\\n(“While . . . medical considerations (i.e., depression and/or ADD) do make this situation\\n\\nworse, these factors are under her control based upon treatment plans with her\\n\\npsychologist and psychiatric care providers.”). Underscoring the significance of this\\n\\ninconsistency, Hannah argues, is the fact that Ewing did not provide the June 30, 2015\\n\\nemail to the EEOC. Hannah argues that the inconsistency, coupled with Ewing’s failure\\n\\nto disclose the email evidencing the inconsistency, illustrates “clear pretext.” Appellant’s\\n\\nBr. 27.\\n\\n Despite Hannah’s arguments to the contrary, this apparent discrepancy does not\\n\\ncreate a genuine issue of material fact that Appellee’s proffered reason for rejecting\\n\\nHannah’s application is pretextual. First, nothing in the record indicates that Ewing had\\n\\nfirst-hand knowledge of Hannah’s disability. Although the memos mention that Hannah\\n\\nself-reported that she had depression, the second memo also describes Hannah’s\\n\\ndepression as “under her control.” J.A. 606. Indeed, Ewing’s email suggests that he did\\n\\n\\n 6\\n The excerpt of the statement that is included in the J.A. does not include the date.\\nThis date comes from Hannah’s brief. See Appellant’s Br. 26.\\n\\n\\n\\n 25\\n\\nnot know that Hannah had an ongoing disability. See J.A. 635 (“I am informed that EAP\\n\\nconcluded that [Hannah] does not have a medical problem, rather she is a disciplinary\\n\\nproblem.”).\\n\\n More significantly, Hannah’s asserted contradiction between Ewing’s EEOC\\n\\nstatements and his June 30, 2015 email do not create a genuine issue of material fact\\n\\nabout pretext because Ewing’s email and the memos written by Hannah’s supervisors\\n\\nfocus on Hannah’s attendance problems, not on her disability. See J.A. 413 (April 9,\\n\\n2015 memo) (noting that “[Hannah’s] schedule has become increasingly erratic” and that\\n\\n“frequent absences and late arrivals [have begun] to affect her assigned unit and\\n\\nindividual performance”); id. at 606 (April 23, 2015 memo) (describing Hannah’s history\\n\\nof attendance issues and Appellee’s attempts to accommodate Hannah and noting that,\\n\\ndespite those attempts, “[Hannah’s] late attendance has continued”); id. at 635–36\\n\\n(Ewing’s June 30, 2015 email) (detailing Hannah’s problem with “attendance at work,”\\n\\nnoting that Hannah’s “absences and late arrivals were affecting her assigned staff element\\n\\nand her individual performance,” and concluding that Hannah’s “recent performance is\\n\\nnot consistent with a potentially good employee.”).\\n\\n Accordingly, Hannah did not point to any genuine issue of material fact that\\n\\nAppellee’s purported basis for not hiring her was merely a pretext for discriminating\\n\\nagainst her on the basis of her depression.\\n\\n\\n\\n\\n 26\\n\\n b.\\n\\n Appellee’s Nondiscriminatory Explanation\\n\\n i.\\n\\n Moreover, the record indicates that Appellee’s proffered explanation for not hiring\\n\\nHannah for the Cyber position is genuine, legitimate, and nondiscriminatory.\\n\\n As the district court concluded, a continuous attendance issue is a legitimate\\n\\nreason for withholding an employment benefit. See Tyndall, 31 F.3d at 213 (finding an\\n\\nemployee who cannot satisfy their employer’s attendance policy cannot be considered\\n\\n“qualified” for the purposes of the ADA). Hannah might have been exceptionally\\n\\ntalented and substantively good at her job, but as noted above, “[i]n addition to\\n\\npossessing the skills necessary to perform the job in question, an employee must be\\n\\nwilling and able to demonstrate these skills by coming to work on a regular basis.” Id.\\n\\n Hannah asserts that “serious questions of fact exist as to whether Hannah even had\\n\\n‘significant attendance and reporting problems.’” Appellant’s Br. 28. But the record\\n\\nevidences no less than 13 attendance issues that occurred in the 46 days between\\n\\nAppellee’s first attempt to accommodate Hannah on March 19, 2015, and the revised\\n\\nplan made on May 4, 2015. Compare J.A. 114, 174 (noting Appellee’s March 19, 2015\\n\\nmeeting with her supervisor and original accommodation asking her to arrive at work by\\n\\n10 AM or report to a supervisor), with id. at 556 (indicating four unexcused absences and\\n\\n\\n\\n\\n 27\\n\\nnine late arrivals between March 19 and April 29 that Appellee failed to timely report). 7\\n\\nIn light of Hannah’s failure to arrive or call in before 10 AM 13 times in 46 days, there is\\n\\nno genuine issue of material fact about Hannah’s significant attendance and reporting\\n\\nproblem.\\n\\n ii.\\n\\n Hannah also argues that because her disability was the cause of her attendance\\n\\nissues, Appellee could not withhold an employment benefit from her on that basis. We\\n\\nhave no doubt that Hannah’s struggle with depression was the cause of her attendance\\n\\nissues, and we are sympathetic to the toll this condition took on a highly talented\\n\\n\\n 7\\n The record reflects the following late arrivals and absences for Hannah between\\nMarch 19, 2015, and May 4, 2015: (1) April 2: Hannah emailed at 11:02 AM indicating\\nshe would arrive to work by 12 PM; (2) April 8: Hannah emailed at 11:05 AM indicating\\nshe would arrive to work by 12 PM; Hannah emailed again at 1:55 PM indicating she\\nwould not be coming in that day; (3) April 9: Hannah emailed at 11:11 AM indicating her\\ncar was towed and she would arrive at work by 1 PM; (4) April 13: Hannah emailed at\\n10:58 AM indicating she would arrive at work by 11:30 AM; (5) April 14: Hannah\\nemailed at 11:08 AM indicating she would arrive at work by 12 PM; (6) April 16:\\nHannah’s supervisor emailed Hannah at 10:18 AM looking for her; when Hannah was\\nreached at 11 AM, she indicated she would arrive to work by 12 PM; (7) April 20:\\nHannah emailed at 10:45 AM indicating she would arrive to work by 11:30 AM;\\nHannah’s supervisor confirmed her arrival at 12:50 PM; (8) April 22: Hannah emailed at\\n11:01 AM indicating she would arrive at work after 12 PM; Hannah emailed again at\\n12:41 PM indicating she would arrive at 1 PM due to traffic; (9) April 23: Hannah\\nemailed at 10:59 AM indicating she would arrive at work by 12 PM; Hannah emailed\\nagain at 12:56 PM indicating she would not be coming in that day due to a migraine; (10)\\nApril 24: Hannah emailed at 11:02 AM indicating she would arrive at work in the\\nafternoon; Hannah later called at 3:24 PM indicating she would not be coming in that\\nday; (11) April 27: Hannah’s supervisor emailed indicating Hannah arrived at work by 11\\nAM; (12) April 28: Hannah emailed at 10:52 AM indicating she would arrive at work by\\n11:30 AM; (13) April 29: Hannah emailed at 11:49 AM indicating she would not come in\\nto work that day. See J.A. 556.\\n\\n\\n\\n 28\\n\\nemployee. However, Appellee was nevertheless permitted to take Hannah’s attendance\\n\\nissues into account in its decision whether to hire her for the Cyber position. To reiterate,\\n\\nthe Rehabilitation Act “does not require an employer to simply ignore an employee’s\\n\\nblatant and persistent misconduct, even where that behavior is potentially tied to a\\n\\nmedical condition.” Vannoy, 827 F.3d at 305; cf. Martinson v. Kinney Shoe Corp., 104\\n\\nF.3d 683, 686 n.3 (4th Cir. 1997) (“Misconduct -- even misconduct related to a disability\\n\\n-- is not itself a disability, and an employer is free to fire an employee on that basis.”).\\n\\n iii.\\n\\n Finally, Hannah argues that by the time Appellee made the decision not to hire\\n\\nher, her attendance had improved. She asserts that between returning from her leave of\\n\\nabsence on June 1, 2015, and learning that she was not selected for the permanent\\n\\nposition on June 17, 2015, she “had shown she was able to perform the essential\\n\\nfunctions of the job and had no current attendance issues.” Appellant’s Br. 32.\\n\\n Hannah is correct that in a failure to hire case, the relevant inquiry is the\\n\\ncandidate’s performance “at the time of the employment decision or in the immediate\\n\\nfuture.” Lamb v. Qualex, Inc., 33 F. App’x 49, 57 (4th Cir. 2002). However, Appellee\\n\\nwas not required to consider the two weeks before the decision was made in a vacuum.\\n\\nMoreover, it is not the job of this court to decide whether Appellee made the right choice\\n\\nby not hiring Hannah for the Cyber position. Rather, our job is simply to decide whether\\n\\nAppellee made an illegal choice. See Feldman v. Law Enf’t Assocs. Corp., 752 F.3d 339,\\n\\n350 (4th Cir. 2014) (explaining that we do not “sit as a kind of super-personnel\\n\\ndepartment weighing the prudence of employment decisions”).\\n\\n\\n 29\\n\\n Because Hannah not did demonstrate that Appellee’s purported basis for not hiring\\n\\nher was merely a pretext for discriminating against her on the basis of her depression, and\\n\\nbecause Hannah’s attendance problem was a legitimate and nondiscriminatory reason to\\n\\nnot hire her, we conclude that summary judgment was appropriate on her Rehabilitation\\n\\nAct discrimination claim.\\n\\n B.\\n\\n FMLA Claims\\n\\n The FMLA gives employees with qualifying medical conditions the right to take\\n\\nup to 12 weeks of leave during a 12-month period “[b]ecause of a serious health\\n\\ncondition that makes the employee unable to perform the functions of” her job. 29\\n\\nU.S.C. § 2612(a)(1)(D). “The employee has an accompanying right to return to the same\\n\\nor an equivalent position at the conclusion of the leave period.” Reed v. Buckeye Fire\\n\\nEquip., 241 F. App’x 917, 923 (4th Cir. 2007) (citing 29 U.S.C. § 2614(a)(1)).\\n\\n As discussed below, as to Hannah’s FMLA interference claim, Hannah illustrates\\n\\na genuine issue of material fact regarding the notice of her depression and her desire to\\n\\ntake a leave of absence. But, for the same reasons Hannah’s Rehabilitation Act\\n\\ndiscrimination claim fails, Hannah’s FMLA retaliation claim fails as well.\\n\\n 1.\\n\\n Interference\\n\\n a.\\n\\n The district court incorrectly concluded that Hannah’s disclosure of her depression\\n\\nwas not sufficient to put Appellee on notice that Hannah could have qualified for FMLA\\n\\n\\n 30\\n\\nprotections. Accordingly, summary judgment was not warranted as to Hannah’s FMLA\\n\\ninterference claim.\\n\\n “An employee is mandated to provide notice to her employer when she requires\\n\\nFMLA leave.” Brushwood v. Wachovia Bank, N.A., 520 F. App’x 154, 157 (4th Cir.\\n\\n2013) (quoting Rhoads v. FDIC, 257 F.3d 373, 382 (4th Cir. 2001)). That said, an\\n\\nemployee need not specifically invoke the FMLA to benefit from its protections. See\\n\\nDotson v. Pfizer, Inc., 558 F.3d 284, 295 (4th Cir. 2009). Proper notice does not require\\n\\n“any magic words.” Id. Indeed, “[w]hen an employee seeks leave for the first time for\\n\\na[n] FMLA-qualifying reason, the employee need not expressly assert rights under the\\n\\nFMLA or even mention the FMLA.” 29 C.F.R. § 825.302. Proper notice merely “makes\\n\\nthe employer aware” that the employee needs potentially FMLA-qualifying leave.\\n\\nBrushwood, 520 F. App’x at 157. And once the employer is on notice of the employee’s\\n\\nneed to take potentially FMLA-qualifying leave, “the responsibility falls on the employer\\n\\nto inquire further about whether the employee is seeking FMLA leave.” Dotson, 558\\n\\nF.3d at 295.\\n\\n A reasonable jury could find that Hannah’s disclosure of her depression and her\\n\\nApril 9, 2015 request for psychiatrist-recommended leave was sufficient to trigger\\n\\nAppellee’s responsibility to inquire further about whether Hannah was seeking FMLA\\n\\nleave. We have held that disclosure of a potentially FMLA-qualifying circumstance and\\n\\nan inquiry into leave options is sufficient to create a material question of fact regarding\\n\\nwhether an employee triggered her employer’s FMLA obligations. See Dotson, 558 F.3d\\n\\nat 291, 295 (finding that an employee informing his employer that he was adopting a\\n\\n\\n 31\\n\\nchild and speaking to a human resources representative about “taking leave during the\\n\\nadoption process” was sufficient to create a question of fact as to whether the employer’s\\n\\nFMLA-inquiry duties had been triggered).\\n\\n b.\\n\\n Here, Hannah informed her supervisors of her depression on multiple occasions.\\n\\nSee, e.g., J.A. 413 (April 9, 2015 memo from Hannah’s supervisors) (“Early in her tenure\\n\\n. . . and reaffirmed recently, [Hannah] informed us that she was meeting with a\\n\\npsychiatrist and counselor and taking medication for depression.”). 8 And on April 9,\\n\\n2015, Hannah explained to her supervisors that her psychiatrist recommended that she\\n\\ntake four weeks of medical leave. Hannah’s disclosures about her depression and her\\n\\npsychiatrist’s recommendation could lead a reasonable jury to find that Appellee was on\\n\\nnotice that Hannah was inquiring about potentially FMLA-qualifying leave, triggering\\n\\nAppellee’s responsibility to inquire further about whether Hannah was seeking FMLA\\n\\nleave. 9\\n\\n c.\\n\\n Appellee argues that Hannah’s interference claim fails because Hannah cannot\\n\\ndemonstrate that her depression was “a serious health condition.” Appellee’s Resp. 40–\\n\\n41; see also 29 U.S.C. § 2612(a)(1)(D). But that argument is premature. Appellee has\\n\\n 8\\n Indeed, Hannah’s supervisors had “grown increasingly alarmed at the overall\\nchange in [Hannah’s] demeanor.” J.A. 413.\\n 9\\n It is undisputed that Appellee did not inquire about whether the leave should be\\nclassified as FMLA-protected.\\n\\n\\n\\n 32\\n\\nnot shown that it made any inquiry into whether Hannah’s depression was an FMLA-\\n\\nqualifying serious health condition. Appellee’s argument “would allow it to use its own\\n\\nfailure to determine whether leave should be designated as FMLA-protected to block\\n\\nliability.” Dotson, 558 F.3d at 295. We have refused “to allow an employer to take\\n\\nadvantage of its own lapse in such a way.” Id.\\n\\n d.\\n\\n Additionally, Appellee’s failure to provide notice of the availability of FMLA\\n\\nleave prejudiced Hannah because if she had been aware of the availability of FMLA\\n\\nleave, she could have structured her leave differently. The FMLA “provides no relief\\n\\nunless the employee has been prejudiced by the violation.” Vannoy, 827 F.3d at 302\\n\\n(citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)). “Prejudice may\\n\\nbe gleaned from evidence that had the plaintiff received the required (but omitted)\\n\\ninformation regarding his FMLA rights, he would have structured his leave differently.”\\n\\nId.\\n\\n Here, the record contains evidence that if Hannah had known that the FMLA\\n\\nprotected her position, she would have used only sick leave for her leave of absence. See\\n\\nJ.A. 664 (Hannah’s declaration) (“Had I known I could have chosen to take sick leave for\\n\\nthe entire period, I would have elected to do so.”). Instead, she used a combination of\\n\\nsick leave and annual time to take four weeks off. According to Hannah, “[u]nlike\\n\\nannual leave, sick leave is not paid out at the end of an employee’s service, resulting in a\\n\\nloss of a benefit worth at least $20,000.” Id. Based on Hannah’s testimony, a jury could\\n\\n\\n\\n\\n 33\\n\\nfind that Hannah was prejudiced by Appellee’s failure to inquire into the availability of\\n\\nFMLA leave and thus interfered with her FMLA rights.\\n\\n For these reasons, Hannah has demonstrated a genuine issue of material fact that\\n\\nshould have precluded summary judgment on her FMLA interference claim.\\n\\n 2.\\n\\n Retaliation\\n\\n As for Hannah’s FMLA retaliation claim, however, the district court correctly\\n\\nconcluded that like her discrimination claim brought pursuant to the Rehabilitation Act,\\n\\nHannah did not sufficiently rebut Appellee’s legitimate, nonretaliatory reason for not\\n\\nhiring Hannah for the Cyber position.\\n\\n The FMLA prohibits employers from discriminating against an employee for\\n\\nexercising her FMLA rights. See 29 U.S.C. § 2615(a)(2). As relevant here, “employers\\n\\ncannot use the taking of FMLA leave as a negative factor in employment actions.” 29\\n\\nC.F.R. § 825.220(c). Courts analyze FMLA retaliation claims, like discrimination claims\\n\\nbrought pursuant to the Rehabilitation Act, under the McDonnell Douglas burden-shifting\\n\\nframework. See Laing v. Fed. Express Corp., 703 F.3d 713, 717 (4th Cir. 2013). To\\n\\nestablish a prima facie case of FMLA retaliation, a plaintiff must demonstrate that “(1)\\n\\nshe engaged in a protected activity; (2) her employer took an adverse employment action\\n\\nagainst her; and (3) there was a causal link between the two events.” Adams v. Anne\\n\\nArundel Cty. Pub. Schs., 789 F.3d 422, 429 (4th Cir. 2015) (internal quotation marks\\n\\nomitted). If the plaintiff establishes a prima facie case, the burden shifts to the defendant\\n\\nto provide a legitimate, nonretaliatory reason for taking the employment action at issue.\\n\\n\\n 34\\n\\nId. If the defendant does so, the burden shifts back to the plaintiff to demonstrate that the\\n\\ndefendant’s proffered reason is pretextual. Id.\\n\\n Even assuming Hannah demonstrated a prima facie case of FMLA retaliation,\\n\\nsummary judgment was proper because she failed to rebut Appellee’s legitimate,\\n\\nnonretaliatory reason for not hiring her for the Cyber position. Appellee asserts that it\\n\\nrelied on Hannah’s attendance issues in deciding not to hire her for the position, and the\\n\\nevidence in the record supports that assertion. See J.A. 635–36 (Ewing’s June 30, 2015\\n\\nemail expressing concerns about Hannah’s application for the Cyber position) (noting,\\n\\n“despite some apparently solid performance while on the Snowden project,” Appellee\\n\\nhad “a consistent history of issues with [Hannah] over many months” regarding Hannah’s\\n\\n“attendance at work and attitude”); id. at 219 (Ewing’s deposition testimony) (“The\\n\\nprimary reason that I was concerned [about Hannah’s application] was the fact that her\\n\\nconduct was extremely negative at the point of time we were making a hiring decision for\\n\\npermanent employment status.”). Hannah points to no evidence that adequately\\n\\nundermines Appellee’s proffered nonretaliatory reason for not hiring her. 10\\n\\n Accordingly, the district court properly granted summary judgment on Hannah’s\\n\\nFMLA retaliation claim.\\n\\n\\n 10\\n Hannah again argues, as she did in the context of her claim of discrimination\\nunder the Rehabilitation Act, that the “inconsistency” between the sworn statement\\nEwing provided during the EEOC investigation of Hannah’s case and an email he sent\\nmore than a year earlier exposes Appellee’s proffered reason for not hiring her for the\\npermanent position as pretextual. For the same reasons explained above, that argument\\nfails.\\n\\n\\n\\n 35\\n\\n IV.\\n\\n For these reasons, we affirm the judgment of the district court as to Hannah’s\\n\\nRehabilitation Act claims and FMLA retaliation claim. We vacate the grant of summary\\n\\njudgment as to Hannah’s FMLA interference claim because there is a genuine issue of\\n\\nfact as to whether Hannah’s disclosure of her depression was sufficient to put Appellee\\n\\non notice that Hannah could have qualified for FMLA protections. Accordingly, we\\n\\nremand for further proceedings as to that claim.\\n\\n AFFIRMED IN PART, VACATED IN PART, AND REMANDED\\n\\n\\n\\n\\n 36\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":561,"cells":{"id":{"kind":"number","value":4592127,"string":"4,592,127"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Gregory Kyle SEERDEN, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Gregory Seerden"},"decision_date":{"kind":"string","value":"2019-02-20"},"docket_number":{"kind":"string","value":"18-4124"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Wilkinson, Agee, Thacker\", \"parties\": \"\", \"opinions\": [{\"author\": \"THACKER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4124\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nGREGORY KYLE SEERDEN,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nNorfolk. Raymond A. Jackson, District Judge. (2:17-cr-00067-RAJ-DEM-1)\\n\\n\\nArgued: December 11, 2018 Decided: February 20, 2019\\n\\n\\nBefore WILKINSON, AGEE, and THACKER, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Thacker wrote the opinion, in which Judge\\nWilkinson and Judge Agee joined.\\n\\n\\nARGUED: Andrew William Grindrod, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Norfolk, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE\\nUNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:\\nGeremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States\\nAttorney, Alexandria, Virginia, David A. Layne, Special Assistant United States\\nAttorney, Elizabeth M. Yusi, Assistant United States Attorney, OFFICE OF THE\\nUNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.\\n\\fTHACKER, Circuit Judge:\\n\\n In January 2017 investigators with the Naval Criminal Investigation Service\\n\\n(“NCIS”) obtained a military warrant to search the cell phone of Gregory Kyle Seerden\\n\\n(“Appellant”) for evidence of sexual assault. During the search of Appellant’s phone, the\\n\\ninvestigators found child pornography. On that basis, the investigators then obtained a\\n\\nfederal warrant to search Appellant’s phone a second time and again found child\\n\\npornography. Appellant moved to suppress the evidence, arguing that the first search\\n\\nwas unlawful because it violated the Military Rules of Evidence and that evidence\\n\\nobtained during the second search was fruit of the poisonous tree.\\n\\n Although the district court agreed that evidence obtained during the military\\n\\nsearch was inadmissible because it violated the Military Rules of Evidence, it nonetheless\\n\\nfound that the good faith exception allowed the government to admit evidence discovered\\n\\nvia the second search.\\n\\n On September 20, 2017, Appellant entered a conditional guilty plea to production\\n\\nof child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). He subsequently filed\\n\\nthis appeal. As explained below, we affirm on different grounds.\\n\\n I.\\n\\n Appellant was a member of the United States Navy’s Sea, Air, and Land Team.\\n\\nAt all times relevant to this appeal, he was stationed in San Diego, California. But for\\n\\none week in January 2017, Appellant attended a training at the Little Creek base in\\n\\nVirginia Beach, Virginia. During that week, Appellant was accused of sexual assault and\\n\\nsuspected of possession of child pornography.\\n\\n 2\\n\\f On his next to last night of training in Virginia, Appellant met a woman. The\\n\\nwoman recalled that, during her night out with Appellant, the pair went to a few bars and\\n\\nhad more than a few drinks. The woman came in and out of consciousness throughout\\n\\nthe night, but she remembered returning to Appellant’s room in the Navy Gateway Inns\\n\\nand Suites at Little Creek. At around 4:00 a.m., the woman woke up lying naked next to\\n\\nAppellant. She learned from Appellant that, at some point during the night, they had sex.\\n\\nShe then left. While she was waiting for a cab at the gate of the base, she began to cry.\\n\\nA service member on guard duty (a “sentry”) approached her, and she told him that\\n\\nAppellant sexually assaulted her. Appellant then attempted to call her. She didn’t\\n\\nanswer. Meanwhile, the sentry reported the allegations to NCIS.\\n\\n Later that day, NCIS began investigating the allegations. In doing so, NCIS\\n\\norchestrated a “controlled text message conversation” between the woman and Appellant.\\n\\nNCIS agents had the woman text Appellant and inquire about the night in question.\\n\\nDuring that conversation, Appellant admitted that the pair had sex and that the woman\\n\\nwas not sober. With that, NCIS agents began coordinating with Appellant’s commanding\\n\\nofficer in San Diego as well as the commanding officer of the Little Creek base to obtain\\n\\nauthorizations to search Appellant’s cell phone and hotel room. NCIS also consulted the\\n\\nJudge Advocate General’s (“JAG”) authorities at both bases. NCIS and JAG officers\\n\\ndecided that the Little Creek commanding officer should authorize the search of\\n\\nAppellant’s hotel room while Appellant’s commanding officer in San Diego should\\n\\nauthorize the search of his phone. The officers reasoned that, while the Little Creek\\n\\ncommanding officer had control over the base, Appellant’s commanding officer in San\\n\\n 3\\n\\fDiego had control over Appellant. In line with that plan, Appellant’s commanding\\n\\nofficer in San Diego signed a Command Authorization for Search and Seizure (“CASS”)\\n\\nsanctioning the search of Appellant’s phone.\\n\\n The CASS sought to collect messages, photographs, videos, and any other\\n\\ninformation related to the investigation from Appellant’s phone. In its statement of\\n\\nprobable cause, the affidavit supporting the CASS connected Appellant’s phone to the\\n\\nalleged criminal activity by noting that Appellant attempted to call his accuser after\\n\\ndropping her off at the gate. It also noted that NCIS agents orchestrated a pretext\\n\\ncommunication between Appellant and the woman accusing him of sexual assault.\\n\\n A week later, a digital forensics examiner executed the search of Appellant’s\\n\\nphone. In doing so, the forensics examiner viewed thumbnail-size icons of photographs\\n\\non Appellant’s phone. The examiner, who was trained in and had experience with child\\n\\nexploitation investigations, believed some of those photographs were images of child\\n\\npornography.\\n\\n Based on the evidence discovered during the military search of Appellant’s phone,\\n\\nNCIS obtained a federal search warrant from the Eastern District of Virginia to search\\n\\nAppellant’s phone for further evidence of child pornography. Under the authority of this\\n\\nsecond warrant, the forensics examiner continued his analysis of Appellant’s cell phone\\n\\ndata. He found 78 images and four videos of child pornography. The images depicted\\n\\nknown victims of child sexual exploitation, while the videos depicted Appellant\\n\\nperforming a sexual act inches from the face of a sleeping child.\\n\\n\\n\\n 4\\n\\f On March 31, 2017, the Government filed a criminal complaint charging\\n\\nAppellant with possession and production of child pornography. And on April 20, 2017,\\n\\na grand jury indicted Appellant for possession, production, and transportation of child\\n\\npornography. On June 6, 2017, Appellant moved to suppress the evidence obtained from\\n\\nthe two searches of his phone. After holding a hearing on Appellant’s motion, the district\\n\\ncourt denied it.\\n\\n The district court first concluded that the evidence obtained during the first search\\n\\nwas inadmissible. Applying the Military Rules of Evidence in evaluating the lawfulness\\n\\nof that search, the district court reasoned that the CASS obtained by NCIS did not satisfy\\n\\nthe “authorization” requirement of Military Rule of Evidence 315:\\n\\n Pursuant to Military Rule of Evidence 315(d), a search\\n is valid only if it is issued by an impartial individual. An\\n impartial individual is a commander, military judge or\\n magistrate. Mil. R. Evid. 315(d)(1) and (2). A military\\n commander is defined as “a commander or other person\\n serving in a position designated by the Secretary concerned as\\n either a position analogous to an officer in charge or a\\n position of command, who has control over the place where\\n the property or person to be search is situated or found, or if\\n that place is not under military control, having control over\\n persons subject to military law or the law of war.” Mil. R.\\n Evid. 315(d)(1). A military judge or magistrate “is a person\\n who is authorized under regulations prescribed by the\\n Secretary of Defense or the Secretary concerned.” Mil. R.\\n Evid. 315(d)(2).\\n\\n Here, the person who authorized the CASS for the first\\n search of [Appellant’s] telephone was [Appellant’s] unit\\n commander in San Diego, CA. Pursuant to the definitions\\n provided in Military Rules of Evidence 315(d)(1),\\n [Appellant’s] unit commander did not have the authority to\\n authorize any search [conducted] on [the Little Creek base]\\n because [Appellant’s] unit commander did not have control\\n\\n 5\\n\\f over the place where the property or person to be searched was\\n situated.\\n\\nJ.A. 215. 1 The district court further reasoned that, because of the defect in the CASS\\n\\nauthorization, it could not apply the exclusionary rule’s good faith exception to the\\n\\nevidence obtained as a result of the first search. Citing Military Rule of Evidence 311,\\n\\nthe district court noted, “Pursuant to military law, evidence obtained as the result of an\\n\\nunlawful search may [only] be used if . . . ‘the search or seizure resulted from an\\n\\nauthorization . . . issued by an individual competent to issue the authorization under Mil.\\n\\nR. Evid. 315(d).’” J.A. 217–18. Because the district court found that Appellant’s\\n\\ncommander in San Diego was not competent to authorize the CASS, the court concluded\\n\\nthat “the good faith exception does not cure the first search.” Id. at 218.\\n\\n Despite finding that evidence obtained during the first search was inadmissible,\\n\\nthe district court concluded that evidence obtained during the second search was\\n\\nadmissible. In doing so, the district court acknowledged that “the second search relied\\n\\nupon evidence found during the first search,” J.A. 218, that the probable cause supporting\\n\\nthe search warrant authorizing the second search was “obtained through unlawful\\n\\nmeans,” id. at 220, and that “[a]s a result, the magistrate judge’s subsequent issuance of a\\n\\nsearch warrant . . . was void ab initio.” Id. at 222. Nonetheless, the district court found\\n\\nthat the good faith exception to the exclusionary rule permitted the admission of the\\n\\nevidence obtained during the second search and denied Appellant’s motion to suppress.\\n\\n 1\\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this\\nappeal.\\n\\n\\n 6\\n\\f Thereafter, on September 27, 2017, Appellant plead guilty to production of child\\n\\npornography. He stipulated to a written statement of facts but reserved his right to appeal\\n\\nthe district court’s denial of his motion to suppress. On February 15, 2018, the district\\n\\ncourt sentenced Appellant to 324 months of imprisonment to be followed by 25 years of\\n\\nsupervised release. This appeal followed.\\n\\n II.\\n\\n Analyzing a district court’s decision to deny a motion to suppress, we review legal\\n\\nconclusions de novo and factual findings for clear error. See United States v. Kolsuz, 890\\n\\nF.3d 133, 141–42 (4th Cir. 2018). In doing so, we consider the evidence in the light most\\n\\nfavorable to the Government. See id.\\n\\n III.\\n\\n Appellant contends that the Military Rules of Evidence apply here and require\\n\\nsuppression. We hold, however, that the Fourth Amendment governs whether evidence\\n\\nis admissible in federal criminal proceedings. The Military Rules of Evidence cannot\\n\\nusurp the Fourth Amendment. We further hold that, even assuming the initial warrant\\n\\nviolated the Fourth Amendment, the good faith exception to the exclusionary rule\\n\\nprecludes suppression of evidence obtained from the first search. And because the good\\n\\nfaith exception saves the evidence of the first search, it also saves the evidence obtained\\n\\nfrom the second search.\\n\\n\\n\\n\\n 7\\n\\f A.\\n\\n At the outset, we recognize that federal courts treat searches conducted within the\\n\\nconfines of the military differently. As this court observed in United States v. Rendon,\\n\\n“[T]he Fourth Amendment protects members of the armed services from unreasonable\\n\\nsearches and seizures” with “different standards than those that apply in the civilian\\n\\ncontext.” 607 F.3d 982, 990 (4th Cir. 2010).\\n\\n That is not to say that military rules wholly displace the framework of the Fourth\\n\\nAmendment. To the contrary, military rules and procedures affect whether a military\\n\\nsearch satisfies the Fourth Amendment’s reasonableness requirement. To determine\\n\\nwhether a search is reasonable, the Fourth Amendment requires courts to balance the\\n\\ndegree to which a search “intrudes upon an individual’s privacy” against “the degree to\\n\\nwhich it is needed for the promotion of legitimate governmental interests.” Samson v.\\n\\nCalifornia, 547 U.S. 843, 848 (2006) (citations omitted). The privacy and governmental\\n\\ninterests implicated by military searches are different from those implicated by civilian\\n\\nsearches: In military settings, the government has a significant interest in maintaining\\n\\norder and control over its service members. See Parker v. Levy, 417 U.S. 733, 744\\n\\n(1974). Meanwhile, the rights of service members must bend to meet the demands of\\n\\ndiscipline and duty. See Burns v. Wilson, 346 U.S. 137, 140 (1953). For that reason,\\n\\nfederal courts consider the Military Rules of Evidence, which outline the rules and\\n\\nprocedures that govern how military officers conduct military searches, in evaluating the\\n\\nreasonableness of military searches. See, e.g., Rendon, 607 F.3d at 990–91. And when\\n\\nsuch a search violates those rules in a way that impedes a service member’s specific\\n\\n 8\\n\\fexpectations of privacy, “a violation of the Fourth Amendment can result.” See id. at\\n\\n991.\\n\\n But it does not follow that the Military Rules of Evidence themselves tie the hands\\n\\nof the federal courts. “Military law, like state law, is a jurisprudence which exists\\n\\nseparate and apart from the law which governs in our federal judicial establishment.”\\n\\nBurns, 346 U.S. at 140. Just as states “lack the power to impose on federal courts\\n\\nrequirements stricter than those mandated by the federal Constitution,” United States v.\\n\\nClyburn, 24 F.3d 613, 616 (4th Cir. 1994), so too does the military. To hold otherwise\\n\\nwould “hamper the enforcement of valid federal laws by rendering relevant and reliable\\n\\nevidence unavailable.” Id. (quoting United States v. Chavez-Vernaza, 844 F.2d 1368,\\n\\n1374 (9th Cir. 1987) (alteration omitted)). For that reason, the Fourth Amendment\\n\\nprovides the proper standard for determining whether evidence seized pursuant to a non-\\n\\nfederal warrant is admissible in federal court. Id. at 616–17; see also United States v.\\n\\nVan Metre, 150 F.3d 339, 346–47 (4th Cir. 1998) (“[T]he proper standard for evaluating\\n\\nillegal seizure claims in federal courts has uniformly been whether the actions of the state\\n\\nofficials in securing the evidence violated the Fourth Amendment to the United States\\n\\nConstitution.” (alteration and internal quotation marks omitted)).\\n\\n B.\\n\\n Even assuming there was a Fourth Amendment violation here, we hold that the\\n\\ngood faith exception to the exclusionary rule precludes suppression.\\n\\n Suppression is not itself a right explicitly bestowed by the Fourth Amendment.\\n\\nRather, suppression of evidence obtained through a search that violates the Fourth\\n\\n 9\\n\\fAmendment is a judicially created prescription for such a violation. See United States v.\\n\\nLeon, 486 U.S. 897, 909 (1984). Indeed, the exclusionary rule is primarily proscriptive:\\n\\nit is designed to safeguard Fourth Amendment rights through its deterrent effect. Id. For\\n\\nthat reason, “evidence should be suppressed only if it can be said that the law\\n\\nenforcement officer had knowledge, or may properly be charged with knowledge, that the\\n\\nsearch was unconstitutional under the Fourth Amendment.” Illinois v. Krull, 480 U.S.\\n\\n340, 348–49 (1987) (quoting United States v. Peltier, 422 U.S. 531, 542 (1975) (internal\\n\\nquotation marks omitted)).\\n\\n In line with that principle, the good faith exception to the exclusionary rule allows\\n\\ncourts to introduce evidence obtained in violation of the Constitution but in reasonable\\n\\nreliance on a defective warrant. See Leon, 468 U.S. at 905. The Supreme Court has\\n\\nidentified only five limitations to the application of the good faith exception: (1) where a\\n\\nmagistrate issues a warrant based on a deliberately or recklessly false affidavit, see\\n\\nFranks v. Delaware, 438 U.S. 154, 155–56 (1978); (2) where a magistrate lacks\\n\\nneutrality and detachment, see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326–28\\n\\n(1979); (3) where a warrant is based on an affidavit “so lacking in indicia of probable\\n\\ncause as to render official belief in its existence entirely unreasonable,” Leon, 468 U.S. at\\n\\n923 (quoting Brown v. Illinois, 422 U.S. 590, 610–11 (1975) (Powell, J., concurring in\\n\\npart)); (4) where a warrant is so facially deficient that a reasonable officer could not\\n\\nbelieve it was valid, see id. at 923; and (5) where police recklessly maintain or knowingly\\n\\nenter false information into a warrant database to enable a future arrest, Herring v. United\\n\\n\\n\\n 10\\n\\fStates, 555 U.S. 135, 145 (2009). Appellant argues that the CASS at issue here triggers\\n\\ntwo of those limitations. 2\\n\\n 1.\\n\\n Appellant argues that, because the CASS was not authorized by the commanding\\n\\nofficer with “control over the place where the property or person to be searched [was]\\n\\nsituated,” it was facially deficient to the point where “no reasonable person could have\\n\\nconcluded that this officer possessed authority to issue the CASS.” Appellant’s Br. 18.\\n\\nThat argument lacks both legal and logical support.\\n\\n First, we have applied the good faith exception to warrants authorized by\\n\\nmagistrate judges lacking jurisdiction. See, e.g., United States v. McLamb, 880 F.3d 685,\\n\\n691 (4th Cir. 2018). We have done so because “the exclusionary rule is designed to deter\\n\\npolice misconduct rather than to punish the errors of judges and magistrates.” Id.\\n\\n(quoting Leon, 468 U.S. at 916). And suppressing evidence obtained pursuant to a\\n\\nwarrant issued by the wrong magistrate judge would not appreciably deter police\\n\\nmisconduct. Id. There is no reason to conclude that a case of the wrong commanding\\n\\nofficer should be treated any differently.\\n\\n\\n\\n\\n 2\\n Appellant presents no independent basis for suppressing the evidence that\\nofficers obtained when they executed the federal warrant. Instead, Appellant argues that\\nevidence obtained through the federal warrant must be suppressed because the CASS was\\nillegal and the federal warrant was supported solely by evidence obtained through the\\nCASS. Accordingly, the question before us is whether evidence obtained through the\\nCASS is admissible. We need not scrutinize the federal warrant.\\n\\n\\n 11\\n\\f Second, we cannot say that no reasonable officer could review a CASS authorized\\n\\nby the subject of the search’s commanding officer -- as opposed to the commanding\\n\\nofficer of the subject’s current location -- and believe it to be valid. Military Rule of\\n\\nEvidence 315(d) is no bastion of clarity: it places the power to authorize searches on the\\n\\nofficer “who has control over the place where the property or person to be searched is\\n\\nsituated.” One could reasonably conclude that a military service member’s commanding\\n\\nofficer is the officer who has control over the place where he or she “is situated.” Indeed,\\n\\nin this case, several officers reached that conclusion. NCIS consulted Appellant’s\\n\\ncommanding officer in San Diego and the commanding officer of the Little Creek base.\\n\\nNCIS also consulted JAG attorneys at both bases. Only after taking these measures did\\n\\nNCIS reach the technically incorrect conclusion that Appellant’s commander in San\\n\\nDiego should authorize the search of Appellant’s phone, while the Little Creek\\n\\ncommanding officer should authorize the search of his hotel room. This court is not\\n\\nprepared to call that conclusion, and each of those officers, unreasonable.\\n\\n 2.\\n\\n Appellant also argues that the good faith exception cannot apply to the CASS\\n\\nbecause it was so lacking in indicia of probable cause. But “the threshold for establishing\\n\\nthis exception is a high one.” Messerschmidt v. Millender, 565 U.S. 535, 547 (2012).\\n\\nOfficers executing warrants are not often expected to question the conclusions of an\\n\\nissuing authority. Id. (citing Leon, 468 U.S. at 921). For that reason, to preclude\\n\\napplication of the good faith exception, an officer’s reliance on an issuing authority’s\\n\\nprobable cause determination must have been “entirely unreasonable.” Id. at 549. That\\n\\n 12\\n\\fwas not the case here. The affidavit supporting the CASS detailed the allegations of\\n\\nAppellant’s accuser. It also noted that NCIS agents orchestrated a controlled text\\n\\nmessage conversation between Appellant and his accuser and described the admissions\\n\\nthat Appellant made during that conversation. Those admissions were consistent with the\\n\\nallegations of Appellant’s accuser. Presented with such information, it would not be\\n\\nentirely unreasonable for an officer to believe that the CASS was supported by probable\\n\\ncause.\\n\\n Accordingly, we hold that the good faith exception to the exclusionary rule applies\\n\\nto the evidence obtained through the CASS. Evidence subsequently obtained through the\\n\\nfederal warrant, which was supported by the CASS evidence, is likewise admissible.\\n\\n IV.\\n\\n For the forgoing reasons, the judgement of the district court is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4369380/\", \"author_raw\": \"THACKER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WILKINSON"},"judge2":{"kind":"string","value":"AGEE"},"judge3":{"kind":"string","value":"THACKER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4592127/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Gregory Kyle SEERDEN, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-20\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4124\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nGREGORY KYLE SEERDEN,\n\n Defendant - Appellant.\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nNorfolk. Raymond A. Jackson, District Judge. (2:17-cr-00067-RAJ-DEM-1)\n\n\nArgued: December 11, 2018 Decided: February 20, 2019\n\n\nBefore WILKINSON, AGEE, and THACKER, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Thacker wrote the opinion, in which Judge\nWilkinson and Judge Agee joined.\n\n\nARGUED: Andrew William Grindrod, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Norfolk, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE\nUNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:\nGeremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States\nAttorney, Alexandria, Virginia, David A. Layne, Special Assistant United States\nAttorney, Elizabeth M. Yusi, Assistant United States Attorney, OFFICE OF THE\nUNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.\n\fTHACKER, Circuit Judge:\n\n In January 2017 investigators with the Naval Criminal Investigation Service\n\n(“NCIS”) obtained a military warrant to search the cell phone of Gregory Kyle Seerden\n\n(“Appellant”) for evidence of sexual assault. During the search of Appellant’s phone, the\n\ninvestigators found child pornography. On that basis, the investigators then obtained a\n\nfederal warrant to search Appellant’s phone a second time and again found child\n\npornography. Appellant moved to suppress the evidence, arguing that the first search\n\nwas unlawful because it violated the Military Rules of Evidence and that evidence\n\nobtained during the second search was fruit of the poisonous tree.\n\n Although the district court agreed that evidence obtained during the military\n\nsearch was inadmissible because it violated the Military Rules of Evidence, it nonetheless\n\nfound that the good faith exception allowed the government to admit evidence discovered\n\nvia the second search.\n\n On September 20, 2017, Appellant entered a conditional guilty plea to production\n\nof child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). He subsequently filed\n\nthis appeal. As explained below, we affirm on different grounds.\n\n I.\n\n Appellant was a member of the United States Navy’s Sea, Air, and Land Team.\n\nAt all times relevant to this appeal, he was stationed in San Diego, California. But for\n\none week in January 2017, Appellant attended a training at the Little Creek base in\n\nVirginia Beach, Virginia. During that week, Appellant was accused of sexual assault and\n\nsuspected of possession of child pornography.\n\n 2\n\f On his next to last night of training in Virginia, Appellant met a woman. The\n\nwoman recalled that, during her night out with Appellant, the pair went to a few bars and\n\nhad more than a few drinks. The woman came in and out of consciousness throughout\n\nthe night, but she remembered returning to Appellant’s room in the Navy Gateway Inns\n\nand Suites at Little Creek. At around 4:00 a.m., the woman woke up lying naked next to\n\nAppellant. She learned from Appellant that, at some point during the night, they had sex.\n\nShe then left. While she was waiting for a cab at the gate of the base, she began to cry.\n\nA service member on guard duty (a “sentry”) approached her, and she told him that\n\nAppellant sexually assaulted her. Appellant then attempted to call her. She didn’t\n\nanswer. Meanwhile, the sentry reported the allegations to NCIS.\n\n Later that day, NCIS began investigating the allegations. In doing so, NCIS\n\norchestrated a “controlled text message conversation” between the woman and Appellant.\n\nNCIS agents had the woman text Appellant and inquire about the night in question.\n\nDuring that conversation, Appellant admitted that the pair had sex and that the woman\n\nwas not sober. With that, NCIS agents began coordinating with Appellant’s commanding\n\nofficer in San Diego as well as the commanding officer of the Little Creek base to obtain\n\nauthorizations to search Appellant’s cell phone and hotel room. NCIS also consulted the\n\nJudge Advocate General’s (“JAG”) authorities at both bases. NCIS and JAG officers\n\ndecided that the Little Creek commanding officer should authorize the search of\n\nAppellant’s hotel room while Appellant’s commanding officer in San Diego should\n\nauthorize the search of his phone. The officers reasoned that, while the Little Creek\n\ncommanding officer had control over the base, Appellant’s commanding officer in San\n\n 3\n\fDiego had control over Appellant. In line with that plan, Appellant’s commanding\n\nofficer in San Diego signed a Command Authorization for Search and Seizure (“CASS”)\n\nsanctioning the search of Appellant’s phone.\n\n The CASS sought to collect messages, photographs, videos, and any other\n\ninformation related to the investigation from Appellant’s phone. In its statement of\n\nprobable cause, the affidavit supporting the CASS connected Appellant’s phone to the\n\nalleged criminal activity by noting that Appellant attempted to call his accuser after\n\ndropping her off at the gate. It also noted that NCIS agents orchestrated a pretext\n\ncommunication between Appellant and the woman accusing him of sexual assault.\n\n A week later, a digital forensics examiner executed the search of Appellant’s\n\nphone. In doing so, the forensics examiner viewed thumbnail-size icons of photographs\n\non Appellant’s phone. The examiner, who was trained in and had experience with child\n\nexploitation investigations, believed some of those photographs were images of child\n\npornography.\n\n Based on the evidence discovered during the military search of Appellant’s phone,\n\nNCIS obtained a federal search warrant from the Eastern District of Virginia to search\n\nAppellant’s phone for further evidence of child pornography. Under the authority of this\n\nsecond warrant, the forensics examiner continued his analysis of Appellant’s cell phone\n\ndata. He found 78 images and four videos of child pornography. The images depicted\n\nknown victims of child sexual exploitation, while the videos depicted Appellant\n\nperforming a sexual act inches from the face of a sleeping child.\n\n\n\n 4\n\f On March 31, 2017, the Government filed a criminal complaint charging\n\nAppellant with possession and production of child pornography. And on April 20, 2017,\n\na grand jury indicted Appellant for possession, production, and transportation of child\n\npornography. On June 6, 2017, Appellant moved to suppress the evidence obtained from\n\nthe two searches of his phone. After holding a hearing on Appellant’s motion, the district\n\ncourt denied it.\n\n The district court first concluded that the evidence obtained during the first search\n\nwas inadmissible. Applying the Military Rules of Evidence in evaluating the lawfulness\n\nof that search, the district court reasoned that the CASS obtained by NCIS did not satisfy\n\nthe “authorization” requirement of Military Rule of Evidence 315:\n\n Pursuant to Military Rule of Evidence 315(d), a search\n is valid only if it is issued by an impartial individual. An\n impartial individual is a commander, military judge or\n magistrate. Mil. R. Evid. 315(d)(1) and (2). A military\n commander is defined as “a commander or other person\n serving in a position designated by the Secretary concerned as\n either a position analogous to an officer in charge or a\n position of command, who has control over the place where\n the property or person to be search is situated or found, or if\n that place is not under military control, having control over\n persons subject to military law or the law of war.” Mil. R.\n Evid. 315(d)(1). A military judge or magistrate “is a person\n who is authorized under regulations prescribed by the\n Secretary of Defense or the Secretary concerned.” Mil. R.\n Evid. 315(d)(2).\n\n Here, the person who authorized the CASS for the first\n search of [Appellant’s] telephone was [Appellant’s] unit\n commander in San Diego, CA. Pursuant to the definitions\n provided in Military Rules of Evidence 315(d)(1),\n [Appellant’s] unit commander did not have the authority to\n authorize any search [conducted] on [the Little Creek base]\n because [Appellant’s] unit commander did not have control\n\n 5\n\f over the place where the property or person to be searched was\n situated.\n\nJ.A. 215. 1 The district court further reasoned that, because of the defect in the CASS\n\nauthorization, it could not apply the exclusionary rule’s good faith exception to the\n\nevidence obtained as a result of the first search. Citing Military Rule of Evidence 311,\n\nthe district court noted, “Pursuant to military law, evidence obtained as the result of an\n\nunlawful search may [only] be used if . . . ‘the search or seizure resulted from an\n\nauthorization . . . issued by an individual competent to issue the authorization under Mil.\n\nR. Evid. 315(d).’” J.A. 217–18. Because the district court found that Appellant’s\n\ncommander in San Diego was not competent to authorize the CASS, the court concluded\n\nthat “the good faith exception does not cure the first search.” Id. at 218.\n\n Despite finding that evidence obtained during the first search was inadmissible,\n\nthe district court concluded that evidence obtained during the second search was\n\nadmissible. In doing so, the district court acknowledged that “the second search relied\n\nupon evidence found during the first search,” J.A. 218, that the probable cause supporting\n\nthe search warrant authorizing the second search was “obtained through unlawful\n\nmeans,” id. at 220, and that “[a]s a result, the magistrate judge’s subsequent issuance of a\n\nsearch warrant . . . was void ab initio.” Id. at 222. Nonetheless, the district court found\n\nthat the good faith exception to the exclusionary rule permitted the admission of the\n\nevidence obtained during the second search and denied Appellant’s motion to suppress.\n\n 1\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this\nappeal.\n\n\n 6\n\f Thereafter, on September 27, 2017, Appellant plead guilty to production of child\n\npornography. He stipulated to a written statement of facts but reserved his right to appeal\n\nthe district court’s denial of his motion to suppress. On February 15, 2018, the district\n\ncourt sentenced Appellant to 324 months of imprisonment to be followed by 25 years of\n\nsupervised release. This appeal followed.\n\n II.\n\n Analyzing a district court’s decision to deny a motion to suppress, we review legal\n\nconclusions de novo and factual findings for clear error. See United States v. Kolsuz, 890\n\nF.3d 133, 141–42 (4th Cir. 2018). In doing so, we consider the evidence in the light most\n\nfavorable to the Government. See id.\n\n III.\n\n Appellant contends that the Military Rules of Evidence apply here and require\n\nsuppression. We hold, however, that the Fourth Amendment governs whether evidence\n\nis admissible in federal criminal proceedings. The Military Rules of Evidence cannot\n\nusurp the Fourth Amendment. We further hold that, even assuming the initial warrant\n\nviolated the Fourth Amendment, the good faith exception to the exclusionary rule\n\nprecludes suppression of evidence obtained from the first search. And because the good\n\nfaith exception saves the evidence of the first search, it also saves the evidence obtained\n\nfrom the second search.\n\n\n\n\n 7\n\f A.\n\n At the outset, we recognize that federal courts treat searches conducted within the\n\nconfines of the military differently. As this court observed in United States v. Rendon,\n\n“[T]he Fourth Amendment protects members of the armed services from unreasonable\n\nsearches and seizures” with “different standards than those that apply in the civilian\n\ncontext.” 607 F.3d 982, 990 (4th Cir. 2010).\n\n That is not to say that military rules wholly displace the framework of the Fourth\n\nAmendment. To the contrary, military rules and procedures affect whether a military\n\nsearch satisfies the Fourth Amendment’s reasonableness requirement. To determine\n\nwhether a search is reasonable, the Fourth Amendment requires courts to balance the\n\ndegree to which a search “intrudes upon an individual’s privacy” against “the degree to\n\nwhich it is needed for the promotion of legitimate governmental interests.” Samson v.\n\nCalifornia, 547 U.S. 843, 848 (2006) (citations omitted). The privacy and governmental\n\ninterests implicated by military searches are different from those implicated by civilian\n\nsearches: In military settings, the government has a significant interest in maintaining\n\norder and control over its service members. See Parker v. Levy, 417 U.S. 733, 744\n\n(1974). Meanwhile, the rights of service members must bend to meet the demands of\n\ndiscipline and duty. See Burns v. Wilson, 346 U.S. 137, 140 (1953). For that reason,\n\nfederal courts consider the Military Rules of Evidence, which outline the rules and\n\nprocedures that govern how military officers conduct military searches, in evaluating the\n\nreasonableness of military searches. See, e.g., Rendon, 607 F.3d at 990–91. And when\n\nsuch a search violates those rules in a way that impedes a service member’s specific\n\n 8\n\fexpectations of privacy, “a violation of the Fourth Amendment can result.” See id. at\n\n991.\n\n But it does not follow that the Military Rules of Evidence themselves tie the hands\n\nof the federal courts. “Military law, like state law, is a jurisprudence which exists\n\nseparate and apart from the law which governs in our federal judicial establishment.”\n\nBurns, 346 U.S. at 140. Just as states “lack the power to impose on federal courts\n\nrequirements stricter than those mandated by the federal Constitution,” United States v.\n\nClyburn, 24 F.3d 613, 616 (4th Cir. 1994), so too does the military. To hold otherwise\n\nwould “hamper the enforcement of valid federal laws by rendering relevant and reliable\n\nevidence unavailable.” Id. (quoting United States v. Chavez-Vernaza, 844 F.2d 1368,\n\n1374 (9th Cir. 1987) (alteration omitted)). For that reason, the Fourth Amendment\n\nprovides the proper standard for determining whether evidence seized pursuant to a non-\n\nfederal warrant is admissible in federal court. Id. at 616–17; see also United States v.\n\nVan Metre, 150 F.3d 339, 346–47 (4th Cir. 1998) (“[T]he proper standard for evaluating\n\nillegal seizure claims in federal courts has uniformly been whether the actions of the state\n\nofficials in securing the evidence violated the Fourth Amendment to the United States\n\nConstitution.” (alteration and internal quotation marks omitted)).\n\n B.\n\n Even assuming there was a Fourth Amendment violation here, we hold that the\n\ngood faith exception to the exclusionary rule precludes suppression.\n\n Suppression is not itself a right explicitly bestowed by the Fourth Amendment.\n\nRather, suppression of evidence obtained through a search that violates the Fourth\n\n 9\n\fAmendment is a judicially created prescription for such a violation. See United States v.\n\nLeon, 486 U.S. 897, 909 (1984). Indeed, the exclusionary rule is primarily proscriptive:\n\nit is designed to safeguard Fourth Amendment rights through its deterrent effect. Id. For\n\nthat reason, “evidence should be suppressed only if it can be said that the law\n\nenforcement officer had knowledge, or may properly be charged with knowledge, that the\n\nsearch was unconstitutional under the Fourth Amendment.” Illinois v. Krull, 480 U.S.\n\n340, 348–49 (1987) (quoting United States v. Peltier, 422 U.S. 531, 542 (1975) (internal\n\nquotation marks omitted)).\n\n In line with that principle, the good faith exception to the exclusionary rule allows\n\ncourts to introduce evidence obtained in violation of the Constitution but in reasonable\n\nreliance on a defective warrant. See Leon, 468 U.S. at 905. The Supreme Court has\n\nidentified only five limitations to the application of the good faith exception: (1) where a\n\nmagistrate issues a warrant based on a deliberately or recklessly false affidavit, see\n\nFranks v. Delaware, 438 U.S. 154, 155–56 (1978); (2) where a magistrate lacks\n\nneutrality and detachment, see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326–28\n\n(1979); (3) where a warrant is based on an affidavit “so lacking in indicia of probable\n\ncause as to render official belief in its existence entirely unreasonable,” Leon, 468 U.S. at\n\n923 (quoting Brown v. Illinois, 422 U.S. 590, 610–11 (1975) (Powell, J., concurring in\n\npart)); (4) where a warrant is so facially deficient that a reasonable officer could not\n\nbelieve it was valid, see id. at 923; and (5) where police recklessly maintain or knowingly\n\nenter false information into a warrant database to enable a future arrest, Herring v. United\n\n\n\n 10\n\fStates, 555 U.S. 135, 145 (2009). Appellant argues that the CASS at issue here triggers\n\ntwo of those limitations. 2\n\n 1.\n\n Appellant argues that, because the CASS was not authorized by the commanding\n\nofficer with “control over the place where the property or person to be searched [was]\n\nsituated,” it was facially deficient to the point where “no reasonable person could have\n\nconcluded that this officer possessed authority to issue the CASS.” Appellant’s Br. 18.\n\nThat argument lacks both legal and logical support.\n\n First, we have applied the good faith exception to warrants authorized by\n\nmagistrate judges lacking jurisdiction. See, e.g., United States v. McLamb, 880 F.3d 685,\n\n691 (4th Cir. 2018). We have done so because “the exclusionary rule is designed to deter\n\npolice misconduct rather than to punish the errors of judges and magistrates.” Id.\n\n(quoting Leon, 468 U.S. at 916). And suppressing evidence obtained pursuant to a\n\nwarrant issued by the wrong magistrate judge would not appreciably deter police\n\nmisconduct. Id. There is no reason to conclude that a case of the wrong commanding\n\nofficer should be treated any differently.\n\n\n\n\n 2\n Appellant presents no independent basis for suppressing the evidence that\nofficers obtained when they executed the federal warrant. Instead, Appellant argues that\nevidence obtained through the federal warrant must be suppressed because the CASS was\nillegal and the federal warrant was supported solely by evidence obtained through the\nCASS. Accordingly, the question before us is whether evidence obtained through the\nCASS is admissible. We need not scrutinize the federal warrant.\n\n\n 11\n\f Second, we cannot say that no reasonable officer could review a CASS authorized\n\nby the subject of the search’s commanding officer -- as opposed to the commanding\n\nofficer of the subject’s current location -- and believe it to be valid. Military Rule of\n\nEvidence 315(d) is no bastion of clarity: it places the power to authorize searches on the\n\nofficer “who has control over the place where the property or person to be searched is\n\nsituated.” One could reasonably conclude that a military service member’s commanding\n\nofficer is the officer who has control over the place where he or she “is situated.” Indeed,\n\nin this case, several officers reached that conclusion. NCIS consulted Appellant’s\n\ncommanding officer in San Diego and the commanding officer of the Little Creek base.\n\nNCIS also consulted JAG attorneys at both bases. Only after taking these measures did\n\nNCIS reach the technically incorrect conclusion that Appellant’s commander in San\n\nDiego should authorize the search of Appellant’s phone, while the Little Creek\n\ncommanding officer should authorize the search of his hotel room. This court is not\n\nprepared to call that conclusion, and each of those officers, unreasonable.\n\n 2.\n\n Appellant also argues that the good faith exception cannot apply to the CASS\n\nbecause it was so lacking in indicia of probable cause. But “the threshold for establishing\n\nthis exception is a high one.” Messerschmidt v. Millender, 565 U.S. 535, 547 (2012).\n\nOfficers executing warrants are not often expected to question the conclusions of an\n\nissuing authority. Id. (citing Leon, 468 U.S. at 921). For that reason, to preclude\n\napplication of the good faith exception, an officer’s reliance on an issuing authority’s\n\nprobable cause determination must have been “entirely unreasonable.” Id. at 549. That\n\n 12\n\fwas not the case here. The affidavit supporting the CASS detailed the allegations of\n\nAppellant’s accuser. It also noted that NCIS agents orchestrated a controlled text\n\nmessage conversation between Appellant and his accuser and described the admissions\n\nthat Appellant made during that conversation. Those admissions were consistent with the\n\nallegations of Appellant’s accuser. Presented with such information, it would not be\n\nentirely unreasonable for an officer to believe that the CASS was supported by probable\n\ncause.\n\n Accordingly, we hold that the good faith exception to the exclusionary rule applies\n\nto the evidence obtained through the CASS. Evidence subsequently obtained through the\n\nfederal warrant, which was supported by the CASS evidence, is likewise admissible.\n\n IV.\n\n For the forgoing reasons, the judgement of the district court is\n\n AFFIRMED.\n\n\n\n\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Gregory Kyle SEERDEN, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-20\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4124\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nGREGORY KYLE SEERDEN,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nNorfolk. Raymond A. Jackson, District Judge. (2:17-cr-00067-RAJ-DEM-1)\\n\\n\\nArgued: December 11, 2018 Decided: February 20, 2019\\n\\n\\nBefore WILKINSON, AGEE, and THACKER, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Thacker wrote the opinion, in which Judge\\nWilkinson and Judge Agee joined.\\n\\n\\nARGUED: Andrew William Grindrod, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Norfolk, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE\\nUNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:\\nGeremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States\\nAttorney, Alexandria, Virginia, David A. Layne, Special Assistant United States\\nAttorney, Elizabeth M. Yusi, Assistant United States Attorney, OFFICE OF THE\\nUNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.\\n\\fTHACKER, Circuit Judge:\\n\\n In January 2017 investigators with the Naval Criminal Investigation Service\\n\\n(“NCIS”) obtained a military warrant to search the cell phone of Gregory Kyle Seerden\\n\\n(“Appellant”) for evidence of sexual assault. During the search of Appellant’s phone, the\\n\\ninvestigators found child pornography. On that basis, the investigators then obtained a\\n\\nfederal warrant to search Appellant’s phone a second time and again found child\\n\\npornography. Appellant moved to suppress the evidence, arguing that the first search\\n\\nwas unlawful because it violated the Military Rules of Evidence and that evidence\\n\\nobtained during the second search was fruit of the poisonous tree.\\n\\n Although the district court agreed that evidence obtained during the military\\n\\nsearch was inadmissible because it violated the Military Rules of Evidence, it nonetheless\\n\\nfound that the good faith exception allowed the government to admit evidence discovered\\n\\nvia the second search.\\n\\n On September 20, 2017, Appellant entered a conditional guilty plea to production\\n\\nof child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). He subsequently filed\\n\\nthis appeal. As explained below, we affirm on different grounds.\\n\\n I.\\n\\n Appellant was a member of the United States Navy’s Sea, Air, and Land Team.\\n\\nAt all times relevant to this appeal, he was stationed in San Diego, California. But for\\n\\none week in January 2017, Appellant attended a training at the Little Creek base in\\n\\nVirginia Beach, Virginia. During that week, Appellant was accused of sexual assault and\\n\\nsuspected of possession of child pornography.\\n\\n 2\\n\\f On his next to last night of training in Virginia, Appellant met a woman. The\\n\\nwoman recalled that, during her night out with Appellant, the pair went to a few bars and\\n\\nhad more than a few drinks. The woman came in and out of consciousness throughout\\n\\nthe night, but she remembered returning to Appellant’s room in the Navy Gateway Inns\\n\\nand Suites at Little Creek. At around 4:00 a.m., the woman woke up lying naked next to\\n\\nAppellant. She learned from Appellant that, at some point during the night, they had sex.\\n\\nShe then left. While she was waiting for a cab at the gate of the base, she began to cry.\\n\\nA service member on guard duty (a “sentry”) approached her, and she told him that\\n\\nAppellant sexually assaulted her. Appellant then attempted to call her. She didn’t\\n\\nanswer. Meanwhile, the sentry reported the allegations to NCIS.\\n\\n Later that day, NCIS began investigating the allegations. In doing so, NCIS\\n\\norchestrated a “controlled text message conversation” between the woman and Appellant.\\n\\nNCIS agents had the woman text Appellant and inquire about the night in question.\\n\\nDuring that conversation, Appellant admitted that the pair had sex and that the woman\\n\\nwas not sober. With that, NCIS agents began coordinating with Appellant’s commanding\\n\\nofficer in San Diego as well as the commanding officer of the Little Creek base to obtain\\n\\nauthorizations to search Appellant’s cell phone and hotel room. NCIS also consulted the\\n\\nJudge Advocate General’s (“JAG”) authorities at both bases. NCIS and JAG officers\\n\\ndecided that the Little Creek commanding officer should authorize the search of\\n\\nAppellant’s hotel room while Appellant’s commanding officer in San Diego should\\n\\nauthorize the search of his phone. The officers reasoned that, while the Little Creek\\n\\ncommanding officer had control over the base, Appellant’s commanding officer in San\\n\\n 3\\n\\fDiego had control over Appellant. In line with that plan, Appellant’s commanding\\n\\nofficer in San Diego signed a Command Authorization for Search and Seizure (“CASS”)\\n\\nsanctioning the search of Appellant’s phone.\\n\\n The CASS sought to collect messages, photographs, videos, and any other\\n\\ninformation related to the investigation from Appellant’s phone. In its statement of\\n\\nprobable cause, the affidavit supporting the CASS connected Appellant’s phone to the\\n\\nalleged criminal activity by noting that Appellant attempted to call his accuser after\\n\\ndropping her off at the gate. It also noted that NCIS agents orchestrated a pretext\\n\\ncommunication between Appellant and the woman accusing him of sexual assault.\\n\\n A week later, a digital forensics examiner executed the search of Appellant’s\\n\\nphone. In doing so, the forensics examiner viewed thumbnail-size icons of photographs\\n\\non Appellant’s phone. The examiner, who was trained in and had experience with child\\n\\nexploitation investigations, believed some of those photographs were images of child\\n\\npornography.\\n\\n Based on the evidence discovered during the military search of Appellant’s phone,\\n\\nNCIS obtained a federal search warrant from the Eastern District of Virginia to search\\n\\nAppellant’s phone for further evidence of child pornography. Under the authority of this\\n\\nsecond warrant, the forensics examiner continued his analysis of Appellant’s cell phone\\n\\ndata. He found 78 images and four videos of child pornography. The images depicted\\n\\nknown victims of child sexual exploitation, while the videos depicted Appellant\\n\\nperforming a sexual act inches from the face of a sleeping child.\\n\\n\\n\\n 4\\n\\f On March 31, 2017, the Government filed a criminal complaint charging\\n\\nAppellant with possession and production of child pornography. And on April 20, 2017,\\n\\na grand jury indicted Appellant for possession, production, and transportation of child\\n\\npornography. On June 6, 2017, Appellant moved to suppress the evidence obtained from\\n\\nthe two searches of his phone. After holding a hearing on Appellant’s motion, the district\\n\\ncourt denied it.\\n\\n The district court first concluded that the evidence obtained during the first search\\n\\nwas inadmissible. Applying the Military Rules of Evidence in evaluating the lawfulness\\n\\nof that search, the district court reasoned that the CASS obtained by NCIS did not satisfy\\n\\nthe “authorization” requirement of Military Rule of Evidence 315:\\n\\n Pursuant to Military Rule of Evidence 315(d), a search\\n is valid only if it is issued by an impartial individual. An\\n impartial individual is a commander, military judge or\\n magistrate. Mil. R. Evid. 315(d)(1) and (2). A military\\n commander is defined as “a commander or other person\\n serving in a position designated by the Secretary concerned as\\n either a position analogous to an officer in charge or a\\n position of command, who has control over the place where\\n the property or person to be search is situated or found, or if\\n that place is not under military control, having control over\\n persons subject to military law or the law of war.” Mil. R.\\n Evid. 315(d)(1). A military judge or magistrate “is a person\\n who is authorized under regulations prescribed by the\\n Secretary of Defense or the Secretary concerned.” Mil. R.\\n Evid. 315(d)(2).\\n\\n Here, the person who authorized the CASS for the first\\n search of [Appellant’s] telephone was [Appellant’s] unit\\n commander in San Diego, CA. Pursuant to the definitions\\n provided in Military Rules of Evidence 315(d)(1),\\n [Appellant’s] unit commander did not have the authority to\\n authorize any search [conducted] on [the Little Creek base]\\n because [Appellant’s] unit commander did not have control\\n\\n 5\\n\\f over the place where the property or person to be searched was\\n situated.\\n\\nJ.A. 215. 1 The district court further reasoned that, because of the defect in the CASS\\n\\nauthorization, it could not apply the exclusionary rule’s good faith exception to the\\n\\nevidence obtained as a result of the first search. Citing Military Rule of Evidence 311,\\n\\nthe district court noted, “Pursuant to military law, evidence obtained as the result of an\\n\\nunlawful search may [only] be used if . . . ‘the search or seizure resulted from an\\n\\nauthorization . . . issued by an individual competent to issue the authorization under Mil.\\n\\nR. Evid. 315(d).’” J.A. 217–18. Because the district court found that Appellant’s\\n\\ncommander in San Diego was not competent to authorize the CASS, the court concluded\\n\\nthat “the good faith exception does not cure the first search.” Id. at 218.\\n\\n Despite finding that evidence obtained during the first search was inadmissible,\\n\\nthe district court concluded that evidence obtained during the second search was\\n\\nadmissible. In doing so, the district court acknowledged that “the second search relied\\n\\nupon evidence found during the first search,” J.A. 218, that the probable cause supporting\\n\\nthe search warrant authorizing the second search was “obtained through unlawful\\n\\nmeans,” id. at 220, and that “[a]s a result, the magistrate judge’s subsequent issuance of a\\n\\nsearch warrant . . . was void ab initio.” Id. at 222. Nonetheless, the district court found\\n\\nthat the good faith exception to the exclusionary rule permitted the admission of the\\n\\nevidence obtained during the second search and denied Appellant’s motion to suppress.\\n\\n 1\\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this\\nappeal.\\n\\n\\n 6\\n\\f Thereafter, on September 27, 2017, Appellant plead guilty to production of child\\n\\npornography. He stipulated to a written statement of facts but reserved his right to appeal\\n\\nthe district court’s denial of his motion to suppress. On February 15, 2018, the district\\n\\ncourt sentenced Appellant to 324 months of imprisonment to be followed by 25 years of\\n\\nsupervised release. This appeal followed.\\n\\n II.\\n\\n Analyzing a district court’s decision to deny a motion to suppress, we review legal\\n\\nconclusions de novo and factual findings for clear error. See United States v. Kolsuz, 890\\n\\nF.3d 133, 141–42 (4th Cir. 2018). In doing so, we consider the evidence in the light most\\n\\nfavorable to the Government. See id.\\n\\n III.\\n\\n Appellant contends that the Military Rules of Evidence apply here and require\\n\\nsuppression. We hold, however, that the Fourth Amendment governs whether evidence\\n\\nis admissible in federal criminal proceedings. The Military Rules of Evidence cannot\\n\\nusurp the Fourth Amendment. We further hold that, even assuming the initial warrant\\n\\nviolated the Fourth Amendment, the good faith exception to the exclusionary rule\\n\\nprecludes suppression of evidence obtained from the first search. And because the good\\n\\nfaith exception saves the evidence of the first search, it also saves the evidence obtained\\n\\nfrom the second search.\\n\\n\\n\\n\\n 7\\n\\f A.\\n\\n At the outset, we recognize that federal courts treat searches conducted within the\\n\\nconfines of the military differently. As this court observed in United States v. Rendon,\\n\\n“[T]he Fourth Amendment protects members of the armed services from unreasonable\\n\\nsearches and seizures” with “different standards than those that apply in the civilian\\n\\ncontext.” 607 F.3d 982, 990 (4th Cir. 2010).\\n\\n That is not to say that military rules wholly displace the framework of the Fourth\\n\\nAmendment. To the contrary, military rules and procedures affect whether a military\\n\\nsearch satisfies the Fourth Amendment’s reasonableness requirement. To determine\\n\\nwhether a search is reasonable, the Fourth Amendment requires courts to balance the\\n\\ndegree to which a search “intrudes upon an individual’s privacy” against “the degree to\\n\\nwhich it is needed for the promotion of legitimate governmental interests.” Samson v.\\n\\nCalifornia, 547 U.S. 843, 848 (2006) (citations omitted). The privacy and governmental\\n\\ninterests implicated by military searches are different from those implicated by civilian\\n\\nsearches: In military settings, the government has a significant interest in maintaining\\n\\norder and control over its service members. See Parker v. Levy, 417 U.S. 733, 744\\n\\n(1974). Meanwhile, the rights of service members must bend to meet the demands of\\n\\ndiscipline and duty. See Burns v. Wilson, 346 U.S. 137, 140 (1953). For that reason,\\n\\nfederal courts consider the Military Rules of Evidence, which outline the rules and\\n\\nprocedures that govern how military officers conduct military searches, in evaluating the\\n\\nreasonableness of military searches. See, e.g., Rendon, 607 F.3d at 990–91. And when\\n\\nsuch a search violates those rules in a way that impedes a service member’s specific\\n\\n 8\\n\\fexpectations of privacy, “a violation of the Fourth Amendment can result.” See id. at\\n\\n991.\\n\\n But it does not follow that the Military Rules of Evidence themselves tie the hands\\n\\nof the federal courts. “Military law, like state law, is a jurisprudence which exists\\n\\nseparate and apart from the law which governs in our federal judicial establishment.”\\n\\nBurns, 346 U.S. at 140. Just as states “lack the power to impose on federal courts\\n\\nrequirements stricter than those mandated by the federal Constitution,” United States v.\\n\\nClyburn, 24 F.3d 613, 616 (4th Cir. 1994), so too does the military. To hold otherwise\\n\\nwould “hamper the enforcement of valid federal laws by rendering relevant and reliable\\n\\nevidence unavailable.” Id. (quoting United States v. Chavez-Vernaza, 844 F.2d 1368,\\n\\n1374 (9th Cir. 1987) (alteration omitted)). For that reason, the Fourth Amendment\\n\\nprovides the proper standard for determining whether evidence seized pursuant to a non-\\n\\nfederal warrant is admissible in federal court. Id. at 616–17; see also United States v.\\n\\nVan Metre, 150 F.3d 339, 346–47 (4th Cir. 1998) (“[T]he proper standard for evaluating\\n\\nillegal seizure claims in federal courts has uniformly been whether the actions of the state\\n\\nofficials in securing the evidence violated the Fourth Amendment to the United States\\n\\nConstitution.” (alteration and internal quotation marks omitted)).\\n\\n B.\\n\\n Even assuming there was a Fourth Amendment violation here, we hold that the\\n\\ngood faith exception to the exclusionary rule precludes suppression.\\n\\n Suppression is not itself a right explicitly bestowed by the Fourth Amendment.\\n\\nRather, suppression of evidence obtained through a search that violates the Fourth\\n\\n 9\\n\\fAmendment is a judicially created prescription for such a violation. See United States v.\\n\\nLeon, 486 U.S. 897, 909 (1984). Indeed, the exclusionary rule is primarily proscriptive:\\n\\nit is designed to safeguard Fourth Amendment rights through its deterrent effect. Id. For\\n\\nthat reason, “evidence should be suppressed only if it can be said that the law\\n\\nenforcement officer had knowledge, or may properly be charged with knowledge, that the\\n\\nsearch was unconstitutional under the Fourth Amendment.” Illinois v. Krull, 480 U.S.\\n\\n340, 348–49 (1987) (quoting United States v. Peltier, 422 U.S. 531, 542 (1975) (internal\\n\\nquotation marks omitted)).\\n\\n In line with that principle, the good faith exception to the exclusionary rule allows\\n\\ncourts to introduce evidence obtained in violation of the Constitution but in reasonable\\n\\nreliance on a defective warrant. See Leon, 468 U.S. at 905. The Supreme Court has\\n\\nidentified only five limitations to the application of the good faith exception: (1) where a\\n\\nmagistrate issues a warrant based on a deliberately or recklessly false affidavit, see\\n\\nFranks v. Delaware, 438 U.S. 154, 155–56 (1978); (2) where a magistrate lacks\\n\\nneutrality and detachment, see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326–28\\n\\n(1979); (3) where a warrant is based on an affidavit “so lacking in indicia of probable\\n\\ncause as to render official belief in its existence entirely unreasonable,” Leon, 468 U.S. at\\n\\n923 (quoting Brown v. Illinois, 422 U.S. 590, 610–11 (1975) (Powell, J., concurring in\\n\\npart)); (4) where a warrant is so facially deficient that a reasonable officer could not\\n\\nbelieve it was valid, see id. at 923; and (5) where police recklessly maintain or knowingly\\n\\nenter false information into a warrant database to enable a future arrest, Herring v. United\\n\\n\\n\\n 10\\n\\fStates, 555 U.S. 135, 145 (2009). Appellant argues that the CASS at issue here triggers\\n\\ntwo of those limitations. 2\\n\\n 1.\\n\\n Appellant argues that, because the CASS was not authorized by the commanding\\n\\nofficer with “control over the place where the property or person to be searched [was]\\n\\nsituated,” it was facially deficient to the point where “no reasonable person could have\\n\\nconcluded that this officer possessed authority to issue the CASS.” Appellant’s Br. 18.\\n\\nThat argument lacks both legal and logical support.\\n\\n First, we have applied the good faith exception to warrants authorized by\\n\\nmagistrate judges lacking jurisdiction. See, e.g., United States v. McLamb, 880 F.3d 685,\\n\\n691 (4th Cir. 2018). We have done so because “the exclusionary rule is designed to deter\\n\\npolice misconduct rather than to punish the errors of judges and magistrates.” Id.\\n\\n(quoting Leon, 468 U.S. at 916). And suppressing evidence obtained pursuant to a\\n\\nwarrant issued by the wrong magistrate judge would not appreciably deter police\\n\\nmisconduct. Id. There is no reason to conclude that a case of the wrong commanding\\n\\nofficer should be treated any differently.\\n\\n\\n\\n\\n 2\\n Appellant presents no independent basis for suppressing the evidence that\\nofficers obtained when they executed the federal warrant. Instead, Appellant argues that\\nevidence obtained through the federal warrant must be suppressed because the CASS was\\nillegal and the federal warrant was supported solely by evidence obtained through the\\nCASS. Accordingly, the question before us is whether evidence obtained through the\\nCASS is admissible. We need not scrutinize the federal warrant.\\n\\n\\n 11\\n\\f Second, we cannot say that no reasonable officer could review a CASS authorized\\n\\nby the subject of the search’s commanding officer -- as opposed to the commanding\\n\\nofficer of the subject’s current location -- and believe it to be valid. Military Rule of\\n\\nEvidence 315(d) is no bastion of clarity: it places the power to authorize searches on the\\n\\nofficer “who has control over the place where the property or person to be searched is\\n\\nsituated.” One could reasonably conclude that a military service member’s commanding\\n\\nofficer is the officer who has control over the place where he or she “is situated.” Indeed,\\n\\nin this case, several officers reached that conclusion. NCIS consulted Appellant’s\\n\\ncommanding officer in San Diego and the commanding officer of the Little Creek base.\\n\\nNCIS also consulted JAG attorneys at both bases. Only after taking these measures did\\n\\nNCIS reach the technically incorrect conclusion that Appellant’s commander in San\\n\\nDiego should authorize the search of Appellant’s phone, while the Little Creek\\n\\ncommanding officer should authorize the search of his hotel room. This court is not\\n\\nprepared to call that conclusion, and each of those officers, unreasonable.\\n\\n 2.\\n\\n Appellant also argues that the good faith exception cannot apply to the CASS\\n\\nbecause it was so lacking in indicia of probable cause. But “the threshold for establishing\\n\\nthis exception is a high one.” Messerschmidt v. Millender, 565 U.S. 535, 547 (2012).\\n\\nOfficers executing warrants are not often expected to question the conclusions of an\\n\\nissuing authority. Id. (citing Leon, 468 U.S. at 921). For that reason, to preclude\\n\\napplication of the good faith exception, an officer’s reliance on an issuing authority’s\\n\\nprobable cause determination must have been “entirely unreasonable.” Id. at 549. That\\n\\n 12\\n\\fwas not the case here. The affidavit supporting the CASS detailed the allegations of\\n\\nAppellant’s accuser. It also noted that NCIS agents orchestrated a controlled text\\n\\nmessage conversation between Appellant and his accuser and described the admissions\\n\\nthat Appellant made during that conversation. Those admissions were consistent with the\\n\\nallegations of Appellant’s accuser. Presented with such information, it would not be\\n\\nentirely unreasonable for an officer to believe that the CASS was supported by probable\\n\\ncause.\\n\\n Accordingly, we hold that the good faith exception to the exclusionary rule applies\\n\\nto the evidence obtained through the CASS. Evidence subsequently obtained through the\\n\\nfederal warrant, which was supported by the CASS evidence, is likewise admissible.\\n\\n IV.\\n\\n For the forgoing reasons, the judgement of the district court is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":562,"cells":{"id":{"kind":"number","value":4592596,"string":"4,592,596"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Nicholas YOUNG, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Nicholas Young"},"decision_date":{"kind":"string","value":"2019-02-21"},"docket_number":{"kind":"string","value":"18-4138"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Agee, Keenan, Richardson\", \"parties\": \"\", \"opinions\": [{\"author\": \"AGEE, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4138\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nNICHOLAS YOUNG,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nAlexandria. Leonie M. Brinkema, District Judge. (1:16-cr-00265-LMB-1)\\n\\n\\nArgued: November 1, 2018 Decided: February 21, 2019\\n\\n\\nBefore AGEE, KEENAN, and RICHARDSON, Circuit Judges.\\n\\n\\nAffirmed in part, vacated in part, and remanded by published opinion. Judge Agee wrote\\nthe opinion, in which Judge Keenan and Judge Richardson joined.\\n\\n\\nARGUED: Nicholas David Smith, DAVID B. SMITH, PLLC, Alexandria, Virginia, for\\nAppellant. Gordon D. Kromberg, OFFICE OF THE UNITED STATES ATTORNEY,\\nAlexandria, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United States\\nAttorney, John T. Gibbs, Assistant United States Attorney, OFFICE OF THE UNITED\\nSTATES ATTORNEY, Alexandria, Virginia, for Appellee.\\n\\fAGEE, Circuit Judge:\\n\\n A jury in the United States District Court for the Eastern District of Virginia\\n\\nconvicted Nicholas Young of one count of attempting to provide material support to the\\n\\nIslamic State of Iraq and the Levant (“ISIL”), a designated foreign terrorist organization\\n\\n(“FTO”), in violation of 18 U.S.C. § 2339B, as well as two counts of attempting to\\n\\nobstruct justice, in violation of 18 U.S.C. § 1512(c)(2). Asserting a host of district court\\n\\nerrors, Young challenges his convictions and sentence. For the following reasons, we\\n\\naffirm the material support conviction, vacate the obstruction convictions, and remand for\\n\\nresentencing.\\n\\n\\n\\n I.\\n\\n In 2010, the Federal Bureau of Investigation (“FBI”) opened a counterterrorism\\n\\ninvestigation into Young, a police officer with the Washington Metropolitan Area Transit\\n\\nAuthority, prompted in part by his connections to an acquaintance who had been arrested\\n\\non 18 U.S.C. § 2339B charges. That December, “Khalil,” an undercover FBI agent,\\n\\nbegan maintaining contact with Young, who would discuss with Khalil his wariness of\\n\\nFBI surveillance, the measures he had taken to thwart such surveillance, and the skills\\n\\nneeded—which he purported to possess—to attack an FBI or a federal office. During this\\n\\nperiod, law enforcement also observed Young traveling to and from Libya, though law\\n\\nenforcement was unable to determine the purpose of his trips. Khalil’s contact with\\n\\nYoung eventually concluded in April 2012.\\n\\n\\n\\n 2\\n\\f In May 2014, the FBI again began observing Young more actively after an FBI\\n\\ninformant, “Mo,” met Young through Young’s acquaintances, whom Mo was monitoring.\\n\\nOver the next several months, Mo and Young met approximately 20 times. During their\\n\\nmeetings, Mo indicated that he was interested in traveling to Syria to join ISIL. Young in\\n\\nturn offered advice on how to travel overseas without being flagged by government\\n\\nauthorities. Specifically, Young suggested that Mo devise a cover story for his trip, such\\n\\nas pretending that he was taking a guided tour of Turkey (or that he actually take such a\\n\\ntour). Young also advised Mo to book a roundtrip ticket and volunteered to send a text to\\n\\nMo a few days after Mo’s “return date” to assist Mo in evading law enforcement\\n\\nsuspicion, explaining that the text would make it look like Young was expecting Mo’s\\n\\nreturn (rather than staying on in the region to travel to ISIL-controlled territory). Finally,\\n\\nYoung and Mo set up covert email accounts to communicate.\\n\\n That October, Mo traveled to Turkey with his FBI handler, Special Agent John\\n\\nMinichello. While there, Mo emailed Young that he was planning to travel to ISIL-\\n\\ncontrolled territory in Syria. Mo then returned to the U.S. In November 2014, Young\\n\\nsent Mo the pre-arranged text message: “Hope you had a good vacation. If you want to\\n\\ngrab lunch . . . hit me up.” J.A. 566:3–5. After forwarding that message to Agent\\n\\nMinichello, Mo’s involvement in the investigation concluded; from that point on, Agent\\n\\nMinichello and another agent impersonated Mo to Young through the email account.\\n\\n In subsequent emails to Mo, Young made it clear that he believed Mo had joined\\n\\nISIL. In 2015, Young asked Mo to mention him to any Libyan ISIL members Mo might\\n\\nencounter and to tell them that Young had been in Libya with the Abu Salem Martyrs’\\n\\n 3\\n\\fBrigade, a militia group with connections to al Qaeda that had been fighting Muammar al\\n\\nQaddafi’s regime. Young also emailed his contacts in the Brigade on Mo’s behalf.\\n\\n On December 3 and 5, 2015, two FBI agents interviewed Young. Although the\\n\\nagents purported to be questioning Young about Mo’s whereabouts, they were attempting\\n\\nto determine whether Young himself was in contact with any terrorists. During the\\n\\ninterviews, Young denied having current contact information for Mo. He informed the\\n\\nagents that he believed Mo had gone on vacation but that he had not been in touch with\\n\\nMo since October 2014. He also denied knowing anyone who had given Mo travel\\n\\nguidance. Young later emailed Mo to inform him about the FBI’s inquiry.\\n\\n In April 2016, Mo suggested to Young that they should communicate through an\\n\\nencrypted messaging app, Threema. In July, Young created a Threema account and\\n\\nreceived a message from Mo noting that ISIL needed more fighters. Mo explained that\\n\\nGoogle gift cards could be used to buy Threema accounts to help fighters communicate\\n\\nwith ISIL, thereby facilitating their travel to ISIL-controlled territory. At the end of the\\n\\nmonth, Young used Threema to transmit $245 in Google gift cards to Mo. After\\n\\nconfirming that Mo had received the cards, Young responded that he was “glad” and\\n\\nwould be disposing of the device used to communicate with Mo. J.A. 868:13.\\n\\n In August 2016, Young was arrested for attempted material support of ISIL, an\\n\\nFTO. On the day of his arrest, agents executed a search warrant and seized militant\\n\\nIslamist, Nazi, and white supremacist paraphernalia as well as weapons from his home.\\n\\nAn indictment subsequently charged Young with attempting to provide material\\n\\nsupport—the gift cards—to a designated FTO, in violation of 18 U.S.C. § 2339B (Count\\n\\n 4\\n\\fOne), and attempting to obstruct—during the 2015 interviews (Count Two) and with the\\n\\nNovember 2014 text (Count Four)—an official proceeding, in violation of 18 U.S.C.\\n\\n§ 1512(c)(2). 1 Young proceeded to a trial on these counts. The jury convicted Young of\\n\\nall three counts and the district court imposed a below-Guidelines sentence of 180\\n\\nmonths as to each count, with the sentences to run concurrently.\\n\\n Young timely appealed, asserting five sets of errors by the district court. The first\\n\\nthree concern Count One, to which Young had asserted an entrapment defense during\\n\\ntrial. To establish Young’s predisposition to commit the offense conduct, the\\n\\nGovernment had introduced evidence of the seized items over Young’s objections. On\\n\\nappeal, Young asserts in Ground One that the district court erred by admitting into\\n\\nevidence the white supremacist and Nazi paraphernalia. Ground Two contends that the\\n\\ndistrict court erroneously certified an expert witness on militant Islamist and Nazi\\n\\n“convergence.” Ground Three asserts that a number of the district court’s evidentiary\\n\\nrulings deprived Young of his due process right to a fair trial. Ground Four posits that\\n\\nthe Government failed to offer sufficient evidence to prove the two attempted obstruction\\n\\nof justice charges. Finally, Ground Five asserts that his sentence was both procedurally\\n\\nerroneous and substantively unreasonable.\\n\\n This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.\\n\\n\\n\\n II. Grounds One to Three: Entrapment-Centered Challenges\\n\\n 1\\n Count Three, charging a violation of 18 U.S.C. § 1512(b)(3), was dismissed as\\nduplicative.\\n\\n 5\\n\\f At trial, Young presented an entrapment defense to Count One, which charged\\n\\nYoung with attempting to provide material support to a designated FTO. To establish\\n\\nentrapment, a defendant must first demonstrate the government induced him to engage in\\n\\nthe criminal activity. United States v. McLaurin, 764 F.3d 372, 380 (4th Cir. 2014).\\n\\nOnce the defendant has shown government inducement, the burden shifts to the\\n\\ngovernment to prove beyond a reasonable doubt the defendant’s predisposition to have\\n\\nengaged in the criminal conduct. United States v. Jones, 976 F.2d 176, 179 (4th Cir.\\n\\n1992). Predisposition “focuses upon whether the defendant was an unwary innocent or,\\n\\ninstead, an unwary criminal who readily availed himself of the opportunity to perpetrate\\n\\nthe crime.” Mathews v. United States, 485 U.S. 58, 63 (1988). 2 To establish Young’s\\n\\npredisposition to commit the offense conduct, the Government introduced evidence of\\n\\nYoung’s interest in radical, anti-Semitic terrorist causes both before and after his first\\n\\ncontact with Khalil in 2010. See Jacobson v. United States, 503 U.S. 540, 548–50 (1992)\\n\\n(holding that predisposition must be established prior to the defendant’s first contact with\\n\\na government agent). This evidence included Nazi and white supremacist paraphernalia\\n\\nseized from Young’s home, expert testimony regarding the “convergence” of Nazism and\\n\\nmilitant Islamism, and testimony about Young’s prior support for such causes. Young\\n\\ncontests the admission of that evidence as well as the exclusion of other purportedly\\n\\nexculpatory evidence.\\n\\n\\n\\n 2\\n We have omitted internal quotation marks, alterations, and citations here and\\nthroughout this opinion, unless otherwise noted.\\n\\n 6\\n\\f In reviewing evidentiary rulings, this Court reviews the district court’s legal\\n\\nconclusions de novo and its factual findings for clear error. United States v. Kolsuz, 890\\n\\nF.3d 133, 141–42 (4th Cir. 2018). Such rulings are reviewed for abuse of discretion and\\n\\noverturned only if the error was not harmless. United States v. Cloud, 680 F.3d 396, 401\\n\\n(4th Cir. 2012); United States v. Forrest, 429 F.3d 73, 81 (4th Cir. 2005) (concerning\\n\\nexpert testimony).\\n\\n A. Ground One: Nazi and White Supremacist Paraphernalia\\n\\n To prove Young’s predisposition to assist an FTO, the Government introduced\\n\\nNazi and white supremacist paraphernalia seized from Young’s home pursuant to a\\n\\nsearch warrant. The warrant had authorized the seizure of “[a]ll records, documents, and\\n\\nparaphernalia . . . relating to ISIL/ISIS,” as well as “other designated terrorist groups, or\\n\\nany individual or group engaged in terrorism or terrorist activity, or communications with\\n\\nor involving such groups and/or individuals.” J.A. 56; 66. After finding the items in\\n\\nYoung’s home and consulting with a Government attorney, law enforcement seized the\\n\\nmaterials.\\n\\n The Government then moved to admit this evidence (1) to corroborate testimony\\n\\nfrom Young’s college friends and former housemates concerning his pre-2010 interest in\\n\\nthese causes 3 and (2) to further illustrate his interest in a historical and modern-day\\n\\n\\n 3\\n Specifically, Young’s college friend testified that after they had attended a 2001\\ngathering of neo-Nazis for a school project, Young told him not to discount an alliance\\nbetween Nazis and Muslims to combat Jews. And Young’s former housemates testified\\nthat Young had listened to racially inflammatory music and used an Israeli flag as a\\ndoormat to make an anti-Semitic statement. To corroborate this testimony, the\\n(Continued)\\n 7\\n\\fconnection between Nazis and militant Islamists. To this latter point, the Government\\n\\nintroduced, among other items, a poster Young had downloaded in 2007 depicting a Nazi\\n\\nshaking hands with the Mufti of Jerusalem—who had allied himself with Adolf Hitler\\n\\nand recruited Muslim troops to serve in the SS—titled “The Alliance: Worldwide\\n\\nAssociation of Nazis and Islamists 1939–2004,” Response Br. 35; photos of the Mufti\\n\\nand Hitler as well as the Mufti and Muslim SS troops; Young’s prayer list, which\\n\\nincluded Hitler and the Mufti; a 2007 photo on his computer of Muslim women with a\\n\\nsign saying, “God Bless Hitler,” J.A. 1636; a copy of Young’s Facebook page from 2011,\\n\\nin which Young linked to a story about the arrest of neo-Nazi turned jihadist Emerson\\n\\nBegolly; and a 2014 graphic on his phone with the words, “Together, we can finish what\\n\\nHitler started,” J.A. 1633.\\n\\n Young moved prior to trial to suppress the admission of the Nazi and white\\n\\nsupremacist paraphernalia based on two asserted errors: first, the seizure of the items\\n\\nexceeded the warrant’s scope and second, their admission violated Federal Rules of\\n\\nEvidence 401 and 403. The district court denied the motion, and Young challenges the\\n\\ndistrict court’s holding based on these two alleged errors. We consider each in turn and\\n\\naffirm the district court’s rulings.\\n\\n 1. Scope of the Search Warrant\\n\\n\\n\\n\\nGovernment introduced, among other items, a copy of a neo-Nazi book that Young had\\ngifted to his college friend; a flyer for a “white power” music company; and an anti-\\nSemitic graphic that Young had downloaded to his computer in 2007.\\n\\n 8\\n\\f Young contends the items should have been suppressed because they were outside\\n\\nthe scope of the warrant. He argues the warrant—which permitted the seizure of items\\n\\nrelated to ISIL as well as “other designated terrorist groups,” J.A. 56; 66—did not\\n\\nauthorize the seizure of the Nazi and white supremacist items, both because they were not\\n\\nincluded within the warrant’s language and because he was not being investigated for a\\n\\nhate crime. The district court rejected Young’s arguments, concluding that the items fell\\n\\nwithin the scope of the search warrant’s expansive language.\\n\\n “When a search is conducted pursuant to a warrant, it is limited in scope by the\\n\\nterms of the warrant’s authorization,” but these terms “are not to be interpreted in a\\n\\nhypertechnical manner.” United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010).\\n\\nInstead, a warrant should be read in a “commonsense and realistic” manner. United\\n\\nStates v. Phillips, 588 F.3d 218, 223 (4th Cir. 2009). Agents may seize an item pursuant\\n\\nto a warrant even if it “does not expressly mention and painstakingly describe it,” id. at\\n\\n225, because the specificity required may “vary according to the circumstances and type\\n\\nof items involved.” In re Grand Jury Subpoena, 920 F.2d 235, 239 (4th Cir. 1990).\\n\\n We conclude the seizure of the items here did not exceed the scope of the warrant.\\n\\nFirst, as the district court correctly recognized, even if Nazi organizations are not\\n\\ndesignated FTOs, a reasonable officer would be able to draw on common knowledge to\\n\\nconclude that the Nazis’ threats and use of violence as a means of achieving their\\n\\npolitical ends meant that Nazis engaged in terroristic activity as defined by the U.S. Code\\n\\n\\n\\n\\n 9\\n\\fand Black’s Law Dictionary. 4 See also United States v. Young, 260 F. Supp. 3d 530,\\n\\n554–55 (E.D. Va. 2017). Second, some of the items illustrated a historical and present-\\n\\nday connection between Nazism and radical Islamism. Third, the Criminal Complaint\\n\\nAffidavit provided examples of Young’s affiliation with both Nazism and radical\\n\\nIslamism: the Affidavit described how Young had told law enforcement he had dressed\\n\\nup both as a “Jihadi John” and a Nazi, had collected Nazi memorabilia, and had a tattoo\\n\\nof a German eagle on his neck. J.A. 43. Given this information, agents reasonably\\n\\nconcluded both that Nazis qualified as a terrorist organization and that as to this particular\\n\\ncase, the Nazi paraphernalia was relevant to or probative of material support for a\\n\\nterrorist organization. For these reasons, we conclude the district court did not err in\\n\\ndeclining to suppress these items.\\n\\n 2. Federal Rules of Evidence 401 and 403\\n\\n Even if the items were properly seized, Young argues that they nonetheless should\\n\\nhave been excluded under Federal Rules of Evidence 401 and 403. He contends that\\n\\nunder Rule 401, the materials were irrelevant because Nazism and militant Islamism are\\n\\nmutually exclusive belief systems. And under Rule 403, he asserts that the items were\\n\\nunfairly prejudicial because they did not tend to prove Young’s predisposition. But the\\n\\n\\n 4\\n 18 U.S.C. § 2331(1) and (5) define “terrorism” as activities that: (1) involve\\nviolent acts violative of federal or state criminal laws; and (2) appear to be intended to\\nintimidate a civilian population, influence government policy by intimidation or coercion,\\nor affect government conduct through mass destruction, assassination, or kidnapping.\\nSimilarly, Black’s Law Dictionary defines terrorism as “[t]he use or threat of violence to\\nintimidate or cause panic, esp. as a means of achieving a political end.” Terrorism,\\nBLACK’S LAW DICTIONARY (10th ed. 2014).\\n\\n 10\\n\\fdistrict court determined that the evidence was neither unfairly irrelevant nor prejudicial\\n\\nbecause for this particular defendant, predisposition encompassed “the convergence\\n\\nbetween Nazis and Islamist terrorists.” J.A. 136.\\n\\n With respect to relevance, we conclude the district court did not abuse its\\n\\ndiscretion in rejecting Young’s argument because Young’s advancement of the\\n\\nentrapment defense increased the scope of the relevant evidence. Under Rule 401,\\n\\nevidence is relevant if it has any tendency to make a fact more or less probable than it\\n\\nwould be without the evidence and the fact is of consequence in determining the action.\\n\\nSpecifically as to this case, “a broad swath of evidence, including aspects of the\\n\\ndefendant’s character and criminal past, [was] relevant to proving predisposition.”\\n\\nMcLaurin, 764 F.3d at 381. This is because predisposition “refers to the defendant’s\\n\\nstate of mind before government agents make any suggestion that he shall commit a\\n\\ncrime,” and so is a “broad concept” that requires distinguishing the “unwary innocent”\\n\\nfrom the “unwary criminal.” Id. (finding that certain bad act evidence may be admissible\\n\\nunder Rule 404(b) in entrapment cases). In this vein, “[p]redisposition is not limited only\\n\\nto the crimes specifically contemplated by the defendant prior to government\\n\\nsuggestion[.]” United States v. Ramos, 462 F.3d 329, 334–35 (4th Cir. 2006); see also\\n\\nUnited States v. Cromitie, 727 F.3d 194, 207 (2d Cir. 2013) (concluding in a terrorism\\n\\ncase that, to show predisposition, a defendant’s relevant prior design to commit the crime\\n\\ncould include a generalized intent to inflict harm on the U.S.).\\n\\n Here, the district court correctly recognized that Nazism and militant Islamism\\n\\nshare common ground—specifically, radical, anti-Semitic viewpoints. Given that the\\n\\n 11\\n\\fitems seized were probative of (1) Young’s predisposition to support such viewpoints,\\n\\nand (2) the length of such a predisposition, the items were relevant to meeting the\\n\\nGovernment’s burden to prove Young’s predisposition to support terrorist activity. See,\\n\\ne.g., United States v. Mostafa, 16 F. Supp. 3d 236, 266–67 (S.D.N.Y. 2014) (concluding a\\n\\ndefendant’s statement that “everybody wants to kill [Jews, including Hitler]” was\\n\\n“relevant to the defendant’s motive and intent regarding violent jihad”).\\n\\n Second, even if, as Young contends, Nazism and militant Islamism are mutually\\n\\nexclusive belief systems, absolute consistency of belief is not a prerequisite to proving\\n\\npredisposition. Other circuits have recognized that seemingly inconsistent belief in a\\n\\nterrorist group’s ideology does not preclude a finding by a court that a defendant either\\n\\nsupported that group in a criminal fashion or was predisposed to do so. See United States\\n\\nv. Van Haften, 881 F.3d 543, 544 (7th Cir. 2018) (affirming the application of a terrorism\\n\\nenhancement at a sentencing for material support of ISIL despite defendant’s support for\\n\\na variety of ideologies and evidence suggesting he had at times disclaimed his support for\\n\\nISIL); see also Cromitie, 727 F.3d at 215 (finding that moments of wavering did not\\n\\npreclude a finding of predisposition in a terrorism case).\\n\\n This does not end the analysis, however, because under Rule 403 a court “may\\n\\nexclude relevant evidence if its probative value is substantially outweighed by danger of\\n\\none or more of the following: unfair prejudice, confusing the issues, misleading the jury,\\n\\nundue delay, wasting time, or needlessly presenting cumulative evidence.” Here, as\\n\\ndiscussed, the district court properly concluded the evidence was highly probative of\\n\\nYoung’s particular predisposition to support ISIL. See United States v. Siraj, No. 07-\\n\\n 12\\n\\f0224-cr, 2008 WL 2675826, at *2 (2d Cir. July 9, 2008) (affirming the admission of\\n\\nallegedly prejudicial radical Islamist books from the bookstore at which the defendant\\n\\nhad worked because to the extent the defendant recommended the books, “they were\\n\\nrelevant to show predisposition,” and to the extent that they were for sale, they “tended to\\n\\nrebut [the defendant’s] assertion that the cooperating witness first exposed him to radical\\n\\nIslam and violent jihad”). This highly probative value meant that any prejudicial effect\\n\\nwas not unfair. Sorrells v. United States, 287 U.S. 435, 452 (1932) (noting that if a\\n\\ndefendant presents an entrapment defense and suffers a disadvantage, “he has brought it\\n\\nupon himself by reason of the nature of the defense”).\\n\\n Furthermore, any prejudicial effect was blunted by the district court’s limiting\\n\\ninstructions to the jury, which specifically cautioned:\\n\\n So I want you to understand that he is not being charged and you cannot\\n find him guilty for possessing Nazi or anti-Semitic literature. He’s not\\n being charged with that, he cannot be convicted for that, but the evidence is\\n being allowed in [to consider] . . . whether or not it helps or doesn’t help to\\n establish the predisposition issue, all right?\\n\\nJ.A. 980. See also United States v. Crowden, 882 F.3d 464, 473 (4th Cir. 2018) (“[A]ny\\n\\nprejudicial effect was reduced by the district court’s issuance of two sets of limiting\\n\\ninstructions[.]”). For these reasons, we conclude the district court’s admission of the\\n\\nNazi and white supremacist paraphernalia did not constitute an abuse of discretion and\\n\\ntherefore affirm the district court’s denial of the motion to suppress.\\n\\n B. Ground Two: Expert Certification\\n\\n At trial, the Government called Dr. Daveed Gartenstein-Ross as an expert witness\\n\\nregarding (1) violent extremist movements claiming inspiration from Islam; (2) white\\n\\n 13\\n\\fseparatists and the neo-Nazi movement; (3) the radicalization processes for such groups;\\n\\nand (4) the Libyan Civil War. Dr. Gartenstein-Ross also explained points of overlap\\n\\nbetween Nazism and radical Islamism with examples of individuals who had subscribed\\n\\nto both philosophies. Expert testimony is admissible under Federal Rule of Evidence 702\\n\\nif it involves specialized knowledge that will assist the trier of fact in understanding the\\n\\nevidence or determining a fact in issue, and is both reliable and relevant. Daubert v.\\n\\nMerrell Dow Pharms., Inc., 509 U.S. 579, 589–92 (1993). In admitting Dr. Gartenstein-\\n\\nRoss’ testimony, the district court found that “his background,” “his extensive academic\\n\\ncredentials,” “the fact that the United States government uses him for training in these\\n\\nareas,” and his prior work as an expert in other contexts sufficiently qualified him as an\\n\\nexpert witness. J.A. 212–13. The district court also concluded his testimony was\\n\\nrelevant. Although Young contends that the testimony of Dr. Gartenstein-Ross was\\n\\nneither reliable nor relevant, we agree with the district court’s conclusions.\\n\\n With respect to reliability, Young contends that Dr. Gartenstein-Ross had never\\n\\ntestified in a civil or criminal proceeding on these issues; had not published his thesis on\\n\\nthe “convergence” of white supremacism and militant Islamism in peer-reviewed\\n\\njournals; had not authored any studies on far-right radicalization; and had yet to perform\\n\\nany empirical analysis on this matter in the field. See United States v. Hassan, 742 F.3d\\n\\n104, 131 (4th Cir. 2014) (affirming the admission of expert testimony on homegrown\\n\\nterrorism in a material support case where the court had “previously approved of [the\\n\\nexpert’s] expertise in terrorism matters” and the expert’s methods had been subjected to\\n\\npeer review). But under the highly deferential standard afforded to the district court in\\n\\n 14\\n\\fdetermining an expert witness’s reliability, the district court did not abuse its discretion in\\n\\ndetermining that Dr. Gartenstein-Ross was reliable. 5 Even when an expert has never\\n\\npreviously been qualified, “it is the quality” of the expert’s qualifications that a district\\n\\ncourt must focus on. United States v. Garcia, 752 F.3d 382, 391 (4th Cir. 2014). Here,\\n\\nthe district court considered Young’s concerns yet reached a reasonable decision in\\n\\nqualifying Dr. Gartenstein-Ross based on his extensive credentials and areas of\\n\\nexpertise. 6 And although publishing in a peer-reviewed publication is often a hallmark of\\n\\nexpert witness reliability, that hallmark is a guidepost, not a mandatory prerequisite to\\n\\nqualification as an expert. See Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir.\\n\\n2017) (noting Daubert’s “list of specific factors neither necessarily nor exclusively\\n\\napplies to all experts”).\\n\\n In turn, the district court did not abuse its discretion in accepting Dr. Gartenstein-\\n\\nRoss’ social sciences-based methodology. At trial, Dr. Gartenstein-Ross explained that\\n\\nhe conducted his research “through a comparative method,” focusing on primary sources,\\n\\nthen comparing his conclusions against secondary sources and “events on the ground.”\\n\\n\\n 5\\n Furthermore, contrary to Young’s assertion, a Daubert hearing was not required.\\nA district court need not hold a hearing if, after being presented with a proposed expert’s\\n“substantial” credentials and training, it concludes “[t]his training and experience amply\\n[qualifies the expert] to give testimony [on the topic for which he or she is being\\nqualified].” United States v. Beasley, 495 F.3d 142, 150 (4th Cir. 2007). Here, as\\ndiscussed below, the district court reviewed Dr. Gartenstein-Ross’ credentials and\\nconcluded he was qualified to give expert testimony.\\n 6\\n These credentials included: training on radical groups for federal agencies;\\nteaching university courses on violent non-state actors; consultation on the Libyan Civil\\nWar for the U.S. government; field research on jihadist recruiting in the Middle East; and\\ntestimony in immigration cases on the Taliban and al Qaeda.\\n\\n 15\\n\\fJ.A. 1124–25. This methodology appears to be indistinguishable from that which we\\n\\napproved in United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004), rev’d on other\\n\\ngrounds, 543 U.S. 1097 (2005). There, we affirmed the admission of expert testimony on\\n\\nthe structure of terrorist groups after “[the expert] identified his methodology as one\\n\\ngenerally employed in the social sciences”—that is, “collect[ing] as much information as\\n\\npossible,” then balancing “each new incoming piece of information against the body of\\n\\ninformation you’ve built to that point.” Id. at 337. Accordingly, the district court did not\\n\\nabuse its discretion when it deemed Dr. Gartenstein-Ross’ explanation of his\\n\\nmethodology, when combined with his credentials, “sufficient.” J.A. 1126.\\n\\n As to relevance, we conclude the testimony was relevant and met Rule 702’s\\n\\nrequirement that the expert’s specialized knowledge “help the trier of fact . . . understand\\n\\nthe evidence or to determine a fact in issue.” Dr. Gartenstein-Ross’ testimony assisted\\n\\nthe jury by providing context for the historical backgrounds of and connection between\\n\\nNazism and militant Islamism. As the “evidence in this case was complicated, touching\\n\\nby necessity on a wide variety of ideas, terms, people, and organizations connected to\\n\\nradical Islam,” as well as white supremacism, the district court fairly concluded that the\\n\\ntestimony would assist the jury in understanding evidence regarding predisposition.\\n\\nUnited States v. Benkahla, 530 F.3d 300, 309 (4th Cir. 2008). For these reasons, we\\n\\nconclude the district court did not abuse its discretion in admitting Dr. Gartenstein-Ross’\\n\\ntestimony.\\n\\n C. Ground Three: Evidentiary Rulings\\n\\n\\n\\n 16\\n\\f Young argues that three of the district court’s evidentiary rulings, considered\\n\\nindividually or cumulatively, violated his due process right to a fair trial.\\n\\n 1. Admission of Weapons and Young’s Comments\\n\\n Young argues that the district court denied Young a fair trial when it reversed\\n\\npretrial rulings excluding evidence of (1) Young’s lawfully-owned weapons and (2)\\n\\nremarks Young had made to Khalil about attacking federal buildings. The contention by\\n\\nYoung is that the district court violated his claimed entitlement to rely on several pretrial\\n\\nrulings as the settled law of the case. But “the district judge is free, in the exercise of\\n\\nsound judicial discretion, to alter a previous in limine ruling,” especially in light of issues\\n\\nthat arise during a trial. Luce v. United States, 469 U.S. 38, 41–42 (1984). In particular,\\n\\nit is well within the district court’s discretion to deem previously-excluded evidence\\n\\nadmissible after the party seeking exclusion “open[s] the door.” United States v. Blake,\\n\\n571 F.3d 331, 348 (4th Cir. 2009).\\n\\n Here, the district court did not abuse its discretion in later deeming certain\\n\\nevidence admissible. First, the district court provided notice to Young multiple times that\\n\\nit could change its in limine rulings depending on what occurred during trial. For\\n\\nexample, the district court warned, “[N]ormally my rulings on a motion in limine are\\n\\nalways with a caveat that if something changes during the course of the trial, the decision\\n\\nmay be reversed[.]” J.A. 127–28. Second, with respect to Khalil’s testimony, the district\\n\\ncourt properly admitted this evidence after Young decided to focus his entrapment\\n\\ndefense on whether there was predisposition prior to his first contact with Khalil. At a\\n\\npretrial hearing, the district court warned Young that by framing his entrapment defense\\n\\n 17\\n\\fin this manner, some of Khalil’s testimony about Young’s statements might be admitted\\n\\nbecause such testimony would be probative of whether Young was already predisposed to\\n\\nsupport militant, radical ideas or whether Khalil implanted such ideas. (Specifically, the\\n\\ndistrict court advised, “[I]f you start the predisposition at a later date, then some of that\\n\\nKhalil business might not come in.” J.A. 261.) Nonetheless, Young continued to pursue\\n\\nthis line of argument utilizing an earlier chronological starting point. As a result, the\\n\\ndistrict court allowed Khalil to describe his relationship with Young, including\\n\\nrecounting Young’s statements about attacking the FBI, his ability to smuggle guns into a\\n\\nfederal building, and the usefulness of ballistic vests if the FBI were to come to his home.\\n\\nThird, at that point, the district court did not abuse its discretion in deeming Young’s\\n\\npossession of firearms and weapons admissible. Such possession was corroborative of\\n\\nKhalil’s testimony, and therefore properly admissible because Khalil’s credibility was\\n\\nfundamental in establishing Young’s predisposition before 2010. For these reasons, we\\n\\naffirm the district court’s admission of this evidence.\\n\\n 2. Exclusion of Young’s and Agents’ Comments\\n\\n Young argues the district court erred by excluding purportedly exculpatory\\n\\nevidence demonstrating that he lacked the predisposition to support ISIL. First, the\\n\\ndistrict court excluded, among other claimed exculpatory remarks, online comments\\n\\nYoung had made from his LiveLeak 7 account denouncing ISIL because the Government\\n\\nhad previously been barred from introducing other comments from this same account,\\n\\n\\n 7\\n LiveLeak is a video-sharing website.\\n\\n 18\\n\\fwhich the district court had deemed unfairly prejudicial and cumulative. We discern no\\n\\nreversible error because in excluding these and similar comments, the district court acted\\n\\nwithin its discretion to determine whether introducing such comments would permit the\\n\\nadmission of other previously-excluded evidence. See McLaurin, 764 F.3d at 384.\\n\\n Second, the district court barred the introduction of June 2016 messages between\\n\\nFBI agents reflecting their frustration with the slow pace of the investigation, which\\n\\nYoung argued went to their motives and consequently the issue of entrapment. The\\n\\ndistrict court properly concluded that the agents’ motives were “irrelevant” to entrapment\\n\\nbecause whether or not Young was induced had to be assessed by “what specifically was\\n\\npresented to [Young]” by the agents rather than what the agents discussed amongst\\n\\nthemselves. J.A. 443. See also United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993)\\n\\n(“Inducement . . . involves elements of governmental . . . conduct sufficiently excessive\\n\\nto implant a criminal design in the mind of an otherwise innocent third party.”). We thus\\n\\nconclude the district court did not abuse its discretion in excluding these materials.\\n\\n 3. Jencks Act and Brady Materials\\n\\n Finally, Young asserts Jencks 8 and Brady 9 errors. In the week prior to trial, the\\n\\nGovernment made two last-minute classified Jencks productions of communications\\n\\n\\n 8\\n “Under the Jencks Act, 18 U.S.C. § 3500(b), on a motion by the defendant, the\\ngovernment is required to produce any ‘statement’ of the witness related to the witness’[]\\ntestimony that is in the government’s possession.” United States v. Savage, 885 F.3d\\n212, 220 (4th Cir. 2018).\\n 9\\n Brady v. Maryland held that “suppression by the prosecution of evidence\\nfavorable to an accused upon request violates due process where the evidence is material\\neither to guilt or to punishment[.]” 373 U.S. 83, 87 (1963).\\n\\n 19\\n\\famongst FBI agents about (1) the number of audio recordings made of Mo’s meetings\\n\\nwith Young and (2) their frustration with the pace of their investigation of Young.\\n\\nYoung moved to strike the witnesses as to whom the Jencks material applied or to\\n\\ncontinue trial. Rather than striking the witnesses, the district court permitted defense\\n\\ncounsel a five-day continuance to which Young did not object. Young now argues that\\n\\nthe district court erred in doing so, contending these materials suggested spoliation of\\n\\nexculpatory evidence and therefore a Brady violation.\\n\\n We discern no reversible error by the district court. First, when the government\\n\\nfails to timely provide discovery materials that are not exculpatory, such as Jencks\\n\\nmaterials, the district court’s determination of whether to impose a sanction, and what\\n\\nsanction to impose, is reviewed for abuse of discretion. See United States v. Sterling, 724\\n\\nF.3d 482, 512 (4th Cir. 2013). “A continuance is the preferred sanction.” Id. In\\n\\nfashioning a remedy, the district court must consider the reason for the government’s\\n\\ndelay, whether the government acted intentionally or in bad faith, the degree of prejudice\\n\\n(if any) suffered by the defendant, and whether any less severe sanction will remedy the\\n\\nprejudice. Id. We have recognized that it is the rare case that would, absent bad faith,\\n\\nresult in an exclusion of evidence (such as striking witnesses). Id. Here, the district court\\n\\ncorrectly recognized that the government did not act in bad faith, given that the vast\\n\\nmajority of discovery was produced well in advance of trial, and that Young was not\\n\\nprejudiced because the materials at issue were not “relevant, let alone exculpatory.” J.A.\\n\\n278. Nonetheless, given the last-minute production, the district court permitted defense\\n\\n\\n\\n 20\\n\\fcounsel an ample continuance to review the material. Under these circumstances, the\\n\\ndistrict court did not abuse its discretion.\\n\\n Second, to establish a Brady violation, the evidence at issue must have been (1)\\n\\nfavorable to the defendant (either because it was exculpatory or impeaching), (2) material\\n\\nto the defense (that is, prejudice must have ensued), and (3) suppressed (that is, within the\\n\\nprosecution’s possession but not disclosed to defendant). United States v. Sarihifard, 155\\n\\nF.3d 301, 309 (4th Cir. 1998). But here, no issue implicating Brady arose. Young\\n\\ncontends that some of the Jencks material suggested Government spoliation of some\\n\\naudio recordings of Mo’s meetings with Young. Specifically, he notes that FBI records\\n\\nindicate that Young and Mo discussed ISIL for the first time during a June 29, 2014\\n\\nmeeting, but that no recording of this meeting was produced to him. Young argues that\\n\\nbecause (1) most of Mo’s other meetings with Young were recorded and (2) such an early\\n\\nconversation regarding ISIL may have been probative of Young’s predisposition, the\\n\\nGovernment withheld potentially exculpatory evidence and thereby committed a Brady\\n\\nviolation. But a review of the record—particularly the very FBI communications at\\n\\nissue—indicates that a recording of the meeting, unlike recordings of most of Mo’s other\\n\\nmeetings with Young, was never made and that any information purportedly within the\\n\\nrecordings was not material. 10 There is no record evidence to the contrary. Given this,\\n\\n\\n 10\\n Evidence is material if there is a reasonable probability that it would have\\nproduced a different outcome. United States v. Kelly, 35 F.3d 929, 936 (4th Cir. 1994).\\nYoung suggests the purported missing conversation would have gone to Young’s lack of\\npredisposition because it could have included statements by Young criticizing ISIL or\\nsupporters of ISIL. However, by Young’s own count, at least thirteen similar comments\\n(Continued)\\n 21\\n\\fYoung has offered nothing but rank speculation as to the nature of the allegedly\\n\\nsuppressed materials, which cannot establish a Brady violation. See United States v.\\n\\nStokes, 261 F.3d 496, 502 (4th Cir. 2001) (noting that to prove a Brady violation, the\\n\\ndefendant must show that “the prosecution had the [purportedly withheld materials] and\\n\\nfailed to disclose them”); see also United States v. Caro, 597 F.3d 608, 619 (4th Cir.\\n\\n2010) (“Because [the defendant] can only speculate as to what the requested information\\n\\nmight reveal, he cannot satisfy Brady’s requirement of showing that the requested\\n\\nevidence would be favorable to the accused.”). We therefore affirm the district court’s\\n\\nruling on this issue.\\n\\n\\n\\n III. Ground Four: Obstruction Convictions\\n\\n Young argues that the Government failed to provide sufficient evidence to prove\\n\\nthe attempted obstruction of justice counts and that the district court erroneously denied\\n\\nhis motion for judgment of acquittal after a guilty verdict. Fed. R. Crim. P. 29(c). We\\n\\nreview the denial of such a Rule 29 motion de novo. United States v. Howard, 773 F.3d\\n\\n519, 525 (4th Cir. 2014). “In its assessment of a challenge to the sufficiency of evidence,\\n\\na reviewing court views the evidence in the light most favorable to the prosecution and\\n\\ndecides whether ‘substantial evidence’”—that is, “evidence that a reasonable finder of\\n\\n\\nwere admitted during Mo’s testimony. Therefore, the recordings would not have been\\nmaterial because the jury nonetheless found—despite the admission of similar\\ncomments—that Young was predisposed to support terrorism. These reasons also\\nsupport the holding that the district court did not err in declining to find a Brady\\nviolation.\\n\\n 22\\n\\ffact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt\\n\\nbeyond a reasonable doubt”—supports the verdict. Id. Under that standard, we\\n\\nconclude that the evidence was insufficient to prove the nexus and foreseeability\\n\\nrequirements of the obstruction statute and consequently vacate the convictions under\\n\\nCounts Two and Four.\\n\\n A. Elements of the Offense\\n\\n To convict Young of attempted obstruction, the Government was required to prove\\n\\nhe (1) “corruptly” attempted to (2) “obstruct[], influence[], or impede[]” (3) “an official\\n\\nproceeding” during the December 3 and 5, 2015 interviews with FBI agents (Count Two)\\n\\nand when he sent the November 2014 text message (Count Four). 18 U.S.C.\\n\\n§ 1512(c)(2).\\n\\n An “official proceeding” includes a grand jury investigation, but not an FBI\\n\\ninvestigation. 18 U.S.C. § 1515(a)(1) provides that “official proceeding” encompasses:\\n\\n“(A) a proceeding before a judge or court of the United States . . . or a Federal grand\\n\\njury” or “(C) a proceeding before a Federal Government agency which is authorized by\\n\\nlaw[.]” Here, only a proceeding before a “Federal grand jury,” as found at\\n\\n§ 1515(a)(1)(A), could apply to Young. Other circuits considering whether an FBI\\n\\ninvestigation would fall under § 1515(a)(1)(C) have concluded that it does not because\\n\\nthe use of the preposition “before” in conjunction with “Federal Government agency”\\n\\nimplies “some formal convocation of the agency in which parties are directed to appear,\\n\\ninstead of any informal investigation conducted by any member of the agency.” United\\n\\n\\n\\n 23\\n\\fStates v. Ermoian, 752 F.3d 1165, 1171 (9th Cir. 2013) (citing United States v. Ramos,\\n\\n537 F.3d 439, 462–63 (5th Cir. 2008)). We agree with our sister circuits.\\n\\n Young argues that the evidence was insufficient to prove the existence of an\\n\\n“official proceeding” that he could have obstructed. First, Young asserts there was no\\n\\n“official proceeding” concerning Mo for Young to obstruct: Mo was the FBI’s own\\n\\ninformant and therefore the FBI never investigated Mo. Second, Young contends there\\n\\nwas no evidence that Young attempted to obstruct a proceeding concerning himself: the\\n\\nagents never informed Young that he was under investigation; the gift card crime was\\n\\ncommitted after the allegedly obstructive conduct, so there was no crime whose\\n\\ninvestigation Young could knowingly have attempted to obstruct; and an agent testified\\n\\nthat Young was not aware of any investigation until his arrest in August 2016. And even\\n\\nif he had been aware of an FBI investigation of himself, Young asserts, such an\\n\\ninvestigation would not have constituted an “official proceeding” under § 1515(a)(1).\\n\\n Young’s view misses the mark but points to a much more fundamental flaw in the\\n\\nGovernment’s evidence. As 18 U.S.C. § 1512(f)(1) provides, “an official proceeding\\n\\nneed not be pending or about to be instituted at the time of the offense.” Therefore, it\\n\\nwas immaterial whether an official proceeding actually existed at the time of the\\n\\nobstructive conduct. 11 Nonetheless, § 1512(c) does require that (1) the obstructive\\n\\nconduct be connected to a specific official proceeding (the “nexus” requirement) that was\\n\\n\\n 11\\n Although the FBI began “request[ing] federal grand jury subpoenas related to\\n[Young]” as early as 2011, the existence of such a grand jury investigation is irrelevant to\\nour determination of this matter for the reasons we describe. J.A. 1376.\\n\\n 24\\n\\f(2) either pending or was reasonably foreseeable to Young when he engaged in the\\n\\nconduct (the “reasonable foreseeability” requirement). These requirements, while not\\n\\nexplicitly laid out in § 1512(c), arise from two Supreme Court cases—United States v.\\n\\nAguilar, 515 U.S. 593 (1995), and Arthur Anderson, LLP v. United States, 544 U.S. 696\\n\\n(2005)—in which the Supreme Court identified these elements from related obstruction\\n\\nstatutes. 12 See also Marinello v. United States, 138 S. Ct. 1101, 1110 (2018).\\n\\n Aguilar considered the catchall provision of a statute criminalizing attempted\\n\\ngrand jury tampering. 515 U.S. at 599. The defendant had lied to the FBI during the\\n\\ncourse of an investigation and was convicted of “corruptly endeavoring to influence,\\n\\nobstruct, and impede [a] grand jury investigation” in violation of 18 U.S.C. § 1503. Id.\\n\\nAll the government had shown in support of the conviction was that the defendant had\\n\\nuttered false statements to an investigating agent “who might or might not testify before a\\n\\ngrand jury.” Id. at 600. The Supreme Court held that § 1503 required a greater\\n\\nconnection between the obstructive act and an official proceeding than what the\\n\\ngovernment had shown—specifically, a “nexus” showing “that the act [had] a\\n\\nrelationship in time, causation, or logic with the judicial proceeding.” Id. at 599. In\\n\\nconsidering the evidence, the Court in Aguilar concluded: “We do not believe that\\n\\nuttering false statements to an investigating agent—and that seems to be all that was\\n\\n\\n 12\\n Our sister circuits have noted that “[t]he nexus limitation is best understood as\\nan articulation of the proof of wrongful intent that will satisfy the mens rea requirement\\nof ‘corruptly’ obstructing or endeavoring to obstruct”—that is, the first element of\\nproving a § 1512(c)(2) charge. United States v. Erickson, 561 F.3d 1150, 1159 (10th Cir.\\n2009) (quoting United States v. Quattrone, 441 F.3d 153, 170 (2d Cir. 2006)).\\n\\n 25\\n\\fproved here—who might or might not testify before a grand jury is sufficient to” satisfy\\n\\nthe nexus requirement. Id. at 600.\\n\\n Arthur Andersen applied the nexus requirement to § 1512(b)(2)(A) offenses,\\n\\nwhich criminalize “knowingly” and “corruptly persuad[ing]” another person “with intent\\n\\nto cause” that person to tamper with documents that would be used in an official\\n\\nproceeding. 544 U.S. at 703. There, the Supreme Court considered whether the\\n\\ngovernment was required to prove a nexus between the tampering and a particular (rather\\n\\nthan abstract) proceeding. Id. at 707–08. Although the government pointed to § 1512(f)\\n\\nto argue that the statute did not require contemplation of a particular proceeding, the\\n\\nSupreme Court concluded that an official proceeding must, at a minimum, be reasonably\\n\\nforeseeable to the defendant who commits the obstructive act: “It is . . . one thing to say\\n\\nthat a proceeding need not be pending or instituted at the time of the offense, and quite\\n\\nanother to say a proceeding need not even be foreseen.” Id. A knowingly corrupt\\n\\npersuader cannot be convicted “when he does not have in contemplation any particular\\n\\nofficial proceeding in which those documents might be material.” Id. at 708.\\n\\n Though we have not specifically done so, 13 other circuits have applied Aguilar and\\n\\nArthur Andersen to the similarly-structured statute, § 1512(c), to conclude that, in\\n\\n\\n 13\\n We have previously considered in an unpublished per curiam opinion a\\ndefendant’s nexus argument. In affirming his § 1512(c)(2) conviction, we concluded the\\nevidence was sufficient to uphold his conviction because “there [was] a clear, logical\\nrelationship between his [obstructive] conduct and the judicial proceeding.” United\\nStates v. Wein, 521 F. App’x 138 (4th Cir. 2013) (per curiam). But we have not further\\naddressed the nexus or reasonable foreseeability requirements to prove such a charge.\\nSee id.\\n\\n 26\\n\\fdemonstrating a § 1512(c)(2) offense, “the government must prove that such a\\n\\nproceeding was reasonably foreseeable to the defendant” and “that there was a ‘nexus’\\n\\nbetween the defendant’s conduct and the pending, or foreseeable, official proceeding.”\\n\\nUnited States v. Martinez, 862 F.3d 223, 237 (2d Cir. 2017); see, e.g., United States v.\\n\\nPetruk, 781 F.3d 438, 445 (8th Cir. 2015); United States v. Tyler, 732 F.3d 241, 249–50\\n\\n(3d Cir. 2013) (applying the nexus and foreseeability requirements to “any prosecution\\n\\nbrought under a § 1512 provision charging obstruction of justice involving an ‘official\\n\\nproceeding’”); United States v. Bennett, 664 F.3d 997, 1013 (5th Cir. 2011) (applying the\\n\\nnexus requirement to § 1512(c)(2)), vacated on other grounds by 567 U.S. 950 (2012);\\n\\nUnited States v. Friske, 640 F.3d 1288, 1292 (11th Cir. 2011) (same); United States v.\\n\\nPhillips, 583 F.3d 1261, 1263–64 (10th Cir. 2009) (same); United States v. Carson, 560\\n\\nF.3d 566, 584 (6th Cir. 2009) (assuming arguendo that the nexus requirement applies to\\n\\n§ 1512(c)(2)). And as the Eighth Circuit noted in Petruk, “[W]e are aware of no circuit\\n\\nthat has considered and rejected application of the nexus requirement to § 1512(c)(2),”\\n\\ngiven the “similarity of statutory language between § 1512(c)(2) and the catchall\\n\\nprovision at issue in Aguilar, the application of the nexus requirement in Arthur Andersen\\n\\nto another provision of § 1512, and other circuits’ application of the nexus requirement to\\n\\n§ 1512(c)(2).” 781 F.3d at 445. We agree and hold that § 1512(c)(2) incorporates the\\n\\nnexus and reasonable foreseeability requirements set forth in Aguilar and Arthur\\n\\nAndersen. That is, it is a requirement “that a successful prosecution under § 1512(c)(2)\\n\\n[provide] proof beyond a reasonable doubt that the defendant contemplated a particular,\\n\\nforeseeable proceeding, and that the contemplated proceeding constituted an ‘official\\n\\n 27\\n\\fproceeding,’ which is defined under § 1515(a)(1)(A) to include a proceeding before a\\n\\nfederal judge, court, or grand jury[.]” Id. at 445. Young’s convictions do not meet this\\n\\nrequirement.\\n\\n B. Young’s Obstruction Convictions\\n\\n Upon considering the evidence presented at trial, we conclude that the evidence\\n\\nwas insufficient to convict Young of Counts Two and Four for attempting to obstruct\\n\\njustice under 18 U.S.C. § 1512(c)(2). In November 2014 and December 2015, Young did\\n\\ndesign his conduct to mislead FBI agents, including those he believed were investigating\\n\\nhis relationship with Mo. With respect to Count Four, prior to Mo’s “trip,” Young told\\n\\nMo the FBI would investigate Young after becoming aware Mo had joined ISIL and that\\n\\nthey knew one another. Young said he would send the text because the text would be\\n\\n“good for [Young],” helping Young avoid suspicion from law enforcement that he knew\\n\\nof Mo’s plans to join ISIL. J.A. 656. And with respect to Count Two, when Young\\n\\nthought in December 2015 that the FBI had learned that Mo had joined ISIL, Young\\n\\nattempted to deceive the FBI by providing statements consistent with the cover story,\\n\\ndisclaiming any knowledge of Mo’s whereabouts or plans. Young would only have\\n\\nundertaken these actions had an FBI investigation—whether in November 2014 or\\n\\nDecember 2015—been at least foreseeable to him.\\n\\n But this is not enough for purposes of § 1512(c)(2). In neither situation\\n\\n(November 2014 or December 2015) was this conduct connected to a specific official\\n\\nproceeding, nor was such a specific official proceeding reasonably foreseeable to Young.\\n\\nSimply because an FBI investigation was reasonably foreseeable to Young does not mean\\n\\n 28\\n\\fthat a grand jury investigation was reasonably foreseeable to him or that his conduct was\\n\\ndesigned to obstruct a grand jury’s proceedings. Specifically as to Count Two, the\\n\\nevidence is insufficient largely for the same reason that it was insufficient in Aguilar:\\n\\n“All the Government ha[s] shown was that [the defendant] had uttered false statements to\\n\\nan investigating agent who might or might not testify before a grand jury.” Arthur\\n\\nAndersen, 544 U.S. at 708. Even if there is sufficient evidence to demonstrate that\\n\\nYoung obstructed an FBI investigation, there is simply no evidence to demonstrate he\\n\\nwas aware either that his conduct would affect a grand jury proceeding or that a grand\\n\\njury or similar proceeding was impending. And with respect to Count Four, the\\n\\nGovernment has similarly failed to provide evidence demonstrating that Young foresaw a\\n\\nspecific grand jury investigation or that he designed his conduct to thwart such an\\n\\ninvestigation, rather than designing his conduct to obstruct an FBI inquiry—which he did\\n\\nforesee.\\n\\n Rather, Young’s case is more analogous to that of Friske, in which the Eleventh\\n\\nCircuit reversed a defendant’s § 1512(c)(2) conviction for attempting to obstruct a\\n\\nforfeiture proceeding. There, the defendant had, at the behest of an incarcerated friend,\\n\\ngone to the latter’s home to retrieve certain unspecified items which turned out to be\\n\\nsubject to forfeiture. 640 F.3d at 1289–90. In overturning the defendant’s conviction, the\\n\\nEleventh Circuit concluded that the government had failed to prove that the defendant\\n\\n“knew that the natural and probable result of his actions would be the obstruction of [the\\n\\nfriend’s] forfeiture proceeding.” Id. at 1292–93. Even though the defendant “was\\n\\ncertainly acting suspiciously,” “more is required to prove a violation of § 1512(c)(2).”\\n\\n 29\\n\\fId. at 1292. But because the only way for the jury to conclude that the defendant “knew\\n\\nof or foresaw the forfeiture proceeding” “would be through speculation,” the evidence\\n\\nwas insufficient to convict him. Id. at 1293. Similarly, although Young’s actions were\\n\\ncertainly designed to thwart an FBI inquiry, the only way the jury could have concluded\\n\\nhe foresaw a particular grand jury investigation would be through speculation.\\n\\n The insufficiency of the evidence here is highlighted by cases in which courts\\n\\nhave found that a grand jury proceeding into criminal activity was reasonably foreseeable\\n\\nbecause of a defendant’s actual awareness of an ongoing or impending investigation into\\n\\nclosely related activity and specific criminal actions in relation to such awareness. See\\n\\nUnited States v. Binday, 804 F.3d 558, 590 (2d Cir. 2015) (finding a grand jury\\n\\nproceeding was foreseeable because the defendant was aware that he was the target of a\\n\\nseparate regulatory investigation into an insurance fraud scheme and had destroyed\\n\\nincriminating documents related to the scheme); United States v. Simpson, 741 F.3d 539,\\n\\n552 (5th Cir. 2014) (finding a grand jury proceeding was reasonably foreseeable to a\\n\\nbusiness owner who had learned about the execution of search warrants for his company\\n\\nand had ordered the deletion of emails after learning of the warrants). By contrast, based\\n\\non the record before us in this case, we would be stretching the foreseeability requirement\\n\\nbeyond its limits in concluding that Young’s anticipation of an FBI investigation into an\\n\\nacquaintance’s future trip would also reasonably herald a grand jury proceeding. To do\\n\\nso would be pure speculation.\\n\\n Nonetheless, in an effort to bolster the evidence presented, the Government points\\n\\nto Young’s (1) awareness of his acquaintances’ arrests; (2) status as a law enforcement\\n\\n 30\\n\\fofficer; and (3) heightened suspicion of FBI surveillance of him, contending that these\\n\\nthree factors should support the inference that a grand jury investigation was reasonably\\n\\nforeseeable to him and that he designed his conduct to obstruct such an investigation.\\n\\nBut this case is entirely distinguishable from those in which a court has inferred the nexus\\n\\nand foreseeability requirements from similar factors. For example, in Martinez, the\\n\\nSecond Circuit affirmed a § 1512(c)(2) conviction of a defendant police officer who was\\n\\npart of a conspiracy in which at least two dozen co-conspirators committed more than\\n\\n200 robberies of drug traffickers. In upholding the sufficiency of the evidence, the\\n\\nSecond Circuit concluded that “it was easily inferable that the 2008 arrests of many of his\\n\\ncoconspirators made it foreseeable to [the defendant]—who estimated that as an NYPD\\n\\nofficer, he had testified 15-20 times in grand jury proceedings . . . —that there would be a\\n\\ngrand jury proceeding leading to numerous indictments.” 862 F.3d at 238. Furthermore,\\n\\n“it could easily be inferred that [the defendant’s] persistent searches of NYPD databases,\\n\\nand his reports back to coconspirators who had not been arrested, were intended to make\\n\\nit possible for them to avoid arrest by absconding before any outstanding warrants could\\n\\nbe executed, thereby potentially interfering with an ongoing grand jury proceeding.” Id.\\n\\n By contrast, the indictment of Young’s acquaintances was too attenuated from\\n\\nYoung’s relationship with Mo to have made a grand jury investigation of Young, Mo, or\\n\\ntheir relationship foreseeable to Young. And neither Young nor Mo was involved in an\\n\\nongoing criminal conspiracy with those acquaintances. Furthermore, although Young\\n\\nworked in law enforcement, the Government’s evidence failed to establish that he was\\n\\nroutinely involved in grand jury proceedings—or, for that matter, had ever testified in\\n\\n 31\\n\\fsuch a proceeding. And finally, Young’s awareness about FBI surveillance was also\\n\\ninadequate to create a sufficient nexus. Although the Government established at trial that\\n\\nYoung was constantly aware of the fact that the FBI could be investigating him, the\\n\\nGovernment failed to connect this general awareness—whether in combination with any\\n\\nof the issues discussed above or individually—with a specific and reasonably foreseeable\\n\\nofficial proceeding.\\n\\n Thus, “based on our review of the record, we have uncovered no evidence to\\n\\nsatisfy Arthur Andersen’s requirement that the Government prove a nexus between [the\\n\\nobstructive] conduct and a foreseeable particular federal proceeding to establish a\\n\\nconviction under” § 1512(c). Tyler, 732 F.3d at 250–51. Because the evidence was\\n\\ninsufficient to meet this essential requirement, we vacate Young’s convictions as to\\n\\nCounts Two and Four.\\n\\n\\n\\n IV.\\n\\n For the foregoing reasons, we affirm Young’s conviction as to Count One, vacate\\n\\nYoung’s convictions as to Counts Two and Four, and remand for resentencing. 14\\n\\n AFFIRMED IN PART, VACATED IN PART,\\n AND REMANDED\\n\\n\\n\\n\\n 14\\n Because Counts One, Two, and Four were grouped under United States\\nSentencing Guidelines § 3D1.2(c) for sentencing purposes, we do not address Young’s\\nchallenges to his sentence which, if relevant, can be addressed by the district court in the\\nfirst instance upon remand.\\n\\n 32\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4369849/\", \"author_raw\": \"AGEE, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"AGEE"},"judge2":{"kind":"string","value":"KEENAN"},"judge3":{"kind":"string","value":"RICHARDSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4592596/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Nicholas YOUNG, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-21\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4138\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nNICHOLAS YOUNG,\n\n Defendant - Appellant.\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nAlexandria. Leonie M. Brinkema, District Judge. (1:16-cr-00265-LMB-1)\n\n\nArgued: November 1, 2018 Decided: February 21, 2019\n\n\nBefore AGEE, KEENAN, and RICHARDSON, Circuit Judges.\n\n\nAffirmed in part, vacated in part, and remanded by published opinion. Judge Agee wrote\nthe opinion, in which Judge Keenan and Judge Richardson joined.\n\n\nARGUED: Nicholas David Smith, DAVID B. SMITH, PLLC, Alexandria, Virginia, for\nAppellant. Gordon D. Kromberg, OFFICE OF THE UNITED STATES ATTORNEY,\nAlexandria, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United States\nAttorney, John T. Gibbs, Assistant United States Attorney, OFFICE OF THE UNITED\nSTATES ATTORNEY, Alexandria, Virginia, for Appellee.\n\fAGEE, Circuit Judge:\n\n A jury in the United States District Court for the Eastern District of Virginia\n\nconvicted Nicholas Young of one count of attempting to provide material support to the\n\nIslamic State of Iraq and the Levant (“ISIL”), a designated foreign terrorist organization\n\n(“FTO”), in violation of 18 U.S.C. § 2339B, as well as two counts of attempting to\n\nobstruct justice, in violation of 18 U.S.C. § 1512(c)(2). Asserting a host of district court\n\nerrors, Young challenges his convictions and sentence. For the following reasons, we\n\naffirm the material support conviction, vacate the obstruction convictions, and remand for\n\nresentencing.\n\n\n\n I.\n\n In 2010, the Federal Bureau of Investigation (“FBI”) opened a counterterrorism\n\ninvestigation into Young, a police officer with the Washington Metropolitan Area Transit\n\nAuthority, prompted in part by his connections to an acquaintance who had been arrested\n\non 18 U.S.C. § 2339B charges. That December, “Khalil,” an undercover FBI agent,\n\nbegan maintaining contact with Young, who would discuss with Khalil his wariness of\n\nFBI surveillance, the measures he had taken to thwart such surveillance, and the skills\n\nneeded—which he purported to possess—to attack an FBI or a federal office. During this\n\nperiod, law enforcement also observed Young traveling to and from Libya, though law\n\nenforcement was unable to determine the purpose of his trips. Khalil’s contact with\n\nYoung eventually concluded in April 2012.\n\n\n\n 2\n\f In May 2014, the FBI again began observing Young more actively after an FBI\n\ninformant, “Mo,” met Young through Young’s acquaintances, whom Mo was monitoring.\n\nOver the next several months, Mo and Young met approximately 20 times. During their\n\nmeetings, Mo indicated that he was interested in traveling to Syria to join ISIL. Young in\n\nturn offered advice on how to travel overseas without being flagged by government\n\nauthorities. Specifically, Young suggested that Mo devise a cover story for his trip, such\n\nas pretending that he was taking a guided tour of Turkey (or that he actually take such a\n\ntour). Young also advised Mo to book a roundtrip ticket and volunteered to send a text to\n\nMo a few days after Mo’s “return date” to assist Mo in evading law enforcement\n\nsuspicion, explaining that the text would make it look like Young was expecting Mo’s\n\nreturn (rather than staying on in the region to travel to ISIL-controlled territory). Finally,\n\nYoung and Mo set up covert email accounts to communicate.\n\n That October, Mo traveled to Turkey with his FBI handler, Special Agent John\n\nMinichello. While there, Mo emailed Young that he was planning to travel to ISIL-\n\ncontrolled territory in Syria. Mo then returned to the U.S. In November 2014, Young\n\nsent Mo the pre-arranged text message: “Hope you had a good vacation. If you want to\n\ngrab lunch . . . hit me up.” J.A. 566:3–5. After forwarding that message to Agent\n\nMinichello, Mo’s involvement in the investigation concluded; from that point on, Agent\n\nMinichello and another agent impersonated Mo to Young through the email account.\n\n In subsequent emails to Mo, Young made it clear that he believed Mo had joined\n\nISIL. In 2015, Young asked Mo to mention him to any Libyan ISIL members Mo might\n\nencounter and to tell them that Young had been in Libya with the Abu Salem Martyrs’\n\n 3\n\fBrigade, a militia group with connections to al Qaeda that had been fighting Muammar al\n\nQaddafi’s regime. Young also emailed his contacts in the Brigade on Mo’s behalf.\n\n On December 3 and 5, 2015, two FBI agents interviewed Young. Although the\n\nagents purported to be questioning Young about Mo’s whereabouts, they were attempting\n\nto determine whether Young himself was in contact with any terrorists. During the\n\ninterviews, Young denied having current contact information for Mo. He informed the\n\nagents that he believed Mo had gone on vacation but that he had not been in touch with\n\nMo since October 2014. He also denied knowing anyone who had given Mo travel\n\nguidance. Young later emailed Mo to inform him about the FBI’s inquiry.\n\n In April 2016, Mo suggested to Young that they should communicate through an\n\nencrypted messaging app, Threema. In July, Young created a Threema account and\n\nreceived a message from Mo noting that ISIL needed more fighters. Mo explained that\n\nGoogle gift cards could be used to buy Threema accounts to help fighters communicate\n\nwith ISIL, thereby facilitating their travel to ISIL-controlled territory. At the end of the\n\nmonth, Young used Threema to transmit $245 in Google gift cards to Mo. After\n\nconfirming that Mo had received the cards, Young responded that he was “glad” and\n\nwould be disposing of the device used to communicate with Mo. J.A. 868:13.\n\n In August 2016, Young was arrested for attempted material support of ISIL, an\n\nFTO. On the day of his arrest, agents executed a search warrant and seized militant\n\nIslamist, Nazi, and white supremacist paraphernalia as well as weapons from his home.\n\nAn indictment subsequently charged Young with attempting to provide material\n\nsupport—the gift cards—to a designated FTO, in violation of 18 U.S.C. § 2339B (Count\n\n 4\n\fOne), and attempting to obstruct—during the 2015 interviews (Count Two) and with the\n\nNovember 2014 text (Count Four)—an official proceeding, in violation of 18 U.S.C.\n\n§ 1512(c)(2). 1 Young proceeded to a trial on these counts. The jury convicted Young of\n\nall three counts and the district court imposed a below-Guidelines sentence of 180\n\nmonths as to each count, with the sentences to run concurrently.\n\n Young timely appealed, asserting five sets of errors by the district court. The first\n\nthree concern Count One, to which Young had asserted an entrapment defense during\n\ntrial. To establish Young’s predisposition to commit the offense conduct, the\n\nGovernment had introduced evidence of the seized items over Young’s objections. On\n\nappeal, Young asserts in Ground One that the district court erred by admitting into\n\nevidence the white supremacist and Nazi paraphernalia. Ground Two contends that the\n\ndistrict court erroneously certified an expert witness on militant Islamist and Nazi\n\n“convergence.” Ground Three asserts that a number of the district court’s evidentiary\n\nrulings deprived Young of his due process right to a fair trial. Ground Four posits that\n\nthe Government failed to offer sufficient evidence to prove the two attempted obstruction\n\nof justice charges. Finally, Ground Five asserts that his sentence was both procedurally\n\nerroneous and substantively unreasonable.\n\n This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.\n\n\n\n II. Grounds One to Three: Entrapment-Centered Challenges\n\n 1\n Count Three, charging a violation of 18 U.S.C. § 1512(b)(3), was dismissed as\nduplicative.\n\n 5\n\f At trial, Young presented an entrapment defense to Count One, which charged\n\nYoung with attempting to provide material support to a designated FTO. To establish\n\nentrapment, a defendant must first demonstrate the government induced him to engage in\n\nthe criminal activity. United States v. McLaurin, 764 F.3d 372, 380 (4th Cir. 2014).\n\nOnce the defendant has shown government inducement, the burden shifts to the\n\ngovernment to prove beyond a reasonable doubt the defendant’s predisposition to have\n\nengaged in the criminal conduct. United States v. Jones, 976 F.2d 176, 179 (4th Cir.\n\n1992). Predisposition “focuses upon whether the defendant was an unwary innocent or,\n\ninstead, an unwary criminal who readily availed himself of the opportunity to perpetrate\n\nthe crime.” Mathews v. United States, 485 U.S. 58, 63 (1988). 2 To establish Young’s\n\npredisposition to commit the offense conduct, the Government introduced evidence of\n\nYoung’s interest in radical, anti-Semitic terrorist causes both before and after his first\n\ncontact with Khalil in 2010. See Jacobson v. United States, 503 U.S. 540, 548–50 (1992)\n\n(holding that predisposition must be established prior to the defendant’s first contact with\n\na government agent). This evidence included Nazi and white supremacist paraphernalia\n\nseized from Young’s home, expert testimony regarding the “convergence” of Nazism and\n\nmilitant Islamism, and testimony about Young’s prior support for such causes. Young\n\ncontests the admission of that evidence as well as the exclusion of other purportedly\n\nexculpatory evidence.\n\n\n\n 2\n We have omitted internal quotation marks, alterations, and citations here and\nthroughout this opinion, unless otherwise noted.\n\n 6\n\f In reviewing evidentiary rulings, this Court reviews the district court’s legal\n\nconclusions de novo and its factual findings for clear error. United States v. Kolsuz, 890\n\nF.3d 133, 141–42 (4th Cir. 2018). Such rulings are reviewed for abuse of discretion and\n\noverturned only if the error was not harmless. United States v. Cloud, 680 F.3d 396, 401\n\n(4th Cir. 2012); United States v. Forrest, 429 F.3d 73, 81 (4th Cir. 2005) (concerning\n\nexpert testimony).\n\n A. Ground One: Nazi and White Supremacist Paraphernalia\n\n To prove Young’s predisposition to assist an FTO, the Government introduced\n\nNazi and white supremacist paraphernalia seized from Young’s home pursuant to a\n\nsearch warrant. The warrant had authorized the seizure of “[a]ll records, documents, and\n\nparaphernalia . . . relating to ISIL/ISIS,” as well as “other designated terrorist groups, or\n\nany individual or group engaged in terrorism or terrorist activity, or communications with\n\nor involving such groups and/or individuals.” J.A. 56; 66. After finding the items in\n\nYoung’s home and consulting with a Government attorney, law enforcement seized the\n\nmaterials.\n\n The Government then moved to admit this evidence (1) to corroborate testimony\n\nfrom Young’s college friends and former housemates concerning his pre-2010 interest in\n\nthese causes 3 and (2) to further illustrate his interest in a historical and modern-day\n\n\n 3\n Specifically, Young’s college friend testified that after they had attended a 2001\ngathering of neo-Nazis for a school project, Young told him not to discount an alliance\nbetween Nazis and Muslims to combat Jews. And Young’s former housemates testified\nthat Young had listened to racially inflammatory music and used an Israeli flag as a\ndoormat to make an anti-Semitic statement. To corroborate this testimony, the\n(Continued)\n 7\n\fconnection between Nazis and militant Islamists. To this latter point, the Government\n\nintroduced, among other items, a poster Young had downloaded in 2007 depicting a Nazi\n\nshaking hands with the Mufti of Jerusalem—who had allied himself with Adolf Hitler\n\nand recruited Muslim troops to serve in the SS—titled “The Alliance: Worldwide\n\nAssociation of Nazis and Islamists 1939–2004,” Response Br. 35; photos of the Mufti\n\nand Hitler as well as the Mufti and Muslim SS troops; Young’s prayer list, which\n\nincluded Hitler and the Mufti; a 2007 photo on his computer of Muslim women with a\n\nsign saying, “God Bless Hitler,” J.A. 1636; a copy of Young’s Facebook page from 2011,\n\nin which Young linked to a story about the arrest of neo-Nazi turned jihadist Emerson\n\nBegolly; and a 2014 graphic on his phone with the words, “Together, we can finish what\n\nHitler started,” J.A. 1633.\n\n Young moved prior to trial to suppress the admission of the Nazi and white\n\nsupremacist paraphernalia based on two asserted errors: first, the seizure of the items\n\nexceeded the warrant’s scope and second, their admission violated Federal Rules of\n\nEvidence 401 and 403. The district court denied the motion, and Young challenges the\n\ndistrict court’s holding based on these two alleged errors. We consider each in turn and\n\naffirm the district court’s rulings.\n\n 1. Scope of the Search Warrant\n\n\n\n\nGovernment introduced, among other items, a copy of a neo-Nazi book that Young had\ngifted to his college friend; a flyer for a “white power” music company; and an anti-\nSemitic graphic that Young had downloaded to his computer in 2007.\n\n 8\n\f Young contends the items should have been suppressed because they were outside\n\nthe scope of the warrant. He argues the warrant—which permitted the seizure of items\n\nrelated to ISIL as well as “other designated terrorist groups,” J.A. 56; 66—did not\n\nauthorize the seizure of the Nazi and white supremacist items, both because they were not\n\nincluded within the warrant’s language and because he was not being investigated for a\n\nhate crime. The district court rejected Young’s arguments, concluding that the items fell\n\nwithin the scope of the search warrant’s expansive language.\n\n “When a search is conducted pursuant to a warrant, it is limited in scope by the\n\nterms of the warrant’s authorization,” but these terms “are not to be interpreted in a\n\nhypertechnical manner.” United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010).\n\nInstead, a warrant should be read in a “commonsense and realistic” manner. United\n\nStates v. Phillips, 588 F.3d 218, 223 (4th Cir. 2009). Agents may seize an item pursuant\n\nto a warrant even if it “does not expressly mention and painstakingly describe it,” id. at\n\n225, because the specificity required may “vary according to the circumstances and type\n\nof items involved.” In re Grand Jury Subpoena, 920 F.2d 235, 239 (4th Cir. 1990).\n\n We conclude the seizure of the items here did not exceed the scope of the warrant.\n\nFirst, as the district court correctly recognized, even if Nazi organizations are not\n\ndesignated FTOs, a reasonable officer would be able to draw on common knowledge to\n\nconclude that the Nazis’ threats and use of violence as a means of achieving their\n\npolitical ends meant that Nazis engaged in terroristic activity as defined by the U.S. Code\n\n\n\n\n 9\n\fand Black’s Law Dictionary. 4 See also United States v. Young, 260 F. Supp. 3d 530,\n\n554–55 (E.D. Va. 2017). Second, some of the items illustrated a historical and present-\n\nday connection between Nazism and radical Islamism. Third, the Criminal Complaint\n\nAffidavit provided examples of Young’s affiliation with both Nazism and radical\n\nIslamism: the Affidavit described how Young had told law enforcement he had dressed\n\nup both as a “Jihadi John” and a Nazi, had collected Nazi memorabilia, and had a tattoo\n\nof a German eagle on his neck. J.A. 43. Given this information, agents reasonably\n\nconcluded both that Nazis qualified as a terrorist organization and that as to this particular\n\ncase, the Nazi paraphernalia was relevant to or probative of material support for a\n\nterrorist organization. For these reasons, we conclude the district court did not err in\n\ndeclining to suppress these items.\n\n 2. Federal Rules of Evidence 401 and 403\n\n Even if the items were properly seized, Young argues that they nonetheless should\n\nhave been excluded under Federal Rules of Evidence 401 and 403. He contends that\n\nunder Rule 401, the materials were irrelevant because Nazism and militant Islamism are\n\nmutually exclusive belief systems. And under Rule 403, he asserts that the items were\n\nunfairly prejudicial because they did not tend to prove Young’s predisposition. But the\n\n\n 4\n 18 U.S.C. § 2331(1) and (5) define “terrorism” as activities that: (1) involve\nviolent acts violative of federal or state criminal laws; and (2) appear to be intended to\nintimidate a civilian population, influence government policy by intimidation or coercion,\nor affect government conduct through mass destruction, assassination, or kidnapping.\nSimilarly, Black’s Law Dictionary defines terrorism as “[t]he use or threat of violence to\nintimidate or cause panic, esp. as a means of achieving a political end.” Terrorism,\nBLACK’S LAW DICTIONARY (10th ed. 2014).\n\n 10\n\fdistrict court determined that the evidence was neither unfairly irrelevant nor prejudicial\n\nbecause for this particular defendant, predisposition encompassed “the convergence\n\nbetween Nazis and Islamist terrorists.” J.A. 136.\n\n With respect to relevance, we conclude the district court did not abuse its\n\ndiscretion in rejecting Young’s argument because Young’s advancement of the\n\nentrapment defense increased the scope of the relevant evidence. Under Rule 401,\n\nevidence is relevant if it has any tendency to make a fact more or less probable than it\n\nwould be without the evidence and the fact is of consequence in determining the action.\n\nSpecifically as to this case, “a broad swath of evidence, including aspects of the\n\ndefendant’s character and criminal past, [was] relevant to proving predisposition.”\n\nMcLaurin, 764 F.3d at 381. This is because predisposition “refers to the defendant’s\n\nstate of mind before government agents make any suggestion that he shall commit a\n\ncrime,” and so is a “broad concept” that requires distinguishing the “unwary innocent”\n\nfrom the “unwary criminal.” Id. (finding that certain bad act evidence may be admissible\n\nunder Rule 404(b) in entrapment cases). In this vein, “[p]redisposition is not limited only\n\nto the crimes specifically contemplated by the defendant prior to government\n\nsuggestion[.]” United States v. Ramos, 462 F.3d 329, 334–35 (4th Cir. 2006); see also\n\nUnited States v. Cromitie, 727 F.3d 194, 207 (2d Cir. 2013) (concluding in a terrorism\n\ncase that, to show predisposition, a defendant’s relevant prior design to commit the crime\n\ncould include a generalized intent to inflict harm on the U.S.).\n\n Here, the district court correctly recognized that Nazism and militant Islamism\n\nshare common ground—specifically, radical, anti-Semitic viewpoints. Given that the\n\n 11\n\fitems seized were probative of (1) Young’s predisposition to support such viewpoints,\n\nand (2) the length of such a predisposition, the items were relevant to meeting the\n\nGovernment’s burden to prove Young’s predisposition to support terrorist activity. See,\n\ne.g., United States v. Mostafa, 16 F. Supp. 3d 236, 266–67 (S.D.N.Y. 2014) (concluding a\n\ndefendant’s statement that “everybody wants to kill [Jews, including Hitler]” was\n\n“relevant to the defendant’s motive and intent regarding violent jihad”).\n\n Second, even if, as Young contends, Nazism and militant Islamism are mutually\n\nexclusive belief systems, absolute consistency of belief is not a prerequisite to proving\n\npredisposition. Other circuits have recognized that seemingly inconsistent belief in a\n\nterrorist group’s ideology does not preclude a finding by a court that a defendant either\n\nsupported that group in a criminal fashion or was predisposed to do so. See United States\n\nv. Van Haften, 881 F.3d 543, 544 (7th Cir. 2018) (affirming the application of a terrorism\n\nenhancement at a sentencing for material support of ISIL despite defendant’s support for\n\na variety of ideologies and evidence suggesting he had at times disclaimed his support for\n\nISIL); see also Cromitie, 727 F.3d at 215 (finding that moments of wavering did not\n\npreclude a finding of predisposition in a terrorism case).\n\n This does not end the analysis, however, because under Rule 403 a court “may\n\nexclude relevant evidence if its probative value is substantially outweighed by danger of\n\none or more of the following: unfair prejudice, confusing the issues, misleading the jury,\n\nundue delay, wasting time, or needlessly presenting cumulative evidence.” Here, as\n\ndiscussed, the district court properly concluded the evidence was highly probative of\n\nYoung’s particular predisposition to support ISIL. See United States v. Siraj, No. 07-\n\n 12\n\f0224-cr, 2008 WL 2675826, at *2 (2d Cir. July 9, 2008) (affirming the admission of\n\nallegedly prejudicial radical Islamist books from the bookstore at which the defendant\n\nhad worked because to the extent the defendant recommended the books, “they were\n\nrelevant to show predisposition,” and to the extent that they were for sale, they “tended to\n\nrebut [the defendant’s] assertion that the cooperating witness first exposed him to radical\n\nIslam and violent jihad”). This highly probative value meant that any prejudicial effect\n\nwas not unfair. Sorrells v. United States, 287 U.S. 435, 452 (1932) (noting that if a\n\ndefendant presents an entrapment defense and suffers a disadvantage, “he has brought it\n\nupon himself by reason of the nature of the defense”).\n\n Furthermore, any prejudicial effect was blunted by the district court’s limiting\n\ninstructions to the jury, which specifically cautioned:\n\n So I want you to understand that he is not being charged and you cannot\n find him guilty for possessing Nazi or anti-Semitic literature. He’s not\n being charged with that, he cannot be convicted for that, but the evidence is\n being allowed in [to consider] . . . whether or not it helps or doesn’t help to\n establish the predisposition issue, all right?\n\nJ.A. 980. See also United States v. Crowden, 882 F.3d 464, 473 (4th Cir. 2018) (“[A]ny\n\nprejudicial effect was reduced by the district court’s issuance of two sets of limiting\n\ninstructions[.]”). For these reasons, we conclude the district court’s admission of the\n\nNazi and white supremacist paraphernalia did not constitute an abuse of discretion and\n\ntherefore affirm the district court’s denial of the motion to suppress.\n\n B. Ground Two: Expert Certification\n\n At trial, the Government called Dr. Daveed Gartenstein-Ross as an expert witness\n\nregarding (1) violent extremist movements claiming inspiration from Islam; (2) white\n\n 13\n\fseparatists and the neo-Nazi movement; (3) the radicalization processes for such groups;\n\nand (4) the Libyan Civil War. Dr. Gartenstein-Ross also explained points of overlap\n\nbetween Nazism and radical Islamism with examples of individuals who had subscribed\n\nto both philosophies. Expert testimony is admissible under Federal Rule of Evidence 702\n\nif it involves specialized knowledge that will assist the trier of fact in understanding the\n\nevidence or determining a fact in issue, and is both reliable and relevant. Daubert v.\n\nMerrell Dow Pharms., Inc., 509 U.S. 579, 589–92 (1993). In admitting Dr. Gartenstein-\n\nRoss’ testimony, the district court found that “his background,” “his extensive academic\n\ncredentials,” “the fact that the United States government uses him for training in these\n\nareas,” and his prior work as an expert in other contexts sufficiently qualified him as an\n\nexpert witness. J.A. 212–13. The district court also concluded his testimony was\n\nrelevant. Although Young contends that the testimony of Dr. Gartenstein-Ross was\n\nneither reliable nor relevant, we agree with the district court’s conclusions.\n\n With respect to reliability, Young contends that Dr. Gartenstein-Ross had never\n\ntestified in a civil or criminal proceeding on these issues; had not published his thesis on\n\nthe “convergence” of white supremacism and militant Islamism in peer-reviewed\n\njournals; had not authored any studies on far-right radicalization; and had yet to perform\n\nany empirical analysis on this matter in the field. See United States v. Hassan, 742 F.3d\n\n104, 131 (4th Cir. 2014) (affirming the admission of expert testimony on homegrown\n\nterrorism in a material support case where the court had “previously approved of [the\n\nexpert’s] expertise in terrorism matters” and the expert’s methods had been subjected to\n\npeer review). But under the highly deferential standard afforded to the district court in\n\n 14\n\fdetermining an expert witness’s reliability, the district court did not abuse its discretion in\n\ndetermining that Dr. Gartenstein-Ross was reliable. 5 Even when an expert has never\n\npreviously been qualified, “it is the quality” of the expert’s qualifications that a district\n\ncourt must focus on. United States v. Garcia, 752 F.3d 382, 391 (4th Cir. 2014). Here,\n\nthe district court considered Young’s concerns yet reached a reasonable decision in\n\nqualifying Dr. Gartenstein-Ross based on his extensive credentials and areas of\n\nexpertise. 6 And although publishing in a peer-reviewed publication is often a hallmark of\n\nexpert witness reliability, that hallmark is a guidepost, not a mandatory prerequisite to\n\nqualification as an expert. See Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir.\n\n2017) (noting Daubert’s “list of specific factors neither necessarily nor exclusively\n\napplies to all experts”).\n\n In turn, the district court did not abuse its discretion in accepting Dr. Gartenstein-\n\nRoss’ social sciences-based methodology. At trial, Dr. Gartenstein-Ross explained that\n\nhe conducted his research “through a comparative method,” focusing on primary sources,\n\nthen comparing his conclusions against secondary sources and “events on the ground.”\n\n\n 5\n Furthermore, contrary to Young’s assertion, a Daubert hearing was not required.\nA district court need not hold a hearing if, after being presented with a proposed expert’s\n“substantial” credentials and training, it concludes “[t]his training and experience amply\n[qualifies the expert] to give testimony [on the topic for which he or she is being\nqualified].” United States v. Beasley, 495 F.3d 142, 150 (4th Cir. 2007). Here, as\ndiscussed below, the district court reviewed Dr. Gartenstein-Ross’ credentials and\nconcluded he was qualified to give expert testimony.\n 6\n These credentials included: training on radical groups for federal agencies;\nteaching university courses on violent non-state actors; consultation on the Libyan Civil\nWar for the U.S. government; field research on jihadist recruiting in the Middle East; and\ntestimony in immigration cases on the Taliban and al Qaeda.\n\n 15\n\fJ.A. 1124–25. This methodology appears to be indistinguishable from that which we\n\napproved in United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004), rev’d on other\n\ngrounds, 543 U.S. 1097 (2005). There, we affirmed the admission of expert testimony on\n\nthe structure of terrorist groups after “[the expert] identified his methodology as one\n\ngenerally employed in the social sciences”—that is, “collect[ing] as much information as\n\npossible,” then balancing “each new incoming piece of information against the body of\n\ninformation you’ve built to that point.” Id. at 337. Accordingly, the district court did not\n\nabuse its discretion when it deemed Dr. Gartenstein-Ross’ explanation of his\n\nmethodology, when combined with his credentials, “sufficient.” J.A. 1126.\n\n As to relevance, we conclude the testimony was relevant and met Rule 702’s\n\nrequirement that the expert’s specialized knowledge “help the trier of fact . . . understand\n\nthe evidence or to determine a fact in issue.” Dr. Gartenstein-Ross’ testimony assisted\n\nthe jury by providing context for the historical backgrounds of and connection between\n\nNazism and militant Islamism. As the “evidence in this case was complicated, touching\n\nby necessity on a wide variety of ideas, terms, people, and organizations connected to\n\nradical Islam,” as well as white supremacism, the district court fairly concluded that the\n\ntestimony would assist the jury in understanding evidence regarding predisposition.\n\nUnited States v. Benkahla, 530 F.3d 300, 309 (4th Cir. 2008). For these reasons, we\n\nconclude the district court did not abuse its discretion in admitting Dr. Gartenstein-Ross’\n\ntestimony.\n\n C. Ground Three: Evidentiary Rulings\n\n\n\n 16\n\f Young argues that three of the district court’s evidentiary rulings, considered\n\nindividually or cumulatively, violated his due process right to a fair trial.\n\n 1. Admission of Weapons and Young’s Comments\n\n Young argues that the district court denied Young a fair trial when it reversed\n\npretrial rulings excluding evidence of (1) Young’s lawfully-owned weapons and (2)\n\nremarks Young had made to Khalil about attacking federal buildings. The contention by\n\nYoung is that the district court violated his claimed entitlement to rely on several pretrial\n\nrulings as the settled law of the case. But “the district judge is free, in the exercise of\n\nsound judicial discretion, to alter a previous in limine ruling,” especially in light of issues\n\nthat arise during a trial. Luce v. United States, 469 U.S. 38, 41–42 (1984). In particular,\n\nit is well within the district court’s discretion to deem previously-excluded evidence\n\nadmissible after the party seeking exclusion “open[s] the door.” United States v. Blake,\n\n571 F.3d 331, 348 (4th Cir. 2009).\n\n Here, the district court did not abuse its discretion in later deeming certain\n\nevidence admissible. First, the district court provided notice to Young multiple times that\n\nit could change its in limine rulings depending on what occurred during trial. For\n\nexample, the district court warned, “[N]ormally my rulings on a motion in limine are\n\nalways with a caveat that if something changes during the course of the trial, the decision\n\nmay be reversed[.]” J.A. 127–28. Second, with respect to Khalil’s testimony, the district\n\ncourt properly admitted this evidence after Young decided to focus his entrapment\n\ndefense on whether there was predisposition prior to his first contact with Khalil. At a\n\npretrial hearing, the district court warned Young that by framing his entrapment defense\n\n 17\n\fin this manner, some of Khalil’s testimony about Young’s statements might be admitted\n\nbecause such testimony would be probative of whether Young was already predisposed to\n\nsupport militant, radical ideas or whether Khalil implanted such ideas. (Specifically, the\n\ndistrict court advised, “[I]f you start the predisposition at a later date, then some of that\n\nKhalil business might not come in.” J.A. 261.) Nonetheless, Young continued to pursue\n\nthis line of argument utilizing an earlier chronological starting point. As a result, the\n\ndistrict court allowed Khalil to describe his relationship with Young, including\n\nrecounting Young’s statements about attacking the FBI, his ability to smuggle guns into a\n\nfederal building, and the usefulness of ballistic vests if the FBI were to come to his home.\n\nThird, at that point, the district court did not abuse its discretion in deeming Young’s\n\npossession of firearms and weapons admissible. Such possession was corroborative of\n\nKhalil’s testimony, and therefore properly admissible because Khalil’s credibility was\n\nfundamental in establishing Young’s predisposition before 2010. For these reasons, we\n\naffirm the district court’s admission of this evidence.\n\n 2. Exclusion of Young’s and Agents’ Comments\n\n Young argues the district court erred by excluding purportedly exculpatory\n\nevidence demonstrating that he lacked the predisposition to support ISIL. First, the\n\ndistrict court excluded, among other claimed exculpatory remarks, online comments\n\nYoung had made from his LiveLeak 7 account denouncing ISIL because the Government\n\nhad previously been barred from introducing other comments from this same account,\n\n\n 7\n LiveLeak is a video-sharing website.\n\n 18\n\fwhich the district court had deemed unfairly prejudicial and cumulative. We discern no\n\nreversible error because in excluding these and similar comments, the district court acted\n\nwithin its discretion to determine whether introducing such comments would permit the\n\nadmission of other previously-excluded evidence. See McLaurin, 764 F.3d at 384.\n\n Second, the district court barred the introduction of June 2016 messages between\n\nFBI agents reflecting their frustration with the slow pace of the investigation, which\n\nYoung argued went to their motives and consequently the issue of entrapment. The\n\ndistrict court properly concluded that the agents’ motives were “irrelevant” to entrapment\n\nbecause whether or not Young was induced had to be assessed by “what specifically was\n\npresented to [Young]” by the agents rather than what the agents discussed amongst\n\nthemselves. J.A. 443. See also United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993)\n\n(“Inducement . . . involves elements of governmental . . . conduct sufficiently excessive\n\nto implant a criminal design in the mind of an otherwise innocent third party.”). We thus\n\nconclude the district court did not abuse its discretion in excluding these materials.\n\n 3. Jencks Act and Brady Materials\n\n Finally, Young asserts Jencks 8 and Brady 9 errors. In the week prior to trial, the\n\nGovernment made two last-minute classified Jencks productions of communications\n\n\n 8\n “Under the Jencks Act, 18 U.S.C. § 3500(b), on a motion by the defendant, the\ngovernment is required to produce any ‘statement’ of the witness related to the witness’[]\ntestimony that is in the government’s possession.” United States v. Savage, 885 F.3d\n212, 220 (4th Cir. 2018).\n 9\n Brady v. Maryland held that “suppression by the prosecution of evidence\nfavorable to an accused upon request violates due process where the evidence is material\neither to guilt or to punishment[.]” 373 U.S. 83, 87 (1963).\n\n 19\n\famongst FBI agents about (1) the number of audio recordings made of Mo’s meetings\n\nwith Young and (2) their frustration with the pace of their investigation of Young.\n\nYoung moved to strike the witnesses as to whom the Jencks material applied or to\n\ncontinue trial. Rather than striking the witnesses, the district court permitted defense\n\ncounsel a five-day continuance to which Young did not object. Young now argues that\n\nthe district court erred in doing so, contending these materials suggested spoliation of\n\nexculpatory evidence and therefore a Brady violation.\n\n We discern no reversible error by the district court. First, when the government\n\nfails to timely provide discovery materials that are not exculpatory, such as Jencks\n\nmaterials, the district court’s determination of whether to impose a sanction, and what\n\nsanction to impose, is reviewed for abuse of discretion. See United States v. Sterling, 724\n\nF.3d 482, 512 (4th Cir. 2013). “A continuance is the preferred sanction.” Id. In\n\nfashioning a remedy, the district court must consider the reason for the government’s\n\ndelay, whether the government acted intentionally or in bad faith, the degree of prejudice\n\n(if any) suffered by the defendant, and whether any less severe sanction will remedy the\n\nprejudice. Id. We have recognized that it is the rare case that would, absent bad faith,\n\nresult in an exclusion of evidence (such as striking witnesses). Id. Here, the district court\n\ncorrectly recognized that the government did not act in bad faith, given that the vast\n\nmajority of discovery was produced well in advance of trial, and that Young was not\n\nprejudiced because the materials at issue were not “relevant, let alone exculpatory.” J.A.\n\n278. Nonetheless, given the last-minute production, the district court permitted defense\n\n\n\n 20\n\fcounsel an ample continuance to review the material. Under these circumstances, the\n\ndistrict court did not abuse its discretion.\n\n Second, to establish a Brady violation, the evidence at issue must have been (1)\n\nfavorable to the defendant (either because it was exculpatory or impeaching), (2) material\n\nto the defense (that is, prejudice must have ensued), and (3) suppressed (that is, within the\n\nprosecution’s possession but not disclosed to defendant). United States v. Sarihifard, 155\n\nF.3d 301, 309 (4th Cir. 1998). But here, no issue implicating Brady arose. Young\n\ncontends that some of the Jencks material suggested Government spoliation of some\n\naudio recordings of Mo’s meetings with Young. Specifically, he notes that FBI records\n\nindicate that Young and Mo discussed ISIL for the first time during a June 29, 2014\n\nmeeting, but that no recording of this meeting was produced to him. Young argues that\n\nbecause (1) most of Mo’s other meetings with Young were recorded and (2) such an early\n\nconversation regarding ISIL may have been probative of Young’s predisposition, the\n\nGovernment withheld potentially exculpatory evidence and thereby committed a Brady\n\nviolation. But a review of the record—particularly the very FBI communications at\n\nissue—indicates that a recording of the meeting, unlike recordings of most of Mo’s other\n\nmeetings with Young, was never made and that any information purportedly within the\n\nrecordings was not material. 10 There is no record evidence to the contrary. Given this,\n\n\n 10\n Evidence is material if there is a reasonable probability that it would have\nproduced a different outcome. United States v. Kelly, 35 F.3d 929, 936 (4th Cir. 1994).\nYoung suggests the purported missing conversation would have gone to Young’s lack of\npredisposition because it could have included statements by Young criticizing ISIL or\nsupporters of ISIL. However, by Young’s own count, at least thirteen similar comments\n(Continued)\n 21\n\fYoung has offered nothing but rank speculation as to the nature of the allegedly\n\nsuppressed materials, which cannot establish a Brady violation. See United States v.\n\nStokes, 261 F.3d 496, 502 (4th Cir. 2001) (noting that to prove a Brady violation, the\n\ndefendant must show that “the prosecution had the [purportedly withheld materials] and\n\nfailed to disclose them”); see also United States v. Caro, 597 F.3d 608, 619 (4th Cir.\n\n2010) (“Because [the defendant] can only speculate as to what the requested information\n\nmight reveal, he cannot satisfy Brady’s requirement of showing that the requested\n\nevidence would be favorable to the accused.”). We therefore affirm the district court’s\n\nruling on this issue.\n\n\n\n III. Ground Four: Obstruction Convictions\n\n Young argues that the Government failed to provide sufficient evidence to prove\n\nthe attempted obstruction of justice counts and that the district court erroneously denied\n\nhis motion for judgment of acquittal after a guilty verdict. Fed. R. Crim. P. 29(c). We\n\nreview the denial of such a Rule 29 motion de novo. United States v. Howard, 773 F.3d\n\n519, 525 (4th Cir. 2014). “In its assessment of a challenge to the sufficiency of evidence,\n\na reviewing court views the evidence in the light most favorable to the prosecution and\n\ndecides whether ‘substantial evidence’”—that is, “evidence that a reasonable finder of\n\n\nwere admitted during Mo’s testimony. Therefore, the recordings would not have been\nmaterial because the jury nonetheless found—despite the admission of similar\ncomments—that Young was predisposed to support terrorism. These reasons also\nsupport the holding that the district court did not err in declining to find a Brady\nviolation.\n\n 22\n\ffact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt\n\nbeyond a reasonable doubt”—supports the verdict. Id. Under that standard, we\n\nconclude that the evidence was insufficient to prove the nexus and foreseeability\n\nrequirements of the obstruction statute and consequently vacate the convictions under\n\nCounts Two and Four.\n\n A. Elements of the Offense\n\n To convict Young of attempted obstruction, the Government was required to prove\n\nhe (1) “corruptly” attempted to (2) “obstruct[], influence[], or impede[]” (3) “an official\n\nproceeding” during the December 3 and 5, 2015 interviews with FBI agents (Count Two)\n\nand when he sent the November 2014 text message (Count Four). 18 U.S.C.\n\n§ 1512(c)(2).\n\n An “official proceeding” includes a grand jury investigation, but not an FBI\n\ninvestigation. 18 U.S.C. § 1515(a)(1) provides that “official proceeding” encompasses:\n\n“(A) a proceeding before a judge or court of the United States . . . or a Federal grand\n\njury” or “(C) a proceeding before a Federal Government agency which is authorized by\n\nlaw[.]” Here, only a proceeding before a “Federal grand jury,” as found at\n\n§ 1515(a)(1)(A), could apply to Young. Other circuits considering whether an FBI\n\ninvestigation would fall under § 1515(a)(1)(C) have concluded that it does not because\n\nthe use of the preposition “before” in conjunction with “Federal Government agency”\n\nimplies “some formal convocation of the agency in which parties are directed to appear,\n\ninstead of any informal investigation conducted by any member of the agency.” United\n\n\n\n 23\n\fStates v. Ermoian, 752 F.3d 1165, 1171 (9th Cir. 2013) (citing United States v. Ramos,\n\n537 F.3d 439, 462–63 (5th Cir. 2008)). We agree with our sister circuits.\n\n Young argues that the evidence was insufficient to prove the existence of an\n\n“official proceeding” that he could have obstructed. First, Young asserts there was no\n\n“official proceeding” concerning Mo for Young to obstruct: Mo was the FBI’s own\n\ninformant and therefore the FBI never investigated Mo. Second, Young contends there\n\nwas no evidence that Young attempted to obstruct a proceeding concerning himself: the\n\nagents never informed Young that he was under investigation; the gift card crime was\n\ncommitted after the allegedly obstructive conduct, so there was no crime whose\n\ninvestigation Young could knowingly have attempted to obstruct; and an agent testified\n\nthat Young was not aware of any investigation until his arrest in August 2016. And even\n\nif he had been aware of an FBI investigation of himself, Young asserts, such an\n\ninvestigation would not have constituted an “official proceeding” under § 1515(a)(1).\n\n Young’s view misses the mark but points to a much more fundamental flaw in the\n\nGovernment’s evidence. As 18 U.S.C. § 1512(f)(1) provides, “an official proceeding\n\nneed not be pending or about to be instituted at the time of the offense.” Therefore, it\n\nwas immaterial whether an official proceeding actually existed at the time of the\n\nobstructive conduct. 11 Nonetheless, § 1512(c) does require that (1) the obstructive\n\nconduct be connected to a specific official proceeding (the “nexus” requirement) that was\n\n\n 11\n Although the FBI began “request[ing] federal grand jury subpoenas related to\n[Young]” as early as 2011, the existence of such a grand jury investigation is irrelevant to\nour determination of this matter for the reasons we describe. J.A. 1376.\n\n 24\n\f(2) either pending or was reasonably foreseeable to Young when he engaged in the\n\nconduct (the “reasonable foreseeability” requirement). These requirements, while not\n\nexplicitly laid out in § 1512(c), arise from two Supreme Court cases—United States v.\n\nAguilar, 515 U.S. 593 (1995), and Arthur Anderson, LLP v. United States, 544 U.S. 696\n\n(2005)—in which the Supreme Court identified these elements from related obstruction\n\nstatutes. 12 See also Marinello v. United States, 138 S. Ct. 1101, 1110 (2018).\n\n Aguilar considered the catchall provision of a statute criminalizing attempted\n\ngrand jury tampering. 515 U.S. at 599. The defendant had lied to the FBI during the\n\ncourse of an investigation and was convicted of “corruptly endeavoring to influence,\n\nobstruct, and impede [a] grand jury investigation” in violation of 18 U.S.C. § 1503. Id.\n\nAll the government had shown in support of the conviction was that the defendant had\n\nuttered false statements to an investigating agent “who might or might not testify before a\n\ngrand jury.” Id. at 600. The Supreme Court held that § 1503 required a greater\n\nconnection between the obstructive act and an official proceeding than what the\n\ngovernment had shown—specifically, a “nexus” showing “that the act [had] a\n\nrelationship in time, causation, or logic with the judicial proceeding.” Id. at 599. In\n\nconsidering the evidence, the Court in Aguilar concluded: “We do not believe that\n\nuttering false statements to an investigating agent—and that seems to be all that was\n\n\n 12\n Our sister circuits have noted that “[t]he nexus limitation is best understood as\nan articulation of the proof of wrongful intent that will satisfy the mens rea requirement\nof ‘corruptly’ obstructing or endeavoring to obstruct”—that is, the first element of\nproving a § 1512(c)(2) charge. United States v. Erickson, 561 F.3d 1150, 1159 (10th Cir.\n2009) (quoting United States v. Quattrone, 441 F.3d 153, 170 (2d Cir. 2006)).\n\n 25\n\fproved here—who might or might not testify before a grand jury is sufficient to” satisfy\n\nthe nexus requirement. Id. at 600.\n\n Arthur Andersen applied the nexus requirement to § 1512(b)(2)(A) offenses,\n\nwhich criminalize “knowingly” and “corruptly persuad[ing]” another person “with intent\n\nto cause” that person to tamper with documents that would be used in an official\n\nproceeding. 544 U.S. at 703. There, the Supreme Court considered whether the\n\ngovernment was required to prove a nexus between the tampering and a particular (rather\n\nthan abstract) proceeding. Id. at 707–08. Although the government pointed to § 1512(f)\n\nto argue that the statute did not require contemplation of a particular proceeding, the\n\nSupreme Court concluded that an official proceeding must, at a minimum, be reasonably\n\nforeseeable to the defendant who commits the obstructive act: “It is . . . one thing to say\n\nthat a proceeding need not be pending or instituted at the time of the offense, and quite\n\nanother to say a proceeding need not even be foreseen.” Id. A knowingly corrupt\n\npersuader cannot be convicted “when he does not have in contemplation any particular\n\nofficial proceeding in which those documents might be material.” Id. at 708.\n\n Though we have not specifically done so, 13 other circuits have applied Aguilar and\n\nArthur Andersen to the similarly-structured statute, § 1512(c), to conclude that, in\n\n\n 13\n We have previously considered in an unpublished per curiam opinion a\ndefendant’s nexus argument. In affirming his § 1512(c)(2) conviction, we concluded the\nevidence was sufficient to uphold his conviction because “there [was] a clear, logical\nrelationship between his [obstructive] conduct and the judicial proceeding.” United\nStates v. Wein, 521 F. App’x 138 (4th Cir. 2013) (per curiam). But we have not further\naddressed the nexus or reasonable foreseeability requirements to prove such a charge.\nSee id.\n\n 26\n\fdemonstrating a § 1512(c)(2) offense, “the government must prove that such a\n\nproceeding was reasonably foreseeable to the defendant” and “that there was a ‘nexus’\n\nbetween the defendant’s conduct and the pending, or foreseeable, official proceeding.”\n\nUnited States v. Martinez, 862 F.3d 223, 237 (2d Cir. 2017); see, e.g., United States v.\n\nPetruk, 781 F.3d 438, 445 (8th Cir. 2015); United States v. Tyler, 732 F.3d 241, 249–50\n\n(3d Cir. 2013) (applying the nexus and foreseeability requirements to “any prosecution\n\nbrought under a § 1512 provision charging obstruction of justice involving an ‘official\n\nproceeding’”); United States v. Bennett, 664 F.3d 997, 1013 (5th Cir. 2011) (applying the\n\nnexus requirement to § 1512(c)(2)), vacated on other grounds by 567 U.S. 950 (2012);\n\nUnited States v. Friske, 640 F.3d 1288, 1292 (11th Cir. 2011) (same); United States v.\n\nPhillips, 583 F.3d 1261, 1263–64 (10th Cir. 2009) (same); United States v. Carson, 560\n\nF.3d 566, 584 (6th Cir. 2009) (assuming arguendo that the nexus requirement applies to\n\n§ 1512(c)(2)). And as the Eighth Circuit noted in Petruk, “[W]e are aware of no circuit\n\nthat has considered and rejected application of the nexus requirement to § 1512(c)(2),”\n\ngiven the “similarity of statutory language between § 1512(c)(2) and the catchall\n\nprovision at issue in Aguilar, the application of the nexus requirement in Arthur Andersen\n\nto another provision of § 1512, and other circuits’ application of the nexus requirement to\n\n§ 1512(c)(2).” 781 F.3d at 445. We agree and hold that § 1512(c)(2) incorporates the\n\nnexus and reasonable foreseeability requirements set forth in Aguilar and Arthur\n\nAndersen. That is, it is a requirement “that a successful prosecution under § 1512(c)(2)\n\n[provide] proof beyond a reasonable doubt that the defendant contemplated a particular,\n\nforeseeable proceeding, and that the contemplated proceeding constituted an ‘official\n\n 27\n\fproceeding,’ which is defined under § 1515(a)(1)(A) to include a proceeding before a\n\nfederal judge, court, or grand jury[.]” Id. at 445. Young’s convictions do not meet this\n\nrequirement.\n\n B. Young’s Obstruction Convictions\n\n Upon considering the evidence presented at trial, we conclude that the evidence\n\nwas insufficient to convict Young of Counts Two and Four for attempting to obstruct\n\njustice under 18 U.S.C. § 1512(c)(2). In November 2014 and December 2015, Young did\n\ndesign his conduct to mislead FBI agents, including those he believed were investigating\n\nhis relationship with Mo. With respect to Count Four, prior to Mo’s “trip,” Young told\n\nMo the FBI would investigate Young after becoming aware Mo had joined ISIL and that\n\nthey knew one another. Young said he would send the text because the text would be\n\n“good for [Young],” helping Young avoid suspicion from law enforcement that he knew\n\nof Mo’s plans to join ISIL. J.A. 656. And with respect to Count Two, when Young\n\nthought in December 2015 that the FBI had learned that Mo had joined ISIL, Young\n\nattempted to deceive the FBI by providing statements consistent with the cover story,\n\ndisclaiming any knowledge of Mo’s whereabouts or plans. Young would only have\n\nundertaken these actions had an FBI investigation—whether in November 2014 or\n\nDecember 2015—been at least foreseeable to him.\n\n But this is not enough for purposes of § 1512(c)(2). In neither situation\n\n(November 2014 or December 2015) was this conduct connected to a specific official\n\nproceeding, nor was such a specific official proceeding reasonably foreseeable to Young.\n\nSimply because an FBI investigation was reasonably foreseeable to Young does not mean\n\n 28\n\fthat a grand jury investigation was reasonably foreseeable to him or that his conduct was\n\ndesigned to obstruct a grand jury’s proceedings. Specifically as to Count Two, the\n\nevidence is insufficient largely for the same reason that it was insufficient in Aguilar:\n\n“All the Government ha[s] shown was that [the defendant] had uttered false statements to\n\nan investigating agent who might or might not testify before a grand jury.” Arthur\n\nAndersen, 544 U.S. at 708. Even if there is sufficient evidence to demonstrate that\n\nYoung obstructed an FBI investigation, there is simply no evidence to demonstrate he\n\nwas aware either that his conduct would affect a grand jury proceeding or that a grand\n\njury or similar proceeding was impending. And with respect to Count Four, the\n\nGovernment has similarly failed to provide evidence demonstrating that Young foresaw a\n\nspecific grand jury investigation or that he designed his conduct to thwart such an\n\ninvestigation, rather than designing his conduct to obstruct an FBI inquiry—which he did\n\nforesee.\n\n Rather, Young’s case is more analogous to that of Friske, in which the Eleventh\n\nCircuit reversed a defendant’s § 1512(c)(2) conviction for attempting to obstruct a\n\nforfeiture proceeding. There, the defendant had, at the behest of an incarcerated friend,\n\ngone to the latter’s home to retrieve certain unspecified items which turned out to be\n\nsubject to forfeiture. 640 F.3d at 1289–90. In overturning the defendant’s conviction, the\n\nEleventh Circuit concluded that the government had failed to prove that the defendant\n\n“knew that the natural and probable result of his actions would be the obstruction of [the\n\nfriend’s] forfeiture proceeding.” Id. at 1292–93. Even though the defendant “was\n\ncertainly acting suspiciously,” “more is required to prove a violation of § 1512(c)(2).”\n\n 29\n\fId. at 1292. But because the only way for the jury to conclude that the defendant “knew\n\nof or foresaw the forfeiture proceeding” “would be through speculation,” the evidence\n\nwas insufficient to convict him. Id. at 1293. Similarly, although Young’s actions were\n\ncertainly designed to thwart an FBI inquiry, the only way the jury could have concluded\n\nhe foresaw a particular grand jury investigation would be through speculation.\n\n The insufficiency of the evidence here is highlighted by cases in which courts\n\nhave found that a grand jury proceeding into criminal activity was reasonably foreseeable\n\nbecause of a defendant’s actual awareness of an ongoing or impending investigation into\n\nclosely related activity and specific criminal actions in relation to such awareness. See\n\nUnited States v. Binday, 804 F.3d 558, 590 (2d Cir. 2015) (finding a grand jury\n\nproceeding was foreseeable because the defendant was aware that he was the target of a\n\nseparate regulatory investigation into an insurance fraud scheme and had destroyed\n\nincriminating documents related to the scheme); United States v. Simpson, 741 F.3d 539,\n\n552 (5th Cir. 2014) (finding a grand jury proceeding was reasonably foreseeable to a\n\nbusiness owner who had learned about the execution of search warrants for his company\n\nand had ordered the deletion of emails after learning of the warrants). By contrast, based\n\non the record before us in this case, we would be stretching the foreseeability requirement\n\nbeyond its limits in concluding that Young’s anticipation of an FBI investigation into an\n\nacquaintance’s future trip would also reasonably herald a grand jury proceeding. To do\n\nso would be pure speculation.\n\n Nonetheless, in an effort to bolster the evidence presented, the Government points\n\nto Young’s (1) awareness of his acquaintances’ arrests; (2) status as a law enforcement\n\n 30\n\fofficer; and (3) heightened suspicion of FBI surveillance of him, contending that these\n\nthree factors should support the inference that a grand jury investigation was reasonably\n\nforeseeable to him and that he designed his conduct to obstruct such an investigation.\n\nBut this case is entirely distinguishable from those in which a court has inferred the nexus\n\nand foreseeability requirements from similar factors. For example, in Martinez, the\n\nSecond Circuit affirmed a § 1512(c)(2) conviction of a defendant police officer who was\n\npart of a conspiracy in which at least two dozen co-conspirators committed more than\n\n200 robberies of drug traffickers. In upholding the sufficiency of the evidence, the\n\nSecond Circuit concluded that “it was easily inferable that the 2008 arrests of many of his\n\ncoconspirators made it foreseeable to [the defendant]—who estimated that as an NYPD\n\nofficer, he had testified 15-20 times in grand jury proceedings . . . —that there would be a\n\ngrand jury proceeding leading to numerous indictments.” 862 F.3d at 238. Furthermore,\n\n“it could easily be inferred that [the defendant’s] persistent searches of NYPD databases,\n\nand his reports back to coconspirators who had not been arrested, were intended to make\n\nit possible for them to avoid arrest by absconding before any outstanding warrants could\n\nbe executed, thereby potentially interfering with an ongoing grand jury proceeding.” Id.\n\n By contrast, the indictment of Young’s acquaintances was too attenuated from\n\nYoung’s relationship with Mo to have made a grand jury investigation of Young, Mo, or\n\ntheir relationship foreseeable to Young. And neither Young nor Mo was involved in an\n\nongoing criminal conspiracy with those acquaintances. Furthermore, although Young\n\nworked in law enforcement, the Government’s evidence failed to establish that he was\n\nroutinely involved in grand jury proceedings—or, for that matter, had ever testified in\n\n 31\n\fsuch a proceeding. And finally, Young’s awareness about FBI surveillance was also\n\ninadequate to create a sufficient nexus. Although the Government established at trial that\n\nYoung was constantly aware of the fact that the FBI could be investigating him, the\n\nGovernment failed to connect this general awareness—whether in combination with any\n\nof the issues discussed above or individually—with a specific and reasonably foreseeable\n\nofficial proceeding.\n\n Thus, “based on our review of the record, we have uncovered no evidence to\n\nsatisfy Arthur Andersen’s requirement that the Government prove a nexus between [the\n\nobstructive] conduct and a foreseeable particular federal proceeding to establish a\n\nconviction under” § 1512(c). Tyler, 732 F.3d at 250–51. Because the evidence was\n\ninsufficient to meet this essential requirement, we vacate Young’s convictions as to\n\nCounts Two and Four.\n\n\n\n IV.\n\n For the foregoing reasons, we affirm Young’s conviction as to Count One, vacate\n\nYoung’s convictions as to Counts Two and Four, and remand for resentencing. 14\n\n AFFIRMED IN PART, VACATED IN PART,\n AND REMANDED\n\n\n\n\n 14\n Because Counts One, Two, and Four were grouped under United States\nSentencing Guidelines § 3D1.2(c) for sentencing purposes, we do not address Young’s\nchallenges to his sentence which, if relevant, can be addressed by the district court in the\nfirst instance upon remand.\n\n 32\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Nicholas YOUNG, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-21\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4138\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nNICHOLAS YOUNG,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nAlexandria. Leonie M. Brinkema, District Judge. (1:16-cr-00265-LMB-1)\\n\\n\\nArgued: November 1, 2018 Decided: February 21, 2019\\n\\n\\nBefore AGEE, KEENAN, and RICHARDSON, Circuit Judges.\\n\\n\\nAffirmed in part, vacated in part, and remanded by published opinion. Judge Agee wrote\\nthe opinion, in which Judge Keenan and Judge Richardson joined.\\n\\n\\nARGUED: Nicholas David Smith, DAVID B. SMITH, PLLC, Alexandria, Virginia, for\\nAppellant. Gordon D. Kromberg, OFFICE OF THE UNITED STATES ATTORNEY,\\nAlexandria, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United States\\nAttorney, John T. Gibbs, Assistant United States Attorney, OFFICE OF THE UNITED\\nSTATES ATTORNEY, Alexandria, Virginia, for Appellee.\\n\\fAGEE, Circuit Judge:\\n\\n A jury in the United States District Court for the Eastern District of Virginia\\n\\nconvicted Nicholas Young of one count of attempting to provide material support to the\\n\\nIslamic State of Iraq and the Levant (“ISIL”), a designated foreign terrorist organization\\n\\n(“FTO”), in violation of 18 U.S.C. § 2339B, as well as two counts of attempting to\\n\\nobstruct justice, in violation of 18 U.S.C. § 1512(c)(2). Asserting a host of district court\\n\\nerrors, Young challenges his convictions and sentence. For the following reasons, we\\n\\naffirm the material support conviction, vacate the obstruction convictions, and remand for\\n\\nresentencing.\\n\\n\\n\\n I.\\n\\n In 2010, the Federal Bureau of Investigation (“FBI”) opened a counterterrorism\\n\\ninvestigation into Young, a police officer with the Washington Metropolitan Area Transit\\n\\nAuthority, prompted in part by his connections to an acquaintance who had been arrested\\n\\non 18 U.S.C. § 2339B charges. That December, “Khalil,” an undercover FBI agent,\\n\\nbegan maintaining contact with Young, who would discuss with Khalil his wariness of\\n\\nFBI surveillance, the measures he had taken to thwart such surveillance, and the skills\\n\\nneeded—which he purported to possess—to attack an FBI or a federal office. During this\\n\\nperiod, law enforcement also observed Young traveling to and from Libya, though law\\n\\nenforcement was unable to determine the purpose of his trips. Khalil’s contact with\\n\\nYoung eventually concluded in April 2012.\\n\\n\\n\\n 2\\n\\f In May 2014, the FBI again began observing Young more actively after an FBI\\n\\ninformant, “Mo,” met Young through Young’s acquaintances, whom Mo was monitoring.\\n\\nOver the next several months, Mo and Young met approximately 20 times. During their\\n\\nmeetings, Mo indicated that he was interested in traveling to Syria to join ISIL. Young in\\n\\nturn offered advice on how to travel overseas without being flagged by government\\n\\nauthorities. Specifically, Young suggested that Mo devise a cover story for his trip, such\\n\\nas pretending that he was taking a guided tour of Turkey (or that he actually take such a\\n\\ntour). Young also advised Mo to book a roundtrip ticket and volunteered to send a text to\\n\\nMo a few days after Mo’s “return date” to assist Mo in evading law enforcement\\n\\nsuspicion, explaining that the text would make it look like Young was expecting Mo’s\\n\\nreturn (rather than staying on in the region to travel to ISIL-controlled territory). Finally,\\n\\nYoung and Mo set up covert email accounts to communicate.\\n\\n That October, Mo traveled to Turkey with his FBI handler, Special Agent John\\n\\nMinichello. While there, Mo emailed Young that he was planning to travel to ISIL-\\n\\ncontrolled territory in Syria. Mo then returned to the U.S. In November 2014, Young\\n\\nsent Mo the pre-arranged text message: “Hope you had a good vacation. If you want to\\n\\ngrab lunch . . . hit me up.” J.A. 566:3–5. After forwarding that message to Agent\\n\\nMinichello, Mo’s involvement in the investigation concluded; from that point on, Agent\\n\\nMinichello and another agent impersonated Mo to Young through the email account.\\n\\n In subsequent emails to Mo, Young made it clear that he believed Mo had joined\\n\\nISIL. In 2015, Young asked Mo to mention him to any Libyan ISIL members Mo might\\n\\nencounter and to tell them that Young had been in Libya with the Abu Salem Martyrs’\\n\\n 3\\n\\fBrigade, a militia group with connections to al Qaeda that had been fighting Muammar al\\n\\nQaddafi’s regime. Young also emailed his contacts in the Brigade on Mo’s behalf.\\n\\n On December 3 and 5, 2015, two FBI agents interviewed Young. Although the\\n\\nagents purported to be questioning Young about Mo’s whereabouts, they were attempting\\n\\nto determine whether Young himself was in contact with any terrorists. During the\\n\\ninterviews, Young denied having current contact information for Mo. He informed the\\n\\nagents that he believed Mo had gone on vacation but that he had not been in touch with\\n\\nMo since October 2014. He also denied knowing anyone who had given Mo travel\\n\\nguidance. Young later emailed Mo to inform him about the FBI’s inquiry.\\n\\n In April 2016, Mo suggested to Young that they should communicate through an\\n\\nencrypted messaging app, Threema. In July, Young created a Threema account and\\n\\nreceived a message from Mo noting that ISIL needed more fighters. Mo explained that\\n\\nGoogle gift cards could be used to buy Threema accounts to help fighters communicate\\n\\nwith ISIL, thereby facilitating their travel to ISIL-controlled territory. At the end of the\\n\\nmonth, Young used Threema to transmit $245 in Google gift cards to Mo. After\\n\\nconfirming that Mo had received the cards, Young responded that he was “glad” and\\n\\nwould be disposing of the device used to communicate with Mo. J.A. 868:13.\\n\\n In August 2016, Young was arrested for attempted material support of ISIL, an\\n\\nFTO. On the day of his arrest, agents executed a search warrant and seized militant\\n\\nIslamist, Nazi, and white supremacist paraphernalia as well as weapons from his home.\\n\\nAn indictment subsequently charged Young with attempting to provide material\\n\\nsupport—the gift cards—to a designated FTO, in violation of 18 U.S.C. § 2339B (Count\\n\\n 4\\n\\fOne), and attempting to obstruct—during the 2015 interviews (Count Two) and with the\\n\\nNovember 2014 text (Count Four)—an official proceeding, in violation of 18 U.S.C.\\n\\n§ 1512(c)(2). 1 Young proceeded to a trial on these counts. The jury convicted Young of\\n\\nall three counts and the district court imposed a below-Guidelines sentence of 180\\n\\nmonths as to each count, with the sentences to run concurrently.\\n\\n Young timely appealed, asserting five sets of errors by the district court. The first\\n\\nthree concern Count One, to which Young had asserted an entrapment defense during\\n\\ntrial. To establish Young’s predisposition to commit the offense conduct, the\\n\\nGovernment had introduced evidence of the seized items over Young’s objections. On\\n\\nappeal, Young asserts in Ground One that the district court erred by admitting into\\n\\nevidence the white supremacist and Nazi paraphernalia. Ground Two contends that the\\n\\ndistrict court erroneously certified an expert witness on militant Islamist and Nazi\\n\\n“convergence.” Ground Three asserts that a number of the district court’s evidentiary\\n\\nrulings deprived Young of his due process right to a fair trial. Ground Four posits that\\n\\nthe Government failed to offer sufficient evidence to prove the two attempted obstruction\\n\\nof justice charges. Finally, Ground Five asserts that his sentence was both procedurally\\n\\nerroneous and substantively unreasonable.\\n\\n This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.\\n\\n\\n\\n II. Grounds One to Three: Entrapment-Centered Challenges\\n\\n 1\\n Count Three, charging a violation of 18 U.S.C. § 1512(b)(3), was dismissed as\\nduplicative.\\n\\n 5\\n\\f At trial, Young presented an entrapment defense to Count One, which charged\\n\\nYoung with attempting to provide material support to a designated FTO. To establish\\n\\nentrapment, a defendant must first demonstrate the government induced him to engage in\\n\\nthe criminal activity. United States v. McLaurin, 764 F.3d 372, 380 (4th Cir. 2014).\\n\\nOnce the defendant has shown government inducement, the burden shifts to the\\n\\ngovernment to prove beyond a reasonable doubt the defendant’s predisposition to have\\n\\nengaged in the criminal conduct. United States v. Jones, 976 F.2d 176, 179 (4th Cir.\\n\\n1992). Predisposition “focuses upon whether the defendant was an unwary innocent or,\\n\\ninstead, an unwary criminal who readily availed himself of the opportunity to perpetrate\\n\\nthe crime.” Mathews v. United States, 485 U.S. 58, 63 (1988). 2 To establish Young’s\\n\\npredisposition to commit the offense conduct, the Government introduced evidence of\\n\\nYoung’s interest in radical, anti-Semitic terrorist causes both before and after his first\\n\\ncontact with Khalil in 2010. See Jacobson v. United States, 503 U.S. 540, 548–50 (1992)\\n\\n(holding that predisposition must be established prior to the defendant’s first contact with\\n\\na government agent). This evidence included Nazi and white supremacist paraphernalia\\n\\nseized from Young’s home, expert testimony regarding the “convergence” of Nazism and\\n\\nmilitant Islamism, and testimony about Young’s prior support for such causes. Young\\n\\ncontests the admission of that evidence as well as the exclusion of other purportedly\\n\\nexculpatory evidence.\\n\\n\\n\\n 2\\n We have omitted internal quotation marks, alterations, and citations here and\\nthroughout this opinion, unless otherwise noted.\\n\\n 6\\n\\f In reviewing evidentiary rulings, this Court reviews the district court’s legal\\n\\nconclusions de novo and its factual findings for clear error. United States v. Kolsuz, 890\\n\\nF.3d 133, 141–42 (4th Cir. 2018). Such rulings are reviewed for abuse of discretion and\\n\\noverturned only if the error was not harmless. United States v. Cloud, 680 F.3d 396, 401\\n\\n(4th Cir. 2012); United States v. Forrest, 429 F.3d 73, 81 (4th Cir. 2005) (concerning\\n\\nexpert testimony).\\n\\n A. Ground One: Nazi and White Supremacist Paraphernalia\\n\\n To prove Young’s predisposition to assist an FTO, the Government introduced\\n\\nNazi and white supremacist paraphernalia seized from Young’s home pursuant to a\\n\\nsearch warrant. The warrant had authorized the seizure of “[a]ll records, documents, and\\n\\nparaphernalia . . . relating to ISIL/ISIS,” as well as “other designated terrorist groups, or\\n\\nany individual or group engaged in terrorism or terrorist activity, or communications with\\n\\nor involving such groups and/or individuals.” J.A. 56; 66. After finding the items in\\n\\nYoung’s home and consulting with a Government attorney, law enforcement seized the\\n\\nmaterials.\\n\\n The Government then moved to admit this evidence (1) to corroborate testimony\\n\\nfrom Young’s college friends and former housemates concerning his pre-2010 interest in\\n\\nthese causes 3 and (2) to further illustrate his interest in a historical and modern-day\\n\\n\\n 3\\n Specifically, Young’s college friend testified that after they had attended a 2001\\ngathering of neo-Nazis for a school project, Young told him not to discount an alliance\\nbetween Nazis and Muslims to combat Jews. And Young’s former housemates testified\\nthat Young had listened to racially inflammatory music and used an Israeli flag as a\\ndoormat to make an anti-Semitic statement. To corroborate this testimony, the\\n(Continued)\\n 7\\n\\fconnection between Nazis and militant Islamists. To this latter point, the Government\\n\\nintroduced, among other items, a poster Young had downloaded in 2007 depicting a Nazi\\n\\nshaking hands with the Mufti of Jerusalem—who had allied himself with Adolf Hitler\\n\\nand recruited Muslim troops to serve in the SS—titled “The Alliance: Worldwide\\n\\nAssociation of Nazis and Islamists 1939–2004,” Response Br. 35; photos of the Mufti\\n\\nand Hitler as well as the Mufti and Muslim SS troops; Young’s prayer list, which\\n\\nincluded Hitler and the Mufti; a 2007 photo on his computer of Muslim women with a\\n\\nsign saying, “God Bless Hitler,” J.A. 1636; a copy of Young’s Facebook page from 2011,\\n\\nin which Young linked to a story about the arrest of neo-Nazi turned jihadist Emerson\\n\\nBegolly; and a 2014 graphic on his phone with the words, “Together, we can finish what\\n\\nHitler started,” J.A. 1633.\\n\\n Young moved prior to trial to suppress the admission of the Nazi and white\\n\\nsupremacist paraphernalia based on two asserted errors: first, the seizure of the items\\n\\nexceeded the warrant’s scope and second, their admission violated Federal Rules of\\n\\nEvidence 401 and 403. The district court denied the motion, and Young challenges the\\n\\ndistrict court’s holding based on these two alleged errors. We consider each in turn and\\n\\naffirm the district court’s rulings.\\n\\n 1. Scope of the Search Warrant\\n\\n\\n\\n\\nGovernment introduced, among other items, a copy of a neo-Nazi book that Young had\\ngifted to his college friend; a flyer for a “white power” music company; and an anti-\\nSemitic graphic that Young had downloaded to his computer in 2007.\\n\\n 8\\n\\f Young contends the items should have been suppressed because they were outside\\n\\nthe scope of the warrant. He argues the warrant—which permitted the seizure of items\\n\\nrelated to ISIL as well as “other designated terrorist groups,” J.A. 56; 66—did not\\n\\nauthorize the seizure of the Nazi and white supremacist items, both because they were not\\n\\nincluded within the warrant’s language and because he was not being investigated for a\\n\\nhate crime. The district court rejected Young’s arguments, concluding that the items fell\\n\\nwithin the scope of the search warrant’s expansive language.\\n\\n “When a search is conducted pursuant to a warrant, it is limited in scope by the\\n\\nterms of the warrant’s authorization,” but these terms “are not to be interpreted in a\\n\\nhypertechnical manner.” United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010).\\n\\nInstead, a warrant should be read in a “commonsense and realistic” manner. United\\n\\nStates v. Phillips, 588 F.3d 218, 223 (4th Cir. 2009). Agents may seize an item pursuant\\n\\nto a warrant even if it “does not expressly mention and painstakingly describe it,” id. at\\n\\n225, because the specificity required may “vary according to the circumstances and type\\n\\nof items involved.” In re Grand Jury Subpoena, 920 F.2d 235, 239 (4th Cir. 1990).\\n\\n We conclude the seizure of the items here did not exceed the scope of the warrant.\\n\\nFirst, as the district court correctly recognized, even if Nazi organizations are not\\n\\ndesignated FTOs, a reasonable officer would be able to draw on common knowledge to\\n\\nconclude that the Nazis’ threats and use of violence as a means of achieving their\\n\\npolitical ends meant that Nazis engaged in terroristic activity as defined by the U.S. Code\\n\\n\\n\\n\\n 9\\n\\fand Black’s Law Dictionary. 4 See also United States v. Young, 260 F. Supp. 3d 530,\\n\\n554–55 (E.D. Va. 2017). Second, some of the items illustrated a historical and present-\\n\\nday connection between Nazism and radical Islamism. Third, the Criminal Complaint\\n\\nAffidavit provided examples of Young’s affiliation with both Nazism and radical\\n\\nIslamism: the Affidavit described how Young had told law enforcement he had dressed\\n\\nup both as a “Jihadi John” and a Nazi, had collected Nazi memorabilia, and had a tattoo\\n\\nof a German eagle on his neck. J.A. 43. Given this information, agents reasonably\\n\\nconcluded both that Nazis qualified as a terrorist organization and that as to this particular\\n\\ncase, the Nazi paraphernalia was relevant to or probative of material support for a\\n\\nterrorist organization. For these reasons, we conclude the district court did not err in\\n\\ndeclining to suppress these items.\\n\\n 2. Federal Rules of Evidence 401 and 403\\n\\n Even if the items were properly seized, Young argues that they nonetheless should\\n\\nhave been excluded under Federal Rules of Evidence 401 and 403. He contends that\\n\\nunder Rule 401, the materials were irrelevant because Nazism and militant Islamism are\\n\\nmutually exclusive belief systems. And under Rule 403, he asserts that the items were\\n\\nunfairly prejudicial because they did not tend to prove Young’s predisposition. But the\\n\\n\\n 4\\n 18 U.S.C. § 2331(1) and (5) define “terrorism” as activities that: (1) involve\\nviolent acts violative of federal or state criminal laws; and (2) appear to be intended to\\nintimidate a civilian population, influence government policy by intimidation or coercion,\\nor affect government conduct through mass destruction, assassination, or kidnapping.\\nSimilarly, Black’s Law Dictionary defines terrorism as “[t]he use or threat of violence to\\nintimidate or cause panic, esp. as a means of achieving a political end.” Terrorism,\\nBLACK’S LAW DICTIONARY (10th ed. 2014).\\n\\n 10\\n\\fdistrict court determined that the evidence was neither unfairly irrelevant nor prejudicial\\n\\nbecause for this particular defendant, predisposition encompassed “the convergence\\n\\nbetween Nazis and Islamist terrorists.” J.A. 136.\\n\\n With respect to relevance, we conclude the district court did not abuse its\\n\\ndiscretion in rejecting Young’s argument because Young’s advancement of the\\n\\nentrapment defense increased the scope of the relevant evidence. Under Rule 401,\\n\\nevidence is relevant if it has any tendency to make a fact more or less probable than it\\n\\nwould be without the evidence and the fact is of consequence in determining the action.\\n\\nSpecifically as to this case, “a broad swath of evidence, including aspects of the\\n\\ndefendant’s character and criminal past, [was] relevant to proving predisposition.”\\n\\nMcLaurin, 764 F.3d at 381. This is because predisposition “refers to the defendant’s\\n\\nstate of mind before government agents make any suggestion that he shall commit a\\n\\ncrime,” and so is a “broad concept” that requires distinguishing the “unwary innocent”\\n\\nfrom the “unwary criminal.” Id. (finding that certain bad act evidence may be admissible\\n\\nunder Rule 404(b) in entrapment cases). In this vein, “[p]redisposition is not limited only\\n\\nto the crimes specifically contemplated by the defendant prior to government\\n\\nsuggestion[.]” United States v. Ramos, 462 F.3d 329, 334–35 (4th Cir. 2006); see also\\n\\nUnited States v. Cromitie, 727 F.3d 194, 207 (2d Cir. 2013) (concluding in a terrorism\\n\\ncase that, to show predisposition, a defendant’s relevant prior design to commit the crime\\n\\ncould include a generalized intent to inflict harm on the U.S.).\\n\\n Here, the district court correctly recognized that Nazism and militant Islamism\\n\\nshare common ground—specifically, radical, anti-Semitic viewpoints. Given that the\\n\\n 11\\n\\fitems seized were probative of (1) Young’s predisposition to support such viewpoints,\\n\\nand (2) the length of such a predisposition, the items were relevant to meeting the\\n\\nGovernment’s burden to prove Young’s predisposition to support terrorist activity. See,\\n\\ne.g., United States v. Mostafa, 16 F. Supp. 3d 236, 266–67 (S.D.N.Y. 2014) (concluding a\\n\\ndefendant’s statement that “everybody wants to kill [Jews, including Hitler]” was\\n\\n“relevant to the defendant’s motive and intent regarding violent jihad”).\\n\\n Second, even if, as Young contends, Nazism and militant Islamism are mutually\\n\\nexclusive belief systems, absolute consistency of belief is not a prerequisite to proving\\n\\npredisposition. Other circuits have recognized that seemingly inconsistent belief in a\\n\\nterrorist group’s ideology does not preclude a finding by a court that a defendant either\\n\\nsupported that group in a criminal fashion or was predisposed to do so. See United States\\n\\nv. Van Haften, 881 F.3d 543, 544 (7th Cir. 2018) (affirming the application of a terrorism\\n\\nenhancement at a sentencing for material support of ISIL despite defendant’s support for\\n\\na variety of ideologies and evidence suggesting he had at times disclaimed his support for\\n\\nISIL); see also Cromitie, 727 F.3d at 215 (finding that moments of wavering did not\\n\\npreclude a finding of predisposition in a terrorism case).\\n\\n This does not end the analysis, however, because under Rule 403 a court “may\\n\\nexclude relevant evidence if its probative value is substantially outweighed by danger of\\n\\none or more of the following: unfair prejudice, confusing the issues, misleading the jury,\\n\\nundue delay, wasting time, or needlessly presenting cumulative evidence.” Here, as\\n\\ndiscussed, the district court properly concluded the evidence was highly probative of\\n\\nYoung’s particular predisposition to support ISIL. See United States v. Siraj, No. 07-\\n\\n 12\\n\\f0224-cr, 2008 WL 2675826, at *2 (2d Cir. July 9, 2008) (affirming the admission of\\n\\nallegedly prejudicial radical Islamist books from the bookstore at which the defendant\\n\\nhad worked because to the extent the defendant recommended the books, “they were\\n\\nrelevant to show predisposition,” and to the extent that they were for sale, they “tended to\\n\\nrebut [the defendant’s] assertion that the cooperating witness first exposed him to radical\\n\\nIslam and violent jihad”). This highly probative value meant that any prejudicial effect\\n\\nwas not unfair. Sorrells v. United States, 287 U.S. 435, 452 (1932) (noting that if a\\n\\ndefendant presents an entrapment defense and suffers a disadvantage, “he has brought it\\n\\nupon himself by reason of the nature of the defense”).\\n\\n Furthermore, any prejudicial effect was blunted by the district court’s limiting\\n\\ninstructions to the jury, which specifically cautioned:\\n\\n So I want you to understand that he is not being charged and you cannot\\n find him guilty for possessing Nazi or anti-Semitic literature. He’s not\\n being charged with that, he cannot be convicted for that, but the evidence is\\n being allowed in [to consider] . . . whether or not it helps or doesn’t help to\\n establish the predisposition issue, all right?\\n\\nJ.A. 980. See also United States v. Crowden, 882 F.3d 464, 473 (4th Cir. 2018) (“[A]ny\\n\\nprejudicial effect was reduced by the district court’s issuance of two sets of limiting\\n\\ninstructions[.]”). For these reasons, we conclude the district court’s admission of the\\n\\nNazi and white supremacist paraphernalia did not constitute an abuse of discretion and\\n\\ntherefore affirm the district court’s denial of the motion to suppress.\\n\\n B. Ground Two: Expert Certification\\n\\n At trial, the Government called Dr. Daveed Gartenstein-Ross as an expert witness\\n\\nregarding (1) violent extremist movements claiming inspiration from Islam; (2) white\\n\\n 13\\n\\fseparatists and the neo-Nazi movement; (3) the radicalization processes for such groups;\\n\\nand (4) the Libyan Civil War. Dr. Gartenstein-Ross also explained points of overlap\\n\\nbetween Nazism and radical Islamism with examples of individuals who had subscribed\\n\\nto both philosophies. Expert testimony is admissible under Federal Rule of Evidence 702\\n\\nif it involves specialized knowledge that will assist the trier of fact in understanding the\\n\\nevidence or determining a fact in issue, and is both reliable and relevant. Daubert v.\\n\\nMerrell Dow Pharms., Inc., 509 U.S. 579, 589–92 (1993). In admitting Dr. Gartenstein-\\n\\nRoss’ testimony, the district court found that “his background,” “his extensive academic\\n\\ncredentials,” “the fact that the United States government uses him for training in these\\n\\nareas,” and his prior work as an expert in other contexts sufficiently qualified him as an\\n\\nexpert witness. J.A. 212–13. The district court also concluded his testimony was\\n\\nrelevant. Although Young contends that the testimony of Dr. Gartenstein-Ross was\\n\\nneither reliable nor relevant, we agree with the district court’s conclusions.\\n\\n With respect to reliability, Young contends that Dr. Gartenstein-Ross had never\\n\\ntestified in a civil or criminal proceeding on these issues; had not published his thesis on\\n\\nthe “convergence” of white supremacism and militant Islamism in peer-reviewed\\n\\njournals; had not authored any studies on far-right radicalization; and had yet to perform\\n\\nany empirical analysis on this matter in the field. See United States v. Hassan, 742 F.3d\\n\\n104, 131 (4th Cir. 2014) (affirming the admission of expert testimony on homegrown\\n\\nterrorism in a material support case where the court had “previously approved of [the\\n\\nexpert’s] expertise in terrorism matters” and the expert’s methods had been subjected to\\n\\npeer review). But under the highly deferential standard afforded to the district court in\\n\\n 14\\n\\fdetermining an expert witness’s reliability, the district court did not abuse its discretion in\\n\\ndetermining that Dr. Gartenstein-Ross was reliable. 5 Even when an expert has never\\n\\npreviously been qualified, “it is the quality” of the expert’s qualifications that a district\\n\\ncourt must focus on. United States v. Garcia, 752 F.3d 382, 391 (4th Cir. 2014). Here,\\n\\nthe district court considered Young’s concerns yet reached a reasonable decision in\\n\\nqualifying Dr. Gartenstein-Ross based on his extensive credentials and areas of\\n\\nexpertise. 6 And although publishing in a peer-reviewed publication is often a hallmark of\\n\\nexpert witness reliability, that hallmark is a guidepost, not a mandatory prerequisite to\\n\\nqualification as an expert. See Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir.\\n\\n2017) (noting Daubert’s “list of specific factors neither necessarily nor exclusively\\n\\napplies to all experts”).\\n\\n In turn, the district court did not abuse its discretion in accepting Dr. Gartenstein-\\n\\nRoss’ social sciences-based methodology. At trial, Dr. Gartenstein-Ross explained that\\n\\nhe conducted his research “through a comparative method,” focusing on primary sources,\\n\\nthen comparing his conclusions against secondary sources and “events on the ground.”\\n\\n\\n 5\\n Furthermore, contrary to Young’s assertion, a Daubert hearing was not required.\\nA district court need not hold a hearing if, after being presented with a proposed expert’s\\n“substantial” credentials and training, it concludes “[t]his training and experience amply\\n[qualifies the expert] to give testimony [on the topic for which he or she is being\\nqualified].” United States v. Beasley, 495 F.3d 142, 150 (4th Cir. 2007). Here, as\\ndiscussed below, the district court reviewed Dr. Gartenstein-Ross’ credentials and\\nconcluded he was qualified to give expert testimony.\\n 6\\n These credentials included: training on radical groups for federal agencies;\\nteaching university courses on violent non-state actors; consultation on the Libyan Civil\\nWar for the U.S. government; field research on jihadist recruiting in the Middle East; and\\ntestimony in immigration cases on the Taliban and al Qaeda.\\n\\n 15\\n\\fJ.A. 1124–25. This methodology appears to be indistinguishable from that which we\\n\\napproved in United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004), rev’d on other\\n\\ngrounds, 543 U.S. 1097 (2005). There, we affirmed the admission of expert testimony on\\n\\nthe structure of terrorist groups after “[the expert] identified his methodology as one\\n\\ngenerally employed in the social sciences”—that is, “collect[ing] as much information as\\n\\npossible,” then balancing “each new incoming piece of information against the body of\\n\\ninformation you’ve built to that point.” Id. at 337. Accordingly, the district court did not\\n\\nabuse its discretion when it deemed Dr. Gartenstein-Ross’ explanation of his\\n\\nmethodology, when combined with his credentials, “sufficient.” J.A. 1126.\\n\\n As to relevance, we conclude the testimony was relevant and met Rule 702’s\\n\\nrequirement that the expert’s specialized knowledge “help the trier of fact . . . understand\\n\\nthe evidence or to determine a fact in issue.” Dr. Gartenstein-Ross’ testimony assisted\\n\\nthe jury by providing context for the historical backgrounds of and connection between\\n\\nNazism and militant Islamism. As the “evidence in this case was complicated, touching\\n\\nby necessity on a wide variety of ideas, terms, people, and organizations connected to\\n\\nradical Islam,” as well as white supremacism, the district court fairly concluded that the\\n\\ntestimony would assist the jury in understanding evidence regarding predisposition.\\n\\nUnited States v. Benkahla, 530 F.3d 300, 309 (4th Cir. 2008). For these reasons, we\\n\\nconclude the district court did not abuse its discretion in admitting Dr. Gartenstein-Ross’\\n\\ntestimony.\\n\\n C. Ground Three: Evidentiary Rulings\\n\\n\\n\\n 16\\n\\f Young argues that three of the district court’s evidentiary rulings, considered\\n\\nindividually or cumulatively, violated his due process right to a fair trial.\\n\\n 1. Admission of Weapons and Young’s Comments\\n\\n Young argues that the district court denied Young a fair trial when it reversed\\n\\npretrial rulings excluding evidence of (1) Young’s lawfully-owned weapons and (2)\\n\\nremarks Young had made to Khalil about attacking federal buildings. The contention by\\n\\nYoung is that the district court violated his claimed entitlement to rely on several pretrial\\n\\nrulings as the settled law of the case. But “the district judge is free, in the exercise of\\n\\nsound judicial discretion, to alter a previous in limine ruling,” especially in light of issues\\n\\nthat arise during a trial. Luce v. United States, 469 U.S. 38, 41–42 (1984). In particular,\\n\\nit is well within the district court’s discretion to deem previously-excluded evidence\\n\\nadmissible after the party seeking exclusion “open[s] the door.” United States v. Blake,\\n\\n571 F.3d 331, 348 (4th Cir. 2009).\\n\\n Here, the district court did not abuse its discretion in later deeming certain\\n\\nevidence admissible. First, the district court provided notice to Young multiple times that\\n\\nit could change its in limine rulings depending on what occurred during trial. For\\n\\nexample, the district court warned, “[N]ormally my rulings on a motion in limine are\\n\\nalways with a caveat that if something changes during the course of the trial, the decision\\n\\nmay be reversed[.]” J.A. 127–28. Second, with respect to Khalil’s testimony, the district\\n\\ncourt properly admitted this evidence after Young decided to focus his entrapment\\n\\ndefense on whether there was predisposition prior to his first contact with Khalil. At a\\n\\npretrial hearing, the district court warned Young that by framing his entrapment defense\\n\\n 17\\n\\fin this manner, some of Khalil’s testimony about Young’s statements might be admitted\\n\\nbecause such testimony would be probative of whether Young was already predisposed to\\n\\nsupport militant, radical ideas or whether Khalil implanted such ideas. (Specifically, the\\n\\ndistrict court advised, “[I]f you start the predisposition at a later date, then some of that\\n\\nKhalil business might not come in.” J.A. 261.) Nonetheless, Young continued to pursue\\n\\nthis line of argument utilizing an earlier chronological starting point. As a result, the\\n\\ndistrict court allowed Khalil to describe his relationship with Young, including\\n\\nrecounting Young’s statements about attacking the FBI, his ability to smuggle guns into a\\n\\nfederal building, and the usefulness of ballistic vests if the FBI were to come to his home.\\n\\nThird, at that point, the district court did not abuse its discretion in deeming Young’s\\n\\npossession of firearms and weapons admissible. Such possession was corroborative of\\n\\nKhalil’s testimony, and therefore properly admissible because Khalil’s credibility was\\n\\nfundamental in establishing Young’s predisposition before 2010. For these reasons, we\\n\\naffirm the district court’s admission of this evidence.\\n\\n 2. Exclusion of Young’s and Agents’ Comments\\n\\n Young argues the district court erred by excluding purportedly exculpatory\\n\\nevidence demonstrating that he lacked the predisposition to support ISIL. First, the\\n\\ndistrict court excluded, among other claimed exculpatory remarks, online comments\\n\\nYoung had made from his LiveLeak 7 account denouncing ISIL because the Government\\n\\nhad previously been barred from introducing other comments from this same account,\\n\\n\\n 7\\n LiveLeak is a video-sharing website.\\n\\n 18\\n\\fwhich the district court had deemed unfairly prejudicial and cumulative. We discern no\\n\\nreversible error because in excluding these and similar comments, the district court acted\\n\\nwithin its discretion to determine whether introducing such comments would permit the\\n\\nadmission of other previously-excluded evidence. See McLaurin, 764 F.3d at 384.\\n\\n Second, the district court barred the introduction of June 2016 messages between\\n\\nFBI agents reflecting their frustration with the slow pace of the investigation, which\\n\\nYoung argued went to their motives and consequently the issue of entrapment. The\\n\\ndistrict court properly concluded that the agents’ motives were “irrelevant” to entrapment\\n\\nbecause whether or not Young was induced had to be assessed by “what specifically was\\n\\npresented to [Young]” by the agents rather than what the agents discussed amongst\\n\\nthemselves. J.A. 443. See also United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993)\\n\\n(“Inducement . . . involves elements of governmental . . . conduct sufficiently excessive\\n\\nto implant a criminal design in the mind of an otherwise innocent third party.”). We thus\\n\\nconclude the district court did not abuse its discretion in excluding these materials.\\n\\n 3. Jencks Act and Brady Materials\\n\\n Finally, Young asserts Jencks 8 and Brady 9 errors. In the week prior to trial, the\\n\\nGovernment made two last-minute classified Jencks productions of communications\\n\\n\\n 8\\n “Under the Jencks Act, 18 U.S.C. § 3500(b), on a motion by the defendant, the\\ngovernment is required to produce any ‘statement’ of the witness related to the witness’[]\\ntestimony that is in the government’s possession.” United States v. Savage, 885 F.3d\\n212, 220 (4th Cir. 2018).\\n 9\\n Brady v. Maryland held that “suppression by the prosecution of evidence\\nfavorable to an accused upon request violates due process where the evidence is material\\neither to guilt or to punishment[.]” 373 U.S. 83, 87 (1963).\\n\\n 19\\n\\famongst FBI agents about (1) the number of audio recordings made of Mo’s meetings\\n\\nwith Young and (2) their frustration with the pace of their investigation of Young.\\n\\nYoung moved to strike the witnesses as to whom the Jencks material applied or to\\n\\ncontinue trial. Rather than striking the witnesses, the district court permitted defense\\n\\ncounsel a five-day continuance to which Young did not object. Young now argues that\\n\\nthe district court erred in doing so, contending these materials suggested spoliation of\\n\\nexculpatory evidence and therefore a Brady violation.\\n\\n We discern no reversible error by the district court. First, when the government\\n\\nfails to timely provide discovery materials that are not exculpatory, such as Jencks\\n\\nmaterials, the district court’s determination of whether to impose a sanction, and what\\n\\nsanction to impose, is reviewed for abuse of discretion. See United States v. Sterling, 724\\n\\nF.3d 482, 512 (4th Cir. 2013). “A continuance is the preferred sanction.” Id. In\\n\\nfashioning a remedy, the district court must consider the reason for the government’s\\n\\ndelay, whether the government acted intentionally or in bad faith, the degree of prejudice\\n\\n(if any) suffered by the defendant, and whether any less severe sanction will remedy the\\n\\nprejudice. Id. We have recognized that it is the rare case that would, absent bad faith,\\n\\nresult in an exclusion of evidence (such as striking witnesses). Id. Here, the district court\\n\\ncorrectly recognized that the government did not act in bad faith, given that the vast\\n\\nmajority of discovery was produced well in advance of trial, and that Young was not\\n\\nprejudiced because the materials at issue were not “relevant, let alone exculpatory.” J.A.\\n\\n278. Nonetheless, given the last-minute production, the district court permitted defense\\n\\n\\n\\n 20\\n\\fcounsel an ample continuance to review the material. Under these circumstances, the\\n\\ndistrict court did not abuse its discretion.\\n\\n Second, to establish a Brady violation, the evidence at issue must have been (1)\\n\\nfavorable to the defendant (either because it was exculpatory or impeaching), (2) material\\n\\nto the defense (that is, prejudice must have ensued), and (3) suppressed (that is, within the\\n\\nprosecution’s possession but not disclosed to defendant). United States v. Sarihifard, 155\\n\\nF.3d 301, 309 (4th Cir. 1998). But here, no issue implicating Brady arose. Young\\n\\ncontends that some of the Jencks material suggested Government spoliation of some\\n\\naudio recordings of Mo’s meetings with Young. Specifically, he notes that FBI records\\n\\nindicate that Young and Mo discussed ISIL for the first time during a June 29, 2014\\n\\nmeeting, but that no recording of this meeting was produced to him. Young argues that\\n\\nbecause (1) most of Mo’s other meetings with Young were recorded and (2) such an early\\n\\nconversation regarding ISIL may have been probative of Young’s predisposition, the\\n\\nGovernment withheld potentially exculpatory evidence and thereby committed a Brady\\n\\nviolation. But a review of the record—particularly the very FBI communications at\\n\\nissue—indicates that a recording of the meeting, unlike recordings of most of Mo’s other\\n\\nmeetings with Young, was never made and that any information purportedly within the\\n\\nrecordings was not material. 10 There is no record evidence to the contrary. Given this,\\n\\n\\n 10\\n Evidence is material if there is a reasonable probability that it would have\\nproduced a different outcome. United States v. Kelly, 35 F.3d 929, 936 (4th Cir. 1994).\\nYoung suggests the purported missing conversation would have gone to Young’s lack of\\npredisposition because it could have included statements by Young criticizing ISIL or\\nsupporters of ISIL. However, by Young’s own count, at least thirteen similar comments\\n(Continued)\\n 21\\n\\fYoung has offered nothing but rank speculation as to the nature of the allegedly\\n\\nsuppressed materials, which cannot establish a Brady violation. See United States v.\\n\\nStokes, 261 F.3d 496, 502 (4th Cir. 2001) (noting that to prove a Brady violation, the\\n\\ndefendant must show that “the prosecution had the [purportedly withheld materials] and\\n\\nfailed to disclose them”); see also United States v. Caro, 597 F.3d 608, 619 (4th Cir.\\n\\n2010) (“Because [the defendant] can only speculate as to what the requested information\\n\\nmight reveal, he cannot satisfy Brady’s requirement of showing that the requested\\n\\nevidence would be favorable to the accused.”). We therefore affirm the district court’s\\n\\nruling on this issue.\\n\\n\\n\\n III. Ground Four: Obstruction Convictions\\n\\n Young argues that the Government failed to provide sufficient evidence to prove\\n\\nthe attempted obstruction of justice counts and that the district court erroneously denied\\n\\nhis motion for judgment of acquittal after a guilty verdict. Fed. R. Crim. P. 29(c). We\\n\\nreview the denial of such a Rule 29 motion de novo. United States v. Howard, 773 F.3d\\n\\n519, 525 (4th Cir. 2014). “In its assessment of a challenge to the sufficiency of evidence,\\n\\na reviewing court views the evidence in the light most favorable to the prosecution and\\n\\ndecides whether ‘substantial evidence’”—that is, “evidence that a reasonable finder of\\n\\n\\nwere admitted during Mo’s testimony. Therefore, the recordings would not have been\\nmaterial because the jury nonetheless found—despite the admission of similar\\ncomments—that Young was predisposed to support terrorism. These reasons also\\nsupport the holding that the district court did not err in declining to find a Brady\\nviolation.\\n\\n 22\\n\\ffact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt\\n\\nbeyond a reasonable doubt”—supports the verdict. Id. Under that standard, we\\n\\nconclude that the evidence was insufficient to prove the nexus and foreseeability\\n\\nrequirements of the obstruction statute and consequently vacate the convictions under\\n\\nCounts Two and Four.\\n\\n A. Elements of the Offense\\n\\n To convict Young of attempted obstruction, the Government was required to prove\\n\\nhe (1) “corruptly” attempted to (2) “obstruct[], influence[], or impede[]” (3) “an official\\n\\nproceeding” during the December 3 and 5, 2015 interviews with FBI agents (Count Two)\\n\\nand when he sent the November 2014 text message (Count Four). 18 U.S.C.\\n\\n§ 1512(c)(2).\\n\\n An “official proceeding” includes a grand jury investigation, but not an FBI\\n\\ninvestigation. 18 U.S.C. § 1515(a)(1) provides that “official proceeding” encompasses:\\n\\n“(A) a proceeding before a judge or court of the United States . . . or a Federal grand\\n\\njury” or “(C) a proceeding before a Federal Government agency which is authorized by\\n\\nlaw[.]” Here, only a proceeding before a “Federal grand jury,” as found at\\n\\n§ 1515(a)(1)(A), could apply to Young. Other circuits considering whether an FBI\\n\\ninvestigation would fall under § 1515(a)(1)(C) have concluded that it does not because\\n\\nthe use of the preposition “before” in conjunction with “Federal Government agency”\\n\\nimplies “some formal convocation of the agency in which parties are directed to appear,\\n\\ninstead of any informal investigation conducted by any member of the agency.” United\\n\\n\\n\\n 23\\n\\fStates v. Ermoian, 752 F.3d 1165, 1171 (9th Cir. 2013) (citing United States v. Ramos,\\n\\n537 F.3d 439, 462–63 (5th Cir. 2008)). We agree with our sister circuits.\\n\\n Young argues that the evidence was insufficient to prove the existence of an\\n\\n“official proceeding” that he could have obstructed. First, Young asserts there was no\\n\\n“official proceeding” concerning Mo for Young to obstruct: Mo was the FBI’s own\\n\\ninformant and therefore the FBI never investigated Mo. Second, Young contends there\\n\\nwas no evidence that Young attempted to obstruct a proceeding concerning himself: the\\n\\nagents never informed Young that he was under investigation; the gift card crime was\\n\\ncommitted after the allegedly obstructive conduct, so there was no crime whose\\n\\ninvestigation Young could knowingly have attempted to obstruct; and an agent testified\\n\\nthat Young was not aware of any investigation until his arrest in August 2016. And even\\n\\nif he had been aware of an FBI investigation of himself, Young asserts, such an\\n\\ninvestigation would not have constituted an “official proceeding” under § 1515(a)(1).\\n\\n Young’s view misses the mark but points to a much more fundamental flaw in the\\n\\nGovernment’s evidence. As 18 U.S.C. § 1512(f)(1) provides, “an official proceeding\\n\\nneed not be pending or about to be instituted at the time of the offense.” Therefore, it\\n\\nwas immaterial whether an official proceeding actually existed at the time of the\\n\\nobstructive conduct. 11 Nonetheless, § 1512(c) does require that (1) the obstructive\\n\\nconduct be connected to a specific official proceeding (the “nexus” requirement) that was\\n\\n\\n 11\\n Although the FBI began “request[ing] federal grand jury subpoenas related to\\n[Young]” as early as 2011, the existence of such a grand jury investigation is irrelevant to\\nour determination of this matter for the reasons we describe. J.A. 1376.\\n\\n 24\\n\\f(2) either pending or was reasonably foreseeable to Young when he engaged in the\\n\\nconduct (the “reasonable foreseeability” requirement). These requirements, while not\\n\\nexplicitly laid out in § 1512(c), arise from two Supreme Court cases—United States v.\\n\\nAguilar, 515 U.S. 593 (1995), and Arthur Anderson, LLP v. United States, 544 U.S. 696\\n\\n(2005)—in which the Supreme Court identified these elements from related obstruction\\n\\nstatutes. 12 See also Marinello v. United States, 138 S. Ct. 1101, 1110 (2018).\\n\\n Aguilar considered the catchall provision of a statute criminalizing attempted\\n\\ngrand jury tampering. 515 U.S. at 599. The defendant had lied to the FBI during the\\n\\ncourse of an investigation and was convicted of “corruptly endeavoring to influence,\\n\\nobstruct, and impede [a] grand jury investigation” in violation of 18 U.S.C. § 1503. Id.\\n\\nAll the government had shown in support of the conviction was that the defendant had\\n\\nuttered false statements to an investigating agent “who might or might not testify before a\\n\\ngrand jury.” Id. at 600. The Supreme Court held that § 1503 required a greater\\n\\nconnection between the obstructive act and an official proceeding than what the\\n\\ngovernment had shown—specifically, a “nexus” showing “that the act [had] a\\n\\nrelationship in time, causation, or logic with the judicial proceeding.” Id. at 599. In\\n\\nconsidering the evidence, the Court in Aguilar concluded: “We do not believe that\\n\\nuttering false statements to an investigating agent—and that seems to be all that was\\n\\n\\n 12\\n Our sister circuits have noted that “[t]he nexus limitation is best understood as\\nan articulation of the proof of wrongful intent that will satisfy the mens rea requirement\\nof ‘corruptly’ obstructing or endeavoring to obstruct”—that is, the first element of\\nproving a § 1512(c)(2) charge. United States v. Erickson, 561 F.3d 1150, 1159 (10th Cir.\\n2009) (quoting United States v. Quattrone, 441 F.3d 153, 170 (2d Cir. 2006)).\\n\\n 25\\n\\fproved here—who might or might not testify before a grand jury is sufficient to” satisfy\\n\\nthe nexus requirement. Id. at 600.\\n\\n Arthur Andersen applied the nexus requirement to § 1512(b)(2)(A) offenses,\\n\\nwhich criminalize “knowingly” and “corruptly persuad[ing]” another person “with intent\\n\\nto cause” that person to tamper with documents that would be used in an official\\n\\nproceeding. 544 U.S. at 703. There, the Supreme Court considered whether the\\n\\ngovernment was required to prove a nexus between the tampering and a particular (rather\\n\\nthan abstract) proceeding. Id. at 707–08. Although the government pointed to § 1512(f)\\n\\nto argue that the statute did not require contemplation of a particular proceeding, the\\n\\nSupreme Court concluded that an official proceeding must, at a minimum, be reasonably\\n\\nforeseeable to the defendant who commits the obstructive act: “It is . . . one thing to say\\n\\nthat a proceeding need not be pending or instituted at the time of the offense, and quite\\n\\nanother to say a proceeding need not even be foreseen.” Id. A knowingly corrupt\\n\\npersuader cannot be convicted “when he does not have in contemplation any particular\\n\\nofficial proceeding in which those documents might be material.” Id. at 708.\\n\\n Though we have not specifically done so, 13 other circuits have applied Aguilar and\\n\\nArthur Andersen to the similarly-structured statute, § 1512(c), to conclude that, in\\n\\n\\n 13\\n We have previously considered in an unpublished per curiam opinion a\\ndefendant’s nexus argument. In affirming his § 1512(c)(2) conviction, we concluded the\\nevidence was sufficient to uphold his conviction because “there [was] a clear, logical\\nrelationship between his [obstructive] conduct and the judicial proceeding.” United\\nStates v. Wein, 521 F. App’x 138 (4th Cir. 2013) (per curiam). But we have not further\\naddressed the nexus or reasonable foreseeability requirements to prove such a charge.\\nSee id.\\n\\n 26\\n\\fdemonstrating a § 1512(c)(2) offense, “the government must prove that such a\\n\\nproceeding was reasonably foreseeable to the defendant” and “that there was a ‘nexus’\\n\\nbetween the defendant’s conduct and the pending, or foreseeable, official proceeding.”\\n\\nUnited States v. Martinez, 862 F.3d 223, 237 (2d Cir. 2017); see, e.g., United States v.\\n\\nPetruk, 781 F.3d 438, 445 (8th Cir. 2015); United States v. Tyler, 732 F.3d 241, 249–50\\n\\n(3d Cir. 2013) (applying the nexus and foreseeability requirements to “any prosecution\\n\\nbrought under a § 1512 provision charging obstruction of justice involving an ‘official\\n\\nproceeding’”); United States v. Bennett, 664 F.3d 997, 1013 (5th Cir. 2011) (applying the\\n\\nnexus requirement to § 1512(c)(2)), vacated on other grounds by 567 U.S. 950 (2012);\\n\\nUnited States v. Friske, 640 F.3d 1288, 1292 (11th Cir. 2011) (same); United States v.\\n\\nPhillips, 583 F.3d 1261, 1263–64 (10th Cir. 2009) (same); United States v. Carson, 560\\n\\nF.3d 566, 584 (6th Cir. 2009) (assuming arguendo that the nexus requirement applies to\\n\\n§ 1512(c)(2)). And as the Eighth Circuit noted in Petruk, “[W]e are aware of no circuit\\n\\nthat has considered and rejected application of the nexus requirement to § 1512(c)(2),”\\n\\ngiven the “similarity of statutory language between § 1512(c)(2) and the catchall\\n\\nprovision at issue in Aguilar, the application of the nexus requirement in Arthur Andersen\\n\\nto another provision of § 1512, and other circuits’ application of the nexus requirement to\\n\\n§ 1512(c)(2).” 781 F.3d at 445. We agree and hold that § 1512(c)(2) incorporates the\\n\\nnexus and reasonable foreseeability requirements set forth in Aguilar and Arthur\\n\\nAndersen. That is, it is a requirement “that a successful prosecution under § 1512(c)(2)\\n\\n[provide] proof beyond a reasonable doubt that the defendant contemplated a particular,\\n\\nforeseeable proceeding, and that the contemplated proceeding constituted an ‘official\\n\\n 27\\n\\fproceeding,’ which is defined under § 1515(a)(1)(A) to include a proceeding before a\\n\\nfederal judge, court, or grand jury[.]” Id. at 445. Young’s convictions do not meet this\\n\\nrequirement.\\n\\n B. Young’s Obstruction Convictions\\n\\n Upon considering the evidence presented at trial, we conclude that the evidence\\n\\nwas insufficient to convict Young of Counts Two and Four for attempting to obstruct\\n\\njustice under 18 U.S.C. § 1512(c)(2). In November 2014 and December 2015, Young did\\n\\ndesign his conduct to mislead FBI agents, including those he believed were investigating\\n\\nhis relationship with Mo. With respect to Count Four, prior to Mo’s “trip,” Young told\\n\\nMo the FBI would investigate Young after becoming aware Mo had joined ISIL and that\\n\\nthey knew one another. Young said he would send the text because the text would be\\n\\n“good for [Young],” helping Young avoid suspicion from law enforcement that he knew\\n\\nof Mo’s plans to join ISIL. J.A. 656. And with respect to Count Two, when Young\\n\\nthought in December 2015 that the FBI had learned that Mo had joined ISIL, Young\\n\\nattempted to deceive the FBI by providing statements consistent with the cover story,\\n\\ndisclaiming any knowledge of Mo’s whereabouts or plans. Young would only have\\n\\nundertaken these actions had an FBI investigation—whether in November 2014 or\\n\\nDecember 2015—been at least foreseeable to him.\\n\\n But this is not enough for purposes of § 1512(c)(2). In neither situation\\n\\n(November 2014 or December 2015) was this conduct connected to a specific official\\n\\nproceeding, nor was such a specific official proceeding reasonably foreseeable to Young.\\n\\nSimply because an FBI investigation was reasonably foreseeable to Young does not mean\\n\\n 28\\n\\fthat a grand jury investigation was reasonably foreseeable to him or that his conduct was\\n\\ndesigned to obstruct a grand jury’s proceedings. Specifically as to Count Two, the\\n\\nevidence is insufficient largely for the same reason that it was insufficient in Aguilar:\\n\\n“All the Government ha[s] shown was that [the defendant] had uttered false statements to\\n\\nan investigating agent who might or might not testify before a grand jury.” Arthur\\n\\nAndersen, 544 U.S. at 708. Even if there is sufficient evidence to demonstrate that\\n\\nYoung obstructed an FBI investigation, there is simply no evidence to demonstrate he\\n\\nwas aware either that his conduct would affect a grand jury proceeding or that a grand\\n\\njury or similar proceeding was impending. And with respect to Count Four, the\\n\\nGovernment has similarly failed to provide evidence demonstrating that Young foresaw a\\n\\nspecific grand jury investigation or that he designed his conduct to thwart such an\\n\\ninvestigation, rather than designing his conduct to obstruct an FBI inquiry—which he did\\n\\nforesee.\\n\\n Rather, Young’s case is more analogous to that of Friske, in which the Eleventh\\n\\nCircuit reversed a defendant’s § 1512(c)(2) conviction for attempting to obstruct a\\n\\nforfeiture proceeding. There, the defendant had, at the behest of an incarcerated friend,\\n\\ngone to the latter’s home to retrieve certain unspecified items which turned out to be\\n\\nsubject to forfeiture. 640 F.3d at 1289–90. In overturning the defendant’s conviction, the\\n\\nEleventh Circuit concluded that the government had failed to prove that the defendant\\n\\n“knew that the natural and probable result of his actions would be the obstruction of [the\\n\\nfriend’s] forfeiture proceeding.” Id. at 1292–93. Even though the defendant “was\\n\\ncertainly acting suspiciously,” “more is required to prove a violation of § 1512(c)(2).”\\n\\n 29\\n\\fId. at 1292. But because the only way for the jury to conclude that the defendant “knew\\n\\nof or foresaw the forfeiture proceeding” “would be through speculation,” the evidence\\n\\nwas insufficient to convict him. Id. at 1293. Similarly, although Young’s actions were\\n\\ncertainly designed to thwart an FBI inquiry, the only way the jury could have concluded\\n\\nhe foresaw a particular grand jury investigation would be through speculation.\\n\\n The insufficiency of the evidence here is highlighted by cases in which courts\\n\\nhave found that a grand jury proceeding into criminal activity was reasonably foreseeable\\n\\nbecause of a defendant’s actual awareness of an ongoing or impending investigation into\\n\\nclosely related activity and specific criminal actions in relation to such awareness. See\\n\\nUnited States v. Binday, 804 F.3d 558, 590 (2d Cir. 2015) (finding a grand jury\\n\\nproceeding was foreseeable because the defendant was aware that he was the target of a\\n\\nseparate regulatory investigation into an insurance fraud scheme and had destroyed\\n\\nincriminating documents related to the scheme); United States v. Simpson, 741 F.3d 539,\\n\\n552 (5th Cir. 2014) (finding a grand jury proceeding was reasonably foreseeable to a\\n\\nbusiness owner who had learned about the execution of search warrants for his company\\n\\nand had ordered the deletion of emails after learning of the warrants). By contrast, based\\n\\non the record before us in this case, we would be stretching the foreseeability requirement\\n\\nbeyond its limits in concluding that Young’s anticipation of an FBI investigation into an\\n\\nacquaintance’s future trip would also reasonably herald a grand jury proceeding. To do\\n\\nso would be pure speculation.\\n\\n Nonetheless, in an effort to bolster the evidence presented, the Government points\\n\\nto Young’s (1) awareness of his acquaintances’ arrests; (2) status as a law enforcement\\n\\n 30\\n\\fofficer; and (3) heightened suspicion of FBI surveillance of him, contending that these\\n\\nthree factors should support the inference that a grand jury investigation was reasonably\\n\\nforeseeable to him and that he designed his conduct to obstruct such an investigation.\\n\\nBut this case is entirely distinguishable from those in which a court has inferred the nexus\\n\\nand foreseeability requirements from similar factors. For example, in Martinez, the\\n\\nSecond Circuit affirmed a § 1512(c)(2) conviction of a defendant police officer who was\\n\\npart of a conspiracy in which at least two dozen co-conspirators committed more than\\n\\n200 robberies of drug traffickers. In upholding the sufficiency of the evidence, the\\n\\nSecond Circuit concluded that “it was easily inferable that the 2008 arrests of many of his\\n\\ncoconspirators made it foreseeable to [the defendant]—who estimated that as an NYPD\\n\\nofficer, he had testified 15-20 times in grand jury proceedings . . . —that there would be a\\n\\ngrand jury proceeding leading to numerous indictments.” 862 F.3d at 238. Furthermore,\\n\\n“it could easily be inferred that [the defendant’s] persistent searches of NYPD databases,\\n\\nand his reports back to coconspirators who had not been arrested, were intended to make\\n\\nit possible for them to avoid arrest by absconding before any outstanding warrants could\\n\\nbe executed, thereby potentially interfering with an ongoing grand jury proceeding.” Id.\\n\\n By contrast, the indictment of Young’s acquaintances was too attenuated from\\n\\nYoung’s relationship with Mo to have made a grand jury investigation of Young, Mo, or\\n\\ntheir relationship foreseeable to Young. And neither Young nor Mo was involved in an\\n\\nongoing criminal conspiracy with those acquaintances. Furthermore, although Young\\n\\nworked in law enforcement, the Government’s evidence failed to establish that he was\\n\\nroutinely involved in grand jury proceedings—or, for that matter, had ever testified in\\n\\n 31\\n\\fsuch a proceeding. And finally, Young’s awareness about FBI surveillance was also\\n\\ninadequate to create a sufficient nexus. Although the Government established at trial that\\n\\nYoung was constantly aware of the fact that the FBI could be investigating him, the\\n\\nGovernment failed to connect this general awareness—whether in combination with any\\n\\nof the issues discussed above or individually—with a specific and reasonably foreseeable\\n\\nofficial proceeding.\\n\\n Thus, “based on our review of the record, we have uncovered no evidence to\\n\\nsatisfy Arthur Andersen’s requirement that the Government prove a nexus between [the\\n\\nobstructive] conduct and a foreseeable particular federal proceeding to establish a\\n\\nconviction under” § 1512(c). Tyler, 732 F.3d at 250–51. Because the evidence was\\n\\ninsufficient to meet this essential requirement, we vacate Young’s convictions as to\\n\\nCounts Two and Four.\\n\\n\\n\\n IV.\\n\\n For the foregoing reasons, we affirm Young’s conviction as to Count One, vacate\\n\\nYoung’s convictions as to Counts Two and Four, and remand for resentencing. 14\\n\\n AFFIRMED IN PART, VACATED IN PART,\\n AND REMANDED\\n\\n\\n\\n\\n 14\\n Because Counts One, Two, and Four were grouped under United States\\nSentencing Guidelines § 3D1.2(c) for sentencing purposes, we do not address Young’s\\nchallenges to his sentence which, if relevant, can be addressed by the district court in the\\nfirst instance upon remand.\\n\\n 32\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":563,"cells":{"id":{"kind":"number","value":4592600,"string":"4,592,600"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Gregory Seerden"},"decision_date":{"kind":"string","value":"2019-02-21"},"docket_number":{"kind":"string","value":"18-4124"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before WILKINSON, AGEE, and THACKER, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"THACKER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4124\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nGREGORY KYLE SEERDEN,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nNorfolk. Raymond A. Jackson, District Judge. (2:17-cr-00067-RAJ-DEM-1)\\n\\n\\nArgued: December 11, 2018 Decided: February 20, 2019\\n Amended: February 21, 2019\\n\\n\\nBefore WILKINSON, AGEE, and THACKER, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Thacker wrote the opinion, in which Judge\\nWilkinson and Judge Agee joined.\\n\\n\\nARGUED: Andrew William Grindrod, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Norfolk, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE\\nUNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:\\nGeremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States\\nAttorney, Alexandria, Virginia, David A. Layne, Special Assistant United States\\nAttorney, Elizabeth M. Yusi, Assistant United States Attorney, OFFICE OF THE\\nUNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.\\n\\fTHACKER, Circuit Judge:\\n\\n In January 2017 investigators with the Naval Criminal Investigation Service\\n\\n(“NCIS”) obtained a military warrant to search the cell phone of Gregory Kyle Seerden\\n\\n(“Appellant”) for evidence of sexual assault. During the search of Appellant’s phone, the\\n\\ninvestigators found child pornography. On that basis, the investigators then obtained a\\n\\nfederal warrant to search Appellant’s phone a second time and again found child\\n\\npornography. Appellant moved to suppress the evidence, arguing that the first search\\n\\nwas unlawful because it violated the Military Rules of Evidence and that evidence\\n\\nobtained during the second search was fruit of the poisonous tree.\\n\\n Although the district court agreed that evidence obtained during the military\\n\\nsearch was inadmissible because it violated the Military Rules of Evidence, it nonetheless\\n\\nfound that the good faith exception allowed the government to admit evidence discovered\\n\\nvia the second search.\\n\\n On September 20, 2017, Appellant entered a conditional guilty plea to production\\n\\nof child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). He subsequently filed\\n\\nthis appeal. As explained below, we affirm on different grounds.\\n\\n I.\\n\\n Appellant was a member of the United States Navy’s Sea, Air, and Land Team.\\n\\nAt all times relevant to this appeal, he was stationed in San Diego, California. But for\\n\\none week in January 2017, Appellant attended a training at the Little Creek base in\\n\\nVirginia Beach, Virginia. During that week, Appellant was accused of sexual assault and\\n\\nsuspected of possession of child pornography.\\n\\n 2\\n\\f On his next to last night of training in Virginia, Appellant met a woman. The\\n\\nwoman recalled that, during her night out with Appellant, the pair went to a few bars and\\n\\nhad more than a few drinks. The woman came in and out of consciousness throughout\\n\\nthe night, but she remembered returning to Appellant’s room in the Navy Gateway Inns\\n\\nand Suites at Little Creek. At around 4:00 a.m., the woman woke up lying naked next to\\n\\nAppellant. She learned from Appellant that, at some point during the night, they had sex.\\n\\nShe then left. While she was waiting for a cab at the gate of the base, she began to cry.\\n\\nA service member on guard duty (a “sentry”) approached her, and she told him that\\n\\nAppellant sexually assaulted her. Appellant then attempted to call her. She didn’t\\n\\nanswer. Meanwhile, the sentry reported the allegations to NCIS.\\n\\n Later that day, NCIS began investigating the allegations. In doing so, NCIS\\n\\norchestrated a “controlled text message conversation” between the woman and Appellant.\\n\\nNCIS agents had the woman text Appellant and inquire about the night in question.\\n\\nDuring that conversation, Appellant admitted that the pair had sex and that the woman\\n\\nwas not sober. With that, NCIS agents began coordinating with Appellant’s commanding\\n\\nofficer in San Diego as well as the commanding officer of the Little Creek base to obtain\\n\\nauthorizations to search Appellant’s cell phone and hotel room. NCIS also consulted the\\n\\nJudge Advocate General’s (“JAG”) authorities at both bases. NCIS and JAG officers\\n\\ndecided that the Little Creek commanding officer should authorize the search of\\n\\nAppellant’s hotel room while Appellant’s commanding officer in San Diego should\\n\\nauthorize the search of his phone. The officers reasoned that, while the Little Creek\\n\\ncommanding officer had control over the base, Appellant’s commanding officer in San\\n\\n 3\\n\\fDiego had control over Appellant. In line with that plan, Appellant’s commanding\\n\\nofficer in San Diego signed a Command Authorization for Search and Seizure (“CASS”)\\n\\nsanctioning the search of Appellant’s phone.\\n\\n The CASS sought to collect messages, photographs, videos, and any other\\n\\ninformation related to the investigation from Appellant’s phone. In its statement of\\n\\nprobable cause, the affidavit supporting the CASS connected Appellant’s phone to the\\n\\nalleged criminal activity by noting that Appellant attempted to call his accuser after\\n\\ndropping her off at the gate. It also noted that NCIS agents orchestrated a pretext\\n\\ncommunication between Appellant and the woman accusing him of sexual assault.\\n\\n A week later, a digital forensics examiner executed the search of Appellant’s\\n\\nphone. In doing so, the forensics examiner viewed thumbnail-size icons of photographs\\n\\non Appellant’s phone. The examiner, who was trained in and had experience with child\\n\\nexploitation investigations, believed some of those photographs were images of child\\n\\npornography.\\n\\n Based on the evidence discovered during the military search of Appellant’s phone,\\n\\nNCIS obtained a federal search warrant from the Eastern District of Virginia to search\\n\\nAppellant’s phone for further evidence of child pornography. Under the authority of this\\n\\nsecond warrant, the forensics examiner continued his analysis of Appellant’s cell phone\\n\\ndata. He found 78 images and four videos of child pornography. The images depicted\\n\\nknown victims of child sexual exploitation, while the videos depicted Appellant\\n\\nperforming a sexual act inches from the face of a sleeping child.\\n\\n\\n\\n 4\\n\\f On March 31, 2017, the Government filed a criminal complaint charging\\n\\nAppellant with possession and production of child pornography. And on April 20, 2017,\\n\\na grand jury indicted Appellant for possession, production, and transportation of child\\n\\npornography. On June 6, 2017, Appellant moved to suppress the evidence obtained from\\n\\nthe two searches of his phone. After holding a hearing on Appellant’s motion, the district\\n\\ncourt denied it.\\n\\n The district court first concluded that the evidence obtained during the first search\\n\\nwas inadmissible. Applying the Military Rules of Evidence in evaluating the lawfulness\\n\\nof that search, the district court reasoned that the CASS obtained by NCIS did not satisfy\\n\\nthe “authorization” requirement of Military Rule of Evidence 315:\\n\\n Pursuant to Military Rule of Evidence 315(d), a search\\n is valid only if it is issued by an impartial individual. An\\n impartial individual is a commander, military judge or\\n magistrate. Mil. R. Evid. 315(d)(1) and (2). A military\\n commander is defined as “a commander or other person\\n serving in a position designated by the Secretary concerned as\\n either a position analogous to an officer in charge or a\\n position of command, who has control over the place where\\n the property or person to be search is situated or found, or if\\n that place is not under military control, having control over\\n persons subject to military law or the law of war.” Mil. R.\\n Evid. 315(d)(1). A military judge or magistrate “is a person\\n who is authorized under regulations prescribed by the\\n Secretary of Defense or the Secretary concerned.” Mil. R.\\n Evid. 315(d)(2).\\n\\n Here, the person who authorized the CASS for the first\\n search of [Appellant’s] telephone was [Appellant’s] unit\\n commander in San Diego, CA. Pursuant to the definitions\\n provided in Military Rules of Evidence 315(d)(1),\\n [Appellant’s] unit commander did not have the authority to\\n authorize any search [conducted] on [the Little Creek base]\\n because [Appellant’s] unit commander did not have control\\n\\n 5\\n\\f over the place where the property or person to be searched was\\n situated.\\n\\nJ.A. 215. 1 The district court further reasoned that, because of the defect in the CASS\\n\\nauthorization, it could not apply the exclusionary rule’s good faith exception to the\\n\\nevidence obtained as a result of the first search. Citing Military Rule of Evidence 311,\\n\\nthe district court noted, “Pursuant to military law, evidence obtained as the result of an\\n\\nunlawful search may [only] be used if . . . ‘the search or seizure resulted from an\\n\\nauthorization . . . issued by an individual competent to issue the authorization under Mil.\\n\\nR. Evid. 315(d).’” J.A. 217–18. Because the district court found that Appellant’s\\n\\ncommander in San Diego was not competent to authorize the CASS, the court concluded\\n\\nthat “the good faith exception does not cure the first search.” Id. at 218.\\n\\n Despite finding that evidence obtained during the first search was inadmissible,\\n\\nthe district court concluded that evidence obtained during the second search was\\n\\nadmissible. In doing so, the district court acknowledged that “the second search relied\\n\\nupon evidence found during the first search,” J.A. 218, that the probable cause supporting\\n\\nthe search warrant authorizing the second search was “obtained through unlawful\\n\\nmeans,” id. at 220, and that “[a]s a result, the magistrate judge’s subsequent issuance of a\\n\\nsearch warrant . . . was void ab initio.” Id. at 222. Nonetheless, the district court found\\n\\nthat the good faith exception to the exclusionary rule permitted the admission of the\\n\\nevidence obtained during the second search and denied Appellant’s motion to suppress.\\n\\n 1\\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this\\nappeal.\\n\\n\\n 6\\n\\f Thereafter, on September 27, 2017, Appellant plead guilty to production of child\\n\\npornography. He stipulated to a written statement of facts but reserved his right to appeal\\n\\nthe district court’s denial of his motion to suppress. On February 15, 2018, the district\\n\\ncourt sentenced Appellant to 324 months of imprisonment to be followed by 25 years of\\n\\nsupervised release. This appeal followed.\\n\\n II.\\n\\n Analyzing a district court’s decision to deny a motion to suppress, we review legal\\n\\nconclusions de novo and factual findings for clear error. See United States v. Kolsuz, 890\\n\\nF.3d 133, 141–42 (4th Cir. 2018). In doing so, we consider the evidence in the light most\\n\\nfavorable to the Government. See id.\\n\\n III.\\n\\n Appellant contends that the Military Rules of Evidence apply here and require\\n\\nsuppression. We hold, however, that the Fourth Amendment governs whether evidence\\n\\nis admissible in federal criminal proceedings. The Military Rules of Evidence cannot\\n\\nusurp the Fourth Amendment. We further hold that, even assuming the initial warrant\\n\\nviolated the Fourth Amendment, the good faith exception to the exclusionary rule\\n\\nprecludes suppression of evidence obtained from the first search. And because the good\\n\\nfaith exception saves the evidence of the first search, it also saves the evidence obtained\\n\\nfrom the second search.\\n\\n\\n\\n\\n 7\\n\\f A.\\n\\n At the outset, we recognize that federal courts treat searches conducted within the\\n\\nconfines of the military differently. As this court observed in United States v. Rendon,\\n\\n“[T]he Fourth Amendment protects members of the armed services from unreasonable\\n\\nsearches and seizures” with “different standards than those that apply in the civilian\\n\\ncontext.” 607 F.3d 982, 990 (4th Cir. 2010).\\n\\n That is not to say that military rules wholly displace the framework of the Fourth\\n\\nAmendment. To the contrary, military rules and procedures affect whether a military\\n\\nsearch satisfies the Fourth Amendment’s reasonableness requirement. To determine\\n\\nwhether a search is reasonable, the Fourth Amendment requires courts to balance the\\n\\ndegree to which a search “intrudes upon an individual’s privacy” against “the degree to\\n\\nwhich it is needed for the promotion of legitimate governmental interests.” Samson v.\\n\\nCalifornia, 547 U.S. 843, 848 (2006) (citations omitted). The privacy and governmental\\n\\ninterests implicated by military searches are different from those implicated by civilian\\n\\nsearches: In military settings, the government has a significant interest in maintaining\\n\\norder and control over its service members. See Parker v. Levy, 417 U.S. 733, 744\\n\\n(1974). Meanwhile, the rights of service members must bend to meet the demands of\\n\\ndiscipline and duty. See Burns v. Wilson, 346 U.S. 137, 140 (1953). For that reason,\\n\\nfederal courts consider the Military Rules of Evidence, which outline the rules and\\n\\nprocedures that govern how military officers conduct military searches, in evaluating the\\n\\nreasonableness of military searches. See, e.g., Rendon, 607 F.3d at 990–91. And when\\n\\nsuch a search violates those rules in a way that impedes a service member’s specific\\n\\n 8\\n\\fexpectations of privacy, “a violation of the Fourth Amendment can result.” See id. at\\n\\n991.\\n\\n But it does not follow that the Military Rules of Evidence themselves tie the hands\\n\\nof the federal courts. “Military law, like state law, is a jurisprudence which exists\\n\\nseparate and apart from the law which governs in our federal judicial establishment.”\\n\\nBurns, 346 U.S. at 140. Just as states “lack the power to impose on federal courts\\n\\nrequirements stricter than those mandated by the federal Constitution,” United States v.\\n\\nClyburn, 24 F.3d 613, 616 (4th Cir. 1994), so too does the military. To hold otherwise\\n\\nwould “hamper the enforcement of valid federal laws by rendering relevant and reliable\\n\\nevidence unavailable.” Id. (quoting United States v. Chavez-Vernaza, 844 F.2d 1368,\\n\\n1374 (9th Cir. 1987) (alteration omitted)). For that reason, the Fourth Amendment\\n\\nprovides the proper standard for determining whether evidence seized pursuant to a non-\\n\\nfederal warrant is admissible in federal court. Id. at 616–17; see also United States v.\\n\\nVan Metre, 150 F.3d 339, 346–47 (4th Cir. 1998) (“[T]he proper standard for evaluating\\n\\nillegal seizure claims in federal courts has uniformly been whether the actions of the state\\n\\nofficials in securing the evidence violated the Fourth Amendment to the United States\\n\\nConstitution.” (alteration and internal quotation marks omitted)).\\n\\n B.\\n\\n Even assuming there was a Fourth Amendment violation here, we hold that the\\n\\ngood faith exception to the exclusionary rule precludes suppression.\\n\\n Suppression is not itself a right explicitly bestowed by the Fourth Amendment.\\n\\nRather, suppression of evidence obtained through a search that violates the Fourth\\n\\n 9\\n\\fAmendment is a judicially created prescription for such a violation. See United States v.\\n\\nLeon, 486 U.S. 897, 909 (1984). Indeed, the exclusionary rule is primarily proscriptive:\\n\\nit is designed to safeguard Fourth Amendment rights through its deterrent effect. Id. For\\n\\nthat reason, “evidence should be suppressed only if it can be said that the law\\n\\nenforcement officer had knowledge, or may properly be charged with knowledge, that the\\n\\nsearch was unconstitutional under the Fourth Amendment.” Illinois v. Krull, 480 U.S.\\n\\n340, 348–49 (1987) (quoting United States v. Peltier, 422 U.S. 531, 542 (1975) (internal\\n\\nquotation marks omitted)).\\n\\n In line with that principle, the good faith exception to the exclusionary rule allows\\n\\ncourts to introduce evidence obtained in violation of the Constitution but in reasonable\\n\\nreliance on a defective warrant. See Leon, 468 U.S. at 905. The Supreme Court has\\n\\nidentified only five limitations to the application of the good faith exception: (1) where a\\n\\nmagistrate issues a warrant based on a deliberately or recklessly false affidavit, see\\n\\nFranks v. Delaware, 438 U.S. 154, 155–56 (1978); (2) where a magistrate lacks\\n\\nneutrality and detachment, see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326–28\\n\\n(1979); (3) where a warrant is based on an affidavit “so lacking in indicia of probable\\n\\ncause as to render official belief in its existence entirely unreasonable,” Leon, 468 U.S. at\\n\\n923 (quoting Brown v. Illinois, 422 U.S. 590, 610–11 (1975) (Powell, J., concurring in\\n\\npart)); (4) where a warrant is so facially deficient that a reasonable officer could not\\n\\nbelieve it was valid, see id. at 923; and (5) where police recklessly maintain or knowingly\\n\\nenter false information into a warrant database to enable a future arrest, Herring v. United\\n\\n\\n\\n 10\\n\\fStates, 555 U.S. 135, 145 (2009). Appellant argues that the CASS at issue here triggers\\n\\ntwo of those limitations. 2\\n\\n 1.\\n\\n Appellant argues that, because the CASS was not authorized by the commanding\\n\\nofficer with “control over the place where the property or person to be searched [was]\\n\\nsituated,” it was facially deficient to the point where “no reasonable person could have\\n\\nconcluded that this officer possessed authority to issue the CASS.” Appellant’s Br. 18.\\n\\nThat argument lacks both legal and logical support.\\n\\n First, we have applied the good faith exception to warrants authorized by\\n\\nmagistrate judges lacking jurisdiction. See, e.g., United States v. McLamb, 880 F.3d 685,\\n\\n691 (4th Cir. 2018). We have done so because “the exclusionary rule is designed to deter\\n\\npolice misconduct rather than to punish the errors of judges and magistrates.” Id.\\n\\n(quoting Leon, 468 U.S. at 916). And suppressing evidence obtained pursuant to a\\n\\nwarrant issued by the wrong magistrate judge would not appreciably deter police\\n\\nmisconduct. Id. There is no reason to conclude that a case of the wrong commanding\\n\\nofficer should be treated any differently.\\n\\n\\n\\n\\n 2\\n Appellant presents no independent basis for suppressing the evidence that\\nofficers obtained when they executed the federal warrant. Instead, Appellant argues that\\nevidence obtained through the federal warrant must be suppressed because the CASS was\\nillegal and the federal warrant was supported solely by evidence obtained through the\\nCASS. Accordingly, the question before us is whether evidence obtained through the\\nCASS is admissible. We need not scrutinize the federal warrant.\\n\\n\\n 11\\n\\f Second, we cannot say that no reasonable officer could review a CASS authorized\\n\\nby the subject of the search’s commanding officer -- as opposed to the commanding\\n\\nofficer of the subject’s current location -- and believe it to be valid. Military Rule of\\n\\nEvidence 315(d) is no bastion of clarity: it places the power to authorize searches on the\\n\\nofficer “who has control over the place where the property or person to be searched is\\n\\nsituated.” One could reasonably conclude that a military service member’s commanding\\n\\nofficer is the officer who has control over the place where he or she “is situated.” Indeed,\\n\\nin this case, several officers reached that conclusion. NCIS consulted Appellant’s\\n\\ncommanding officer in San Diego and the commanding officer of the Little Creek base.\\n\\nNCIS also consulted JAG attorneys at both bases. Only after taking these measures did\\n\\nNCIS reach the technically incorrect conclusion that Appellant’s commander in San\\n\\nDiego should authorize the search of Appellant’s phone, while the Little Creek\\n\\ncommanding officer should authorize the search of his hotel room. This court is not\\n\\nprepared to call that conclusion, and each of those officers, unreasonable.\\n\\n 2.\\n\\n Appellant also argues that the good faith exception cannot apply to the CASS\\n\\nbecause it was so lacking in indicia of probable cause. But “the threshold for establishing\\n\\nthis exception is a high one.” Messerschmidt v. Millender, 565 U.S. 535, 547 (2012).\\n\\nOfficers executing warrants are not often expected to question the conclusions of an\\n\\nissuing authority. Id. (citing Leon, 468 U.S. at 921). For that reason, to preclude\\n\\napplication of the good faith exception, an officer’s reliance on an issuing authority’s\\n\\nprobable cause determination must have been “entirely unreasonable.” Id. at 549. That\\n\\n 12\\n\\fwas not the case here. The affidavit supporting the CASS detailed the allegations of\\n\\nAppellant’s accuser. It also noted that NCIS agents orchestrated a controlled text\\n\\nmessage conversation between Appellant and his accuser and described the admissions\\n\\nthat Appellant made during that conversation. Those admissions were consistent with the\\n\\nallegations of Appellant’s accuser. Presented with such information, it would not be\\n\\nentirely unreasonable for an officer to believe that the CASS was supported by probable\\n\\ncause.\\n\\n Accordingly, we hold that the good faith exception to the exclusionary rule applies\\n\\nto the evidence obtained through the CASS. Evidence subsequently obtained through the\\n\\nfederal warrant, which was supported by the CASS evidence, is likewise admissible.\\n\\n IV.\\n\\n For the foregoing reasons, the judgment of the district court is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4369853/\", \"author_raw\": \"THACKER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WILKINSON"},"judge2":{"kind":"string","value":"AGEE"},"judge3":{"kind":"string","value":"THACKER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WILKINSON\": \", Circuit\", \"AGEE\": \", Circuit\", \"THACKER\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4592600/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Gregory Seerden\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-21\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4124\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nGREGORY KYLE SEERDEN,\n\n Defendant - Appellant.\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nNorfolk. Raymond A. Jackson, District Judge. (2:17-cr-00067-RAJ-DEM-1)\n\n\nArgued: December 11, 2018 Decided: February 20, 2019\n Amended: February 21, 2019\n\n\nBefore WILKINSON, AGEE, and THACKER, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Thacker wrote the opinion, in which Judge\nWilkinson and Judge Agee joined.\n\n\nARGUED: Andrew William Grindrod, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Norfolk, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE\nUNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:\nGeremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States\nAttorney, Alexandria, Virginia, David A. Layne, Special Assistant United States\nAttorney, Elizabeth M. Yusi, Assistant United States Attorney, OFFICE OF THE\nUNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.\n\fTHACKER, Circuit Judge:\n\n In January 2017 investigators with the Naval Criminal Investigation Service\n\n(“NCIS”) obtained a military warrant to search the cell phone of Gregory Kyle Seerden\n\n(“Appellant”) for evidence of sexual assault. During the search of Appellant’s phone, the\n\ninvestigators found child pornography. On that basis, the investigators then obtained a\n\nfederal warrant to search Appellant’s phone a second time and again found child\n\npornography. Appellant moved to suppress the evidence, arguing that the first search\n\nwas unlawful because it violated the Military Rules of Evidence and that evidence\n\nobtained during the second search was fruit of the poisonous tree.\n\n Although the district court agreed that evidence obtained during the military\n\nsearch was inadmissible because it violated the Military Rules of Evidence, it nonetheless\n\nfound that the good faith exception allowed the government to admit evidence discovered\n\nvia the second search.\n\n On September 20, 2017, Appellant entered a conditional guilty plea to production\n\nof child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). He subsequently filed\n\nthis appeal. As explained below, we affirm on different grounds.\n\n I.\n\n Appellant was a member of the United States Navy’s Sea, Air, and Land Team.\n\nAt all times relevant to this appeal, he was stationed in San Diego, California. But for\n\none week in January 2017, Appellant attended a training at the Little Creek base in\n\nVirginia Beach, Virginia. During that week, Appellant was accused of sexual assault and\n\nsuspected of possession of child pornography.\n\n 2\n\f On his next to last night of training in Virginia, Appellant met a woman. The\n\nwoman recalled that, during her night out with Appellant, the pair went to a few bars and\n\nhad more than a few drinks. The woman came in and out of consciousness throughout\n\nthe night, but she remembered returning to Appellant’s room in the Navy Gateway Inns\n\nand Suites at Little Creek. At around 4:00 a.m., the woman woke up lying naked next to\n\nAppellant. She learned from Appellant that, at some point during the night, they had sex.\n\nShe then left. While she was waiting for a cab at the gate of the base, she began to cry.\n\nA service member on guard duty (a “sentry”) approached her, and she told him that\n\nAppellant sexually assaulted her. Appellant then attempted to call her. She didn’t\n\nanswer. Meanwhile, the sentry reported the allegations to NCIS.\n\n Later that day, NCIS began investigating the allegations. In doing so, NCIS\n\norchestrated a “controlled text message conversation” between the woman and Appellant.\n\nNCIS agents had the woman text Appellant and inquire about the night in question.\n\nDuring that conversation, Appellant admitted that the pair had sex and that the woman\n\nwas not sober. With that, NCIS agents began coordinating with Appellant’s commanding\n\nofficer in San Diego as well as the commanding officer of the Little Creek base to obtain\n\nauthorizations to search Appellant’s cell phone and hotel room. NCIS also consulted the\n\nJudge Advocate General’s (“JAG”) authorities at both bases. NCIS and JAG officers\n\ndecided that the Little Creek commanding officer should authorize the search of\n\nAppellant’s hotel room while Appellant’s commanding officer in San Diego should\n\nauthorize the search of his phone. The officers reasoned that, while the Little Creek\n\ncommanding officer had control over the base, Appellant’s commanding officer in San\n\n 3\n\fDiego had control over Appellant. In line with that plan, Appellant’s commanding\n\nofficer in San Diego signed a Command Authorization for Search and Seizure (“CASS”)\n\nsanctioning the search of Appellant’s phone.\n\n The CASS sought to collect messages, photographs, videos, and any other\n\ninformation related to the investigation from Appellant’s phone. In its statement of\n\nprobable cause, the affidavit supporting the CASS connected Appellant’s phone to the\n\nalleged criminal activity by noting that Appellant attempted to call his accuser after\n\ndropping her off at the gate. It also noted that NCIS agents orchestrated a pretext\n\ncommunication between Appellant and the woman accusing him of sexual assault.\n\n A week later, a digital forensics examiner executed the search of Appellant’s\n\nphone. In doing so, the forensics examiner viewed thumbnail-size icons of photographs\n\non Appellant’s phone. The examiner, who was trained in and had experience with child\n\nexploitation investigations, believed some of those photographs were images of child\n\npornography.\n\n Based on the evidence discovered during the military search of Appellant’s phone,\n\nNCIS obtained a federal search warrant from the Eastern District of Virginia to search\n\nAppellant’s phone for further evidence of child pornography. Under the authority of this\n\nsecond warrant, the forensics examiner continued his analysis of Appellant’s cell phone\n\ndata. He found 78 images and four videos of child pornography. The images depicted\n\nknown victims of child sexual exploitation, while the videos depicted Appellant\n\nperforming a sexual act inches from the face of a sleeping child.\n\n\n\n 4\n\f On March 31, 2017, the Government filed a criminal complaint charging\n\nAppellant with possession and production of child pornography. And on April 20, 2017,\n\na grand jury indicted Appellant for possession, production, and transportation of child\n\npornography. On June 6, 2017, Appellant moved to suppress the evidence obtained from\n\nthe two searches of his phone. After holding a hearing on Appellant’s motion, the district\n\ncourt denied it.\n\n The district court first concluded that the evidence obtained during the first search\n\nwas inadmissible. Applying the Military Rules of Evidence in evaluating the lawfulness\n\nof that search, the district court reasoned that the CASS obtained by NCIS did not satisfy\n\nthe “authorization” requirement of Military Rule of Evidence 315:\n\n Pursuant to Military Rule of Evidence 315(d), a search\n is valid only if it is issued by an impartial individual. An\n impartial individual is a commander, military judge or\n magistrate. Mil. R. Evid. 315(d)(1) and (2). A military\n commander is defined as “a commander or other person\n serving in a position designated by the Secretary concerned as\n either a position analogous to an officer in charge or a\n position of command, who has control over the place where\n the property or person to be search is situated or found, or if\n that place is not under military control, having control over\n persons subject to military law or the law of war.” Mil. R.\n Evid. 315(d)(1). A military judge or magistrate “is a person\n who is authorized under regulations prescribed by the\n Secretary of Defense or the Secretary concerned.” Mil. R.\n Evid. 315(d)(2).\n\n Here, the person who authorized the CASS for the first\n search of [Appellant’s] telephone was [Appellant’s] unit\n commander in San Diego, CA. Pursuant to the definitions\n provided in Military Rules of Evidence 315(d)(1),\n [Appellant’s] unit commander did not have the authority to\n authorize any search [conducted] on [the Little Creek base]\n because [Appellant’s] unit commander did not have control\n\n 5\n\f over the place where the property or person to be searched was\n situated.\n\nJ.A. 215. 1 The district court further reasoned that, because of the defect in the CASS\n\nauthorization, it could not apply the exclusionary rule’s good faith exception to the\n\nevidence obtained as a result of the first search. Citing Military Rule of Evidence 311,\n\nthe district court noted, “Pursuant to military law, evidence obtained as the result of an\n\nunlawful search may [only] be used if . . . ‘the search or seizure resulted from an\n\nauthorization . . . issued by an individual competent to issue the authorization under Mil.\n\nR. Evid. 315(d).’” J.A. 217–18. Because the district court found that Appellant’s\n\ncommander in San Diego was not competent to authorize the CASS, the court concluded\n\nthat “the good faith exception does not cure the first search.” Id. at 218.\n\n Despite finding that evidence obtained during the first search was inadmissible,\n\nthe district court concluded that evidence obtained during the second search was\n\nadmissible. In doing so, the district court acknowledged that “the second search relied\n\nupon evidence found during the first search,” J.A. 218, that the probable cause supporting\n\nthe search warrant authorizing the second search was “obtained through unlawful\n\nmeans,” id. at 220, and that “[a]s a result, the magistrate judge’s subsequent issuance of a\n\nsearch warrant . . . was void ab initio.” Id. at 222. Nonetheless, the district court found\n\nthat the good faith exception to the exclusionary rule permitted the admission of the\n\nevidence obtained during the second search and denied Appellant’s motion to suppress.\n\n 1\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this\nappeal.\n\n\n 6\n\f Thereafter, on September 27, 2017, Appellant plead guilty to production of child\n\npornography. He stipulated to a written statement of facts but reserved his right to appeal\n\nthe district court’s denial of his motion to suppress. On February 15, 2018, the district\n\ncourt sentenced Appellant to 324 months of imprisonment to be followed by 25 years of\n\nsupervised release. This appeal followed.\n\n II.\n\n Analyzing a district court’s decision to deny a motion to suppress, we review legal\n\nconclusions de novo and factual findings for clear error. See United States v. Kolsuz, 890\n\nF.3d 133, 141–42 (4th Cir. 2018). In doing so, we consider the evidence in the light most\n\nfavorable to the Government. See id.\n\n III.\n\n Appellant contends that the Military Rules of Evidence apply here and require\n\nsuppression. We hold, however, that the Fourth Amendment governs whether evidence\n\nis admissible in federal criminal proceedings. The Military Rules of Evidence cannot\n\nusurp the Fourth Amendment. We further hold that, even assuming the initial warrant\n\nviolated the Fourth Amendment, the good faith exception to the exclusionary rule\n\nprecludes suppression of evidence obtained from the first search. And because the good\n\nfaith exception saves the evidence of the first search, it also saves the evidence obtained\n\nfrom the second search.\n\n\n\n\n 7\n\f A.\n\n At the outset, we recognize that federal courts treat searches conducted within the\n\nconfines of the military differently. As this court observed in United States v. Rendon,\n\n“[T]he Fourth Amendment protects members of the armed services from unreasonable\n\nsearches and seizures” with “different standards than those that apply in the civilian\n\ncontext.” 607 F.3d 982, 990 (4th Cir. 2010).\n\n That is not to say that military rules wholly displace the framework of the Fourth\n\nAmendment. To the contrary, military rules and procedures affect whether a military\n\nsearch satisfies the Fourth Amendment’s reasonableness requirement. To determine\n\nwhether a search is reasonable, the Fourth Amendment requires courts to balance the\n\ndegree to which a search “intrudes upon an individual’s privacy” against “the degree to\n\nwhich it is needed for the promotion of legitimate governmental interests.” Samson v.\n\nCalifornia, 547 U.S. 843, 848 (2006) (citations omitted). The privacy and governmental\n\ninterests implicated by military searches are different from those implicated by civilian\n\nsearches: In military settings, the government has a significant interest in maintaining\n\norder and control over its service members. See Parker v. Levy, 417 U.S. 733, 744\n\n(1974). Meanwhile, the rights of service members must bend to meet the demands of\n\ndiscipline and duty. See Burns v. Wilson, 346 U.S. 137, 140 (1953). For that reason,\n\nfederal courts consider the Military Rules of Evidence, which outline the rules and\n\nprocedures that govern how military officers conduct military searches, in evaluating the\n\nreasonableness of military searches. See, e.g., Rendon, 607 F.3d at 990–91. And when\n\nsuch a search violates those rules in a way that impedes a service member’s specific\n\n 8\n\fexpectations of privacy, “a violation of the Fourth Amendment can result.” See id. at\n\n991.\n\n But it does not follow that the Military Rules of Evidence themselves tie the hands\n\nof the federal courts. “Military law, like state law, is a jurisprudence which exists\n\nseparate and apart from the law which governs in our federal judicial establishment.”\n\nBurns, 346 U.S. at 140. Just as states “lack the power to impose on federal courts\n\nrequirements stricter than those mandated by the federal Constitution,” United States v.\n\nClyburn, 24 F.3d 613, 616 (4th Cir. 1994), so too does the military. To hold otherwise\n\nwould “hamper the enforcement of valid federal laws by rendering relevant and reliable\n\nevidence unavailable.” Id. (quoting United States v. Chavez-Vernaza, 844 F.2d 1368,\n\n1374 (9th Cir. 1987) (alteration omitted)). For that reason, the Fourth Amendment\n\nprovides the proper standard for determining whether evidence seized pursuant to a non-\n\nfederal warrant is admissible in federal court. Id. at 616–17; see also United States v.\n\nVan Metre, 150 F.3d 339, 346–47 (4th Cir. 1998) (“[T]he proper standard for evaluating\n\nillegal seizure claims in federal courts has uniformly been whether the actions of the state\n\nofficials in securing the evidence violated the Fourth Amendment to the United States\n\nConstitution.” (alteration and internal quotation marks omitted)).\n\n B.\n\n Even assuming there was a Fourth Amendment violation here, we hold that the\n\ngood faith exception to the exclusionary rule precludes suppression.\n\n Suppression is not itself a right explicitly bestowed by the Fourth Amendment.\n\nRather, suppression of evidence obtained through a search that violates the Fourth\n\n 9\n\fAmendment is a judicially created prescription for such a violation. See United States v.\n\nLeon, 486 U.S. 897, 909 (1984). Indeed, the exclusionary rule is primarily proscriptive:\n\nit is designed to safeguard Fourth Amendment rights through its deterrent effect. Id. For\n\nthat reason, “evidence should be suppressed only if it can be said that the law\n\nenforcement officer had knowledge, or may properly be charged with knowledge, that the\n\nsearch was unconstitutional under the Fourth Amendment.” Illinois v. Krull, 480 U.S.\n\n340, 348–49 (1987) (quoting United States v. Peltier, 422 U.S. 531, 542 (1975) (internal\n\nquotation marks omitted)).\n\n In line with that principle, the good faith exception to the exclusionary rule allows\n\ncourts to introduce evidence obtained in violation of the Constitution but in reasonable\n\nreliance on a defective warrant. See Leon, 468 U.S. at 905. The Supreme Court has\n\nidentified only five limitations to the application of the good faith exception: (1) where a\n\nmagistrate issues a warrant based on a deliberately or recklessly false affidavit, see\n\nFranks v. Delaware, 438 U.S. 154, 155–56 (1978); (2) where a magistrate lacks\n\nneutrality and detachment, see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326–28\n\n(1979); (3) where a warrant is based on an affidavit “so lacking in indicia of probable\n\ncause as to render official belief in its existence entirely unreasonable,” Leon, 468 U.S. at\n\n923 (quoting Brown v. Illinois, 422 U.S. 590, 610–11 (1975) (Powell, J., concurring in\n\npart)); (4) where a warrant is so facially deficient that a reasonable officer could not\n\nbelieve it was valid, see id. at 923; and (5) where police recklessly maintain or knowingly\n\nenter false information into a warrant database to enable a future arrest, Herring v. United\n\n\n\n 10\n\fStates, 555 U.S. 135, 145 (2009). Appellant argues that the CASS at issue here triggers\n\ntwo of those limitations. 2\n\n 1.\n\n Appellant argues that, because the CASS was not authorized by the commanding\n\nofficer with “control over the place where the property or person to be searched [was]\n\nsituated,” it was facially deficient to the point where “no reasonable person could have\n\nconcluded that this officer possessed authority to issue the CASS.” Appellant’s Br. 18.\n\nThat argument lacks both legal and logical support.\n\n First, we have applied the good faith exception to warrants authorized by\n\nmagistrate judges lacking jurisdiction. See, e.g., United States v. McLamb, 880 F.3d 685,\n\n691 (4th Cir. 2018). We have done so because “the exclusionary rule is designed to deter\n\npolice misconduct rather than to punish the errors of judges and magistrates.” Id.\n\n(quoting Leon, 468 U.S. at 916). And suppressing evidence obtained pursuant to a\n\nwarrant issued by the wrong magistrate judge would not appreciably deter police\n\nmisconduct. Id. There is no reason to conclude that a case of the wrong commanding\n\nofficer should be treated any differently.\n\n\n\n\n 2\n Appellant presents no independent basis for suppressing the evidence that\nofficers obtained when they executed the federal warrant. Instead, Appellant argues that\nevidence obtained through the federal warrant must be suppressed because the CASS was\nillegal and the federal warrant was supported solely by evidence obtained through the\nCASS. Accordingly, the question before us is whether evidence obtained through the\nCASS is admissible. We need not scrutinize the federal warrant.\n\n\n 11\n\f Second, we cannot say that no reasonable officer could review a CASS authorized\n\nby the subject of the search’s commanding officer -- as opposed to the commanding\n\nofficer of the subject’s current location -- and believe it to be valid. Military Rule of\n\nEvidence 315(d) is no bastion of clarity: it places the power to authorize searches on the\n\nofficer “who has control over the place where the property or person to be searched is\n\nsituated.” One could reasonably conclude that a military service member’s commanding\n\nofficer is the officer who has control over the place where he or she “is situated.” Indeed,\n\nin this case, several officers reached that conclusion. NCIS consulted Appellant’s\n\ncommanding officer in San Diego and the commanding officer of the Little Creek base.\n\nNCIS also consulted JAG attorneys at both bases. Only after taking these measures did\n\nNCIS reach the technically incorrect conclusion that Appellant’s commander in San\n\nDiego should authorize the search of Appellant’s phone, while the Little Creek\n\ncommanding officer should authorize the search of his hotel room. This court is not\n\nprepared to call that conclusion, and each of those officers, unreasonable.\n\n 2.\n\n Appellant also argues that the good faith exception cannot apply to the CASS\n\nbecause it was so lacking in indicia of probable cause. But “the threshold for establishing\n\nthis exception is a high one.” Messerschmidt v. Millender, 565 U.S. 535, 547 (2012).\n\nOfficers executing warrants are not often expected to question the conclusions of an\n\nissuing authority. Id. (citing Leon, 468 U.S. at 921). For that reason, to preclude\n\napplication of the good faith exception, an officer’s reliance on an issuing authority’s\n\nprobable cause determination must have been “entirely unreasonable.” Id. at 549. That\n\n 12\n\fwas not the case here. The affidavit supporting the CASS detailed the allegations of\n\nAppellant’s accuser. It also noted that NCIS agents orchestrated a controlled text\n\nmessage conversation between Appellant and his accuser and described the admissions\n\nthat Appellant made during that conversation. Those admissions were consistent with the\n\nallegations of Appellant’s accuser. Presented with such information, it would not be\n\nentirely unreasonable for an officer to believe that the CASS was supported by probable\n\ncause.\n\n Accordingly, we hold that the good faith exception to the exclusionary rule applies\n\nto the evidence obtained through the CASS. Evidence subsequently obtained through the\n\nfederal warrant, which was supported by the CASS evidence, is likewise admissible.\n\n IV.\n\n For the foregoing reasons, the judgment of the district court is\n\n AFFIRMED.\n\n\n\n\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Gregory Seerden\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-21\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4124\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nGREGORY KYLE SEERDEN,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nNorfolk. Raymond A. Jackson, District Judge. (2:17-cr-00067-RAJ-DEM-1)\\n\\n\\nArgued: December 11, 2018 Decided: February 20, 2019\\n Amended: February 21, 2019\\n\\n\\nBefore WILKINSON, AGEE, and THACKER, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Thacker wrote the opinion, in which Judge\\nWilkinson and Judge Agee joined.\\n\\n\\nARGUED: Andrew William Grindrod, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Norfolk, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE\\nUNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:\\nGeremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States\\nAttorney, Alexandria, Virginia, David A. Layne, Special Assistant United States\\nAttorney, Elizabeth M. Yusi, Assistant United States Attorney, OFFICE OF THE\\nUNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.\\n\\fTHACKER, Circuit Judge:\\n\\n In January 2017 investigators with the Naval Criminal Investigation Service\\n\\n(“NCIS”) obtained a military warrant to search the cell phone of Gregory Kyle Seerden\\n\\n(“Appellant”) for evidence of sexual assault. During the search of Appellant’s phone, the\\n\\ninvestigators found child pornography. On that basis, the investigators then obtained a\\n\\nfederal warrant to search Appellant’s phone a second time and again found child\\n\\npornography. Appellant moved to suppress the evidence, arguing that the first search\\n\\nwas unlawful because it violated the Military Rules of Evidence and that evidence\\n\\nobtained during the second search was fruit of the poisonous tree.\\n\\n Although the district court agreed that evidence obtained during the military\\n\\nsearch was inadmissible because it violated the Military Rules of Evidence, it nonetheless\\n\\nfound that the good faith exception allowed the government to admit evidence discovered\\n\\nvia the second search.\\n\\n On September 20, 2017, Appellant entered a conditional guilty plea to production\\n\\nof child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). He subsequently filed\\n\\nthis appeal. As explained below, we affirm on different grounds.\\n\\n I.\\n\\n Appellant was a member of the United States Navy’s Sea, Air, and Land Team.\\n\\nAt all times relevant to this appeal, he was stationed in San Diego, California. But for\\n\\none week in January 2017, Appellant attended a training at the Little Creek base in\\n\\nVirginia Beach, Virginia. During that week, Appellant was accused of sexual assault and\\n\\nsuspected of possession of child pornography.\\n\\n 2\\n\\f On his next to last night of training in Virginia, Appellant met a woman. The\\n\\nwoman recalled that, during her night out with Appellant, the pair went to a few bars and\\n\\nhad more than a few drinks. The woman came in and out of consciousness throughout\\n\\nthe night, but she remembered returning to Appellant’s room in the Navy Gateway Inns\\n\\nand Suites at Little Creek. At around 4:00 a.m., the woman woke up lying naked next to\\n\\nAppellant. She learned from Appellant that, at some point during the night, they had sex.\\n\\nShe then left. While she was waiting for a cab at the gate of the base, she began to cry.\\n\\nA service member on guard duty (a “sentry”) approached her, and she told him that\\n\\nAppellant sexually assaulted her. Appellant then attempted to call her. She didn’t\\n\\nanswer. Meanwhile, the sentry reported the allegations to NCIS.\\n\\n Later that day, NCIS began investigating the allegations. In doing so, NCIS\\n\\norchestrated a “controlled text message conversation” between the woman and Appellant.\\n\\nNCIS agents had the woman text Appellant and inquire about the night in question.\\n\\nDuring that conversation, Appellant admitted that the pair had sex and that the woman\\n\\nwas not sober. With that, NCIS agents began coordinating with Appellant’s commanding\\n\\nofficer in San Diego as well as the commanding officer of the Little Creek base to obtain\\n\\nauthorizations to search Appellant’s cell phone and hotel room. NCIS also consulted the\\n\\nJudge Advocate General’s (“JAG”) authorities at both bases. NCIS and JAG officers\\n\\ndecided that the Little Creek commanding officer should authorize the search of\\n\\nAppellant’s hotel room while Appellant’s commanding officer in San Diego should\\n\\nauthorize the search of his phone. The officers reasoned that, while the Little Creek\\n\\ncommanding officer had control over the base, Appellant’s commanding officer in San\\n\\n 3\\n\\fDiego had control over Appellant. In line with that plan, Appellant’s commanding\\n\\nofficer in San Diego signed a Command Authorization for Search and Seizure (“CASS”)\\n\\nsanctioning the search of Appellant’s phone.\\n\\n The CASS sought to collect messages, photographs, videos, and any other\\n\\ninformation related to the investigation from Appellant’s phone. In its statement of\\n\\nprobable cause, the affidavit supporting the CASS connected Appellant’s phone to the\\n\\nalleged criminal activity by noting that Appellant attempted to call his accuser after\\n\\ndropping her off at the gate. It also noted that NCIS agents orchestrated a pretext\\n\\ncommunication between Appellant and the woman accusing him of sexual assault.\\n\\n A week later, a digital forensics examiner executed the search of Appellant’s\\n\\nphone. In doing so, the forensics examiner viewed thumbnail-size icons of photographs\\n\\non Appellant’s phone. The examiner, who was trained in and had experience with child\\n\\nexploitation investigations, believed some of those photographs were images of child\\n\\npornography.\\n\\n Based on the evidence discovered during the military search of Appellant’s phone,\\n\\nNCIS obtained a federal search warrant from the Eastern District of Virginia to search\\n\\nAppellant’s phone for further evidence of child pornography. Under the authority of this\\n\\nsecond warrant, the forensics examiner continued his analysis of Appellant’s cell phone\\n\\ndata. He found 78 images and four videos of child pornography. The images depicted\\n\\nknown victims of child sexual exploitation, while the videos depicted Appellant\\n\\nperforming a sexual act inches from the face of a sleeping child.\\n\\n\\n\\n 4\\n\\f On March 31, 2017, the Government filed a criminal complaint charging\\n\\nAppellant with possession and production of child pornography. And on April 20, 2017,\\n\\na grand jury indicted Appellant for possession, production, and transportation of child\\n\\npornography. On June 6, 2017, Appellant moved to suppress the evidence obtained from\\n\\nthe two searches of his phone. After holding a hearing on Appellant’s motion, the district\\n\\ncourt denied it.\\n\\n The district court first concluded that the evidence obtained during the first search\\n\\nwas inadmissible. Applying the Military Rules of Evidence in evaluating the lawfulness\\n\\nof that search, the district court reasoned that the CASS obtained by NCIS did not satisfy\\n\\nthe “authorization” requirement of Military Rule of Evidence 315:\\n\\n Pursuant to Military Rule of Evidence 315(d), a search\\n is valid only if it is issued by an impartial individual. An\\n impartial individual is a commander, military judge or\\n magistrate. Mil. R. Evid. 315(d)(1) and (2). A military\\n commander is defined as “a commander or other person\\n serving in a position designated by the Secretary concerned as\\n either a position analogous to an officer in charge or a\\n position of command, who has control over the place where\\n the property or person to be search is situated or found, or if\\n that place is not under military control, having control over\\n persons subject to military law or the law of war.” Mil. R.\\n Evid. 315(d)(1). A military judge or magistrate “is a person\\n who is authorized under regulations prescribed by the\\n Secretary of Defense or the Secretary concerned.” Mil. R.\\n Evid. 315(d)(2).\\n\\n Here, the person who authorized the CASS for the first\\n search of [Appellant’s] telephone was [Appellant’s] unit\\n commander in San Diego, CA. Pursuant to the definitions\\n provided in Military Rules of Evidence 315(d)(1),\\n [Appellant’s] unit commander did not have the authority to\\n authorize any search [conducted] on [the Little Creek base]\\n because [Appellant’s] unit commander did not have control\\n\\n 5\\n\\f over the place where the property or person to be searched was\\n situated.\\n\\nJ.A. 215. 1 The district court further reasoned that, because of the defect in the CASS\\n\\nauthorization, it could not apply the exclusionary rule’s good faith exception to the\\n\\nevidence obtained as a result of the first search. Citing Military Rule of Evidence 311,\\n\\nthe district court noted, “Pursuant to military law, evidence obtained as the result of an\\n\\nunlawful search may [only] be used if . . . ‘the search or seizure resulted from an\\n\\nauthorization . . . issued by an individual competent to issue the authorization under Mil.\\n\\nR. Evid. 315(d).’” J.A. 217–18. Because the district court found that Appellant’s\\n\\ncommander in San Diego was not competent to authorize the CASS, the court concluded\\n\\nthat “the good faith exception does not cure the first search.” Id. at 218.\\n\\n Despite finding that evidence obtained during the first search was inadmissible,\\n\\nthe district court concluded that evidence obtained during the second search was\\n\\nadmissible. In doing so, the district court acknowledged that “the second search relied\\n\\nupon evidence found during the first search,” J.A. 218, that the probable cause supporting\\n\\nthe search warrant authorizing the second search was “obtained through unlawful\\n\\nmeans,” id. at 220, and that “[a]s a result, the magistrate judge’s subsequent issuance of a\\n\\nsearch warrant . . . was void ab initio.” Id. at 222. Nonetheless, the district court found\\n\\nthat the good faith exception to the exclusionary rule permitted the admission of the\\n\\nevidence obtained during the second search and denied Appellant’s motion to suppress.\\n\\n 1\\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this\\nappeal.\\n\\n\\n 6\\n\\f Thereafter, on September 27, 2017, Appellant plead guilty to production of child\\n\\npornography. He stipulated to a written statement of facts but reserved his right to appeal\\n\\nthe district court’s denial of his motion to suppress. On February 15, 2018, the district\\n\\ncourt sentenced Appellant to 324 months of imprisonment to be followed by 25 years of\\n\\nsupervised release. This appeal followed.\\n\\n II.\\n\\n Analyzing a district court’s decision to deny a motion to suppress, we review legal\\n\\nconclusions de novo and factual findings for clear error. See United States v. Kolsuz, 890\\n\\nF.3d 133, 141–42 (4th Cir. 2018). In doing so, we consider the evidence in the light most\\n\\nfavorable to the Government. See id.\\n\\n III.\\n\\n Appellant contends that the Military Rules of Evidence apply here and require\\n\\nsuppression. We hold, however, that the Fourth Amendment governs whether evidence\\n\\nis admissible in federal criminal proceedings. The Military Rules of Evidence cannot\\n\\nusurp the Fourth Amendment. We further hold that, even assuming the initial warrant\\n\\nviolated the Fourth Amendment, the good faith exception to the exclusionary rule\\n\\nprecludes suppression of evidence obtained from the first search. And because the good\\n\\nfaith exception saves the evidence of the first search, it also saves the evidence obtained\\n\\nfrom the second search.\\n\\n\\n\\n\\n 7\\n\\f A.\\n\\n At the outset, we recognize that federal courts treat searches conducted within the\\n\\nconfines of the military differently. As this court observed in United States v. Rendon,\\n\\n“[T]he Fourth Amendment protects members of the armed services from unreasonable\\n\\nsearches and seizures” with “different standards than those that apply in the civilian\\n\\ncontext.” 607 F.3d 982, 990 (4th Cir. 2010).\\n\\n That is not to say that military rules wholly displace the framework of the Fourth\\n\\nAmendment. To the contrary, military rules and procedures affect whether a military\\n\\nsearch satisfies the Fourth Amendment’s reasonableness requirement. To determine\\n\\nwhether a search is reasonable, the Fourth Amendment requires courts to balance the\\n\\ndegree to which a search “intrudes upon an individual’s privacy” against “the degree to\\n\\nwhich it is needed for the promotion of legitimate governmental interests.” Samson v.\\n\\nCalifornia, 547 U.S. 843, 848 (2006) (citations omitted). The privacy and governmental\\n\\ninterests implicated by military searches are different from those implicated by civilian\\n\\nsearches: In military settings, the government has a significant interest in maintaining\\n\\norder and control over its service members. See Parker v. Levy, 417 U.S. 733, 744\\n\\n(1974). Meanwhile, the rights of service members must bend to meet the demands of\\n\\ndiscipline and duty. See Burns v. Wilson, 346 U.S. 137, 140 (1953). For that reason,\\n\\nfederal courts consider the Military Rules of Evidence, which outline the rules and\\n\\nprocedures that govern how military officers conduct military searches, in evaluating the\\n\\nreasonableness of military searches. See, e.g., Rendon, 607 F.3d at 990–91. And when\\n\\nsuch a search violates those rules in a way that impedes a service member’s specific\\n\\n 8\\n\\fexpectations of privacy, “a violation of the Fourth Amendment can result.” See id. at\\n\\n991.\\n\\n But it does not follow that the Military Rules of Evidence themselves tie the hands\\n\\nof the federal courts. “Military law, like state law, is a jurisprudence which exists\\n\\nseparate and apart from the law which governs in our federal judicial establishment.”\\n\\nBurns, 346 U.S. at 140. Just as states “lack the power to impose on federal courts\\n\\nrequirements stricter than those mandated by the federal Constitution,” United States v.\\n\\nClyburn, 24 F.3d 613, 616 (4th Cir. 1994), so too does the military. To hold otherwise\\n\\nwould “hamper the enforcement of valid federal laws by rendering relevant and reliable\\n\\nevidence unavailable.” Id. (quoting United States v. Chavez-Vernaza, 844 F.2d 1368,\\n\\n1374 (9th Cir. 1987) (alteration omitted)). For that reason, the Fourth Amendment\\n\\nprovides the proper standard for determining whether evidence seized pursuant to a non-\\n\\nfederal warrant is admissible in federal court. Id. at 616–17; see also United States v.\\n\\nVan Metre, 150 F.3d 339, 346–47 (4th Cir. 1998) (“[T]he proper standard for evaluating\\n\\nillegal seizure claims in federal courts has uniformly been whether the actions of the state\\n\\nofficials in securing the evidence violated the Fourth Amendment to the United States\\n\\nConstitution.” (alteration and internal quotation marks omitted)).\\n\\n B.\\n\\n Even assuming there was a Fourth Amendment violation here, we hold that the\\n\\ngood faith exception to the exclusionary rule precludes suppression.\\n\\n Suppression is not itself a right explicitly bestowed by the Fourth Amendment.\\n\\nRather, suppression of evidence obtained through a search that violates the Fourth\\n\\n 9\\n\\fAmendment is a judicially created prescription for such a violation. See United States v.\\n\\nLeon, 486 U.S. 897, 909 (1984). Indeed, the exclusionary rule is primarily proscriptive:\\n\\nit is designed to safeguard Fourth Amendment rights through its deterrent effect. Id. For\\n\\nthat reason, “evidence should be suppressed only if it can be said that the law\\n\\nenforcement officer had knowledge, or may properly be charged with knowledge, that the\\n\\nsearch was unconstitutional under the Fourth Amendment.” Illinois v. Krull, 480 U.S.\\n\\n340, 348–49 (1987) (quoting United States v. Peltier, 422 U.S. 531, 542 (1975) (internal\\n\\nquotation marks omitted)).\\n\\n In line with that principle, the good faith exception to the exclusionary rule allows\\n\\ncourts to introduce evidence obtained in violation of the Constitution but in reasonable\\n\\nreliance on a defective warrant. See Leon, 468 U.S. at 905. The Supreme Court has\\n\\nidentified only five limitations to the application of the good faith exception: (1) where a\\n\\nmagistrate issues a warrant based on a deliberately or recklessly false affidavit, see\\n\\nFranks v. Delaware, 438 U.S. 154, 155–56 (1978); (2) where a magistrate lacks\\n\\nneutrality and detachment, see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326–28\\n\\n(1979); (3) where a warrant is based on an affidavit “so lacking in indicia of probable\\n\\ncause as to render official belief in its existence entirely unreasonable,” Leon, 468 U.S. at\\n\\n923 (quoting Brown v. Illinois, 422 U.S. 590, 610–11 (1975) (Powell, J., concurring in\\n\\npart)); (4) where a warrant is so facially deficient that a reasonable officer could not\\n\\nbelieve it was valid, see id. at 923; and (5) where police recklessly maintain or knowingly\\n\\nenter false information into a warrant database to enable a future arrest, Herring v. United\\n\\n\\n\\n 10\\n\\fStates, 555 U.S. 135, 145 (2009). Appellant argues that the CASS at issue here triggers\\n\\ntwo of those limitations. 2\\n\\n 1.\\n\\n Appellant argues that, because the CASS was not authorized by the commanding\\n\\nofficer with “control over the place where the property or person to be searched [was]\\n\\nsituated,” it was facially deficient to the point where “no reasonable person could have\\n\\nconcluded that this officer possessed authority to issue the CASS.” Appellant’s Br. 18.\\n\\nThat argument lacks both legal and logical support.\\n\\n First, we have applied the good faith exception to warrants authorized by\\n\\nmagistrate judges lacking jurisdiction. See, e.g., United States v. McLamb, 880 F.3d 685,\\n\\n691 (4th Cir. 2018). We have done so because “the exclusionary rule is designed to deter\\n\\npolice misconduct rather than to punish the errors of judges and magistrates.” Id.\\n\\n(quoting Leon, 468 U.S. at 916). And suppressing evidence obtained pursuant to a\\n\\nwarrant issued by the wrong magistrate judge would not appreciably deter police\\n\\nmisconduct. Id. There is no reason to conclude that a case of the wrong commanding\\n\\nofficer should be treated any differently.\\n\\n\\n\\n\\n 2\\n Appellant presents no independent basis for suppressing the evidence that\\nofficers obtained when they executed the federal warrant. Instead, Appellant argues that\\nevidence obtained through the federal warrant must be suppressed because the CASS was\\nillegal and the federal warrant was supported solely by evidence obtained through the\\nCASS. Accordingly, the question before us is whether evidence obtained through the\\nCASS is admissible. We need not scrutinize the federal warrant.\\n\\n\\n 11\\n\\f Second, we cannot say that no reasonable officer could review a CASS authorized\\n\\nby the subject of the search’s commanding officer -- as opposed to the commanding\\n\\nofficer of the subject’s current location -- and believe it to be valid. Military Rule of\\n\\nEvidence 315(d) is no bastion of clarity: it places the power to authorize searches on the\\n\\nofficer “who has control over the place where the property or person to be searched is\\n\\nsituated.” One could reasonably conclude that a military service member’s commanding\\n\\nofficer is the officer who has control over the place where he or she “is situated.” Indeed,\\n\\nin this case, several officers reached that conclusion. NCIS consulted Appellant’s\\n\\ncommanding officer in San Diego and the commanding officer of the Little Creek base.\\n\\nNCIS also consulted JAG attorneys at both bases. Only after taking these measures did\\n\\nNCIS reach the technically incorrect conclusion that Appellant’s commander in San\\n\\nDiego should authorize the search of Appellant’s phone, while the Little Creek\\n\\ncommanding officer should authorize the search of his hotel room. This court is not\\n\\nprepared to call that conclusion, and each of those officers, unreasonable.\\n\\n 2.\\n\\n Appellant also argues that the good faith exception cannot apply to the CASS\\n\\nbecause it was so lacking in indicia of probable cause. But “the threshold for establishing\\n\\nthis exception is a high one.” Messerschmidt v. Millender, 565 U.S. 535, 547 (2012).\\n\\nOfficers executing warrants are not often expected to question the conclusions of an\\n\\nissuing authority. Id. (citing Leon, 468 U.S. at 921). For that reason, to preclude\\n\\napplication of the good faith exception, an officer’s reliance on an issuing authority’s\\n\\nprobable cause determination must have been “entirely unreasonable.” Id. at 549. That\\n\\n 12\\n\\fwas not the case here. The affidavit supporting the CASS detailed the allegations of\\n\\nAppellant’s accuser. It also noted that NCIS agents orchestrated a controlled text\\n\\nmessage conversation between Appellant and his accuser and described the admissions\\n\\nthat Appellant made during that conversation. Those admissions were consistent with the\\n\\nallegations of Appellant’s accuser. Presented with such information, it would not be\\n\\nentirely unreasonable for an officer to believe that the CASS was supported by probable\\n\\ncause.\\n\\n Accordingly, we hold that the good faith exception to the exclusionary rule applies\\n\\nto the evidence obtained through the CASS. Evidence subsequently obtained through the\\n\\nfederal warrant, which was supported by the CASS evidence, is likewise admissible.\\n\\n IV.\\n\\n For the foregoing reasons, the judgment of the district court is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":564,"cells":{"id":{"kind":"number","value":4592605,"string":"4,592,605"},"name":{"kind":"string","value":"ACA FINANCIAL GUARANTY CORPORATION; UMB Bank, NA, Plaintiffs - Appellants, v. CITY OF BUENA VISTA, VIRGINIA ; Public Recreational Facilities Authority of the City of Buena Vista, Virginia, Defendants - Appellees, and Russell J. Singer and Douglas L. Sbertoli, SR., Trustees."},"name_abbreviation":{"kind":"string","value":"ACA Financial Guaranty v. City of Buena Vista, Virginia"},"decision_date":{"kind":"string","value":"2019-02-21"},"docket_number":{"kind":"string","value":"18-1268"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Gregory, Thacker, Quattlebaum\", \"parties\": \"\", \"opinions\": [{\"author\": \"QUATTLEBAUM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1268\\n\\n\\nACA FINANCIAL GUARANTY CORPORATION; UMB BANK, NA,\\n\\n Plaintiffs - Appellants,\\n\\n v.\\n\\nCITY OF BUENA VISTA, VIRGINIA; PUBLIC RECREATIONAL\\nFACILITIES AUTHORITY OF THE CITY OF BUENA VISTA, VIRGINIA,\\n\\n Defendants - Appellees,\\n\\nand\\n\\nRUSSELL J. SINGER and DOUGLAS L. SBERTOLI, SR.,\\n\\n Trustees.\\n\\n\\nAppeal from the United States District Court for the Western District of Virginia, at\\nLynchburg. Norman K. Moon, Senior District Judge. (6:17-cv-00013-NKM-RSB)\\n\\n\\nArgued: October 31, 2018 Decided: February 21, 2019\\n\\n\\nBefore GREGORY, Chief Judge, and THACKER and QUATTLEBAUM, Circuit\\nJudges.\\n\\n\\nAffirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Chief\\nJudge Gregory and Judge Thacker joined.\\n\\fARGUED: Scott Carlton Ford, Brian Aaron Richardson, FORD RICHARDSON, PC,\\nRichmond, Virginia, for Appellants. Kevin M. Rose, BOTKINROSE PLC,\\nHarrisonburg, Virginia, for Appellees. ON BRIEF: Michael W. Sharp, BOTKINROSE\\nPLC, Harrisonburg, Virginia; Brian J. Kearney, W. Wayne Heslep, HESLEP &\\nKEARNEY PC, Lexington, Virginia, for Appellees.\\n\\n\\n\\n\\n 2\\n\\fQUATTLEBAUM, Circuit Judge:\\n\\n In this appeal, we review an order dismissing a complaint that arose from a\\n\\ntroubled bond transaction involving a municipal golf course in the City of Buena Vista,\\n\\nVirginia (the “City”). Bonds were issued to refinance debt on the golf course and the\\n\\nrepayment of the bonds depended on the City making payments on the lease of the golf\\n\\ncourse. When it failed to do so, this litigation ensued. The primary question on appeal is\\n\\nwhether the City’s obligation to make rent payments is legally enforceable when the\\n\\nobligation is expressly subject to the City’s annual decision to appropriate funds. Finding\\n\\nthat the answer is no, we affirm the district court’s dismissal of the complaint.\\n\\n I.\\n\\n Plans for a golf course in the City date back to 2002. In that year, the\\n\\nCommonwealth of Virginia created the Public Recreational Facilities Authority (the\\n\\n“Authority”) to construct, operate and maintain public recreational facilities for the\\n\\nbenefit of the City. In 2003, the Authority, at the request of the City, took out a loan to\\n\\nfinance the construction of a municipal golf course called the Vista Links Golf Club (the\\n\\n“Golf Course”). 1\\n\\n\\n 1\\n The facts that led to the City’s interest in a golf course and the subsequent\\nproblems with this course are not in the record nor material to this Court’s decision.\\nHowever, the events that are described in this case generally follow trends in the golf\\nindustry. In the early 2000s, there was a noticeable rise in the popularity of golf. See\\nSteven J. Wernick, Diamonds in the Rough: Judicial Reaction to Golf Course\\nConversations, 2017 WL 1098131, 30 No. 4 ZONING & PLANNING LAW REPORT 1 (April\\n2007). Tiger Woods’ dramatic entry and domination in the golf world brought a wave of\\nnew golfers to the sport. Id. What is known as the “Tiger Woods Effect” led to increased\\ntelevision ratings and golf related sales. Id. However, monetization of the increased\\n(Continued)\\n 3\\n\\f In 2005, the City and the Authority sought to refinance the loan on the Golf\\n\\nCourse. To accomplish this, the Authority issued over $9 million in bonds. The Authority\\n\\nand SunTrust Bank (the “Bank”) entered into a Trust Agreement which described how\\n\\nthe bonds would be issued, how they would be repaid and the rights of the parties in the\\n\\nevent the bonds were not repaid. 2 The Authority used the bond proceeds to pay off the\\n\\nexisting loan on the Golf Course.\\n\\n To have a source of revenue to repay the bonds, the Authority leased the Golf\\n\\nCourse to the City. Under the Lease Agreement, the City agreed to make rent payments\\n\\nas well as maintain and operate the Golf Course. The Authority agreed that the rent\\n\\npayments would be used to repay the bonds. The rent payments from the City, therefore,\\n\\nwere the financial linchpin of the transaction. Critically, however, the City never made an\\n\\nabsolute commitment to make the rent payments. Under the Lease Agreement and the\\n\\n\\n\\n\\npopularity of golf did not always extend to golf courses. Id. While the number of golf\\ncourses increased, the number of rounds of golf played per year roughly stayed the same.\\nThus, some golf courses became the victim of too much supply and not enough demand.\\nAccording to the National Golf Foundation, a trend began in 2006 where each year\\nsignificantly more golf courses closed than opened. National Golf Foundation, NGF\\nIssues 2018 Golf Industry Report: Consolidated State-of-the-Industry Report Features\\nParticipation and Course Supply Dada, NGF Quarterly, May 2018,\\nhttps://www.thengfq.com/2018/05/ngf-issues-2018-golf-industry-report/.\\n 2\\n UMB Bank, N.A. is the successor-in-interest to SunTrust Bank.\\n\\n\\n\\n\\n 4\\n\\fother financing documents, the City’s obligation was subject to its decision to appropriate\\n\\nfunds each year. 3\\n\\n Other documents in the bond transaction gave the Bank rights as a creditor in the\\n\\nevent the bonds were not repaid. The City issued a Deed of Trust to the Bank where the\\n\\nCity pledged its existing City Hall building and police station as security. Similarly, the\\n\\nAuthority issued a Deed of Trust to the Bank where the Authority pledged the Golf\\n\\nCourse as security. Both the City Deed of Trust and the Authority Deed of Trust\\n\\n(collectively “Deeds of Trust”) along with the Trust Agreement contain provisions\\n\\noutlining the Bank’s creditor rights to this collateral.\\n\\n The Bank retained ACA Financial Guaranty Corporation (“ACA”) to provide\\n\\ninsurance on the bonds. Through this arrangement, ACA received insurance premiums,\\n\\nand, in return, agreed to pay off the bonds if there was a default in repayment. In such a\\n\\nsituation, ACA would front the costs of paying off the bonds and then assume the Bank’s\\n\\nrights to receive rent payments and to enforce other creditor rights.\\n\\n In 2010 and 2011, the City failed to appropriate enough money to fully pay the\\n\\nrent due on the Golf Course lease. As a result, the Authority could not repay the bonds.\\n\\nAfter discussions and negotiations, the parties entered into the Forbearance Agreement.\\n\\n\\n 3\\n The reason for this arrangement is not clear from the record. However, because\\nthe City’s charter requires “any bonded indebtedness” to be approved through a\\nreferendum “passed by a majority of the qualified voters,” see City of Buena Vista (Va.)\\nCharter § 2.214, the City could not simply enter into a long-term loan agreement with the\\nBank. An obligation subject to the City’s decision to make appropriations avoided the\\nrequirement of having the electorate vote on the debt.\\n\\n\\n 5\\n\\fUnder the Forbearance Agreement, ACA agreed to make up any shortfall resulting from\\n\\nthe City’s failure to make rent payments. It also agreed to temporarily forego exercising\\n\\nits creditor rights and remedies. The City and the Authority agreed that ACA would be\\n\\nreimbursed for any payments it made and agreed that the bonds would still be repaid\\n\\nfrom rent payments, although the payment plan was extended over a longer period of\\n\\ntime. Significantly, the Forbearance Agreement also makes clear that the obligation to\\n\\nmake the rent payments is subject to annual appropriations by the City.\\n\\n In January 2015, the City voted not to appropriate funds for the rent payments and\\n\\nhas not made any payments since that time. As a result, the Authority once again failed to\\n\\nrepay the bonds.\\n\\n In response, ACA and the Bank filed a ten-count complaint in federal court against\\n\\nthe City and the Authority. The City and the Authority filed a motion to dismiss the\\n\\ncomplaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court\\n\\ngranted the motion to dismiss finding that all ten counts in the complaint failed to state\\n\\nclaims for which relief could be granted. ACA and the Bank appealed all but one of the\\n\\ncounts. We have jurisdiction for this appeal pursuant to 28 U.S.C. § 1291.\\n\\n II.\\n\\n This Court reviews a motion to dismiss de novo. Nemet Chevrolet, Ltd. v.\\n\\nConsumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009). In so doing, we follow the\\n\\nwell-settled standard for considering a motion to dismiss under Rule 12(b)(6).\\n\\n A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the claims\\n\\npled in a complaint. To sufficiently plead a claim, the Federal Rules of Civil Procedure\\n\\n 6\\n\\frequire that “[a] pleading that states a claim for relief must contain . . . a short and plain\\n\\nstatement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P.\\n\\n8(a). This pleading standard does not require detailed factual allegations. Ashcroft v.\\n\\nIqbal, 556 U.S. 662, 678 (2009). However, “it demands more than an unadorned, the-\\n\\ndefendant-unlawfully-harmed-me accusation.” Id. Labels, conclusions, recitation of a\\n\\nclaim’s elements, and naked assertions devoid of further factual enhancement will not\\n\\nsuffice to meet the Rule 8 pleading standard. Id.\\n\\n To meet the Rule 8 standard and survive a motion to dismiss, “a complaint must\\n\\ncontain sufficient factual matter, accepted as true, to ‘state a claim to relief that is\\n\\nplausible on its face.’” Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557\\n\\n(2007)). To contain sufficient factual matter to make a claim plausible, the factual content\\n\\nmust “allow the court to draw the reasonable inference that the defendant is liable for the\\n\\nmisconduct alleged.” Id.\\n\\n While we must accept the factual allegations in the complaint as true, we need not\\n\\naccept a complaint’s legal conclusions. Id. Thus, simply reciting the cause of actions’\\n\\nelements and supporting them by conclusory statements does not meet the required\\n\\nstandard. Id. The Supreme Court noted that while Rule 8 departed from the\\n\\nhypertechnical code-pleading requirement of a prior era, it did not “unlock the doors of\\n\\ndiscovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–679.\\n\\n Using this standard, we review ACA and the Bank’s claims on appeal.\\n\\n\\n\\n\\n 7\\n\\f III.\\n\\n ACA and the Bank appeal nine of the ten counts that the district court dismissed.\\n\\nFive of the nine counts at issue on appeal are primarily based on the City’s failure to\\n\\nmake the rent payments because it did not appropriate the funds for such payments.\\n\\nThese five counts all assert a breach of one of the financing documents. The remaining\\n\\nfour counts are implied, declaratory and equitable in nature. We will address the five\\n\\nbreach of contract counts and then the remaining implied, declaratory and equitable\\n\\ncounts.\\n\\n A.\\n\\n First, ACA and the Bank argue the district court erred in dismissing their claim\\n\\nfor breach of a third-party beneficiary contract. Although they are not parties to the Lease\\n\\nAgreement between the City and the Authority, ACA and the Bank claim they can bring\\n\\nan action under it because they are third-party beneficiaries to that Lease Agreement.\\n\\nThey contend this count states a plausible claim for relief because the City has a legally\\n\\nenforceable obligation to pay rent under the Lease Agreement. ACA and the Bank claim\\n\\nthat the City breached the Lease Agreement by not paying rent to the Bank.\\n\\n This argument gets to the crux of the lawsuit—whether the City has an\\n\\nenforceable obligation to make rent payments. The language of the Lease Agreement is\\n\\ndispositive on this issue. Section 4.2 of the Lease Agreement states that the City shall pay\\n\\nthe rent to the Bank on behalf of the Authority. This provision is subject to Section 4.5\\n\\nwhich states:\\n\\n\\n\\n 8\\n\\f Notwithstanding anything in this Lease Agreement to the contrary, the\\n City’s obligations to pay the cost of performing its obligations under this\\n Lease Agreement and the Trust Agreement, including without limitation its\\n obligation to pay all Basic Rent and Additional Rent, shall be subject to\\n and dependent upon appropriations being made from time to time by\\n the City Council for such purpose . . . .\\n\\nJ.A. 54. (emphasis added).\\n\\n Consistently, Section 6.1(c) states:\\n\\n Notwithstanding anything contained in this Section to the contrary, failure\\n by the City to make when due any payment required to be made under\\n this Lease Agreement or failure by the City to observe and perform any\\n covenant, condition or agreement on its part to be observed or performed\\n under this Lease Agreement resulting from failure of the City to\\n appropriate moneys for such purposes, as described in Section 4.5,\\n shall not constitute an event of default.\\n\\nJ.A. 61–62. (emphasis added).\\n\\n This language unambiguously states that the City did not have an enforceable\\n\\nobligation to make the rent payments. Any obligation of the City to make rent payments\\n\\nwas and is subject to the City appropriating the funds for such payments. In other words,\\n\\nif the City did not appropriate funds, which it did not, the City had no obligation to make\\n\\nthe rent payments. A party cannot be sued for breaching an obligation it never had in the\\n\\nfirst place. To make this even more clear, the Lease Agreement provides that the City’s\\n\\nfailure to make rent payments when no appropriations are made does not constitute an\\n\\nevent of default. Therefore, the claim that the City breached its obligation to the\\n\\nAuthority under the Lease Agreement fails to state a claim for which relief can be\\n\\ngranted.\\n\\n\\n\\n\\n 9\\n\\f The ACA and the Bank challenge the legal effect of the “subject to appropriation”\\n\\nlanguage. In considering this challenge, the Virginia Supreme Court’s decision in Dykes\\n\\nv. Northern Virginia Transp. Dist. Comm’n, 411 S.E.2d 1 (Va. 1991) is instructive. In\\n\\nthat case, a county incurred a long-term debt obligation without holding a referendum on\\n\\nthe debt. Concerned citizens alleged that the obligation violated Virginia’s constitutional\\n\\nrequirement that such obligations be approved by the citizens of the county. The court\\n\\nrejected the challenge because the county’s obligation, like the obligation in this case,\\n\\nwas subject to the county’s appropriation of funds for that purpose. The court held that\\n\\n“subject to appropriation” financing does not create constitutional cognizable debt\\n\\n“because it does not impose any enforceable duty or liability on the County.” Id. at 10.\\n\\n“[N]either the County nor its general revenues is liable for repayment of the debt incurred\\n\\nby the bond issue.” Id.\\n\\n ACA and the Bank argue that Dykes is distinguishable from this case because it\\n\\ninvolved a constitutional challenge to a municipal bond transaction brought by concerned\\n\\ncitizens whereas this case is brought by parties to the financing arrangement. This\\n\\ndistinction, however, is immaterial. The court in Dykes looked to the nature of the debt,\\n\\nnot the nature of the parties, and found that “subject to appropriation” financing does not\\n\\nimpose any enforceable duty or liability on the county. Dykes confirms the complaint\\n\\nfails to state a claim that the City breached its obligation to the Authority under the Lease\\n\\nAgreement for which ACA and the Bank can recover as third-party beneficiaries.\\n\\n\\n\\n\\n 10\\n\\f B.\\n\\n ACA and the Bank next argue the district court erred in dismissing their claim that\\n\\nthe Authority breached the Trust Agreement. In that count, ACA and the Bank claim the\\n\\nAuthority has not made bond payments since 2014. To address this ground, we look to\\n\\nthe language of the Trust Agreement. Under it, the Authority’s obligation to make the\\n\\nbond payments was dependent on the City paying rent. For example, Section 1001(c) of\\n\\nthe Trust Agreement states:\\n\\n The Authority covenants to faithfully observe and perform all of its\\n covenants, conditions and agreements contained in this Trust Agreement\\n and to promptly pay the principal of and premium, if any, and interest on\\n the Bonds at the places, on the dates and in the manner specified in this\\n Trust Agreement and the Bonds; provided, however, that such\\n obligations are limited obligations of the Authority, payable solely from\\n the payments of Basic Rent and Additional Rent and the property\\n secured by the Deed of Trust.\\n\\nJ.A. 118. (emphasis added).\\n\\n Additionally, Section 1703 of the Trust Agreement states:\\n\\n Notwithstanding any provision of the Bonds or the Basic Agreements to the\\n contrary, the obligations of the Authority under the Bonds and the Basic\\n Agreements are not general obligations of the Authority, but are limited\\n obligations payable solely from payments of Basic Rent and Additional\\n Rent and the property pledged pursuant to the Deed of Trust.\\n\\nJ.A. 141. (emphasis added).\\n\\n As the language quoted above makes clear, the Authority’s promise to make the\\n\\nbond payments was and is subject to the City’s payment of the rent. Aside from the rent\\n\\npayments from the City, the Authority had no independent contractual obligation to make\\n\\nthe bond payments. Thus, we find that ACA and the Bank’s claim for breach of the Trust\\n\\n\\n 11\\n\\fAgreement is not plausible because it is contradicted by the clear and unambiguous terms\\n\\nof the Trust Agreement. See Foothill Capital Corp. v. E. Coast Bldg. Supply Corp., 259\\n\\nB.R. 844, 845 (E.D. Va. 2001) (holding that where an agreement is plain and\\n 4\\nunambiguous, the court is not at liberty to rewrite the contractual language).\\n\\n C.\\n\\n ACA and the Bank next claim the district court erred in dismissing their claims for\\n\\nbreach of the City Deed of Trust and breach of the Authority Deed of Trust. They point to\\n\\nSection 1.2 of the Deeds of Trust, which states that the “Grantor shall perform and\\n\\nobserve all duties, obligations, and requirements and shall comply in all respects with the\\n\\nterms, covenants, conditions, representations and warranties of the Bonds, this Deed of\\n\\nTrust, the Lease Agreement and the Trust Agreement.” J.A. 176, 199. Specifically, they\\n\\nargue that by failing to make bond payments in the manner provided by the Trust\\n\\n\\n\\n\\n 4\\n ACA and the Bank raise an additional issue regarding this count by asserting that\\nthe Authority also breached the Trust Agreement by not paying revenues derived from\\nthe secured property. However, they did not make this argument before the district court.\\nWe have held that “[w]hen a party in a civil case fails to raise an argument in the lower\\ncourt and instead raises it for the first time before us, we may reverse only if the newly\\nraised argument establishes ‘fundamental error’ or a denial of fundamental justice.” In re\\nUnder Seal, 749 F.3d 276, 285 (4th Cir. 2014) (citing Stewart v. Hall, 770 F.2d 1267,\\n1271 (4th Cir. 1985)). We find neither fundamental error nor a denial of fundamental\\njustice here. ACA and the Bank do not even allege in this count that the Authority failed\\nto pay from the revenues of the property secured by the Deed of Trust. The complaint\\nsimply alleges that the Authority breached the Trust Agreement “in a number of material\\nways” and does not give any further specificity. These conclusory allegations fail to meet\\npleading requirements prescribed in Twombly and Iqbal. They also defeat any argument\\nthat dismissing ACA and the Bank’s new and improperly late argument constitutes\\nfundamental error or denial of fundamental justice.\\n\\n 12\\n\\fAgreement, the City and the Authority breached their obligations under the Deeds of\\n\\nTrust.\\n\\n While the Deeds of Trust require the City and the Authority to adhere to the Trust\\n\\nAgreement, they do not alter or modify the language in Sections 1001(c) and 1703 of the\\n\\nTrust Agreement discussed above. By the express terms of the Trust Agreement, the\\n\\nAuthority’s obligation to make bond payments is limited to the rent paid by the City. It\\n\\nmakes clear that the City’s obligation to make rent payments is subject to the City’s\\n\\ndecision to appropriate rent money. In the face of those clear contractual terms, the\\n\\ncounts alleging violations of the Deeds of Trust fail to state a claim for which relief can\\n\\nbe granted.\\n\\n D.\\n\\n ACA and the Bank next claim the district court erred in dismissing their count for\\n\\nbreach of the Forbearance Agreement. They concede that the City’s rent payment\\n\\nobligation under the Forbearance Agreement is subject to appropriations by the City.\\n\\nHowever, they contend that language does not waive the City’s or the Authority’s duty to\\n\\nmake rent payments under the Forbearance Agreement. We disagree. Section 5.4 of the\\n\\nForbearance Agreement provides:\\n\\n The obligations of the City to make adjusted Basic Rent payments pursuant\\n to Paragraph 5.1 and deferred payments of Basic Rent pursuant to\\n Paragraph 5.3 are subject to annual appropriation by the City Council\\n of amounts sufficient to make such payments. The City agrees that it is the\\n intention of the City to make annual appropriations in amounts sufficient to\\n make the payments required under this Agreement.\\n\\nJ.A. 227. (emphasis added).\\n\\n\\n 13\\n\\f Like the language in the Trust Agreement and the Lease Agreement described\\n\\nabove, this language is unambiguous. Accordingly, the claim for breach of the\\n\\nForbearance Agreement fails to state a plausible claim.\\n\\n ACA and the Bank also claim on appeal the district court erred in dismissing this\\n\\ncount because the City and the Authority made misrepresentations which constituted a\\n\\nbreach of the Forbearance Agreement. However, neither this count nor any part of the\\n\\ncomplaint contains any allegations about misrepresentations. Instead, the complaint\\n\\nalleges that ACA and the Bank “have been damaged as a result of Defendants’ breaches\\n\\nof their contractual obligations contained in the Forbearance Agreement.” J.A. 32. ACA\\n\\nand the Bank argue that making a misrepresentation constitutes a breach of the City and\\n\\nthe Authority’s obligations under the Forbearance Agreement. ACA and the Bank thus\\n\\ncontend that they have satisfied their pleading requirements by alleging the City and the\\n\\nAuthority breached their contractual obligations even though they have not specified the\\n\\nalleged misrepresentations. This position is in direct conflict with Twombly and Iqbal.\\n\\nConclusory allegations, such as those pointed to by ACA and the Bank, do not contain\\n\\nsufficient facts to properly state a claim. The allegations do not specify what contractual\\n\\nobligation was breached. Neither do they refer to any underlying facts to support the\\n\\npurported breach. Thus, the complaint is not pled with enough specificity to plausibly\\n\\nstate a claim for breach of the Forbearance Agreement.\\n\\n E.\\n\\n Having addressed the breach of contract counts, we turn to ACA and the Bank’s\\n\\ncount for breach of the implied covenant of good faith and fair dealing. ACA and the\\n\\n 14\\n\\fBank argue that, even if they have no claim for breach of an express term, they have\\n\\nstated a plausible claim for breach of the implied covenant of good faith and fair dealing.\\n\\nSpecifically, ACA and the Bank argue that the “subject to appropriation” language is\\n\\nambiguous and created discretion on the part of the City. They then claim the City acted\\n\\narbitrarily and unfairly by failing to appropriate funds when the City could afford to\\n\\nappropriate the funds to repay the Golf Course debt. This argument fails for two reasons.\\n\\n First, the complaint does not allege that the City acted arbitrarily and unfairly by\\n\\nfailing to make appropriations when it could afford to appropriate. When a complaint\\n\\nfails to state a short and plain statement of the claim showing the pleader is entitled to\\n\\nrelief, the claim fails. See Fed. R. Civ. Pro. 8(a)(2). That is precisely the situation here.\\n\\nWithout factual allegations that support their legal conclusions, ACA and the Bank have\\n\\nfailed to plead a plausible claim for relief.\\n\\n Second, even if we put aside the deficiencies in the pleadings, the “subject to\\n\\nappropriation” language is not ambiguous. As stated above, ACA and the Bank are\\n\\nsophisticated commercial entities engaged in a multi-million dollar municipal finance\\n\\ntransaction. They are to be bound by the plain and unambiguous terms of their contracts.\\n\\nSee Quadros & Assocs., P.C. v. City of Hampton, 268 Va. 50, 54, 597 S.E.2d 90, 93\\n\\n(2004) (holding that the terms of the parties’ contract were plain and unambiguous and\\n\\nthus the parties were bound by them). Under Virginia law, the implied covenant of good\\n\\nfaith and fair dealing “cannot be the vehicle for rewriting an unambiguous contract in\\n\\norder to create duties that do not otherwise exist.” Ward’s Equip., Inc. v. New Holland N.\\n\\nAm., Inc., 254 Va. 379, 385, 493 S.E.2d 516, 520 (1997).\\n\\n 15\\n\\f In essence, ACA and the Bank ask us to impose new terms to their deal that save\\n\\nthem from the consequences of the express terms of their agreements. We decline to do\\n\\nso. We find that ACA and the Bank fail to state a claim that the City and the Authority\\n\\nbreached the implied covenant of good faith and fair dealing.\\n\\n F.\\n\\n ACA and the Bank challenge the district court’s dismissal of their declaratory\\n\\njudgment count. In that count, ACA and the Bank sought a declaration that the financing\\n\\ndocuments were legal and enforceable and provide ACA and the Bank with the right to\\n\\npossess and foreclose on the secured property. The district court dismissed this count on\\n\\nthe basis that the request for declaratory judgment was not a proper standalone claim.\\n\\n We first consider the request for a declaration that the financing documents were\\n\\nlegal and enforceable. Despite its ruling that the declaratory judgment count was not a\\n\\nproper standalone claim, the district court proceeded to address the merits of this request\\n\\nin its consideration of the City Deed of Trust claim. The district court explained that the\\n\\nonly document whose legality was at issue was the City Deed of Trust. The district court\\n\\nthen evaluated that document and found it to be legally valid and enforceable. This\\n\\nfinding was not appealed to this Court, thus there is no longer a dispute regarding its\\n\\nlegality. Since the issue for which the declaration was sought is not in dispute, we decline\\n\\nto address this issue.\\n\\n Turning now to the request for a declaration that ACA and the Bank could possess\\n\\nand foreclose the secured property, counsel for the City and the Authority conceded at\\n\\noral argument that, subject to compliance with the terms of the documents, ACA and the\\n\\n 16\\n\\fBank have the right to foreclose the property secured by the Deeds of Trust. As there\\n\\nappears to be no dispute about whether ACA and the Bank have the right to pursue their\\n\\ncreditor rights under the financing documents, we decline to address this issue as well.\\n\\n G.\\n\\n ACA and the Bank next argue that the district court erred in dismissing their count\\n\\nfor restitution/unjust enrichment/quantum meruit. They argue that this count properly\\n\\nstates a claim because the enforceability of the financing documents is in dispute. ACA\\n\\nand the Bank claim that if the City and the Authority are not forced to make bond\\n\\npayments under the financing documents, they can recover under equitable theories. In\\n\\nsupport of this argument, ACA and the Bank appear to assume that a finding that the City\\n\\nand the Authority were not required to make bond payments equates to a finding that the\\n\\nfinancing documents are unenforceable or void.\\n\\n ACA and the Bank are mistaken. The district court did not find that the financing\\n\\ndocuments were unenforceable, nor do we. We, as did the district court, simply recognize\\n\\nthat the express terms of the contract make repayment subject to appropriations by the\\n\\nCity. Virginia law makes clear that “where there is an express and enforceable contract in\\n\\nexistence which governs the rights of the parties, the law will not imply a contract in\\n\\ncontravention thereof.” Royer v. Bd. Of Cty. Supervisors of Albemarle Cty., 10 S.E. 2d\\n\\n876, 881 (Va. 1940). Thus, this count fails to state a claim. 5\\n\\n\\n 5\\n Additionally, the district court found that ACA and the Bank pled this count “in\\nthe alternative” in the event that the court found the City Deed of Trust void. The district\\njudge found that the City Deed of Trust was a valid document, and thus dismissed this\\n(Continued)\\n 17\\n\\f H.\\n\\n ACA and the Bank next argue that the district court erred in dismissing their count\\n\\nfor constructive fraudulent inducement. They assert that the complaint states a plausible\\n\\nclaim because they pled that they detrimentally relied on misrepresentations by the City\\n\\nand the Authority concerning the validity of the financing documents. We find this count\\n\\nshould be dismissed because it was inadequately pled. In the complaint, ACA and the\\n\\nBank do not identify any specific misrepresentations of the Authority. Therefore, under\\n\\nIqbal and Twombly, any claim of misrepresentation by the Authority fails to assert facts\\n\\nwhich could plausibly provide relief. 6\\n\\n IV.\\n\\n Having addressed the challenges to the district court’s dismissal of the complaint,\\n\\nwe now turn to the challenge to the district court’s rulings on ACA and the Bank’s\\n\\nrequests to amend. ACA and the Bank did not file a motion to amend. However, they\\n\\nrequested leave to amend five times in their response in opposition to the City and the\\n\\nAuthority’s motion to dismiss. Three requests are mentioned in the body of their response\\n\\nand two in the footnotes. The district court addressed one of these requests, denying it on\\n\\n\\n\\n\\ncount. While the complaint did not state that this count was pled in the alternative,\\ncounsel for ACA and the Bank made representations at oral argument that the count was\\npled in the alternative. Therefore, we find no error in the district court’s determination.\\n 6\\n The district court dismissed this claim because it found that, like the\\nrestitution/unjust enrichment/quantum meruit claim, ACA and the Bank pled it in the\\nalternative. As stated in the preceding footnote, we find no error in this determination.\\n\\n\\n 18\\n\\fthe basis that it was not a proper motion. The district court does not appear to have ruled\\n\\non the other requests. ACA and the Bank argue that the district court erred by summarily\\n\\ndenying one of their requests to amend and ignoring their other requests to amend.\\n\\n Generally, courts “should freely give leave [to amend] when justice so requires.”\\n\\nFed. R. Civ. P. 15(a)(2). A motion to amend should only be denied when “the amendment\\n\\nwould be prejudicial to the opposing party, there has been bad faith on the part of the\\n\\nmoving party, or the amendment would be futile.” Edwards v. City of Goldsboro, 178\\n\\nF.3d 231, 242 (4th Cir. 1999) (internal quotation marks omitted). However, a district\\n\\ncourt does not abuse its discretion by declining to grant a request to amend when it is not\\n\\nproperly made as a motion. See Cozzarelli v. Inspire Pharm. Inc., 549 F.3d 618, 630–31\\n\\n(4th Cir. 2008) (affirming denial of leave to amend when the plaintiffs’ request for leave\\n\\nwas in a footnote of their response to a motion to dismiss and in their final sentence of\\n\\ntheir objection to the recommendation of the magistrate judge).\\n\\n ACA and the Bank concede that this Court has held that a district court does not\\n\\nabuse its discretion by denying contingent requests to amend in the legal memoranda\\n\\nmade in lieu of a motion to amend. They argue, however, that this Court should follow\\n\\nother circuits which, according to their interpretation, find that requests made in\\n\\nopposition memoranda constitute a proper motion to amend. We decline to do so.\\n\\n Even if we did find that ACA and the Bank’s “requests” to amend constituted a\\n\\nmotion to amend, the district court did not abuse its discretion by denying it. A review of\\n\\nthe record indicates that although they informally requested several times to amend, ACA\\n\\nand the Bank never indicated what amendments they were seeking. They never identified\\n\\n 19\\n\\fany facts they sought to include in an amendment. They never identified any cause of\\n\\naction they sought to add in an amendment. Without that information, there was no way\\n\\nfor a district court to evaluate whether the proposed amendments were futile or not. Thus,\\n\\nto the extent their requests for leave are considered motions to amend, and to the extent\\n\\nthey were denied, we affirm the district court.\\n\\n V.\\n\\n As the district court correctly concluded, the complaint fails to allege claims for\\n\\nwhich relief could be granted. For all the foregoing reasons, the judgment of the district\\n\\ncourt is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 20\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4369858/\", \"author_raw\": \"QUATTLEBAUM, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"GREGORY"},"judge2":{"kind":"string","value":"THACKER"},"judge3":{"kind":"string","value":"QUATTLEBAUM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4592605/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: ACA FINANCIAL GUARANTY CORPORATION; UMB Bank, NA, Plaintiffs - Appellants, v. CITY OF BUENA VISTA, VIRGINIA ; Public Recreational Facilities Authority of the City of Buena Vista, Virginia, Defendants - Appellees, and Russell J. Singer and Douglas L. Sbertoli, SR., Trustees.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-21\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1268\n\n\nACA FINANCIAL GUARANTY CORPORATION; UMB BANK, NA,\n\n Plaintiffs - Appellants,\n\n v.\n\nCITY OF BUENA VISTA, VIRGINIA; PUBLIC RECREATIONAL\nFACILITIES AUTHORITY OF THE CITY OF BUENA VISTA, VIRGINIA,\n\n Defendants - Appellees,\n\nand\n\nRUSSELL J. SINGER and DOUGLAS L. SBERTOLI, SR.,\n\n Trustees.\n\n\nAppeal from the United States District Court for the Western District of Virginia, at\nLynchburg. Norman K. Moon, Senior District Judge. (6:17-cv-00013-NKM-RSB)\n\n\nArgued: October 31, 2018 Decided: February 21, 2019\n\n\nBefore GREGORY, Chief Judge, and THACKER and QUATTLEBAUM, Circuit\nJudges.\n\n\nAffirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Chief\nJudge Gregory and Judge Thacker joined.\n\fARGUED: Scott Carlton Ford, Brian Aaron Richardson, FORD RICHARDSON, PC,\nRichmond, Virginia, for Appellants. Kevin M. Rose, BOTKINROSE PLC,\nHarrisonburg, Virginia, for Appellees. ON BRIEF: Michael W. Sharp, BOTKINROSE\nPLC, Harrisonburg, Virginia; Brian J. Kearney, W. Wayne Heslep, HESLEP &\nKEARNEY PC, Lexington, Virginia, for Appellees.\n\n\n\n\n 2\n\fQUATTLEBAUM, Circuit Judge:\n\n In this appeal, we review an order dismissing a complaint that arose from a\n\ntroubled bond transaction involving a municipal golf course in the City of Buena Vista,\n\nVirginia (the “City”). Bonds were issued to refinance debt on the golf course and the\n\nrepayment of the bonds depended on the City making payments on the lease of the golf\n\ncourse. When it failed to do so, this litigation ensued. The primary question on appeal is\n\nwhether the City’s obligation to make rent payments is legally enforceable when the\n\nobligation is expressly subject to the City’s annual decision to appropriate funds. Finding\n\nthat the answer is no, we affirm the district court’s dismissal of the complaint.\n\n I.\n\n Plans for a golf course in the City date back to 2002. In that year, the\n\nCommonwealth of Virginia created the Public Recreational Facilities Authority (the\n\n“Authority”) to construct, operate and maintain public recreational facilities for the\n\nbenefit of the City. In 2003, the Authority, at the request of the City, took out a loan to\n\nfinance the construction of a municipal golf course called the Vista Links Golf Club (the\n\n“Golf Course”). 1\n\n\n 1\n The facts that led to the City’s interest in a golf course and the subsequent\nproblems with this course are not in the record nor material to this Court’s decision.\nHowever, the events that are described in this case generally follow trends in the golf\nindustry. In the early 2000s, there was a noticeable rise in the popularity of golf. See\nSteven J. Wernick, Diamonds in the Rough: Judicial Reaction to Golf Course\nConversations, 2017 WL 1098131, 30 No. 4 ZONING & PLANNING LAW REPORT 1 (April\n2007). Tiger Woods’ dramatic entry and domination in the golf world brought a wave of\nnew golfers to the sport. Id. What is known as the “Tiger Woods Effect” led to increased\ntelevision ratings and golf related sales. Id. However, monetization of the increased\n(Continued)\n 3\n\f In 2005, the City and the Authority sought to refinance the loan on the Golf\n\nCourse. To accomplish this, the Authority issued over $9 million in bonds. The Authority\n\nand SunTrust Bank (the “Bank”) entered into a Trust Agreement which described how\n\nthe bonds would be issued, how they would be repaid and the rights of the parties in the\n\nevent the bonds were not repaid. 2 The Authority used the bond proceeds to pay off the\n\nexisting loan on the Golf Course.\n\n To have a source of revenue to repay the bonds, the Authority leased the Golf\n\nCourse to the City. Under the Lease Agreement, the City agreed to make rent payments\n\nas well as maintain and operate the Golf Course. The Authority agreed that the rent\n\npayments would be used to repay the bonds. The rent payments from the City, therefore,\n\nwere the financial linchpin of the transaction. Critically, however, the City never made an\n\nabsolute commitment to make the rent payments. Under the Lease Agreement and the\n\n\n\n\npopularity of golf did not always extend to golf courses. Id. While the number of golf\ncourses increased, the number of rounds of golf played per year roughly stayed the same.\nThus, some golf courses became the victim of too much supply and not enough demand.\nAccording to the National Golf Foundation, a trend began in 2006 where each year\nsignificantly more golf courses closed than opened. National Golf Foundation, NGF\nIssues 2018 Golf Industry Report: Consolidated State-of-the-Industry Report Features\nParticipation and Course Supply Dada, NGF Quarterly, May 2018,\nhttps://www.thengfq.com/2018/05/ngf-issues-2018-golf-industry-report/.\n 2\n UMB Bank, N.A. is the successor-in-interest to SunTrust Bank.\n\n\n\n\n 4\n\fother financing documents, the City’s obligation was subject to its decision to appropriate\n\nfunds each year. 3\n\n Other documents in the bond transaction gave the Bank rights as a creditor in the\n\nevent the bonds were not repaid. The City issued a Deed of Trust to the Bank where the\n\nCity pledged its existing City Hall building and police station as security. Similarly, the\n\nAuthority issued a Deed of Trust to the Bank where the Authority pledged the Golf\n\nCourse as security. Both the City Deed of Trust and the Authority Deed of Trust\n\n(collectively “Deeds of Trust”) along with the Trust Agreement contain provisions\n\noutlining the Bank’s creditor rights to this collateral.\n\n The Bank retained ACA Financial Guaranty Corporation (“ACA”) to provide\n\ninsurance on the bonds. Through this arrangement, ACA received insurance premiums,\n\nand, in return, agreed to pay off the bonds if there was a default in repayment. In such a\n\nsituation, ACA would front the costs of paying off the bonds and then assume the Bank’s\n\nrights to receive rent payments and to enforce other creditor rights.\n\n In 2010 and 2011, the City failed to appropriate enough money to fully pay the\n\nrent due on the Golf Course lease. As a result, the Authority could not repay the bonds.\n\nAfter discussions and negotiations, the parties entered into the Forbearance Agreement.\n\n\n 3\n The reason for this arrangement is not clear from the record. However, because\nthe City’s charter requires “any bonded indebtedness” to be approved through a\nreferendum “passed by a majority of the qualified voters,” see City of Buena Vista (Va.)\nCharter § 2.214, the City could not simply enter into a long-term loan agreement with the\nBank. An obligation subject to the City’s decision to make appropriations avoided the\nrequirement of having the electorate vote on the debt.\n\n\n 5\n\fUnder the Forbearance Agreement, ACA agreed to make up any shortfall resulting from\n\nthe City’s failure to make rent payments. It also agreed to temporarily forego exercising\n\nits creditor rights and remedies. The City and the Authority agreed that ACA would be\n\nreimbursed for any payments it made and agreed that the bonds would still be repaid\n\nfrom rent payments, although the payment plan was extended over a longer period of\n\ntime. Significantly, the Forbearance Agreement also makes clear that the obligation to\n\nmake the rent payments is subject to annual appropriations by the City.\n\n In January 2015, the City voted not to appropriate funds for the rent payments and\n\nhas not made any payments since that time. As a result, the Authority once again failed to\n\nrepay the bonds.\n\n In response, ACA and the Bank filed a ten-count complaint in federal court against\n\nthe City and the Authority. The City and the Authority filed a motion to dismiss the\n\ncomplaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court\n\ngranted the motion to dismiss finding that all ten counts in the complaint failed to state\n\nclaims for which relief could be granted. ACA and the Bank appealed all but one of the\n\ncounts. We have jurisdiction for this appeal pursuant to 28 U.S.C. § 1291.\n\n II.\n\n This Court reviews a motion to dismiss de novo. Nemet Chevrolet, Ltd. v.\n\nConsumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009). In so doing, we follow the\n\nwell-settled standard for considering a motion to dismiss under Rule 12(b)(6).\n\n A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the claims\n\npled in a complaint. To sufficiently plead a claim, the Federal Rules of Civil Procedure\n\n 6\n\frequire that “[a] pleading that states a claim for relief must contain . . . a short and plain\n\nstatement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P.\n\n8(a). This pleading standard does not require detailed factual allegations. Ashcroft v.\n\nIqbal, 556 U.S. 662, 678 (2009). However, “it demands more than an unadorned, the-\n\ndefendant-unlawfully-harmed-me accusation.” Id. Labels, conclusions, recitation of a\n\nclaim’s elements, and naked assertions devoid of further factual enhancement will not\n\nsuffice to meet the Rule 8 pleading standard. Id.\n\n To meet the Rule 8 standard and survive a motion to dismiss, “a complaint must\n\ncontain sufficient factual matter, accepted as true, to ‘state a claim to relief that is\n\nplausible on its face.’” Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557\n\n(2007)). To contain sufficient factual matter to make a claim plausible, the factual content\n\nmust “allow the court to draw the reasonable inference that the defendant is liable for the\n\nmisconduct alleged.” Id.\n\n While we must accept the factual allegations in the complaint as true, we need not\n\naccept a complaint’s legal conclusions. Id. Thus, simply reciting the cause of actions’\n\nelements and supporting them by conclusory statements does not meet the required\n\nstandard. Id. The Supreme Court noted that while Rule 8 departed from the\n\nhypertechnical code-pleading requirement of a prior era, it did not “unlock the doors of\n\ndiscovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–679.\n\n Using this standard, we review ACA and the Bank’s claims on appeal.\n\n\n\n\n 7\n\f III.\n\n ACA and the Bank appeal nine of the ten counts that the district court dismissed.\n\nFive of the nine counts at issue on appeal are primarily based on the City’s failure to\n\nmake the rent payments because it did not appropriate the funds for such payments.\n\nThese five counts all assert a breach of one of the financing documents. The remaining\n\nfour counts are implied, declaratory and equitable in nature. We will address the five\n\nbreach of contract counts and then the remaining implied, declaratory and equitable\n\ncounts.\n\n A.\n\n First, ACA and the Bank argue the district court erred in dismissing their claim\n\nfor breach of a third-party beneficiary contract. Although they are not parties to the Lease\n\nAgreement between the City and the Authority, ACA and the Bank claim they can bring\n\nan action under it because they are third-party beneficiaries to that Lease Agreement.\n\nThey contend this count states a plausible claim for relief because the City has a legally\n\nenforceable obligation to pay rent under the Lease Agreement. ACA and the Bank claim\n\nthat the City breached the Lease Agreement by not paying rent to the Bank.\n\n This argument gets to the crux of the lawsuit—whether the City has an\n\nenforceable obligation to make rent payments. The language of the Lease Agreement is\n\ndispositive on this issue. Section 4.2 of the Lease Agreement states that the City shall pay\n\nthe rent to the Bank on behalf of the Authority. This provision is subject to Section 4.5\n\nwhich states:\n\n\n\n 8\n\f Notwithstanding anything in this Lease Agreement to the contrary, the\n City’s obligations to pay the cost of performing its obligations under this\n Lease Agreement and the Trust Agreement, including without limitation its\n obligation to pay all Basic Rent and Additional Rent, shall be subject to\n and dependent upon appropriations being made from time to time by\n the City Council for such purpose . . . .\n\nJ.A. 54. (emphasis added).\n\n Consistently, Section 6.1(c) states:\n\n Notwithstanding anything contained in this Section to the contrary, failure\n by the City to make when due any payment required to be made under\n this Lease Agreement or failure by the City to observe and perform any\n covenant, condition or agreement on its part to be observed or performed\n under this Lease Agreement resulting from failure of the City to\n appropriate moneys for such purposes, as described in Section 4.5,\n shall not constitute an event of default.\n\nJ.A. 61–62. (emphasis added).\n\n This language unambiguously states that the City did not have an enforceable\n\nobligation to make the rent payments. Any obligation of the City to make rent payments\n\nwas and is subject to the City appropriating the funds for such payments. In other words,\n\nif the City did not appropriate funds, which it did not, the City had no obligation to make\n\nthe rent payments. A party cannot be sued for breaching an obligation it never had in the\n\nfirst place. To make this even more clear, the Lease Agreement provides that the City’s\n\nfailure to make rent payments when no appropriations are made does not constitute an\n\nevent of default. Therefore, the claim that the City breached its obligation to the\n\nAuthority under the Lease Agreement fails to state a claim for which relief can be\n\ngranted.\n\n\n\n\n 9\n\f The ACA and the Bank challenge the legal effect of the “subject to appropriation”\n\nlanguage. In considering this challenge, the Virginia Supreme Court’s decision in Dykes\n\nv. Northern Virginia Transp. Dist. Comm’n, 411 S.E.2d 1 (Va. 1991) is instructive. In\n\nthat case, a county incurred a long-term debt obligation without holding a referendum on\n\nthe debt. Concerned citizens alleged that the obligation violated Virginia’s constitutional\n\nrequirement that such obligations be approved by the citizens of the county. The court\n\nrejected the challenge because the county’s obligation, like the obligation in this case,\n\nwas subject to the county’s appropriation of funds for that purpose. The court held that\n\n“subject to appropriation” financing does not create constitutional cognizable debt\n\n“because it does not impose any enforceable duty or liability on the County.” Id. at 10.\n\n“[N]either the County nor its general revenues is liable for repayment of the debt incurred\n\nby the bond issue.” Id.\n\n ACA and the Bank argue that Dykes is distinguishable from this case because it\n\ninvolved a constitutional challenge to a municipal bond transaction brought by concerned\n\ncitizens whereas this case is brought by parties to the financing arrangement. This\n\ndistinction, however, is immaterial. The court in Dykes looked to the nature of the debt,\n\nnot the nature of the parties, and found that “subject to appropriation” financing does not\n\nimpose any enforceable duty or liability on the county. Dykes confirms the complaint\n\nfails to state a claim that the City breached its obligation to the Authority under the Lease\n\nAgreement for which ACA and the Bank can recover as third-party beneficiaries.\n\n\n\n\n 10\n\f B.\n\n ACA and the Bank next argue the district court erred in dismissing their claim that\n\nthe Authority breached the Trust Agreement. In that count, ACA and the Bank claim the\n\nAuthority has not made bond payments since 2014. To address this ground, we look to\n\nthe language of the Trust Agreement. Under it, the Authority’s obligation to make the\n\nbond payments was dependent on the City paying rent. For example, Section 1001(c) of\n\nthe Trust Agreement states:\n\n The Authority covenants to faithfully observe and perform all of its\n covenants, conditions and agreements contained in this Trust Agreement\n and to promptly pay the principal of and premium, if any, and interest on\n the Bonds at the places, on the dates and in the manner specified in this\n Trust Agreement and the Bonds; provided, however, that such\n obligations are limited obligations of the Authority, payable solely from\n the payments of Basic Rent and Additional Rent and the property\n secured by the Deed of Trust.\n\nJ.A. 118. (emphasis added).\n\n Additionally, Section 1703 of the Trust Agreement states:\n\n Notwithstanding any provision of the Bonds or the Basic Agreements to the\n contrary, the obligations of the Authority under the Bonds and the Basic\n Agreements are not general obligations of the Authority, but are limited\n obligations payable solely from payments of Basic Rent and Additional\n Rent and the property pledged pursuant to the Deed of Trust.\n\nJ.A. 141. (emphasis added).\n\n As the language quoted above makes clear, the Authority’s promise to make the\n\nbond payments was and is subject to the City’s payment of the rent. Aside from the rent\n\npayments from the City, the Authority had no independent contractual obligation to make\n\nthe bond payments. Thus, we find that ACA and the Bank’s claim for breach of the Trust\n\n\n 11\n\fAgreement is not plausible because it is contradicted by the clear and unambiguous terms\n\nof the Trust Agreement. See Foothill Capital Corp. v. E. Coast Bldg. Supply Corp., 259\n\nB.R. 844, 845 (E.D. Va. 2001) (holding that where an agreement is plain and\n 4\nunambiguous, the court is not at liberty to rewrite the contractual language).\n\n C.\n\n ACA and the Bank next claim the district court erred in dismissing their claims for\n\nbreach of the City Deed of Trust and breach of the Authority Deed of Trust. They point to\n\nSection 1.2 of the Deeds of Trust, which states that the “Grantor shall perform and\n\nobserve all duties, obligations, and requirements and shall comply in all respects with the\n\nterms, covenants, conditions, representations and warranties of the Bonds, this Deed of\n\nTrust, the Lease Agreement and the Trust Agreement.” J.A. 176, 199. Specifically, they\n\nargue that by failing to make bond payments in the manner provided by the Trust\n\n\n\n\n 4\n ACA and the Bank raise an additional issue regarding this count by asserting that\nthe Authority also breached the Trust Agreement by not paying revenues derived from\nthe secured property. However, they did not make this argument before the district court.\nWe have held that “[w]hen a party in a civil case fails to raise an argument in the lower\ncourt and instead raises it for the first time before us, we may reverse only if the newly\nraised argument establishes ‘fundamental error’ or a denial of fundamental justice.” In re\nUnder Seal, 749 F.3d 276, 285 (4th Cir. 2014) (citing Stewart v. Hall, 770 F.2d 1267,\n1271 (4th Cir. 1985)). We find neither fundamental error nor a denial of fundamental\njustice here. ACA and the Bank do not even allege in this count that the Authority failed\nto pay from the revenues of the property secured by the Deed of Trust. The complaint\nsimply alleges that the Authority breached the Trust Agreement “in a number of material\nways” and does not give any further specificity. These conclusory allegations fail to meet\npleading requirements prescribed in Twombly and Iqbal. They also defeat any argument\nthat dismissing ACA and the Bank’s new and improperly late argument constitutes\nfundamental error or denial of fundamental justice.\n\n 12\n\fAgreement, the City and the Authority breached their obligations under the Deeds of\n\nTrust.\n\n While the Deeds of Trust require the City and the Authority to adhere to the Trust\n\nAgreement, they do not alter or modify the language in Sections 1001(c) and 1703 of the\n\nTrust Agreement discussed above. By the express terms of the Trust Agreement, the\n\nAuthority’s obligation to make bond payments is limited to the rent paid by the City. It\n\nmakes clear that the City’s obligation to make rent payments is subject to the City’s\n\ndecision to appropriate rent money. In the face of those clear contractual terms, the\n\ncounts alleging violations of the Deeds of Trust fail to state a claim for which relief can\n\nbe granted.\n\n D.\n\n ACA and the Bank next claim the district court erred in dismissing their count for\n\nbreach of the Forbearance Agreement. They concede that the City’s rent payment\n\nobligation under the Forbearance Agreement is subject to appropriations by the City.\n\nHowever, they contend that language does not waive the City’s or the Authority’s duty to\n\nmake rent payments under the Forbearance Agreement. We disagree. Section 5.4 of the\n\nForbearance Agreement provides:\n\n The obligations of the City to make adjusted Basic Rent payments pursuant\n to Paragraph 5.1 and deferred payments of Basic Rent pursuant to\n Paragraph 5.3 are subject to annual appropriation by the City Council\n of amounts sufficient to make such payments. The City agrees that it is the\n intention of the City to make annual appropriations in amounts sufficient to\n make the payments required under this Agreement.\n\nJ.A. 227. (emphasis added).\n\n\n 13\n\f Like the language in the Trust Agreement and the Lease Agreement described\n\nabove, this language is unambiguous. Accordingly, the claim for breach of the\n\nForbearance Agreement fails to state a plausible claim.\n\n ACA and the Bank also claim on appeal the district court erred in dismissing this\n\ncount because the City and the Authority made misrepresentations which constituted a\n\nbreach of the Forbearance Agreement. However, neither this count nor any part of the\n\ncomplaint contains any allegations about misrepresentations. Instead, the complaint\n\nalleges that ACA and the Bank “have been damaged as a result of Defendants’ breaches\n\nof their contractual obligations contained in the Forbearance Agreement.” J.A. 32. ACA\n\nand the Bank argue that making a misrepresentation constitutes a breach of the City and\n\nthe Authority’s obligations under the Forbearance Agreement. ACA and the Bank thus\n\ncontend that they have satisfied their pleading requirements by alleging the City and the\n\nAuthority breached their contractual obligations even though they have not specified the\n\nalleged misrepresentations. This position is in direct conflict with Twombly and Iqbal.\n\nConclusory allegations, such as those pointed to by ACA and the Bank, do not contain\n\nsufficient facts to properly state a claim. The allegations do not specify what contractual\n\nobligation was breached. Neither do they refer to any underlying facts to support the\n\npurported breach. Thus, the complaint is not pled with enough specificity to plausibly\n\nstate a claim for breach of the Forbearance Agreement.\n\n E.\n\n Having addressed the breach of contract counts, we turn to ACA and the Bank’s\n\ncount for breach of the implied covenant of good faith and fair dealing. ACA and the\n\n 14\n\fBank argue that, even if they have no claim for breach of an express term, they have\n\nstated a plausible claim for breach of the implied covenant of good faith and fair dealing.\n\nSpecifically, ACA and the Bank argue that the “subject to appropriation” language is\n\nambiguous and created discretion on the part of the City. They then claim the City acted\n\narbitrarily and unfairly by failing to appropriate funds when the City could afford to\n\nappropriate the funds to repay the Golf Course debt. This argument fails for two reasons.\n\n First, the complaint does not allege that the City acted arbitrarily and unfairly by\n\nfailing to make appropriations when it could afford to appropriate. When a complaint\n\nfails to state a short and plain statement of the claim showing the pleader is entitled to\n\nrelief, the claim fails. See Fed. R. Civ. Pro. 8(a)(2). That is precisely the situation here.\n\nWithout factual allegations that support their legal conclusions, ACA and the Bank have\n\nfailed to plead a plausible claim for relief.\n\n Second, even if we put aside the deficiencies in the pleadings, the “subject to\n\nappropriation” language is not ambiguous. As stated above, ACA and the Bank are\n\nsophisticated commercial entities engaged in a multi-million dollar municipal finance\n\ntransaction. They are to be bound by the plain and unambiguous terms of their contracts.\n\nSee Quadros & Assocs., P.C. v. City of Hampton, 268 Va. 50, 54, 597 S.E.2d 90, 93\n\n(2004) (holding that the terms of the parties’ contract were plain and unambiguous and\n\nthus the parties were bound by them). Under Virginia law, the implied covenant of good\n\nfaith and fair dealing “cannot be the vehicle for rewriting an unambiguous contract in\n\norder to create duties that do not otherwise exist.” Ward’s Equip., Inc. v. New Holland N.\n\nAm., Inc., 254 Va. 379, 385, 493 S.E.2d 516, 520 (1997).\n\n 15\n\f In essence, ACA and the Bank ask us to impose new terms to their deal that save\n\nthem from the consequences of the express terms of their agreements. We decline to do\n\nso. We find that ACA and the Bank fail to state a claim that the City and the Authority\n\nbreached the implied covenant of good faith and fair dealing.\n\n F.\n\n ACA and the Bank challenge the district court’s dismissal of their declaratory\n\njudgment count. In that count, ACA and the Bank sought a declaration that the financing\n\ndocuments were legal and enforceable and provide ACA and the Bank with the right to\n\npossess and foreclose on the secured property. The district court dismissed this count on\n\nthe basis that the request for declaratory judgment was not a proper standalone claim.\n\n We first consider the request for a declaration that the financing documents were\n\nlegal and enforceable. Despite its ruling that the declaratory judgment count was not a\n\nproper standalone claim, the district court proceeded to address the merits of this request\n\nin its consideration of the City Deed of Trust claim. The district court explained that the\n\nonly document whose legality was at issue was the City Deed of Trust. The district court\n\nthen evaluated that document and found it to be legally valid and enforceable. This\n\nfinding was not appealed to this Court, thus there is no longer a dispute regarding its\n\nlegality. Since the issue for which the declaration was sought is not in dispute, we decline\n\nto address this issue.\n\n Turning now to the request for a declaration that ACA and the Bank could possess\n\nand foreclose the secured property, counsel for the City and the Authority conceded at\n\noral argument that, subject to compliance with the terms of the documents, ACA and the\n\n 16\n\fBank have the right to foreclose the property secured by the Deeds of Trust. As there\n\nappears to be no dispute about whether ACA and the Bank have the right to pursue their\n\ncreditor rights under the financing documents, we decline to address this issue as well.\n\n G.\n\n ACA and the Bank next argue that the district court erred in dismissing their count\n\nfor restitution/unjust enrichment/quantum meruit. They argue that this count properly\n\nstates a claim because the enforceability of the financing documents is in dispute. ACA\n\nand the Bank claim that if the City and the Authority are not forced to make bond\n\npayments under the financing documents, they can recover under equitable theories. In\n\nsupport of this argument, ACA and the Bank appear to assume that a finding that the City\n\nand the Authority were not required to make bond payments equates to a finding that the\n\nfinancing documents are unenforceable or void.\n\n ACA and the Bank are mistaken. The district court did not find that the financing\n\ndocuments were unenforceable, nor do we. We, as did the district court, simply recognize\n\nthat the express terms of the contract make repayment subject to appropriations by the\n\nCity. Virginia law makes clear that “where there is an express and enforceable contract in\n\nexistence which governs the rights of the parties, the law will not imply a contract in\n\ncontravention thereof.” Royer v. Bd. Of Cty. Supervisors of Albemarle Cty., 10 S.E. 2d\n\n876, 881 (Va. 1940). Thus, this count fails to state a claim. 5\n\n\n 5\n Additionally, the district court found that ACA and the Bank pled this count “in\nthe alternative” in the event that the court found the City Deed of Trust void. The district\njudge found that the City Deed of Trust was a valid document, and thus dismissed this\n(Continued)\n 17\n\f H.\n\n ACA and the Bank next argue that the district court erred in dismissing their count\n\nfor constructive fraudulent inducement. They assert that the complaint states a plausible\n\nclaim because they pled that they detrimentally relied on misrepresentations by the City\n\nand the Authority concerning the validity of the financing documents. We find this count\n\nshould be dismissed because it was inadequately pled. In the complaint, ACA and the\n\nBank do not identify any specific misrepresentations of the Authority. Therefore, under\n\nIqbal and Twombly, any claim of misrepresentation by the Authority fails to assert facts\n\nwhich could plausibly provide relief. 6\n\n IV.\n\n Having addressed the challenges to the district court’s dismissal of the complaint,\n\nwe now turn to the challenge to the district court’s rulings on ACA and the Bank’s\n\nrequests to amend. ACA and the Bank did not file a motion to amend. However, they\n\nrequested leave to amend five times in their response in opposition to the City and the\n\nAuthority’s motion to dismiss. Three requests are mentioned in the body of their response\n\nand two in the footnotes. The district court addressed one of these requests, denying it on\n\n\n\n\ncount. While the complaint did not state that this count was pled in the alternative,\ncounsel for ACA and the Bank made representations at oral argument that the count was\npled in the alternative. Therefore, we find no error in the district court’s determination.\n 6\n The district court dismissed this claim because it found that, like the\nrestitution/unjust enrichment/quantum meruit claim, ACA and the Bank pled it in the\nalternative. As stated in the preceding footnote, we find no error in this determination.\n\n\n 18\n\fthe basis that it was not a proper motion. The district court does not appear to have ruled\n\non the other requests. ACA and the Bank argue that the district court erred by summarily\n\ndenying one of their requests to amend and ignoring their other requests to amend.\n\n Generally, courts “should freely give leave [to amend] when justice so requires.”\n\nFed. R. Civ. P. 15(a)(2). A motion to amend should only be denied when “the amendment\n\nwould be prejudicial to the opposing party, there has been bad faith on the part of the\n\nmoving party, or the amendment would be futile.” Edwards v. City of Goldsboro, 178\n\nF.3d 231, 242 (4th Cir. 1999) (internal quotation marks omitted). However, a district\n\ncourt does not abuse its discretion by declining to grant a request to amend when it is not\n\nproperly made as a motion. See Cozzarelli v. Inspire Pharm. Inc., 549 F.3d 618, 630–31\n\n(4th Cir. 2008) (affirming denial of leave to amend when the plaintiffs’ request for leave\n\nwas in a footnote of their response to a motion to dismiss and in their final sentence of\n\ntheir objection to the recommendation of the magistrate judge).\n\n ACA and the Bank concede that this Court has held that a district court does not\n\nabuse its discretion by denying contingent requests to amend in the legal memoranda\n\nmade in lieu of a motion to amend. They argue, however, that this Court should follow\n\nother circuits which, according to their interpretation, find that requests made in\n\nopposition memoranda constitute a proper motion to amend. We decline to do so.\n\n Even if we did find that ACA and the Bank’s “requests” to amend constituted a\n\nmotion to amend, the district court did not abuse its discretion by denying it. A review of\n\nthe record indicates that although they informally requested several times to amend, ACA\n\nand the Bank never indicated what amendments they were seeking. They never identified\n\n 19\n\fany facts they sought to include in an amendment. They never identified any cause of\n\naction they sought to add in an amendment. Without that information, there was no way\n\nfor a district court to evaluate whether the proposed amendments were futile or not. Thus,\n\nto the extent their requests for leave are considered motions to amend, and to the extent\n\nthey were denied, we affirm the district court.\n\n V.\n\n As the district court correctly concluded, the complaint fails to allege claims for\n\nwhich relief could be granted. For all the foregoing reasons, the judgment of the district\n\ncourt is\n\n AFFIRMED.\n\n\n\n\n 20\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: ACA FINANCIAL GUARANTY CORPORATION; UMB Bank, NA, Plaintiffs - Appellants, v. CITY OF BUENA VISTA, VIRGINIA ; Public Recreational Facilities Authority of the City of Buena Vista, Virginia, Defendants - Appellees, and Russell J. Singer and Douglas L. Sbertoli, SR., Trustees.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-21\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1268\\n\\n\\nACA FINANCIAL GUARANTY CORPORATION; UMB BANK, NA,\\n\\n Plaintiffs - Appellants,\\n\\n v.\\n\\nCITY OF BUENA VISTA, VIRGINIA; PUBLIC RECREATIONAL\\nFACILITIES AUTHORITY OF THE CITY OF BUENA VISTA, VIRGINIA,\\n\\n Defendants - Appellees,\\n\\nand\\n\\nRUSSELL J. SINGER and DOUGLAS L. SBERTOLI, SR.,\\n\\n Trustees.\\n\\n\\nAppeal from the United States District Court for the Western District of Virginia, at\\nLynchburg. Norman K. Moon, Senior District Judge. (6:17-cv-00013-NKM-RSB)\\n\\n\\nArgued: October 31, 2018 Decided: February 21, 2019\\n\\n\\nBefore GREGORY, Chief Judge, and THACKER and QUATTLEBAUM, Circuit\\nJudges.\\n\\n\\nAffirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Chief\\nJudge Gregory and Judge Thacker joined.\\n\\fARGUED: Scott Carlton Ford, Brian Aaron Richardson, FORD RICHARDSON, PC,\\nRichmond, Virginia, for Appellants. Kevin M. Rose, BOTKINROSE PLC,\\nHarrisonburg, Virginia, for Appellees. ON BRIEF: Michael W. Sharp, BOTKINROSE\\nPLC, Harrisonburg, Virginia; Brian J. Kearney, W. Wayne Heslep, HESLEP &\\nKEARNEY PC, Lexington, Virginia, for Appellees.\\n\\n\\n\\n\\n 2\\n\\fQUATTLEBAUM, Circuit Judge:\\n\\n In this appeal, we review an order dismissing a complaint that arose from a\\n\\ntroubled bond transaction involving a municipal golf course in the City of Buena Vista,\\n\\nVirginia (the “City”). Bonds were issued to refinance debt on the golf course and the\\n\\nrepayment of the bonds depended on the City making payments on the lease of the golf\\n\\ncourse. When it failed to do so, this litigation ensued. The primary question on appeal is\\n\\nwhether the City’s obligation to make rent payments is legally enforceable when the\\n\\nobligation is expressly subject to the City’s annual decision to appropriate funds. Finding\\n\\nthat the answer is no, we affirm the district court’s dismissal of the complaint.\\n\\n I.\\n\\n Plans for a golf course in the City date back to 2002. In that year, the\\n\\nCommonwealth of Virginia created the Public Recreational Facilities Authority (the\\n\\n“Authority”) to construct, operate and maintain public recreational facilities for the\\n\\nbenefit of the City. In 2003, the Authority, at the request of the City, took out a loan to\\n\\nfinance the construction of a municipal golf course called the Vista Links Golf Club (the\\n\\n“Golf Course”). 1\\n\\n\\n 1\\n The facts that led to the City’s interest in a golf course and the subsequent\\nproblems with this course are not in the record nor material to this Court’s decision.\\nHowever, the events that are described in this case generally follow trends in the golf\\nindustry. In the early 2000s, there was a noticeable rise in the popularity of golf. See\\nSteven J. Wernick, Diamonds in the Rough: Judicial Reaction to Golf Course\\nConversations, 2017 WL 1098131, 30 No. 4 ZONING & PLANNING LAW REPORT 1 (April\\n2007). Tiger Woods’ dramatic entry and domination in the golf world brought a wave of\\nnew golfers to the sport. Id. What is known as the “Tiger Woods Effect” led to increased\\ntelevision ratings and golf related sales. Id. However, monetization of the increased\\n(Continued)\\n 3\\n\\f In 2005, the City and the Authority sought to refinance the loan on the Golf\\n\\nCourse. To accomplish this, the Authority issued over $9 million in bonds. The Authority\\n\\nand SunTrust Bank (the “Bank”) entered into a Trust Agreement which described how\\n\\nthe bonds would be issued, how they would be repaid and the rights of the parties in the\\n\\nevent the bonds were not repaid. 2 The Authority used the bond proceeds to pay off the\\n\\nexisting loan on the Golf Course.\\n\\n To have a source of revenue to repay the bonds, the Authority leased the Golf\\n\\nCourse to the City. Under the Lease Agreement, the City agreed to make rent payments\\n\\nas well as maintain and operate the Golf Course. The Authority agreed that the rent\\n\\npayments would be used to repay the bonds. The rent payments from the City, therefore,\\n\\nwere the financial linchpin of the transaction. Critically, however, the City never made an\\n\\nabsolute commitment to make the rent payments. Under the Lease Agreement and the\\n\\n\\n\\n\\npopularity of golf did not always extend to golf courses. Id. While the number of golf\\ncourses increased, the number of rounds of golf played per year roughly stayed the same.\\nThus, some golf courses became the victim of too much supply and not enough demand.\\nAccording to the National Golf Foundation, a trend began in 2006 where each year\\nsignificantly more golf courses closed than opened. National Golf Foundation, NGF\\nIssues 2018 Golf Industry Report: Consolidated State-of-the-Industry Report Features\\nParticipation and Course Supply Dada, NGF Quarterly, May 2018,\\nhttps://www.thengfq.com/2018/05/ngf-issues-2018-golf-industry-report/.\\n 2\\n UMB Bank, N.A. is the successor-in-interest to SunTrust Bank.\\n\\n\\n\\n\\n 4\\n\\fother financing documents, the City’s obligation was subject to its decision to appropriate\\n\\nfunds each year. 3\\n\\n Other documents in the bond transaction gave the Bank rights as a creditor in the\\n\\nevent the bonds were not repaid. The City issued a Deed of Trust to the Bank where the\\n\\nCity pledged its existing City Hall building and police station as security. Similarly, the\\n\\nAuthority issued a Deed of Trust to the Bank where the Authority pledged the Golf\\n\\nCourse as security. Both the City Deed of Trust and the Authority Deed of Trust\\n\\n(collectively “Deeds of Trust”) along with the Trust Agreement contain provisions\\n\\noutlining the Bank’s creditor rights to this collateral.\\n\\n The Bank retained ACA Financial Guaranty Corporation (“ACA”) to provide\\n\\ninsurance on the bonds. Through this arrangement, ACA received insurance premiums,\\n\\nand, in return, agreed to pay off the bonds if there was a default in repayment. In such a\\n\\nsituation, ACA would front the costs of paying off the bonds and then assume the Bank’s\\n\\nrights to receive rent payments and to enforce other creditor rights.\\n\\n In 2010 and 2011, the City failed to appropriate enough money to fully pay the\\n\\nrent due on the Golf Course lease. As a result, the Authority could not repay the bonds.\\n\\nAfter discussions and negotiations, the parties entered into the Forbearance Agreement.\\n\\n\\n 3\\n The reason for this arrangement is not clear from the record. However, because\\nthe City’s charter requires “any bonded indebtedness” to be approved through a\\nreferendum “passed by a majority of the qualified voters,” see City of Buena Vista (Va.)\\nCharter § 2.214, the City could not simply enter into a long-term loan agreement with the\\nBank. An obligation subject to the City’s decision to make appropriations avoided the\\nrequirement of having the electorate vote on the debt.\\n\\n\\n 5\\n\\fUnder the Forbearance Agreement, ACA agreed to make up any shortfall resulting from\\n\\nthe City’s failure to make rent payments. It also agreed to temporarily forego exercising\\n\\nits creditor rights and remedies. The City and the Authority agreed that ACA would be\\n\\nreimbursed for any payments it made and agreed that the bonds would still be repaid\\n\\nfrom rent payments, although the payment plan was extended over a longer period of\\n\\ntime. Significantly, the Forbearance Agreement also makes clear that the obligation to\\n\\nmake the rent payments is subject to annual appropriations by the City.\\n\\n In January 2015, the City voted not to appropriate funds for the rent payments and\\n\\nhas not made any payments since that time. As a result, the Authority once again failed to\\n\\nrepay the bonds.\\n\\n In response, ACA and the Bank filed a ten-count complaint in federal court against\\n\\nthe City and the Authority. The City and the Authority filed a motion to dismiss the\\n\\ncomplaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court\\n\\ngranted the motion to dismiss finding that all ten counts in the complaint failed to state\\n\\nclaims for which relief could be granted. ACA and the Bank appealed all but one of the\\n\\ncounts. We have jurisdiction for this appeal pursuant to 28 U.S.C. § 1291.\\n\\n II.\\n\\n This Court reviews a motion to dismiss de novo. Nemet Chevrolet, Ltd. v.\\n\\nConsumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009). In so doing, we follow the\\n\\nwell-settled standard for considering a motion to dismiss under Rule 12(b)(6).\\n\\n A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the claims\\n\\npled in a complaint. To sufficiently plead a claim, the Federal Rules of Civil Procedure\\n\\n 6\\n\\frequire that “[a] pleading that states a claim for relief must contain . . . a short and plain\\n\\nstatement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P.\\n\\n8(a). This pleading standard does not require detailed factual allegations. Ashcroft v.\\n\\nIqbal, 556 U.S. 662, 678 (2009). However, “it demands more than an unadorned, the-\\n\\ndefendant-unlawfully-harmed-me accusation.” Id. Labels, conclusions, recitation of a\\n\\nclaim’s elements, and naked assertions devoid of further factual enhancement will not\\n\\nsuffice to meet the Rule 8 pleading standard. Id.\\n\\n To meet the Rule 8 standard and survive a motion to dismiss, “a complaint must\\n\\ncontain sufficient factual matter, accepted as true, to ‘state a claim to relief that is\\n\\nplausible on its face.’” Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557\\n\\n(2007)). To contain sufficient factual matter to make a claim plausible, the factual content\\n\\nmust “allow the court to draw the reasonable inference that the defendant is liable for the\\n\\nmisconduct alleged.” Id.\\n\\n While we must accept the factual allegations in the complaint as true, we need not\\n\\naccept a complaint’s legal conclusions. Id. Thus, simply reciting the cause of actions’\\n\\nelements and supporting them by conclusory statements does not meet the required\\n\\nstandard. Id. The Supreme Court noted that while Rule 8 departed from the\\n\\nhypertechnical code-pleading requirement of a prior era, it did not “unlock the doors of\\n\\ndiscovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–679.\\n\\n Using this standard, we review ACA and the Bank’s claims on appeal.\\n\\n\\n\\n\\n 7\\n\\f III.\\n\\n ACA and the Bank appeal nine of the ten counts that the district court dismissed.\\n\\nFive of the nine counts at issue on appeal are primarily based on the City’s failure to\\n\\nmake the rent payments because it did not appropriate the funds for such payments.\\n\\nThese five counts all assert a breach of one of the financing documents. The remaining\\n\\nfour counts are implied, declaratory and equitable in nature. We will address the five\\n\\nbreach of contract counts and then the remaining implied, declaratory and equitable\\n\\ncounts.\\n\\n A.\\n\\n First, ACA and the Bank argue the district court erred in dismissing their claim\\n\\nfor breach of a third-party beneficiary contract. Although they are not parties to the Lease\\n\\nAgreement between the City and the Authority, ACA and the Bank claim they can bring\\n\\nan action under it because they are third-party beneficiaries to that Lease Agreement.\\n\\nThey contend this count states a plausible claim for relief because the City has a legally\\n\\nenforceable obligation to pay rent under the Lease Agreement. ACA and the Bank claim\\n\\nthat the City breached the Lease Agreement by not paying rent to the Bank.\\n\\n This argument gets to the crux of the lawsuit—whether the City has an\\n\\nenforceable obligation to make rent payments. The language of the Lease Agreement is\\n\\ndispositive on this issue. Section 4.2 of the Lease Agreement states that the City shall pay\\n\\nthe rent to the Bank on behalf of the Authority. This provision is subject to Section 4.5\\n\\nwhich states:\\n\\n\\n\\n 8\\n\\f Notwithstanding anything in this Lease Agreement to the contrary, the\\n City’s obligations to pay the cost of performing its obligations under this\\n Lease Agreement and the Trust Agreement, including without limitation its\\n obligation to pay all Basic Rent and Additional Rent, shall be subject to\\n and dependent upon appropriations being made from time to time by\\n the City Council for such purpose . . . .\\n\\nJ.A. 54. (emphasis added).\\n\\n Consistently, Section 6.1(c) states:\\n\\n Notwithstanding anything contained in this Section to the contrary, failure\\n by the City to make when due any payment required to be made under\\n this Lease Agreement or failure by the City to observe and perform any\\n covenant, condition or agreement on its part to be observed or performed\\n under this Lease Agreement resulting from failure of the City to\\n appropriate moneys for such purposes, as described in Section 4.5,\\n shall not constitute an event of default.\\n\\nJ.A. 61–62. (emphasis added).\\n\\n This language unambiguously states that the City did not have an enforceable\\n\\nobligation to make the rent payments. Any obligation of the City to make rent payments\\n\\nwas and is subject to the City appropriating the funds for such payments. In other words,\\n\\nif the City did not appropriate funds, which it did not, the City had no obligation to make\\n\\nthe rent payments. A party cannot be sued for breaching an obligation it never had in the\\n\\nfirst place. To make this even more clear, the Lease Agreement provides that the City’s\\n\\nfailure to make rent payments when no appropriations are made does not constitute an\\n\\nevent of default. Therefore, the claim that the City breached its obligation to the\\n\\nAuthority under the Lease Agreement fails to state a claim for which relief can be\\n\\ngranted.\\n\\n\\n\\n\\n 9\\n\\f The ACA and the Bank challenge the legal effect of the “subject to appropriation”\\n\\nlanguage. In considering this challenge, the Virginia Supreme Court’s decision in Dykes\\n\\nv. Northern Virginia Transp. Dist. Comm’n, 411 S.E.2d 1 (Va. 1991) is instructive. In\\n\\nthat case, a county incurred a long-term debt obligation without holding a referendum on\\n\\nthe debt. Concerned citizens alleged that the obligation violated Virginia’s constitutional\\n\\nrequirement that such obligations be approved by the citizens of the county. The court\\n\\nrejected the challenge because the county’s obligation, like the obligation in this case,\\n\\nwas subject to the county’s appropriation of funds for that purpose. The court held that\\n\\n“subject to appropriation” financing does not create constitutional cognizable debt\\n\\n“because it does not impose any enforceable duty or liability on the County.” Id. at 10.\\n\\n“[N]either the County nor its general revenues is liable for repayment of the debt incurred\\n\\nby the bond issue.” Id.\\n\\n ACA and the Bank argue that Dykes is distinguishable from this case because it\\n\\ninvolved a constitutional challenge to a municipal bond transaction brought by concerned\\n\\ncitizens whereas this case is brought by parties to the financing arrangement. This\\n\\ndistinction, however, is immaterial. The court in Dykes looked to the nature of the debt,\\n\\nnot the nature of the parties, and found that “subject to appropriation” financing does not\\n\\nimpose any enforceable duty or liability on the county. Dykes confirms the complaint\\n\\nfails to state a claim that the City breached its obligation to the Authority under the Lease\\n\\nAgreement for which ACA and the Bank can recover as third-party beneficiaries.\\n\\n\\n\\n\\n 10\\n\\f B.\\n\\n ACA and the Bank next argue the district court erred in dismissing their claim that\\n\\nthe Authority breached the Trust Agreement. In that count, ACA and the Bank claim the\\n\\nAuthority has not made bond payments since 2014. To address this ground, we look to\\n\\nthe language of the Trust Agreement. Under it, the Authority’s obligation to make the\\n\\nbond payments was dependent on the City paying rent. For example, Section 1001(c) of\\n\\nthe Trust Agreement states:\\n\\n The Authority covenants to faithfully observe and perform all of its\\n covenants, conditions and agreements contained in this Trust Agreement\\n and to promptly pay the principal of and premium, if any, and interest on\\n the Bonds at the places, on the dates and in the manner specified in this\\n Trust Agreement and the Bonds; provided, however, that such\\n obligations are limited obligations of the Authority, payable solely from\\n the payments of Basic Rent and Additional Rent and the property\\n secured by the Deed of Trust.\\n\\nJ.A. 118. (emphasis added).\\n\\n Additionally, Section 1703 of the Trust Agreement states:\\n\\n Notwithstanding any provision of the Bonds or the Basic Agreements to the\\n contrary, the obligations of the Authority under the Bonds and the Basic\\n Agreements are not general obligations of the Authority, but are limited\\n obligations payable solely from payments of Basic Rent and Additional\\n Rent and the property pledged pursuant to the Deed of Trust.\\n\\nJ.A. 141. (emphasis added).\\n\\n As the language quoted above makes clear, the Authority’s promise to make the\\n\\nbond payments was and is subject to the City’s payment of the rent. Aside from the rent\\n\\npayments from the City, the Authority had no independent contractual obligation to make\\n\\nthe bond payments. Thus, we find that ACA and the Bank’s claim for breach of the Trust\\n\\n\\n 11\\n\\fAgreement is not plausible because it is contradicted by the clear and unambiguous terms\\n\\nof the Trust Agreement. See Foothill Capital Corp. v. E. Coast Bldg. Supply Corp., 259\\n\\nB.R. 844, 845 (E.D. Va. 2001) (holding that where an agreement is plain and\\n 4\\nunambiguous, the court is not at liberty to rewrite the contractual language).\\n\\n C.\\n\\n ACA and the Bank next claim the district court erred in dismissing their claims for\\n\\nbreach of the City Deed of Trust and breach of the Authority Deed of Trust. They point to\\n\\nSection 1.2 of the Deeds of Trust, which states that the “Grantor shall perform and\\n\\nobserve all duties, obligations, and requirements and shall comply in all respects with the\\n\\nterms, covenants, conditions, representations and warranties of the Bonds, this Deed of\\n\\nTrust, the Lease Agreement and the Trust Agreement.” J.A. 176, 199. Specifically, they\\n\\nargue that by failing to make bond payments in the manner provided by the Trust\\n\\n\\n\\n\\n 4\\n ACA and the Bank raise an additional issue regarding this count by asserting that\\nthe Authority also breached the Trust Agreement by not paying revenues derived from\\nthe secured property. However, they did not make this argument before the district court.\\nWe have held that “[w]hen a party in a civil case fails to raise an argument in the lower\\ncourt and instead raises it for the first time before us, we may reverse only if the newly\\nraised argument establishes ‘fundamental error’ or a denial of fundamental justice.” In re\\nUnder Seal, 749 F.3d 276, 285 (4th Cir. 2014) (citing Stewart v. Hall, 770 F.2d 1267,\\n1271 (4th Cir. 1985)). We find neither fundamental error nor a denial of fundamental\\njustice here. ACA and the Bank do not even allege in this count that the Authority failed\\nto pay from the revenues of the property secured by the Deed of Trust. The complaint\\nsimply alleges that the Authority breached the Trust Agreement “in a number of material\\nways” and does not give any further specificity. These conclusory allegations fail to meet\\npleading requirements prescribed in Twombly and Iqbal. They also defeat any argument\\nthat dismissing ACA and the Bank’s new and improperly late argument constitutes\\nfundamental error or denial of fundamental justice.\\n\\n 12\\n\\fAgreement, the City and the Authority breached their obligations under the Deeds of\\n\\nTrust.\\n\\n While the Deeds of Trust require the City and the Authority to adhere to the Trust\\n\\nAgreement, they do not alter or modify the language in Sections 1001(c) and 1703 of the\\n\\nTrust Agreement discussed above. By the express terms of the Trust Agreement, the\\n\\nAuthority’s obligation to make bond payments is limited to the rent paid by the City. It\\n\\nmakes clear that the City’s obligation to make rent payments is subject to the City’s\\n\\ndecision to appropriate rent money. In the face of those clear contractual terms, the\\n\\ncounts alleging violations of the Deeds of Trust fail to state a claim for which relief can\\n\\nbe granted.\\n\\n D.\\n\\n ACA and the Bank next claim the district court erred in dismissing their count for\\n\\nbreach of the Forbearance Agreement. They concede that the City’s rent payment\\n\\nobligation under the Forbearance Agreement is subject to appropriations by the City.\\n\\nHowever, they contend that language does not waive the City’s or the Authority’s duty to\\n\\nmake rent payments under the Forbearance Agreement. We disagree. Section 5.4 of the\\n\\nForbearance Agreement provides:\\n\\n The obligations of the City to make adjusted Basic Rent payments pursuant\\n to Paragraph 5.1 and deferred payments of Basic Rent pursuant to\\n Paragraph 5.3 are subject to annual appropriation by the City Council\\n of amounts sufficient to make such payments. The City agrees that it is the\\n intention of the City to make annual appropriations in amounts sufficient to\\n make the payments required under this Agreement.\\n\\nJ.A. 227. (emphasis added).\\n\\n\\n 13\\n\\f Like the language in the Trust Agreement and the Lease Agreement described\\n\\nabove, this language is unambiguous. Accordingly, the claim for breach of the\\n\\nForbearance Agreement fails to state a plausible claim.\\n\\n ACA and the Bank also claim on appeal the district court erred in dismissing this\\n\\ncount because the City and the Authority made misrepresentations which constituted a\\n\\nbreach of the Forbearance Agreement. However, neither this count nor any part of the\\n\\ncomplaint contains any allegations about misrepresentations. Instead, the complaint\\n\\nalleges that ACA and the Bank “have been damaged as a result of Defendants’ breaches\\n\\nof their contractual obligations contained in the Forbearance Agreement.” J.A. 32. ACA\\n\\nand the Bank argue that making a misrepresentation constitutes a breach of the City and\\n\\nthe Authority’s obligations under the Forbearance Agreement. ACA and the Bank thus\\n\\ncontend that they have satisfied their pleading requirements by alleging the City and the\\n\\nAuthority breached their contractual obligations even though they have not specified the\\n\\nalleged misrepresentations. This position is in direct conflict with Twombly and Iqbal.\\n\\nConclusory allegations, such as those pointed to by ACA and the Bank, do not contain\\n\\nsufficient facts to properly state a claim. The allegations do not specify what contractual\\n\\nobligation was breached. Neither do they refer to any underlying facts to support the\\n\\npurported breach. Thus, the complaint is not pled with enough specificity to plausibly\\n\\nstate a claim for breach of the Forbearance Agreement.\\n\\n E.\\n\\n Having addressed the breach of contract counts, we turn to ACA and the Bank’s\\n\\ncount for breach of the implied covenant of good faith and fair dealing. ACA and the\\n\\n 14\\n\\fBank argue that, even if they have no claim for breach of an express term, they have\\n\\nstated a plausible claim for breach of the implied covenant of good faith and fair dealing.\\n\\nSpecifically, ACA and the Bank argue that the “subject to appropriation” language is\\n\\nambiguous and created discretion on the part of the City. They then claim the City acted\\n\\narbitrarily and unfairly by failing to appropriate funds when the City could afford to\\n\\nappropriate the funds to repay the Golf Course debt. This argument fails for two reasons.\\n\\n First, the complaint does not allege that the City acted arbitrarily and unfairly by\\n\\nfailing to make appropriations when it could afford to appropriate. When a complaint\\n\\nfails to state a short and plain statement of the claim showing the pleader is entitled to\\n\\nrelief, the claim fails. See Fed. R. Civ. Pro. 8(a)(2). That is precisely the situation here.\\n\\nWithout factual allegations that support their legal conclusions, ACA and the Bank have\\n\\nfailed to plead a plausible claim for relief.\\n\\n Second, even if we put aside the deficiencies in the pleadings, the “subject to\\n\\nappropriation” language is not ambiguous. As stated above, ACA and the Bank are\\n\\nsophisticated commercial entities engaged in a multi-million dollar municipal finance\\n\\ntransaction. They are to be bound by the plain and unambiguous terms of their contracts.\\n\\nSee Quadros & Assocs., P.C. v. City of Hampton, 268 Va. 50, 54, 597 S.E.2d 90, 93\\n\\n(2004) (holding that the terms of the parties’ contract were plain and unambiguous and\\n\\nthus the parties were bound by them). Under Virginia law, the implied covenant of good\\n\\nfaith and fair dealing “cannot be the vehicle for rewriting an unambiguous contract in\\n\\norder to create duties that do not otherwise exist.” Ward’s Equip., Inc. v. New Holland N.\\n\\nAm., Inc., 254 Va. 379, 385, 493 S.E.2d 516, 520 (1997).\\n\\n 15\\n\\f In essence, ACA and the Bank ask us to impose new terms to their deal that save\\n\\nthem from the consequences of the express terms of their agreements. We decline to do\\n\\nso. We find that ACA and the Bank fail to state a claim that the City and the Authority\\n\\nbreached the implied covenant of good faith and fair dealing.\\n\\n F.\\n\\n ACA and the Bank challenge the district court’s dismissal of their declaratory\\n\\njudgment count. In that count, ACA and the Bank sought a declaration that the financing\\n\\ndocuments were legal and enforceable and provide ACA and the Bank with the right to\\n\\npossess and foreclose on the secured property. The district court dismissed this count on\\n\\nthe basis that the request for declaratory judgment was not a proper standalone claim.\\n\\n We first consider the request for a declaration that the financing documents were\\n\\nlegal and enforceable. Despite its ruling that the declaratory judgment count was not a\\n\\nproper standalone claim, the district court proceeded to address the merits of this request\\n\\nin its consideration of the City Deed of Trust claim. The district court explained that the\\n\\nonly document whose legality was at issue was the City Deed of Trust. The district court\\n\\nthen evaluated that document and found it to be legally valid and enforceable. This\\n\\nfinding was not appealed to this Court, thus there is no longer a dispute regarding its\\n\\nlegality. Since the issue for which the declaration was sought is not in dispute, we decline\\n\\nto address this issue.\\n\\n Turning now to the request for a declaration that ACA and the Bank could possess\\n\\nand foreclose the secured property, counsel for the City and the Authority conceded at\\n\\noral argument that, subject to compliance with the terms of the documents, ACA and the\\n\\n 16\\n\\fBank have the right to foreclose the property secured by the Deeds of Trust. As there\\n\\nappears to be no dispute about whether ACA and the Bank have the right to pursue their\\n\\ncreditor rights under the financing documents, we decline to address this issue as well.\\n\\n G.\\n\\n ACA and the Bank next argue that the district court erred in dismissing their count\\n\\nfor restitution/unjust enrichment/quantum meruit. They argue that this count properly\\n\\nstates a claim because the enforceability of the financing documents is in dispute. ACA\\n\\nand the Bank claim that if the City and the Authority are not forced to make bond\\n\\npayments under the financing documents, they can recover under equitable theories. In\\n\\nsupport of this argument, ACA and the Bank appear to assume that a finding that the City\\n\\nand the Authority were not required to make bond payments equates to a finding that the\\n\\nfinancing documents are unenforceable or void.\\n\\n ACA and the Bank are mistaken. The district court did not find that the financing\\n\\ndocuments were unenforceable, nor do we. We, as did the district court, simply recognize\\n\\nthat the express terms of the contract make repayment subject to appropriations by the\\n\\nCity. Virginia law makes clear that “where there is an express and enforceable contract in\\n\\nexistence which governs the rights of the parties, the law will not imply a contract in\\n\\ncontravention thereof.” Royer v. Bd. Of Cty. Supervisors of Albemarle Cty., 10 S.E. 2d\\n\\n876, 881 (Va. 1940). Thus, this count fails to state a claim. 5\\n\\n\\n 5\\n Additionally, the district court found that ACA and the Bank pled this count “in\\nthe alternative” in the event that the court found the City Deed of Trust void. The district\\njudge found that the City Deed of Trust was a valid document, and thus dismissed this\\n(Continued)\\n 17\\n\\f H.\\n\\n ACA and the Bank next argue that the district court erred in dismissing their count\\n\\nfor constructive fraudulent inducement. They assert that the complaint states a plausible\\n\\nclaim because they pled that they detrimentally relied on misrepresentations by the City\\n\\nand the Authority concerning the validity of the financing documents. We find this count\\n\\nshould be dismissed because it was inadequately pled. In the complaint, ACA and the\\n\\nBank do not identify any specific misrepresentations of the Authority. Therefore, under\\n\\nIqbal and Twombly, any claim of misrepresentation by the Authority fails to assert facts\\n\\nwhich could plausibly provide relief. 6\\n\\n IV.\\n\\n Having addressed the challenges to the district court’s dismissal of the complaint,\\n\\nwe now turn to the challenge to the district court’s rulings on ACA and the Bank’s\\n\\nrequests to amend. ACA and the Bank did not file a motion to amend. However, they\\n\\nrequested leave to amend five times in their response in opposition to the City and the\\n\\nAuthority’s motion to dismiss. Three requests are mentioned in the body of their response\\n\\nand two in the footnotes. The district court addressed one of these requests, denying it on\\n\\n\\n\\n\\ncount. While the complaint did not state that this count was pled in the alternative,\\ncounsel for ACA and the Bank made representations at oral argument that the count was\\npled in the alternative. Therefore, we find no error in the district court’s determination.\\n 6\\n The district court dismissed this claim because it found that, like the\\nrestitution/unjust enrichment/quantum meruit claim, ACA and the Bank pled it in the\\nalternative. As stated in the preceding footnote, we find no error in this determination.\\n\\n\\n 18\\n\\fthe basis that it was not a proper motion. The district court does not appear to have ruled\\n\\non the other requests. ACA and the Bank argue that the district court erred by summarily\\n\\ndenying one of their requests to amend and ignoring their other requests to amend.\\n\\n Generally, courts “should freely give leave [to amend] when justice so requires.”\\n\\nFed. R. Civ. P. 15(a)(2). A motion to amend should only be denied when “the amendment\\n\\nwould be prejudicial to the opposing party, there has been bad faith on the part of the\\n\\nmoving party, or the amendment would be futile.” Edwards v. City of Goldsboro, 178\\n\\nF.3d 231, 242 (4th Cir. 1999) (internal quotation marks omitted). However, a district\\n\\ncourt does not abuse its discretion by declining to grant a request to amend when it is not\\n\\nproperly made as a motion. See Cozzarelli v. Inspire Pharm. Inc., 549 F.3d 618, 630–31\\n\\n(4th Cir. 2008) (affirming denial of leave to amend when the plaintiffs’ request for leave\\n\\nwas in a footnote of their response to a motion to dismiss and in their final sentence of\\n\\ntheir objection to the recommendation of the magistrate judge).\\n\\n ACA and the Bank concede that this Court has held that a district court does not\\n\\nabuse its discretion by denying contingent requests to amend in the legal memoranda\\n\\nmade in lieu of a motion to amend. They argue, however, that this Court should follow\\n\\nother circuits which, according to their interpretation, find that requests made in\\n\\nopposition memoranda constitute a proper motion to amend. We decline to do so.\\n\\n Even if we did find that ACA and the Bank’s “requests” to amend constituted a\\n\\nmotion to amend, the district court did not abuse its discretion by denying it. A review of\\n\\nthe record indicates that although they informally requested several times to amend, ACA\\n\\nand the Bank never indicated what amendments they were seeking. They never identified\\n\\n 19\\n\\fany facts they sought to include in an amendment. They never identified any cause of\\n\\naction they sought to add in an amendment. Without that information, there was no way\\n\\nfor a district court to evaluate whether the proposed amendments were futile or not. Thus,\\n\\nto the extent their requests for leave are considered motions to amend, and to the extent\\n\\nthey were denied, we affirm the district court.\\n\\n V.\\n\\n As the district court correctly concluded, the complaint fails to allege claims for\\n\\nwhich relief could be granted. For all the foregoing reasons, the judgment of the district\\n\\ncourt is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 20\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":565,"cells":{"id":{"kind":"number","value":4593142,"string":"4,593,142"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Nikki Thomas v. Nancy Berryhill"},"decision_date":{"kind":"string","value":"2019-02-22"},"docket_number":{"kind":"string","value":"17-2215"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before KING, FLOYD, and THACKER, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"FLOYD, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-2215\\n\\n\\nNIKKI T. THOMAS,\\n\\n Plaintiff - Appellant,\\n v.\\n\\nNANCY A. BERRYHILL, Acting Commissioner of Social Security,\\n\\n Defendant - Appellee.\\n\\n\\n\\nAppeal from the United States District Court for the Western District of North Carolina,\\nat Charlotte. Max O. Cogburn, Jr., District Judge. (3:16-cv-00836-MOC)\\n\\n\\nArgued: November 1, 2018 Decided: January 15, 2019\\n Amended: February 22, 2019\\n\\n\\nBefore KING, FLOYD, and THACKER, Circuit Judges.\\n\\n\\nVacated and remanded by published opinion. Judge Floyd wrote the majority opinion, in\\nwhich Judge Thacker joined. Judge King wrote a separate opinion concurring in part and\\nconcurring in the judgment.\\n\\n\\nARGUED: Dana Wayne Duncan, DUNCAN DISABILITY LAW, SC, Nekoosa,\\nWisconsin, for Appellant. David Nathaniel Mervis, SOCIAL SECURITY\\nADMINISTRATION, Baltimore, Maryland, for Appellee. ON BRIEF: R. Andrew\\nMurray, United States Attorney, Charlotte, North Carolina, Kaba-Kabi A. Kazadi,\\nSpecial Assistant United States Attorney, Gill B. Beck, Assistant United States Attorney,\\nOFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for\\nAppellee.\\n\\nFLOYD, Circuit Judge:\\n\\n The Acting Commissioner of Social Security (Commissioner) denied Nikki T.\\n\\nThomas’s application for supplemental security income (SSI). Thomas sought review in\\n\\nthe district court, and the district court affirmed the denial of her application. This appeal\\n\\nfollowed. We now hold that the administrative law judge (ALJ) who effectuated the\\n\\ndenial of Thomas’s application made two legal errors. First, the ALJ did not sufficiently\\n\\nexplain the reasoning underlying her evaluation of Thomas’s residual functional capacity\\n\\n(RFC). Second, the ALJ neither identified nor resolved an apparent conflict between the\\n\\ntestimony of a vocational expert (VE) and the DICTIONARY OF OCCUPATIONAL TITLES\\n\\n(4th ed. 1991) (hereinafter “DOT”). 1 Accordingly, we vacate and remand.\\n\\n\\n\\n\\n I.\\n\\n On October 30, 2012, Thomas applied for SSI, alleging that a combination of\\n\\nphysical and mental impairments had left her unable to stay employed. The\\n\\nCommissioner denied Thomas’s application both initially and on reconsideration; at\\n\\nThomas’s request, her application then went to an ALJ for further review.\\n\\n An ALJ reviews an application for SSI using a five-step process established by the\\n\\n\\n\\n1\\n The DOT is a “Social Security Administration resource[] that list[s] occupations\\nexisting in the economy and explain[s] some of the physical and mental requirements of\\nthose occupations.” Pearson v. Colvin, 810 F.3d 204, 205 n.1 (4th Cir. 2015). The\\nSocial Security Administration also uses a companion resource to the DOT, entitled\\nSELECTED CHARACTERISTICS OF OCCUPATIONS DEFINED IN THE REVISED DICTIONARY\\nOF OCCUPATIONAL TITLES (1993), that explains additional physical and environmental\\ndemands of the occupations listed in the DOT.\\n 2\\n\\nregulations of the Social Security Administration (Administration). See 20 C.F.R.\\n\\n§ 416.920(a)(4) (2018); see also Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015)\\n\\n(summarizing the five-step process). Briefly: at step one, the ALJ determines whether\\n\\nthe claimant is unemployed. At step two, the ALJ determines whether the claimant’s\\n\\nimpairments are severe enough, and have lasted long enough, to satisfy the regulations’\\n\\nthreshold requirements. At step three, the ALJ determines whether the claimant’s\\n\\nimpairments match—or are functionally equal to—an impairment listed in the\\n\\nregulations; if not, the ALJ makes a finding as to the claimant’s RFC, which is the\\n\\nmaximum work the claimant can do for a full workweek despite her impairments. At\\n\\nstep four, the ALJ determines whether the claimant’s RFC enables her to do the work she\\n\\ndid in the past; if not, the ALJ moves on to step five. At step five, the ALJ determines\\n\\nwhether the claimant—given her RFC, her age, her education, and her prior work\\n\\nexperience—can do any other work that “exists in significant numbers in the national\\n\\neconomy.” 20 C.F.R. § 416.960(c)(2). For the first four steps, the burden lies with the\\n\\nclaimant; at step five, it shifts to the Commissioner. Mascio, 780 F.3d at 635.\\n\\n Here, at steps one through three, the ALJ determined that Thomas was not employed,\\n\\nthat she suffered from severe physical and mental impairments, and that her impairments\\n\\ndid not meet or equal any of the impairments listed in the Administration’s regulations.\\n\\nTherefore, the ALJ examined the evidence of Thomas’s impairments and made a finding\\n\\nas to Thomas’s RFC. In relevant part, the ALJ found that Thomas\\n\\n has the residual functional capacity to perform light work . . . . [She] is able\\n to follow short, simple instructions and perform routine tasks, but no work\\n requiring a production rate or demand pace. She can have occasional\\n\\n 3\\n\\n public contact or interaction and frequent, but not continuous, contact or\\n interaction with coworkers and supervisors. [She] must avoid work\\n involving crisis situations, complex decision making, or constant changes\\n in a routine setting. 2\\n\\nA.R. 21. 3\\n\\n Having established Thomas’s RFC, the ALJ concluded that Thomas could not\\n\\nperform the work in which she had previously been employed. The ALJ therefore\\n\\nreached the fifth and final step of the process: determining whether, given the limitations\\n\\nembodied in her RFC, Thomas could perform any work that existed in significant\\n\\nnumbers in the national economy. To make that determination, the ALJ relied on a VE’s\\n\\ntestimony. The VE testified that Thomas could perform three jobs that existed in\\n\\nsignificant numbers in the national economy: “marker,” “final inspector,” and “order\\n\\ncaller.” A.R. 26. (According to the DOT, all three jobs require Level 2 reasoning,\\n\\nwhich, among other things, entails “carry[ing] out detailed but uninvolved written or oral\\n\\ninstructions . . . .” DOT 209.587-034, 1991 WL 671802; DOT 727.687-054, 1991 WL\\n\\n679672; DOT 209.667-014, 1991 WL 671807.) The ALJ accepted the VE’s testimony\\n\\nand concluded that Thomas’s impairments did not prevent her from working;\\n\\nconsequently, Thomas’s application for SSI was denied.\\n\\n Thomas sought review of the ALJ’s decision in district court. The district court\\n\\ngranted summary judgment to the Commissioner and affirmed the ALJ’s decision.\\n\\n2\\n This is the portion of the RFC that deals with Thomas’s mental limitations. Other\\nportions of the RFC deal with Thomas’s physical limitations. We focus on the portion\\ndealing with Thomas’s mental limitations because that is the only portion Thomas\\nchallenges on appeal.\\n3\\n Citations to the administrative record are abbreviated “A.R.”\\n 4\\n\\nThomas now appeals. She argues, in relevant part, that the ALJ made legal errors at two\\n\\nstages of the review process: first, in her evaluation of Thomas’s RFC; second, in her\\n\\nreliance on the VE’s testimony.\\n\\n\\n\\n\\n II.\\n\\n We review de novo the district court’s decision to grant or deny summary judgment.\\n\\nMartin v. Lloyd, 700 F.3d 132, 135 (4th Cir. 2012). Like the district court, we will not\\n\\ndisturb an ALJ’s decision on an application for SSI “when [the] ALJ has applied correct\\n\\nlegal standards and the ALJ’s factual findings are supported by substantial evidence.”\\n\\nBird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).\\n\\n\\n\\n\\n III.\\n\\n We agree with Thomas that the ALJ who reviewed her application made two errors\\n\\nof law. First, when evaluating Thomas’s RFC, the ALJ did not sufficiently explain her\\n\\nconclusions regarding Thomas’s mental impairments. Second, the ALJ did not identify\\n\\nor resolve an apparent conflict between the DOT and the testimony of the VE. Each error\\n\\nrequires us to vacate and remand.\\n\\n\\n\\n A.\\n\\n We begin with the ALJ’s evaluation of Thomas’s RFC. According to Thomas, the\\n\\nALJ erred at this stage by failing to provide a logical explanation of how she weighed the\\n\\n\\n 5\\n\\nrecord evidence and arrived at her RFC findings. We conclude that Thomas is correct,\\n\\ngiven our binding decisions in Woods v. Berryhill, 888 F.3d 686 (4th Cir. 2018); Monroe\\n\\nv. Colvin, 826 F.3d 176 (2016); and Mascio, 780 F.3d at 632. 4\\n\\n The Administration has specified the manner in which an ALJ should assess a\\n\\nclaimant’s RFC. The ALJ must consider all of the claimant’s “physical and mental\\n\\nimpairments, severe and otherwise, and determine, on a function-by-function basis, how\\n\\nthey affect [the claimant’s] ability to work.” Monroe, 826 F.3d at 188. In doing so, the\\n\\nALJ must provide “a narrative discussion describing how the evidence supports each\\n\\nconclusion . . . .” SSR 96-8P, 1996 WL 374184 at *7 (July 2, 1996). Once the ALJ has\\n\\ncompleted this function-by-function analysis, the ALJ can make a finding as to the\\n\\nclaimant’s RFC.\\n\\n Thus, a proper RFC analysis has three components: (1) evidence, (2) logical\\n\\nexplanation, and (3) conclusion. The second component, the ALJ’s logical explanation,\\n\\nis just as important as the other two. Indeed, our precedent makes clear that meaningful\\n\\nreview is frustrated when an ALJ goes straight from listing evidence to stating a\\n\\nconclusion. Woods, 888 F.3d at 694.\\n\\n In this case, the ALJ’s analysis of Thomas’s RFC contains too little logical\\n\\nexplanation for us to conduct meaningful appellate review. We are particularly troubled\\n\\nby four flaws in the ALJ’s analysis:\\n\\n First, the ALJ drew no explicit conclusions about how Thomas’s mental limitations\\n\\n\\n4\\n We note that Mascio was published only a month before the ALJ denied Thomas’s\\napplication, while Woods and Monroe were published well after.\\n 6\\n\\naffect her ability to perform job-related tasks for a full workday—a benchmark\\n\\nestablished by the Administration’s own regulations. SSR 96-8P, 1996 WL 374184 at\\n\\n*2; see also Mascio, 780 F.3d at 637 (stating that ALJ’s RFC analysis was “sorely\\n\\nlacking” because, among other things, the ALJ “said nothing about [the claimant’s]\\n\\nability to perform [job-related functions] for a full workday”).\\n\\n Second, the ALJ did not sufficiently explain how she weighed significant evidence\\n\\nrelated to Thomas’s mental-health treatment. The ALJ accurately stated that “the\\n\\nrecord . . . includes numerous findings of normal mood and affect or normal mental status\\n\\nexaminations,” but she omitted that those findings—at least, those she cites—were made\\n\\nby physicians treating Thomas’s chronic foot pain. A.R. 24. There is no way for us to\\n\\nknow whether, or why, the ALJ gave those findings the same weight as inconsistent\\n\\nfindings made by Dr. Ida Richmond, a licensed psychologist who evaluated Thomas.\\n\\nSimilarly, the ALJ did not say why she declined to discuss Thomas’s record of mental-\\n\\nhealth evaluations at Bridge Builders Family and Youth Services. To be sure, “there is\\n\\nno rigid requirement that the ALJ specifically refer to every piece of evidence in [her]\\n\\ndecision.” Reid v. Comm’r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (internal\\n\\ncitation and quotation marks omitted). But here, the ALJ chose not to discuss what\\n\\nappears to be a substantial portion of the record relating to Thomas’s treatment by\\n\\nmental-health specialists, even while citing curt mental-health notes made by doctors\\n\\ntreating Thomas’s foot ailment. Right or wrong, that decision warrants some\\n\\nexplanation.\\n\\n Third, the ALJ “express[ed] [Thomas’s] RFC first and only then conclud[ed] that the\\n\\n 7\\n\\nlimitations caused by [her] impairments were consistent with that RFC . . . .” Monroe,\\n\\n826 F.3d at 188 (emphasis in original). Stating a claimant’s RFC before conducting a\\n\\nfunction-by-function analysis is an error—even though, on its own, it does not\\n\\nnecessarily require remand. Id.\\n\\n Fourth, while the ALJ stated that Thomas could not perform work “requiring a\\n\\nproduction rate or demand pace,” she did not give us enough information to understand\\n\\nwhat those terms mean. A.R. 21. That makes it difficult, if not impossible, for us to\\n\\nassess whether their inclusion in Thomas’s RFC is supported by substantial evidence.\\n\\nThe Commissioner contends that “production rate” and “demand pace” are “common\\n\\nvocationally relevant functional limitations.” Resp. Br. at 21. But those terms appear in\\n\\na vanishingly small number of Social Security cases involving RFC evaluations. Of the\\n\\ncases in which the terms do appear, several originated with the same ALJ as the one who\\n\\ndenied Thomas’s application. See, e.g., Dyrda v. Colvin, 47 F. Supp. 3d 318, 321\\n\\n(M.D.N.C. 2014). We therefore disagree with the Commissioner: the terms do not seem\\n\\nto be especially common—certainly not common enough for us to know what they mean\\n\\nwithout elaboration.\\n\\n Combined, the above-listed missteps in the ALJ’s RFC evaluation frustrate our\\n\\nability to conduct meaningful appellate review, requiring us to vacate and remand. 5 In so\\n\\n\\n\\n5\\n Thomas argues that her RFC, as stated by the ALJ, does not account for her moderate\\nlimitations in concentration, persistence, and pace—even though the RFC limits her to\\njobs that do not require a “production rate” or “demand pace.” We decline to resolve that\\nquestion. As discussed above, the ALJ’s evaluation of Thomas’s mental impairments for\\npurposes of the RFC contains too little explanation for us to meaningfully review it.\\n 8\\n\\ndoing, we express no opinion on whether the ALJ’s RFC findings were correct. We\\n\\nsimply ask the ALJ to give us a clearer window into her reasoning.\\n\\n\\n\\n B.\\n\\n Since it is likely to come up again below, we address another issue raised by\\n\\nThomas’s appeal: whether the ALJ should have identified and resolved a conflict\\n\\nbetween the DOT and the testimony of the VE. This requires us to decide whether there\\n\\nis an “apparent conflict” between a limitation to “short, simple instructions” (as found in\\n\\nThomas’s RFC) and a need to carry out “detailed but uninvolved . . . instructions” (as\\n\\nfound in jobs requiring Level 2 reasoning). We hold that there is.\\n\\n Some background explanation is in order. When, as in this case, an ALJ determines\\n\\nthat a claimant’s RFC prevents the claimant from performing her past work, the ALJ\\n\\nreaches step five of the review process. Recall that at this step, the burden shifts to the\\n\\nCommissioner to prove, by a preponderance of the evidence, that the claimant is capable\\n\\nof doing other work that exists in significant supply in the national economy. Mascio,\\n\\n780 F.3d at 635. The Commissioner often seeks to meet this burden through the\\n\\ntestimony of a VE. Specifically, as in this case, the Commissioner calls a VE to testify to\\n\\n\\nWithout further explanation, we simply cannot tell whether the RFC finding—\\nparticularly the portion restricting Thomas to jobs that do not require a “production rate”\\nor “demand pace”—properly accounts for Thomas’s moderate limitations in\\nconcentration, persistence, and pace. On remand, the ALJ will need to establish for how\\nlong, and under what conditions, Thomas is able “to focus [her] attention on work\\nactivities and stay on task at a sustained rate.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1 §\\n12.00E(3). Only then will we or any court be able to meaningfully review the ALJ’s\\nRFC finding.\\n 9\\n\\nwhether a hypothetical person with the same limitations as the claimant would be able to\\n\\nperform any of the jobs listed in the DOT. Id.; see also SSR 00-4P, 2000 WL 1898704 at\\n\\n*2 (Dec. 4, 2000).\\n\\n An ALJ cannot rely unquestioningly on a VE’s testimony. Rather, an ALJ must\\n\\nensure that any “apparent” conflicts between the Dictionary and the VE’s testimony are\\n\\nreasonably resolved. SSR 00-4P, 2000 WL 1898704 at *2. To that end, the ALJ must\\n\\nask the VE whether his or her testimony conflicts with the DOT. If the answer is “yes,”\\n\\nthe ALJ “must elicit a reasonable explanation for the conflict before relying on” the\\n\\ntestimony. Id. But even if the VE answers “no,” the ALJ has an affirmative “duty to\\n\\nmake an independent identification of apparent conflicts.” Pearson v. Colvin, 810 F.3d\\n\\n204, 210 (4th Cir. 2015). This means that the ALJ must recognize and resolve ways in\\n\\nwhich a VE’s testimony “seems to, but does not necessarily,” conflict with the “express\\n\\nlanguage” of the DOT—even if the conflict is not “obvious.” Id. at 209.\\n\\n Our opinion in Pearson furnishes us with a useful example of what makes a conflict\\n\\napparent. 6 In Pearson, an ALJ evaluated an SSI claimant’s RFC and determined that the\\n\\nclaimant “could only occasionally reach upward” with his “nondominant arm.” Id. at\\n\\n210. At step five of the review process, a VE testified that in spite of the claimant’s\\n\\nphysical limitation, the claimant could perform several jobs that existed in significant\\n\\nnumbers in the national economy. Id. Yet according to the DOT, all the jobs identified\\n\\nby the VE required “frequent reaching.” Id. at 210–11 (emphasis in original). We held\\n\\n\\n\\n6\\n We note that Pearson was decided after the ALJ denied Thomas’s application.\\n 10\\n\\nthat there was an apparent conflict between the DOT and the VE’s testimony—even\\n\\nthough, based on the DOT, it was not clear whether the jobs identified by the VE would\\n\\never require the claimant to reach overhead with his nondominant arm. Because the ALJ\\n\\nhad failed to identify or resolve this conflict, we remanded. Id. at 211.\\n\\n The VE’s testimony in this case contains a comparable conflict with the DOT. After\\n\\nbeing informed of Thomas’s RFC, the VE testified that Thomas was capable of holding\\n\\nthree jobs: marker, final inspector, and order caller. As noted above, the DOT states that\\n\\nall three of the jobs identified by the VE require employees to “carry out detailed but\\n\\nuninvolved written or oral instructions . . . .” DOT 209.587-034, 1991 WL 671802; DOT\\n\\n727.687-054, 1991 WL 679672; DOT 209.667-014, 1991 WL 671807. By comparison,\\n\\nThomas’s RFC limits her to jobs that involve only “short, simple instructions.”\\n\\n We believe that Thomas, being limited to short, simple instructions, may not be able\\n\\nto carry out detailed but uninvolved instructions. This is not a categorical rule—some\\n\\ninstructions, particularly if they are well-drafted, may be simultaneously short, simple,\\n\\ndetailed, and uninvolved. Even so, the conflict between Thomas’s limitation to short,\\n\\nsimple instructions and the VE’s testimony that Thomas could perform jobs that include\\n\\ndetailed but uninvolved instructions is as apparent as the conflict we identified in\\n\\nPearson. Since we held that an apparent conflict existed in Pearson, we are satisfied that\\n\\none exists in this case, too. 7 We remand so that the ALJ can resolve the conflict in\\n\\n\\n\\n7\\n The Commissioner did not argue that this conflict, if apparent, would be harmless;\\ntherefore, we decline to reach that question now. See United States v. Hall, 858 F.3d 254,\\n280 n.8 (4th Cir. 2017) (explaining that government may waive harmless error\\n 11\\n\\naccordance with the Administration’s regulations.\\n\\n\\n\\n\\n IV.\\n\\n We hereby vacate the district court’s order granting summary judgment to the\\n\\nCommissioner. The case is remanded to the district court with instructions to remand to\\n\\nthe Commissioner for such further administrative proceedings as may be appropriate.\\n\\n VACATED AND REMANDED\\n\\n\\n\\n\\nargument).\\n 12\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4370395/\", \"author_raw\": \"FLOYD, Circuit Judge:\"}, {\"author\": \"KING, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"KING, Circuit Judge, concurring in part and concurring in the judgment:\\n\\n I am pleased to concur in all of the majority opinion except Part III.A. With great\\n\\nrespect for the views of my good colleagues, I am unable to join that part of the\\n\\nmajority’s analysis because it is in tension with our recent decision in Keller v. Berryhill,\\n\\nNo. 17-2248, where we properly affirmed a very similar mental RFC explanation from\\n\\nthe same ALJ. I ultimately agree, however, that we should vacate the district court’s\\n\\njudgment and return this case to the Commissioner of Social Security for such further\\n\\nadministrative proceedings as may be appropriate.\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4370395/\", \"author_raw\": \"KING, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"KING"},"judge2":{"kind":"string","value":"FLOYD"},"judge3":{"kind":"string","value":"THACKER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"KING\": \", Circuit\", \"FLOYD\": \", Circuit\", \"THACKER\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4593142/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Nikki Thomas v. Nancy Berryhill\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-2215\n\n\nNIKKI T. THOMAS,\n\n Plaintiff - Appellant,\n v.\n\nNANCY A. BERRYHILL, Acting Commissioner of Social Security,\n\n Defendant - Appellee.\n\n\n\nAppeal from the United States District Court for the Western District of North Carolina,\nat Charlotte. Max O. Cogburn, Jr., District Judge. (3:16-cv-00836-MOC)\n\n\nArgued: November 1, 2018 Decided: January 15, 2019\n Amended: February 22, 2019\n\n\nBefore KING, FLOYD, and THACKER, Circuit Judges.\n\n\nVacated and remanded by published opinion. Judge Floyd wrote the majority opinion, in\nwhich Judge Thacker joined. Judge King wrote a separate opinion concurring in part and\nconcurring in the judgment.\n\n\nARGUED: Dana Wayne Duncan, DUNCAN DISABILITY LAW, SC, Nekoosa,\nWisconsin, for Appellant. David Nathaniel Mervis, SOCIAL SECURITY\nADMINISTRATION, Baltimore, Maryland, for Appellee. ON BRIEF: R. Andrew\nMurray, United States Attorney, Charlotte, North Carolina, Kaba-Kabi A. Kazadi,\nSpecial Assistant United States Attorney, Gill B. Beck, Assistant United States Attorney,\nOFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for\nAppellee.\n\nFLOYD, Circuit Judge:\n\n The Acting Commissioner of Social Security (Commissioner) denied Nikki T.\n\nThomas’s application for supplemental security income (SSI). Thomas sought review in\n\nthe district court, and the district court affirmed the denial of her application. This appeal\n\nfollowed. We now hold that the administrative law judge (ALJ) who effectuated the\n\ndenial of Thomas’s application made two legal errors. First, the ALJ did not sufficiently\n\nexplain the reasoning underlying her evaluation of Thomas’s residual functional capacity\n\n(RFC). Second, the ALJ neither identified nor resolved an apparent conflict between the\n\ntestimony of a vocational expert (VE) and the DICTIONARY OF OCCUPATIONAL TITLES\n\n(4th ed. 1991) (hereinafter “DOT”). 1 Accordingly, we vacate and remand.\n\n\n\n\n I.\n\n On October 30, 2012, Thomas applied for SSI, alleging that a combination of\n\nphysical and mental impairments had left her unable to stay employed. The\n\nCommissioner denied Thomas’s application both initially and on reconsideration; at\n\nThomas’s request, her application then went to an ALJ for further review.\n\n An ALJ reviews an application for SSI using a five-step process established by the\n\n\n\n1\n The DOT is a “Social Security Administration resource[] that list[s] occupations\nexisting in the economy and explain[s] some of the physical and mental requirements of\nthose occupations.” Pearson v. Colvin, 810 F.3d 204, 205 n.1 (4th Cir. 2015). The\nSocial Security Administration also uses a companion resource to the DOT, entitled\nSELECTED CHARACTERISTICS OF OCCUPATIONS DEFINED IN THE REVISED DICTIONARY\nOF OCCUPATIONAL TITLES (1993), that explains additional physical and environmental\ndemands of the occupations listed in the DOT.\n 2\n\nregulations of the Social Security Administration (Administration). See 20 C.F.R.\n\n§ 416.920(a)(4) (2018); see also Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015)\n\n(summarizing the five-step process). Briefly: at step one, the ALJ determines whether\n\nthe claimant is unemployed. At step two, the ALJ determines whether the claimant’s\n\nimpairments are severe enough, and have lasted long enough, to satisfy the regulations’\n\nthreshold requirements. At step three, the ALJ determines whether the claimant’s\n\nimpairments match—or are functionally equal to—an impairment listed in the\n\nregulations; if not, the ALJ makes a finding as to the claimant’s RFC, which is the\n\nmaximum work the claimant can do for a full workweek despite her impairments. At\n\nstep four, the ALJ determines whether the claimant’s RFC enables her to do the work she\n\ndid in the past; if not, the ALJ moves on to step five. At step five, the ALJ determines\n\nwhether the claimant—given her RFC, her age, her education, and her prior work\n\nexperience—can do any other work that “exists in significant numbers in the national\n\neconomy.” 20 C.F.R. § 416.960(c)(2). For the first four steps, the burden lies with the\n\nclaimant; at step five, it shifts to the Commissioner. Mascio, 780 F.3d at 635.\n\n Here, at steps one through three, the ALJ determined that Thomas was not employed,\n\nthat she suffered from severe physical and mental impairments, and that her impairments\n\ndid not meet or equal any of the impairments listed in the Administration’s regulations.\n\nTherefore, the ALJ examined the evidence of Thomas’s impairments and made a finding\n\nas to Thomas’s RFC. In relevant part, the ALJ found that Thomas\n\n has the residual functional capacity to perform light work . . . . [She] is able\n to follow short, simple instructions and perform routine tasks, but no work\n requiring a production rate or demand pace. She can have occasional\n\n 3\n\n public contact or interaction and frequent, but not continuous, contact or\n interaction with coworkers and supervisors. [She] must avoid work\n involving crisis situations, complex decision making, or constant changes\n in a routine setting. 2\n\nA.R. 21. 3\n\n Having established Thomas’s RFC, the ALJ concluded that Thomas could not\n\nperform the work in which she had previously been employed. The ALJ therefore\n\nreached the fifth and final step of the process: determining whether, given the limitations\n\nembodied in her RFC, Thomas could perform any work that existed in significant\n\nnumbers in the national economy. To make that determination, the ALJ relied on a VE’s\n\ntestimony. The VE testified that Thomas could perform three jobs that existed in\n\nsignificant numbers in the national economy: “marker,” “final inspector,” and “order\n\ncaller.” A.R. 26. (According to the DOT, all three jobs require Level 2 reasoning,\n\nwhich, among other things, entails “carry[ing] out detailed but uninvolved written or oral\n\ninstructions . . . .” DOT 209.587-034, 1991 WL 671802; DOT 727.687-054, 1991 WL\n\n679672; DOT 209.667-014, 1991 WL 671807.) The ALJ accepted the VE’s testimony\n\nand concluded that Thomas’s impairments did not prevent her from working;\n\nconsequently, Thomas’s application for SSI was denied.\n\n Thomas sought review of the ALJ’s decision in district court. The district court\n\ngranted summary judgment to the Commissioner and affirmed the ALJ’s decision.\n\n2\n This is the portion of the RFC that deals with Thomas’s mental limitations. Other\nportions of the RFC deal with Thomas’s physical limitations. We focus on the portion\ndealing with Thomas’s mental limitations because that is the only portion Thomas\nchallenges on appeal.\n3\n Citations to the administrative record are abbreviated “A.R.”\n 4\n\nThomas now appeals. She argues, in relevant part, that the ALJ made legal errors at two\n\nstages of the review process: first, in her evaluation of Thomas’s RFC; second, in her\n\nreliance on the VE’s testimony.\n\n\n\n\n II.\n\n We review de novo the district court’s decision to grant or deny summary judgment.\n\nMartin v. Lloyd, 700 F.3d 132, 135 (4th Cir. 2012). Like the district court, we will not\n\ndisturb an ALJ’s decision on an application for SSI “when [the] ALJ has applied correct\n\nlegal standards and the ALJ’s factual findings are supported by substantial evidence.”\n\nBird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).\n\n\n\n\n III.\n\n We agree with Thomas that the ALJ who reviewed her application made two errors\n\nof law. First, when evaluating Thomas’s RFC, the ALJ did not sufficiently explain her\n\nconclusions regarding Thomas’s mental impairments. Second, the ALJ did not identify\n\nor resolve an apparent conflict between the DOT and the testimony of the VE. Each error\n\nrequires us to vacate and remand.\n\n\n\n A.\n\n We begin with the ALJ’s evaluation of Thomas’s RFC. According to Thomas, the\n\nALJ erred at this stage by failing to provide a logical explanation of how she weighed the\n\n\n 5\n\nrecord evidence and arrived at her RFC findings. We conclude that Thomas is correct,\n\ngiven our binding decisions in Woods v. Berryhill, 888 F.3d 686 (4th Cir. 2018); Monroe\n\nv. Colvin, 826 F.3d 176 (2016); and Mascio, 780 F.3d at 632. 4\n\n The Administration has specified the manner in which an ALJ should assess a\n\nclaimant’s RFC. The ALJ must consider all of the claimant’s “physical and mental\n\nimpairments, severe and otherwise, and determine, on a function-by-function basis, how\n\nthey affect [the claimant’s] ability to work.” Monroe, 826 F.3d at 188. In doing so, the\n\nALJ must provide “a narrative discussion describing how the evidence supports each\n\nconclusion . . . .” SSR 96-8P, 1996 WL 374184 at *7 (July 2, 1996). Once the ALJ has\n\ncompleted this function-by-function analysis, the ALJ can make a finding as to the\n\nclaimant’s RFC.\n\n Thus, a proper RFC analysis has three components: (1) evidence, (2) logical\n\nexplanation, and (3) conclusion. The second component, the ALJ’s logical explanation,\n\nis just as important as the other two. Indeed, our precedent makes clear that meaningful\n\nreview is frustrated when an ALJ goes straight from listing evidence to stating a\n\nconclusion. Woods, 888 F.3d at 694.\n\n In this case, the ALJ’s analysis of Thomas’s RFC contains too little logical\n\nexplanation for us to conduct meaningful appellate review. We are particularly troubled\n\nby four flaws in the ALJ’s analysis:\n\n First, the ALJ drew no explicit conclusions about how Thomas’s mental limitations\n\n\n4\n We note that Mascio was published only a month before the ALJ denied Thomas’s\napplication, while Woods and Monroe were published well after.\n 6\n\naffect her ability to perform job-related tasks for a full workday—a benchmark\n\nestablished by the Administration’s own regulations. SSR 96-8P, 1996 WL 374184 at\n\n*2; see also Mascio, 780 F.3d at 637 (stating that ALJ’s RFC analysis was “sorely\n\nlacking” because, among other things, the ALJ “said nothing about [the claimant’s]\n\nability to perform [job-related functions] for a full workday”).\n\n Second, the ALJ did not sufficiently explain how she weighed significant evidence\n\nrelated to Thomas’s mental-health treatment. The ALJ accurately stated that “the\n\nrecord . . . includes numerous findings of normal mood and affect or normal mental status\n\nexaminations,” but she omitted that those findings—at least, those she cites—were made\n\nby physicians treating Thomas’s chronic foot pain. A.R. 24. There is no way for us to\n\nknow whether, or why, the ALJ gave those findings the same weight as inconsistent\n\nfindings made by Dr. Ida Richmond, a licensed psychologist who evaluated Thomas.\n\nSimilarly, the ALJ did not say why she declined to discuss Thomas’s record of mental-\n\nhealth evaluations at Bridge Builders Family and Youth Services. To be sure, “there is\n\nno rigid requirement that the ALJ specifically refer to every piece of evidence in [her]\n\ndecision.” Reid v. Comm’r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (internal\n\ncitation and quotation marks omitted). But here, the ALJ chose not to discuss what\n\nappears to be a substantial portion of the record relating to Thomas’s treatment by\n\nmental-health specialists, even while citing curt mental-health notes made by doctors\n\ntreating Thomas’s foot ailment. Right or wrong, that decision warrants some\n\nexplanation.\n\n Third, the ALJ “express[ed] [Thomas’s] RFC first and only then conclud[ed] that the\n\n 7\n\nlimitations caused by [her] impairments were consistent with that RFC . . . .” Monroe,\n\n826 F.3d at 188 (emphasis in original). Stating a claimant’s RFC before conducting a\n\nfunction-by-function analysis is an error—even though, on its own, it does not\n\nnecessarily require remand. Id.\n\n Fourth, while the ALJ stated that Thomas could not perform work “requiring a\n\nproduction rate or demand pace,” she did not give us enough information to understand\n\nwhat those terms mean. A.R. 21. That makes it difficult, if not impossible, for us to\n\nassess whether their inclusion in Thomas’s RFC is supported by substantial evidence.\n\nThe Commissioner contends that “production rate” and “demand pace” are “common\n\nvocationally relevant functional limitations.” Resp. Br. at 21. But those terms appear in\n\na vanishingly small number of Social Security cases involving RFC evaluations. Of the\n\ncases in which the terms do appear, several originated with the same ALJ as the one who\n\ndenied Thomas’s application. See, e.g., Dyrda v. Colvin, 47 F. Supp. 3d 318, 321\n\n(M.D.N.C. 2014). We therefore disagree with the Commissioner: the terms do not seem\n\nto be especially common—certainly not common enough for us to know what they mean\n\nwithout elaboration.\n\n Combined, the above-listed missteps in the ALJ’s RFC evaluation frustrate our\n\nability to conduct meaningful appellate review, requiring us to vacate and remand. 5 In so\n\n\n\n5\n Thomas argues that her RFC, as stated by the ALJ, does not account for her moderate\nlimitations in concentration, persistence, and pace—even though the RFC limits her to\njobs that do not require a “production rate” or “demand pace.” We decline to resolve that\nquestion. As discussed above, the ALJ’s evaluation of Thomas’s mental impairments for\npurposes of the RFC contains too little explanation for us to meaningfully review it.\n 8\n\ndoing, we express no opinion on whether the ALJ’s RFC findings were correct. We\n\nsimply ask the ALJ to give us a clearer window into her reasoning.\n\n\n\n B.\n\n Since it is likely to come up again below, we address another issue raised by\n\nThomas’s appeal: whether the ALJ should have identified and resolved a conflict\n\nbetween the DOT and the testimony of the VE. This requires us to decide whether there\n\nis an “apparent conflict” between a limitation to “short, simple instructions” (as found in\n\nThomas’s RFC) and a need to carry out “detailed but uninvolved . . . instructions” (as\n\nfound in jobs requiring Level 2 reasoning). We hold that there is.\n\n Some background explanation is in order. When, as in this case, an ALJ determines\n\nthat a claimant’s RFC prevents the claimant from performing her past work, the ALJ\n\nreaches step five of the review process. Recall that at this step, the burden shifts to the\n\nCommissioner to prove, by a preponderance of the evidence, that the claimant is capable\n\nof doing other work that exists in significant supply in the national economy. Mascio,\n\n780 F.3d at 635. The Commissioner often seeks to meet this burden through the\n\ntestimony of a VE. Specifically, as in this case, the Commissioner calls a VE to testify to\n\n\nWithout further explanation, we simply cannot tell whether the RFC finding—\nparticularly the portion restricting Thomas to jobs that do not require a “production rate”\nor “demand pace”—properly accounts for Thomas’s moderate limitations in\nconcentration, persistence, and pace. On remand, the ALJ will need to establish for how\nlong, and under what conditions, Thomas is able “to focus [her] attention on work\nactivities and stay on task at a sustained rate.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1 §\n12.00E(3). Only then will we or any court be able to meaningfully review the ALJ’s\nRFC finding.\n 9\n\nwhether a hypothetical person with the same limitations as the claimant would be able to\n\nperform any of the jobs listed in the DOT. Id.; see also SSR 00-4P, 2000 WL 1898704 at\n\n*2 (Dec. 4, 2000).\n\n An ALJ cannot rely unquestioningly on a VE’s testimony. Rather, an ALJ must\n\nensure that any “apparent” conflicts between the Dictionary and the VE’s testimony are\n\nreasonably resolved. SSR 00-4P, 2000 WL 1898704 at *2. To that end, the ALJ must\n\nask the VE whether his or her testimony conflicts with the DOT. If the answer is “yes,”\n\nthe ALJ “must elicit a reasonable explanation for the conflict before relying on” the\n\ntestimony. Id. But even if the VE answers “no,” the ALJ has an affirmative “duty to\n\nmake an independent identification of apparent conflicts.” Pearson v. Colvin, 810 F.3d\n\n204, 210 (4th Cir. 2015). This means that the ALJ must recognize and resolve ways in\n\nwhich a VE’s testimony “seems to, but does not necessarily,” conflict with the “express\n\nlanguage” of the DOT—even if the conflict is not “obvious.” Id. at 209.\n\n Our opinion in Pearson furnishes us with a useful example of what makes a conflict\n\napparent. 6 In Pearson, an ALJ evaluated an SSI claimant’s RFC and determined that the\n\nclaimant “could only occasionally reach upward” with his “nondominant arm.” Id. at\n\n210. At step five of the review process, a VE testified that in spite of the claimant’s\n\nphysical limitation, the claimant could perform several jobs that existed in significant\n\nnumbers in the national economy. Id. Yet according to the DOT, all the jobs identified\n\nby the VE required “frequent reaching.” Id. at 210–11 (emphasis in original). We held\n\n\n\n6\n We note that Pearson was decided after the ALJ denied Thomas’s application.\n 10\n\nthat there was an apparent conflict between the DOT and the VE’s testimony—even\n\nthough, based on the DOT, it was not clear whether the jobs identified by the VE would\n\never require the claimant to reach overhead with his nondominant arm. Because the ALJ\n\nhad failed to identify or resolve this conflict, we remanded. Id. at 211.\n\n The VE’s testimony in this case contains a comparable conflict with the DOT. After\n\nbeing informed of Thomas’s RFC, the VE testified that Thomas was capable of holding\n\nthree jobs: marker, final inspector, and order caller. As noted above, the DOT states that\n\nall three of the jobs identified by the VE require employees to “carry out detailed but\n\nuninvolved written or oral instructions . . . .” DOT 209.587-034, 1991 WL 671802; DOT\n\n727.687-054, 1991 WL 679672; DOT 209.667-014, 1991 WL 671807. By comparison,\n\nThomas’s RFC limits her to jobs that involve only “short, simple instructions.”\n\n We believe that Thomas, being limited to short, simple instructions, may not be able\n\nto carry out detailed but uninvolved instructions. This is not a categorical rule—some\n\ninstructions, particularly if they are well-drafted, may be simultaneously short, simple,\n\ndetailed, and uninvolved. Even so, the conflict between Thomas’s limitation to short,\n\nsimple instructions and the VE’s testimony that Thomas could perform jobs that include\n\ndetailed but uninvolved instructions is as apparent as the conflict we identified in\n\nPearson. Since we held that an apparent conflict existed in Pearson, we are satisfied that\n\none exists in this case, too. 7 We remand so that the ALJ can resolve the conflict in\n\n\n\n7\n The Commissioner did not argue that this conflict, if apparent, would be harmless;\ntherefore, we decline to reach that question now. See United States v. Hall, 858 F.3d 254,\n280 n.8 (4th Cir. 2017) (explaining that government may waive harmless error\n 11\n\naccordance with the Administration’s regulations.\n\n\n\n\n IV.\n\n We hereby vacate the district court’s order granting summary judgment to the\n\nCommissioner. The case is remanded to the district court with instructions to remand to\n\nthe Commissioner for such further administrative proceedings as may be appropriate.\n\n VACATED AND REMANDED\n\n\n\n\nargument).\n 12\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Nikki Thomas v. Nancy Berryhill\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-2215\\n\\n\\nNIKKI T. THOMAS,\\n\\n Plaintiff - Appellant,\\n v.\\n\\nNANCY A. BERRYHILL, Acting Commissioner of Social Security,\\n\\n Defendant - Appellee.\\n\\n\\n\\nAppeal from the United States District Court for the Western District of North Carolina,\\nat Charlotte. Max O. Cogburn, Jr., District Judge. (3:16-cv-00836-MOC)\\n\\n\\nArgued: November 1, 2018 Decided: January 15, 2019\\n Amended: February 22, 2019\\n\\n\\nBefore KING, FLOYD, and THACKER, Circuit Judges.\\n\\n\\nVacated and remanded by published opinion. Judge Floyd wrote the majority opinion, in\\nwhich Judge Thacker joined. Judge King wrote a separate opinion concurring in part and\\nconcurring in the judgment.\\n\\n\\nARGUED: Dana Wayne Duncan, DUNCAN DISABILITY LAW, SC, Nekoosa,\\nWisconsin, for Appellant. David Nathaniel Mervis, SOCIAL SECURITY\\nADMINISTRATION, Baltimore, Maryland, for Appellee. ON BRIEF: R. Andrew\\nMurray, United States Attorney, Charlotte, North Carolina, Kaba-Kabi A. Kazadi,\\nSpecial Assistant United States Attorney, Gill B. Beck, Assistant United States Attorney,\\nOFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for\\nAppellee.\\n\\nFLOYD, Circuit Judge:\\n\\n The Acting Commissioner of Social Security (Commissioner) denied Nikki T.\\n\\nThomas’s application for supplemental security income (SSI). Thomas sought review in\\n\\nthe district court, and the district court affirmed the denial of her application. This appeal\\n\\nfollowed. We now hold that the administrative law judge (ALJ) who effectuated the\\n\\ndenial of Thomas’s application made two legal errors. First, the ALJ did not sufficiently\\n\\nexplain the reasoning underlying her evaluation of Thomas’s residual functional capacity\\n\\n(RFC). Second, the ALJ neither identified nor resolved an apparent conflict between the\\n\\ntestimony of a vocational expert (VE) and the DICTIONARY OF OCCUPATIONAL TITLES\\n\\n(4th ed. 1991) (hereinafter “DOT”). 1 Accordingly, we vacate and remand.\\n\\n\\n\\n\\n I.\\n\\n On October 30, 2012, Thomas applied for SSI, alleging that a combination of\\n\\nphysical and mental impairments had left her unable to stay employed. The\\n\\nCommissioner denied Thomas’s application both initially and on reconsideration; at\\n\\nThomas’s request, her application then went to an ALJ for further review.\\n\\n An ALJ reviews an application for SSI using a five-step process established by the\\n\\n\\n\\n1\\n The DOT is a “Social Security Administration resource[] that list[s] occupations\\nexisting in the economy and explain[s] some of the physical and mental requirements of\\nthose occupations.” Pearson v. Colvin, 810 F.3d 204, 205 n.1 (4th Cir. 2015). The\\nSocial Security Administration also uses a companion resource to the DOT, entitled\\nSELECTED CHARACTERISTICS OF OCCUPATIONS DEFINED IN THE REVISED DICTIONARY\\nOF OCCUPATIONAL TITLES (1993), that explains additional physical and environmental\\ndemands of the occupations listed in the DOT.\\n 2\\n\\nregulations of the Social Security Administration (Administration). See 20 C.F.R.\\n\\n§ 416.920(a)(4) (2018); see also Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015)\\n\\n(summarizing the five-step process). Briefly: at step one, the ALJ determines whether\\n\\nthe claimant is unemployed. At step two, the ALJ determines whether the claimant’s\\n\\nimpairments are severe enough, and have lasted long enough, to satisfy the regulations’\\n\\nthreshold requirements. At step three, the ALJ determines whether the claimant’s\\n\\nimpairments match—or are functionally equal to—an impairment listed in the\\n\\nregulations; if not, the ALJ makes a finding as to the claimant’s RFC, which is the\\n\\nmaximum work the claimant can do for a full workweek despite her impairments. At\\n\\nstep four, the ALJ determines whether the claimant’s RFC enables her to do the work she\\n\\ndid in the past; if not, the ALJ moves on to step five. At step five, the ALJ determines\\n\\nwhether the claimant—given her RFC, her age, her education, and her prior work\\n\\nexperience—can do any other work that “exists in significant numbers in the national\\n\\neconomy.” 20 C.F.R. § 416.960(c)(2). For the first four steps, the burden lies with the\\n\\nclaimant; at step five, it shifts to the Commissioner. Mascio, 780 F.3d at 635.\\n\\n Here, at steps one through three, the ALJ determined that Thomas was not employed,\\n\\nthat she suffered from severe physical and mental impairments, and that her impairments\\n\\ndid not meet or equal any of the impairments listed in the Administration’s regulations.\\n\\nTherefore, the ALJ examined the evidence of Thomas’s impairments and made a finding\\n\\nas to Thomas’s RFC. In relevant part, the ALJ found that Thomas\\n\\n has the residual functional capacity to perform light work . . . . [She] is able\\n to follow short, simple instructions and perform routine tasks, but no work\\n requiring a production rate or demand pace. She can have occasional\\n\\n 3\\n\\n public contact or interaction and frequent, but not continuous, contact or\\n interaction with coworkers and supervisors. [She] must avoid work\\n involving crisis situations, complex decision making, or constant changes\\n in a routine setting. 2\\n\\nA.R. 21. 3\\n\\n Having established Thomas’s RFC, the ALJ concluded that Thomas could not\\n\\nperform the work in which she had previously been employed. The ALJ therefore\\n\\nreached the fifth and final step of the process: determining whether, given the limitations\\n\\nembodied in her RFC, Thomas could perform any work that existed in significant\\n\\nnumbers in the national economy. To make that determination, the ALJ relied on a VE’s\\n\\ntestimony. The VE testified that Thomas could perform three jobs that existed in\\n\\nsignificant numbers in the national economy: “marker,” “final inspector,” and “order\\n\\ncaller.” A.R. 26. (According to the DOT, all three jobs require Level 2 reasoning,\\n\\nwhich, among other things, entails “carry[ing] out detailed but uninvolved written or oral\\n\\ninstructions . . . .” DOT 209.587-034, 1991 WL 671802; DOT 727.687-054, 1991 WL\\n\\n679672; DOT 209.667-014, 1991 WL 671807.) The ALJ accepted the VE’s testimony\\n\\nand concluded that Thomas’s impairments did not prevent her from working;\\n\\nconsequently, Thomas’s application for SSI was denied.\\n\\n Thomas sought review of the ALJ’s decision in district court. The district court\\n\\ngranted summary judgment to the Commissioner and affirmed the ALJ’s decision.\\n\\n2\\n This is the portion of the RFC that deals with Thomas’s mental limitations. Other\\nportions of the RFC deal with Thomas’s physical limitations. We focus on the portion\\ndealing with Thomas’s mental limitations because that is the only portion Thomas\\nchallenges on appeal.\\n3\\n Citations to the administrative record are abbreviated “A.R.”\\n 4\\n\\nThomas now appeals. She argues, in relevant part, that the ALJ made legal errors at two\\n\\nstages of the review process: first, in her evaluation of Thomas’s RFC; second, in her\\n\\nreliance on the VE’s testimony.\\n\\n\\n\\n\\n II.\\n\\n We review de novo the district court’s decision to grant or deny summary judgment.\\n\\nMartin v. Lloyd, 700 F.3d 132, 135 (4th Cir. 2012). Like the district court, we will not\\n\\ndisturb an ALJ’s decision on an application for SSI “when [the] ALJ has applied correct\\n\\nlegal standards and the ALJ’s factual findings are supported by substantial evidence.”\\n\\nBird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).\\n\\n\\n\\n\\n III.\\n\\n We agree with Thomas that the ALJ who reviewed her application made two errors\\n\\nof law. First, when evaluating Thomas’s RFC, the ALJ did not sufficiently explain her\\n\\nconclusions regarding Thomas’s mental impairments. Second, the ALJ did not identify\\n\\nor resolve an apparent conflict between the DOT and the testimony of the VE. Each error\\n\\nrequires us to vacate and remand.\\n\\n\\n\\n A.\\n\\n We begin with the ALJ’s evaluation of Thomas’s RFC. According to Thomas, the\\n\\nALJ erred at this stage by failing to provide a logical explanation of how she weighed the\\n\\n\\n 5\\n\\nrecord evidence and arrived at her RFC findings. We conclude that Thomas is correct,\\n\\ngiven our binding decisions in Woods v. Berryhill, 888 F.3d 686 (4th Cir. 2018); Monroe\\n\\nv. Colvin, 826 F.3d 176 (2016); and Mascio, 780 F.3d at 632. 4\\n\\n The Administration has specified the manner in which an ALJ should assess a\\n\\nclaimant’s RFC. The ALJ must consider all of the claimant’s “physical and mental\\n\\nimpairments, severe and otherwise, and determine, on a function-by-function basis, how\\n\\nthey affect [the claimant’s] ability to work.” Monroe, 826 F.3d at 188. In doing so, the\\n\\nALJ must provide “a narrative discussion describing how the evidence supports each\\n\\nconclusion . . . .” SSR 96-8P, 1996 WL 374184 at *7 (July 2, 1996). Once the ALJ has\\n\\ncompleted this function-by-function analysis, the ALJ can make a finding as to the\\n\\nclaimant’s RFC.\\n\\n Thus, a proper RFC analysis has three components: (1) evidence, (2) logical\\n\\nexplanation, and (3) conclusion. The second component, the ALJ’s logical explanation,\\n\\nis just as important as the other two. Indeed, our precedent makes clear that meaningful\\n\\nreview is frustrated when an ALJ goes straight from listing evidence to stating a\\n\\nconclusion. Woods, 888 F.3d at 694.\\n\\n In this case, the ALJ’s analysis of Thomas’s RFC contains too little logical\\n\\nexplanation for us to conduct meaningful appellate review. We are particularly troubled\\n\\nby four flaws in the ALJ’s analysis:\\n\\n First, the ALJ drew no explicit conclusions about how Thomas’s mental limitations\\n\\n\\n4\\n We note that Mascio was published only a month before the ALJ denied Thomas’s\\napplication, while Woods and Monroe were published well after.\\n 6\\n\\naffect her ability to perform job-related tasks for a full workday—a benchmark\\n\\nestablished by the Administration’s own regulations. SSR 96-8P, 1996 WL 374184 at\\n\\n*2; see also Mascio, 780 F.3d at 637 (stating that ALJ’s RFC analysis was “sorely\\n\\nlacking” because, among other things, the ALJ “said nothing about [the claimant’s]\\n\\nability to perform [job-related functions] for a full workday”).\\n\\n Second, the ALJ did not sufficiently explain how she weighed significant evidence\\n\\nrelated to Thomas’s mental-health treatment. The ALJ accurately stated that “the\\n\\nrecord . . . includes numerous findings of normal mood and affect or normal mental status\\n\\nexaminations,” but she omitted that those findings—at least, those she cites—were made\\n\\nby physicians treating Thomas’s chronic foot pain. A.R. 24. There is no way for us to\\n\\nknow whether, or why, the ALJ gave those findings the same weight as inconsistent\\n\\nfindings made by Dr. Ida Richmond, a licensed psychologist who evaluated Thomas.\\n\\nSimilarly, the ALJ did not say why she declined to discuss Thomas’s record of mental-\\n\\nhealth evaluations at Bridge Builders Family and Youth Services. To be sure, “there is\\n\\nno rigid requirement that the ALJ specifically refer to every piece of evidence in [her]\\n\\ndecision.” Reid v. Comm’r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (internal\\n\\ncitation and quotation marks omitted). But here, the ALJ chose not to discuss what\\n\\nappears to be a substantial portion of the record relating to Thomas’s treatment by\\n\\nmental-health specialists, even while citing curt mental-health notes made by doctors\\n\\ntreating Thomas’s foot ailment. Right or wrong, that decision warrants some\\n\\nexplanation.\\n\\n Third, the ALJ “express[ed] [Thomas’s] RFC first and only then conclud[ed] that the\\n\\n 7\\n\\nlimitations caused by [her] impairments were consistent with that RFC . . . .” Monroe,\\n\\n826 F.3d at 188 (emphasis in original). Stating a claimant’s RFC before conducting a\\n\\nfunction-by-function analysis is an error—even though, on its own, it does not\\n\\nnecessarily require remand. Id.\\n\\n Fourth, while the ALJ stated that Thomas could not perform work “requiring a\\n\\nproduction rate or demand pace,” she did not give us enough information to understand\\n\\nwhat those terms mean. A.R. 21. That makes it difficult, if not impossible, for us to\\n\\nassess whether their inclusion in Thomas’s RFC is supported by substantial evidence.\\n\\nThe Commissioner contends that “production rate” and “demand pace” are “common\\n\\nvocationally relevant functional limitations.” Resp. Br. at 21. But those terms appear in\\n\\na vanishingly small number of Social Security cases involving RFC evaluations. Of the\\n\\ncases in which the terms do appear, several originated with the same ALJ as the one who\\n\\ndenied Thomas’s application. See, e.g., Dyrda v. Colvin, 47 F. Supp. 3d 318, 321\\n\\n(M.D.N.C. 2014). We therefore disagree with the Commissioner: the terms do not seem\\n\\nto be especially common—certainly not common enough for us to know what they mean\\n\\nwithout elaboration.\\n\\n Combined, the above-listed missteps in the ALJ’s RFC evaluation frustrate our\\n\\nability to conduct meaningful appellate review, requiring us to vacate and remand. 5 In so\\n\\n\\n\\n5\\n Thomas argues that her RFC, as stated by the ALJ, does not account for her moderate\\nlimitations in concentration, persistence, and pace—even though the RFC limits her to\\njobs that do not require a “production rate” or “demand pace.” We decline to resolve that\\nquestion. As discussed above, the ALJ’s evaluation of Thomas’s mental impairments for\\npurposes of the RFC contains too little explanation for us to meaningfully review it.\\n 8\\n\\ndoing, we express no opinion on whether the ALJ’s RFC findings were correct. We\\n\\nsimply ask the ALJ to give us a clearer window into her reasoning.\\n\\n\\n\\n B.\\n\\n Since it is likely to come up again below, we address another issue raised by\\n\\nThomas’s appeal: whether the ALJ should have identified and resolved a conflict\\n\\nbetween the DOT and the testimony of the VE. This requires us to decide whether there\\n\\nis an “apparent conflict” between a limitation to “short, simple instructions” (as found in\\n\\nThomas’s RFC) and a need to carry out “detailed but uninvolved . . . instructions” (as\\n\\nfound in jobs requiring Level 2 reasoning). We hold that there is.\\n\\n Some background explanation is in order. When, as in this case, an ALJ determines\\n\\nthat a claimant’s RFC prevents the claimant from performing her past work, the ALJ\\n\\nreaches step five of the review process. Recall that at this step, the burden shifts to the\\n\\nCommissioner to prove, by a preponderance of the evidence, that the claimant is capable\\n\\nof doing other work that exists in significant supply in the national economy. Mascio,\\n\\n780 F.3d at 635. The Commissioner often seeks to meet this burden through the\\n\\ntestimony of a VE. Specifically, as in this case, the Commissioner calls a VE to testify to\\n\\n\\nWithout further explanation, we simply cannot tell whether the RFC finding—\\nparticularly the portion restricting Thomas to jobs that do not require a “production rate”\\nor “demand pace”—properly accounts for Thomas’s moderate limitations in\\nconcentration, persistence, and pace. On remand, the ALJ will need to establish for how\\nlong, and under what conditions, Thomas is able “to focus [her] attention on work\\nactivities and stay on task at a sustained rate.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1 §\\n12.00E(3). Only then will we or any court be able to meaningfully review the ALJ’s\\nRFC finding.\\n 9\\n\\nwhether a hypothetical person with the same limitations as the claimant would be able to\\n\\nperform any of the jobs listed in the DOT. Id.; see also SSR 00-4P, 2000 WL 1898704 at\\n\\n*2 (Dec. 4, 2000).\\n\\n An ALJ cannot rely unquestioningly on a VE’s testimony. Rather, an ALJ must\\n\\nensure that any “apparent” conflicts between the Dictionary and the VE’s testimony are\\n\\nreasonably resolved. SSR 00-4P, 2000 WL 1898704 at *2. To that end, the ALJ must\\n\\nask the VE whether his or her testimony conflicts with the DOT. If the answer is “yes,”\\n\\nthe ALJ “must elicit a reasonable explanation for the conflict before relying on” the\\n\\ntestimony. Id. But even if the VE answers “no,” the ALJ has an affirmative “duty to\\n\\nmake an independent identification of apparent conflicts.” Pearson v. Colvin, 810 F.3d\\n\\n204, 210 (4th Cir. 2015). This means that the ALJ must recognize and resolve ways in\\n\\nwhich a VE’s testimony “seems to, but does not necessarily,” conflict with the “express\\n\\nlanguage” of the DOT—even if the conflict is not “obvious.” Id. at 209.\\n\\n Our opinion in Pearson furnishes us with a useful example of what makes a conflict\\n\\napparent. 6 In Pearson, an ALJ evaluated an SSI claimant’s RFC and determined that the\\n\\nclaimant “could only occasionally reach upward” with his “nondominant arm.” Id. at\\n\\n210. At step five of the review process, a VE testified that in spite of the claimant’s\\n\\nphysical limitation, the claimant could perform several jobs that existed in significant\\n\\nnumbers in the national economy. Id. Yet according to the DOT, all the jobs identified\\n\\nby the VE required “frequent reaching.” Id. at 210–11 (emphasis in original). We held\\n\\n\\n\\n6\\n We note that Pearson was decided after the ALJ denied Thomas’s application.\\n 10\\n\\nthat there was an apparent conflict between the DOT and the VE’s testimony—even\\n\\nthough, based on the DOT, it was not clear whether the jobs identified by the VE would\\n\\never require the claimant to reach overhead with his nondominant arm. Because the ALJ\\n\\nhad failed to identify or resolve this conflict, we remanded. Id. at 211.\\n\\n The VE’s testimony in this case contains a comparable conflict with the DOT. After\\n\\nbeing informed of Thomas’s RFC, the VE testified that Thomas was capable of holding\\n\\nthree jobs: marker, final inspector, and order caller. As noted above, the DOT states that\\n\\nall three of the jobs identified by the VE require employees to “carry out detailed but\\n\\nuninvolved written or oral instructions . . . .” DOT 209.587-034, 1991 WL 671802; DOT\\n\\n727.687-054, 1991 WL 679672; DOT 209.667-014, 1991 WL 671807. By comparison,\\n\\nThomas’s RFC limits her to jobs that involve only “short, simple instructions.”\\n\\n We believe that Thomas, being limited to short, simple instructions, may not be able\\n\\nto carry out detailed but uninvolved instructions. This is not a categorical rule—some\\n\\ninstructions, particularly if they are well-drafted, may be simultaneously short, simple,\\n\\ndetailed, and uninvolved. Even so, the conflict between Thomas’s limitation to short,\\n\\nsimple instructions and the VE’s testimony that Thomas could perform jobs that include\\n\\ndetailed but uninvolved instructions is as apparent as the conflict we identified in\\n\\nPearson. Since we held that an apparent conflict existed in Pearson, we are satisfied that\\n\\none exists in this case, too. 7 We remand so that the ALJ can resolve the conflict in\\n\\n\\n\\n7\\n The Commissioner did not argue that this conflict, if apparent, would be harmless;\\ntherefore, we decline to reach that question now. See United States v. Hall, 858 F.3d 254,\\n280 n.8 (4th Cir. 2017) (explaining that government may waive harmless error\\n 11\\n\\naccordance with the Administration’s regulations.\\n\\n\\n\\n\\n IV.\\n\\n We hereby vacate the district court’s order granting summary judgment to the\\n\\nCommissioner. The case is remanded to the district court with instructions to remand to\\n\\nthe Commissioner for such further administrative proceedings as may be appropriate.\\n\\n VACATED AND REMANDED\\n\\n\\n\\n\\nargument).\\n 12\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":566,"cells":{"id":{"kind":"number","value":4593143,"string":"4,593,143"},"name":{"kind":"string","value":"Mitra RANGARAJAN, Plaintiff - Appellant, v. JOHNS HOPKINS UNIVERSITY, Defendant - Appellee. Mitra Rangarajan, United States of America, State of Maryland, Ex Rel., Plaintiff - Appellant, v. Johns Hopkins Health System Corporation; Johns Hopkins Hospital, Incorporated, Trading as Johns Hopkins Medicine; Anthony Kalloo, M.D.; Johns Hopkins University, Defendants - Appellees. Mitra Rangarajan, United States of America, State of Maryland, Ex Rel., Plaintiff - Appellant, v. Johns Hopkins Health System Corporation and Johns Hopkins University, Trading as Johns Hopkins Medicine; Johns Hopkins Hospital, Incorporated, Defendants - Appellees."},"name_abbreviation":{"kind":"string","value":"Mitra Rangarajan v. Johns Hopkins University"},"decision_date":{"kind":"string","value":"2019-02-22"},"docket_number":{"kind":"string","value":"17-1834; 17-1835; 17-1836"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Gregory, Niemeyer, Harris\", \"parties\": \"\", \"opinions\": [{\"author\": \"NIEMEYER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-1834\\n\\n\\nMITRA RANGARAJAN,\\n\\n Plaintiff – Appellant,\\n\\n v.\\n\\nJOHNS HOPKINS UNIVERSITY,\\n\\n Defendant – Appellee.\\n\\n\\n\\n No. 17-1835\\n\\n\\nMITRA RANGARAJAN, United States of America, State of Maryland, ex rel.,\\n\\n Plaintiff – Appellant,\\n\\n v.\\n\\nJOHNS HOPKINS HEALTH SYSTEM CORPORATION; JOHNS HOPKINS\\nHOSPITAL, INCORPORATED, trading as Johns Hopkins Medicine; ANTHONY\\nKALLOO, M.D.; JOHNS HOPKINS UNIVERSITY,\\n\\n Defendants – Appellees.\\n\\n\\n\\n No. 17-1836\\n\\n\\nMITRA RANGARAJAN, United States of America, State of Maryland, ex rel.,\\n\\f Plaintiff – Appellant,\\n\\n v.\\n\\nJOHNS HOPKINS HEALTH SYSTEM CORPORATION AND JOHNS\\nHOPKINS UNIVERSITY, trading as Johns Hopkins Medicine; JOHNS HOPKINS\\nHOSPITAL, INCORPORATED,\\n\\n Defendants – Appellees.\\n\\n\\nAppeals from the United States District Court for the District of Maryland, at Baltimore.\\nWilliam M. Nickerson, Senior District Judge. (1:12-cv-01953-WMN; 1:13-cv-03630-\\nWMN; 1:17-cv-00807-WMN)\\n\\n\\nArgued: November 1, 2018 Decided: February 22, 2019\\n\\n\\nBefore GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Niemeyer wrote the opinion, in which Chief\\nJudge Gregory and Judge Harris joined.\\n\\n\\nARGUED: Erienne A. Sutherell, HANSEL LAW, P.C., Baltimore, Maryland, for\\nAppellant. Robert Thomas Smith, KATTEN MUCHIN ROSENMAN LLP, Washington\\nD.C., for Appellees. ON BRIEF: Cary J. Hansel, III, HANSEL LAW, P.C., Baltimore,\\nMaryland, for Appellant. Maria E. Rodriguez, Elizabeth Clark Rinehart, VENABLE,\\nLLP, Baltimore, Maryland; Daniel E. Lipton, KATTEN MUCHIN ROSENMAN LLP,\\nWashington, D.C., for Appellees.\\n\\n\\n\\n\\n 2\\n\\fNIEMEYER, Circuit Judge:\\n\\n Mitra Rangarajan, who claims that she was constructively discharged as a nurse\\n\\npractitioner at the School of Medicine of Johns Hopkins University — whether because\\n\\nof discrimination and retaliation, as she contends, or because of her performance, as\\n\\nJohns Hopkins contends — commenced four separate actions against the University *\\n\\narising out of the same course of events and alleging state torts of defamation and\\n\\ninterference with prospective advantage, as well as violations of the False Claims Act, the\\n\\nMaryland False Health Claims Act, Title VII, and 42 U.S.C. § 1981. Over the long\\n\\ncourse of proceedings in these cases, the district court dismissed one action for failure to\\n\\nprosecute and the remaining three actions as the sanction for Rangarajan’s “flagrant and\\n\\nunremitting” violations of the Federal Rules of Civil Procedure, especially with respect to\\n\\ndiscovery and summary judgment practice.\\n\\n On appeal, Rangarajan contends that the district court abused its discretion by\\n\\nfailing to give her adequate warning of the sanction and failing to show required restraint\\n\\nby imposing lesser sanctions. After careful review of the lengthy procedural history of\\n\\nthe cases, we conclude that the district court did not abuse its discretion. Rangarajan’s\\n\\nconduct under the procedural rules was inept and abusive to the degree that, as the district\\n\\ncourt found in its thorough 44-page opinion, it rendered virtually useless five years of\\n\\n\\n *\\n Rangarajan sued not only Johns Hopkins University but also the Johns Hopkins\\nHealth System Corp., the Johns Hopkins Hospital Inc., and related personnel whom she\\nrefers to in her brief collectively as Johns Hopkins or JH. We are satisfied also to refer to\\nJohns Hopkins collectively, as the issues in this appeal are not implicated by which entity\\nmight have been involved in any given activity.\\n\\n 3\\n\\fproceedings before the district court, and such abuse would likely have continued in any\\n\\nfuture proceedings. Accordingly, we affirm.\\n\\n\\n I\\n\\n Rangarajan’s employment at Johns Hopkins as a nurse over the period from 2007\\n\\nto 2011 was volatile and unsatisfactory to both Rangarajan and Johns Hopkins. From\\n\\nRangarajan’s viewpoint, as the district court summarized, she was a stellar healthcare\\n\\nprovider who was treated unfairly by supervisors and coworkers in the following\\n\\nrespects:\\n\\n [S]he was denied the $95,000 salary that she was allegedly promised; she\\n was assigned unmanageable workloads; she was not provided the training\\n she needed to advance her career while Dr. [Anthony] Kalloo, [the director\\n of the GI Division in which Rangarajan worked] showed favoritism and\\n provided those opportunities to another Nurse Practitioner . . . ; [she]\\n applied for but was denied permission to participate in a Nurse Practitioner\\n Fellowship Program; while she was accepted into a Doctor of Nursing\\n Practice (DNP) program, once in the program she was treated unfairly by\\n the program director . . . ; she was given an undeserved failing grade by the\\n Capstone Professor in the DNP program . . . ; and, she was denied vacation\\n leave and reimbursement for attending professional conferences.\\n\\nBut from Johns Hopkins’ point of view, again as the district court summarized, she failed\\n\\nas a professional nurse:\\n\\n [Rangarajan] had attendance and tardiness issues, she failed to timely check\\n for test results and follow-up with patients, and her notes in medical\\n histories were often disorganized and unreliable. In response to a round of\\n negative performance reviews, [Rangarajan] was placed on a performance\\n improvement plan in January of 2011. Before that plan could be fully\\n implemented, [she] demonstrated poor judgment in the care of a patient that\\n [Johns Hopkins] assert[s] could have had catastrophic results for that\\n patient. In response to those concerns, Dr. Anthony Kalloo, the director of\\n the GI Division, suspended [Rangarajan’s] clinical privileges.\\n\\n\\n 4\\n\\fAfter Rangarajan was suspended, she resigned from Johns Hopkins in May 2011,\\n\\nclaiming that she was constructively discharged. She then began litigation against Johns\\n\\nHopkins, filing four separate actions based on its treatment of her.\\n\\n In the first action filed in October 2012 — No. 12-1953 — Rangarajan alleged that\\n\\nJohns Hopkins engaged in widespread fraudulent billing of the U.S. Government and\\n\\nthen retaliated against her for reporting it internally. Because her claims under the False\\n\\nClaims Act and the Maryland False Health Claims Act were qui tam actions, the U.S.\\n\\nDepartment of Justice and the Maryland Attorney General investigated them but then\\n\\ndeclined to intervene, as those statutes would allow. Rangarajan thereafter voluntarily\\n\\ndismissed the qui tam claims but continued her claim alleging that Johns Hopkins\\n\\nretaliated against her for reporting fraudulent billing practices. Later, however, she filed\\n\\na motion to amend her complaint to reallege the qui tam claims, but the district court\\n\\ndenied her motion as untimely and prejudicial.\\n\\n Several months after filing the first action, Rangarajan filed a second action\\n\\nagainst Johns Hopkins — No. 13-3630 — alleging that Johns Hopkins had discriminated\\n\\nagainst her on the basis of race, national origin, age, and sex, in violation of Title VII and\\n\\n42 U.S.C. § 1981. This action was based on the same conduct that formed the basis for\\n\\nher claims in the first action.\\n\\n A month after the district court denied Rangarajan’s motion to amend the first\\n\\naction to re-allege her qui tam claims, Rangarajan filed a third action — No. 15-1394 —\\n\\nalleging those same qui tam action claims again. She did not, however, pursue this action\\n\\n\\n\\n 5\\n\\fin accordance with the rules of procedure, and, after it languished for over a year and a\\n\\nhalf, the district court dismissed it for failure to prosecute.\\n\\n Rather than appealing the district court’s ruling in the third action, Rangarajan\\n\\nfiled a fourth action — No. 17-807 — which the district court concluded was “essentially\\n\\nidentical to the just-dismissed [third] action.” The court by then, however, had before it\\n\\nJohns Hopkins’ motion for sanctions based on Rangarajan’s discovery and summary\\n\\njudgment practices in the first and second actions, and accordingly it stayed the fourth\\n\\naction pending its ruling on the sanctions motion.\\n\\n After the second action was filed, the district court consolidated the first and\\n\\nsecond actions, and the parties conducted discovery in the consolidated actions. During\\n\\ndiscovery, Johns Hopkins provided Rangarajan with nearly 50,000 pages of documents,\\n\\nincluding tens of thousands of emails. It also arranged for and participated in the\\n\\ndepositions of 14 former and current employees of Johns Hopkins. During this period,\\n\\nRangarajan also responded to Johns Hopkins’ discovery requests. In response to Johns\\n\\nHopkins’ request for all “jhmi.edu” and “jhu.edu” emails in her possession, Rangarajan\\n\\nmade no objection and produced 1,573 pages of documents. After the close of discovery,\\n\\nshe produced an additional 85 pages, stating that they also responded to Johns Hopkins’\\n\\nrequest for her “jhmi.edu” and “jhu.edu” emails. Rangarajan also gave a deposition,\\n\\nwhich lasted roughly seven hours.\\n\\n After discovery closed in September 2016 as directed in the district court’s\\n\\nscheduling order, Johns Hopkins filed a motion for summary judgment in both\\n\\nconsolidated actions, based on the record that discovery had produced. Johns Hopkins\\n\\n 6\\n\\fcontended that summary judgment in its favor was justified by “overwhelming evidence\\n\\nthat Ms. Rangarajan did not satisfy the basic requirements of her job[] and that there were\\n\\nlegitimate, non-discriminatory and non-retaliatory reasons for any adverse employment\\n\\naction that she allegedly suffered.”\\n\\n In response to Johns Hopkins’ motion for summary judgment, Rangarajan took a\\n\\nnumber of steps to expand, embellish, alter, and recast her deposition testimony. First,\\n\\nshe submitted a 51-page errata sheet to her deposition, proposing hundreds of edits to her\\n\\ntestimony and justifying many of the changes by claiming that the court reporter had\\n\\nintentionally altered both the transcript and the audio and video recording of her\\n\\ndeposition. She stated:\\n\\n The Court Reporters’ Office has informed me that they edited my video,\\n audio and typed deposition transcripts. It is clear that key testimony is\\n deleted, altered, cloned from various sound bites etc., to accomplish two\\n things. 1. Change the testimony 2. To induce grammar mistakes thus\\n making me sound as if I am speaking broken English.\\n\\nShe also sent an ex parte letter to the district court for the district judge’s “eyes only,”\\n\\nclaiming similarly that the court reporter improperly edited her deposition.\\n\\n Second, in support of her opposition to the summary judgment motion, Rangarajan\\n\\nfiled a 54-page Declaration in which she introduced new allegations, attached 19 exhibits\\n\\nthat had never before been produced during discovery, and revised testimony that\\n\\nallegedly contradicted her deposition testimony. While the district court did not find the\\n\\nDeclaration to be “diametrically opposed” to Rangarajan’s statements in the deposition, it\\n\\nnonetheless concluded that reliance on the Declaration “would render the taking of\\n\\n[Rangarajan’s] deposition essentially useless.” Rangarajan’s opposition to Johns\\n\\n 7\\n\\fHopkins’ motion for summary judgment was grounded mainly on her Declaration and not\\n\\nthe evidence produced during discovery. As the district court noted, while Rangarajan\\n\\ncited her deposition testimony only 3 times in her opposition, she cited her subsequently\\n\\nfiled Declaration “over 750 times.”\\n\\n In addition, the newly disclosed exhibits revealed major failures by Rangarajan to\\n\\nproduce documents requested of her during discovery. For instance, several exhibits —\\n\\nscreenshots of Rangarajan’s emails — revealed her computer’s entire display showing\\n\\nretained copies of emails in two inboxes labeled “Jhmi” and “Jhmi 1,” and one of those\\n\\ninboxes contained 8,612 emails, most of which had never been produced during\\n\\ndiscovery; Rangarajan had only produced 1,658 documents during discovery.\\n\\n After receiving Rangarajan’s opposition to its motion for summary judgment,\\n\\nJohns Hopkins filed a motion to stay further briefing on the summary judgment motion,\\n\\nto strike Rangarajan’s opposition to its motion for summary judgment, and to dismiss\\n\\nRangarajan’s actions as the sanction for her improper conduct. In support of its motion,\\n\\nit claimed that Rangarajan had “attempted to fundamentally alter the record that existed\\n\\nwhen discovery closed” by, among other things,\\n\\n (1) submitting her 51-page errata, which baselessly accused the court\\n reporter of altering hundreds of lines of key testimony; (2) including\\n a 54-page declaration that sought to fill critical holes in her story;\\n (3) attaching at least 19 documents to her opposition that had not\\n been produced during discovery; and (4) concealing thousands of e-\\n mails responsive to [Johns Hopkins’] requests after falsely certifying\\n that she would produce these documents.\\n\\nAfter receiving Johns Hopkins’ motion, the district court issued an order staying further\\n\\nproceedings on the summary judgment motion and informing Rangarajan that Johns\\n\\n 8\\n\\fHopkins’ motion for sanctions “raise[d] some serious issues regarding [Rangarajan’s]\\n\\nlack of compliance with the Federal Rules of Civil Procedure, both throughout the\\n\\ndiscovery process and in the submission of her opposition to the summary judgment\\n\\nmotion.”\\n\\n The next day, the court unsealed Rangarajan’s third action, which was again a qui\\n\\ntam action, and dismissed it for nonprosecution. Nonetheless, Rangarajan then proceeded\\n\\nto file the fourth action repeating the qui tam allegations she had made in the first and\\n\\nthird actions. The district court stayed the fourth action, pending disposition of the\\n\\nmotion for sanctions.\\n\\n In response to the motion for sanctions, Rangarajan argued that her Declaration\\n\\ndid not contradict her deposition testimony and that her errata sheet properly clarified her\\n\\ndeposition testimony. As to her accusation that the court reporter altered the deposition\\n\\ntranscript, she stated:\\n\\n Ms. Rangarajan believes that her deposition transcript was changed and that\\n Defendants are attempting to divert attention to this discrepancy through its\\n Motion to Strike. However, Ms. Rangarajan does not know who changed\\n the transcript. She also believes that the exhibits provided by the Court\\n Reporter were different than those shown to her during her deposition. In\\n addition, she believes that she did not receive her original deposition video.\\n Ms. Rangarajan has provided a detailed chart with examples of the\\n testimony in the transcript to show the discrepancy in the written testimony\\n and video and the statement of an expert who viewed the video, which\\n confirm her position.\\n\\nAs to her nonproduction of emails, Rangarajan stated that she “believe[d] that she\\n\\nprovided all her emails to her counsel.”\\n\\n\\n\\n\\n 9\\n\\f After briefing on the motion for sanctions was completed, Rangarajan filed yet\\n\\nanother paper entitled “Notice of Plaintiff’s Analysis,” again purporting to demonstrate\\n\\nthat the Court Reporter had altered the videotape of her deposition, again asserting\\n\\nmalfeasance, and again embellishing her testimony.\\n\\n By order dated June 16, 2017, the district court granted Johns Hopkins’ motion for\\n\\nsanctions, dismissing Rangarajan’s three pending actions — the first, the second, and the\\n\\nfourth. In its thorough written opinion, which recited Rangarajan’s misconduct chapter\\n\\nand verse, the court concluded that “[n]othing that [Rangarajan] submitted lends any\\n\\ncredence to her claims that the videotape or transcript of her deposition was purposely\\n\\naltered in any way. . . . The Court suspects that [Rangarajan’s] inexorable need to deflect\\n\\nresponsibility and to project it on others perhaps sheds more light on [her] difficulties in\\n\\nthe GI Division than any of the actual testimony in her deposition.” With respect to the\\n\\nDeclaration that Rangarajan had filed, the court concluded that it was an effort “to\\n\\nreplace [Rangarajan’s deposition testimony] with [a] more favorable narrative of events.”\\n\\nThe court noted that if it were to rely on the Declaration, the Declaration “would render\\n\\nthe taking of [Rangarajan’s] deposition essentially useless.” And with respect to Johns\\n\\nHopkins’ claims that Rangarajan withheld documents during discovery, the court\\n\\nconcluded that Rangarajan “failed to fulfill her discovery obligations under Rule 26(e).”\\n\\nMoreover, the court found that Rangarajan “flagrantly and unremittingly violated the\\n\\nrules governing discovery and summary judgment motions practice” and that Rangarajan\\n\\nherself was clearly culpable. “The responsibility for the lack of compliance with the\\n\\npertinent rules [lay] primarily with her and not with her counsel.” While the court\\n\\n 10\\n\\fcriticized Rangarajan’s counsel for his judgment, the court concluded that Rangarajan\\n\\nherself “has been and continues to be the prime offender.” Finally, the court concluded\\n\\nthat Rangarajan’s conduct “rendered much of [the litigation] activity essentially\\n\\nmeaningless,” and her conduct “impacted the dozen witnesses who could not care for\\n\\npatients while responding to her claims and has also depleted the resources of [the\\n\\nvarious agencies that were necessarily involved].” And to justify dismissal rather than a\\n\\nlesser sanction, the court concluded that “there is not another remedy that would\\n\\neffectively address [Rangarajan’s] violations.” Even if it attempted a more limited\\n\\nsanction, it noted, “discovery would need to be reopened and it is likely that plaintiff\\n\\nwould need to be re-deposed and [Johns Hopkins’] motion for summary judgment\\n\\nre-briefed. Doing so would foist considerabl[y] more expense on [Johns Hopkins].\\n\\nGiven the history of this litigation, were discovery to be reopened, the Court has little\\n\\nconfidence that [Rangarajan’s] counsel would be able to ensure [Rangarajan’s]\\n\\ncompliance with the rules of discovery.” The court also recognized “the futility of\\n\\nredoing discovery and motions practice” because “it [was] apparent from the current\\n\\nrecord that those claims would fail on the merits.”\\n\\n From the district court’s order, Rangarajan filed this appeal.\\n\\n\\n II\\n\\n Rangarajan does not challenge the district court’s factual findings. Indeed, she\\n\\nappears to acknowledge her “irregularities” and “transgressions,” blaming them on\\n\\n“disagreements between [her] and her previous attorney.” Rather, she contends (1) that\\n\\n\\n 11\\n\\fthe district court abused its discretion in imposing the sanction “without providing the\\n\\nrequired clear and explicit warning to [her] that her discovery transgressions could lead to\\n\\ndismissal” and (2) that the court abused its discretion in “fail[ing] to use the restraint\\n\\nrequired in exercising this most extreme sanction without adequately addressing the\\n\\nrequired factors,” arguing that the “transgressions . . . would have been rectifiable by\\n\\nlesser sanctions.” She also contends that the district court abused its discretion in\\n\\ndismissing the fourth action as part of the sanction. We address these points in order.\\n\\n\\n A\\n\\n Rangarajan first argues that prior warning of sanctions was required and that she\\n\\ndid not receive prior warning. We reject both arguments.\\n\\n First, as a factual matter, Rangarajan did receive notice that dismissal of her\\n\\nactions was a potential sanction when the district court, in response to Johns Hopkins’\\n\\nmotion for sanctions, alerted her that the motion “raised some serious issues” regarding\\n\\nher failure to comply with rules relating to discovery and summary judgment. Johns\\n\\nHopkins’ motion itself detailed the alleged failures and sought dismissal of the first and\\n\\nsecond actions as a sanction. The gravity of the issues was also conveyed to Rangarajan\\n\\nby the district court’s order staying proceedings in not only the first and second actions,\\n\\nbut also in the fourth action. Moreover, Rangarajan conceded in her response that she\\n\\nknew that the sanction of dismissal was on the table, as she fully addressed the sanction\\n\\nof dismissal, arguing that it was “not warranted” and that Johns Hopkins’ motion was\\n\\nonly an effort at distracting the court from the truth. She also argued that she had not\\n\\n\\n 12\\n\\freceived clear notice of potential dismissal, yet, in making that argument itself before any\\n\\nsanction was imposed, she revealed that she had notice. It does not ring true, therefore,\\n\\nthat the district court failed to warn Rangarajan. The fact remains that she not only was\\n\\nwarned, she argued her position on both the sanction of dismissal and the lack of notice\\n\\nbefore any sanction was issued.\\n\\n Moreover, Rangarajan’s contention that a clear and explicit warning of dismissal\\n\\nmust always be given is not supported by any specific authority. To be sure, giving\\n\\nnotice is an aspect of fairness in procedure that might relate to the ultimate fairness of\\n\\nimposing any sanction. But it is not a rubric to be applied mechanically. Federal Rule of\\n\\nCivil Procedure 37, on which Rangarajan relies, imposes no such requirement, and\\n\\nHathcock v. Navistar International Transportation Corp., 53 F.3d 36 (4th Cir. 1995), on\\n\\nwhich she also relies, did not mandate it in every situation. In Hathcock, we recognized\\n\\nthe “significance of warning a defendant about the possibility of default before entering\\n\\nsuch a harsh sanction” in circumstances where the district court had entered a default\\n\\njudgment for the defendant’s failure to follow general scheduling orders. Id. at 40. But a\\n\\nwarning was not held to be a necessary element for imposing a Rule 37 sanction. Rather,\\n\\nthe lack of warning was a deficiency reflecting on the district court’s exercise of\\n\\ndiscretion in selecting a particular sanction for violating the court’s general scheduling\\n\\norders.\\n\\n As importantly, in this case, the district court did not impose its sanction under\\n\\nRule 37. While the court did recognize its authority under Rule 37 to dismiss actions, it\\n\\nrelied on its inherent power to do so because the circumstances presented a party who\\n\\n 13\\n\\f“abuse[d] the process at a level that [was] utterly inconsistent with the orderly\\n\\nadministration of justice or undermine[d] the integrity of the process,” quoting Projects\\n\\nManagement Co. v. Dyncorp International, LLC, 734 F.3d 366, 373 (4th Cir. 2013)\\n\\n(quoting United States v. Shaffer Equip. Co., 11 F.3d 450, 462 (4th Cir. 1993)). In\\n\\nDyncorp, we affirmed dismissal of an action as a sanction where the plaintiff “was on\\n\\nclear notice of the district court’s consideration of the use of its inherent authority and\\n\\nhad a full opportunity to argue its position before the court.” Id. at 376. So it was here,\\n\\nas the court stated in response to Johns Hopkins’ motion for dismissal, that Johns\\n\\nHopkins had presented the court with “serious issues,” and Rangarajan then had a full\\n\\nopportunity to respond — and did respond — before any decision on sanctions was\\n\\nmade.\\n\\n\\n B\\n\\n Rangarajan’s argument that the district court failed to exhibit restraint by declining\\n\\nto impose lesser sanctions challenges the court’s exercise of discretion with respect to its\\n\\ninherent power to dismiss an action. We review that exercise of discretion for abuse. See\\n\\nShaffer, 11 F.3d at 462.\\n\\n In exercising its discretion, the district court relied on the six factors set forth in\\n\\nShaffer, 11 F.3d at 462–63. As we explained in Shaffer, when exercising its power to\\n\\ndismiss as a sanction, a court must consider:\\n\\n (1) the degree of the wrongdoer’s culpability; (2) the extent of the client’s\\n blameworthiness if the wrongful conduct is committed by its attorney,\\n recognizing that we seldom dismiss claims against blameless clients; (3) the\\n prejudice to the judicial process and the administration of justice; (4) the\\n\\n 14\\n\\f prejudice to the victim; (5) the availability of other sanctions to rectify the\\n wrong by punishing culpable persons, compensating harmed persons, and\\n deterring similar conduct in the future; and (6) the public interest.\\n\\nId. In addressing the first two factors, the district court found that Rangarajan was\\n\\npersonally responsible for her actions. As to the third and fourth factors, the court noted\\n\\nthat “Defendants have been forced to expend a tremendous amount of time, effort, and\\n\\nexpense in the discovery process and motions practice” and that Rangarajan’s “conduct\\n\\nhas rendered much of that activity essentially meaningless.” As to the fifth factor, while\\n\\nrecognizing that striking Rangarajan’s Declaration and the exhibits not produced in\\n\\ndiscovery could have cured the prejudice resulting from those specific failures, the court\\n\\nconcluded that such a sanction “would not address her failure to produce the thousands of\\n\\nemails contained on her home computer.” Moreover, the court expressed its lack of\\n\\nconfidence that counsel could ensure Rangarajan’s compliance given her previous\\n\\nfailures. The court also concluded that reopening discovery would be futile because\\n\\nRangarajan’s “desperate attempt to disavow her deposition testimony and replace it with\\n\\nher Declaration [was] an implicit acknowledgement that her claims were unsupported\\n\\nunder the record produced through discovery.” Finally, as to the sixth factor, the court\\n\\nfound that the public interest supported dismissal because the “litigation ha[d] interrupted\\n\\nthe provision of care of numerous health care providers and impacted the resources of\\n\\nthis Court and several administrative agencies” and Rangarajan’s actions “seriously\\n\\nundermined the truth-seeking function of the Court.” Finding that all of the six factors\\n\\nweighed against Rangarajan and in favor of dismissal, the court imposed the sanction of\\n\\ndismissal.\\n\\n 15\\n\\f Rangarajan argues nonetheless that the district court abused its discretion in\\n\\nbypassing “the analysis set forth by the Fourth Circuit for determining whether sanction\\n\\nis even appropriate for [her] failures to update disclosure in discovery and proceed[ing]\\n\\ndirectly to selecting a penalty.” She also argues that, “[i]n seeking an appropriate\\n\\npenalty, the court also bypassed those penalties contemplated specifically for this failure\\n\\nto disclose, as set forth in Rule 37(c)(1), and proceed[ed] directly to [the] harshest of the\\n\\nother sanctions enumerated under Rule 37(b)(2).” She then concludes:\\n\\n The several irregularities of discovery cited by the lower court in the instant\\n matter either do not rise to the level of a violation worthy of sanction or, if\\n found to be sanctionable, were by no means permanent, surprising, or\\n fatally prejudicial. The lower court could have easily remedied these by\\n sanctions tailored to the transgression, even though it may not be exactly\\n commensurate, and still remain within its discretion.\\n\\nTo support that conclusion, Rangarajan then launches into a discussion of how each\\n\\n“irregularity” or “transgression” was justified, could have been rectified, or in any case\\n\\ndid not justify dismissal. For example, with respect to her failure to produce thousands of\\n\\nemails that she was required to produce during discovery, she argues that “there has been\\n\\nno effort by the court and no agreement by the parties to provide for a finding of fact or\\n\\nagreeable method of determining which of those [8,612 emails] [was] discoverable,\\n\\nwhich may be personal or even privileged, or how they should be provided in discovery.”\\n\\nYet, during the discovery, Rangarajan made no objection to the request for documents —\\n\\nwhich called for the production of all emails in her “Jhmi” and “Jhmi 1” inboxes, and\\n\\nmore — but rather confirmed that she was producing all of the documents covered by\\n\\nJohns Hopkins’ requests. Her arguments typically turn a blind eye to the scope of her\\n\\n\\n 16\\n\\fmisconduct as found by the district court and thus fail to address the specific misconduct\\n\\nfound.\\n\\n When reviewed it its totality, the record in this case reveals a totally dysfunctional\\n\\nperformance by Rangarajan and her counsel, but mostly by her, as she acknowledged in\\n\\nher brief that “[t]hough [I] was, in fact, represented by an attorney, the court was well\\n\\naware that [I] was in many ways acting without the benefit of counsel.”\\n\\n To begin, Rangarajan commenced four actions, when only one was proper and\\n\\nwould have sufficed, repeatedly reasserting claims that the district court had dismissed.\\n\\nAfter the district court denied her motion to replead qui tam claims in the first action, she\\n\\nnonetheless repleaded them in the third action, and when the district court dismissed the\\n\\nthird action, she refiled the same claims in the fourth action.\\n\\n In the course of discovery, Rangarajan flagrantly failed to produce thousands of\\n\\ndocuments, several of which were core documents relating to her claims. She later\\n\\nproduced some of those documents for the first time during the summary judgment\\n\\nprocess, because she thought she needed them to make her points. Also, after giving a\\n\\ndaylong deposition, she sought to undermine and recant her testimony in a long, 54-page\\n\\nDeclaration that, as the district court found, rendered her deposition essentially useless.\\n\\nFinally, she challenged the transcription of her deposition, claiming it was deliberately\\n\\naltered and recreated by the court reporter, a conclusion that the district court found to be\\n\\nconclusively false. In short, she rendered virtually useless the entire discovery process, in\\n\\nwhich the parties had invested substantial time and money.\\n\\n\\n\\n 17\\n\\f During summary judgment, which required additional expenditures of time and\\n\\nmoney, Rangarajan relied almost exclusively on her Declaration, which had not been\\n\\nmade part of the discovery record and which was often inconsistent with her deposition\\n\\ntestimony, placing the summary judgment practice on an untenable and virtually useless\\n\\nfooting.\\n\\n In addition to these specifics, it was also apparent throughout the entire\\n\\nproceedings that, while Rangarajan was represented by an attorney, she refused to follow\\n\\nhis advice and engaged in inappropriate actions, such as communicating arguments\\n\\ndirectly to the court ex parte and including substantive matters in her errata sheet. And\\n\\nthe district court attributed this dysfunction between attorney and client to Rangarajan\\n\\npersonally, a finding that Rangarajan has not disputed. As the court stated:\\n\\n It [was] [Rangarajan] who continue[d] the attempt to support the\\n unsupportable contention that the court reporting service made hundreds of\\n alterations to her deposition video and transcript. It is clear that it was\\n [Rangarajan] who authored the embellished narrative contained in her\\n Declaration. It was [Rangarajan] who failed to turn over to her counsel\\n documents that were clearly responsive to discovery requests and it [was]\\n [Rangarajan] who misrepresented the amount of emails from her work\\n email account that were stored on her home computer.\\n\\nThe court also pointed to the statement of Rangarajan’s counsel that “[Rangarajan] had\\n\\nadditions and revisions to her declaration which . . . result[ed] in changes to the\\n\\nopposition, and [Rangarajan] and her counsel [were] not in agreement with the final\\n\\ncontent of the opposition.”\\n\\n Any effort to have retrieved useful products of some five years of the litigation\\n\\nprocess would undoubtedly have failed to produce much of what was needed to\\n\\n\\n 18\\n\\fadjudicate the case. The district court so concluded — “Rangarajan’s conduct has\\n\\nrendered much of [the litigation] activity essentially meaningless.” It observed that any\\n\\nattempt to remedy this would require a do-over — “discovery would need to be reopened\\n\\nand it is likely that [Rangarajan] would need to be re-deposed and [Johns Hopkins’]\\n\\nmotion for summary judgment re-briefed.” And all of this would be at much additional\\n\\nexpense. Also important to the court’s ultimate sanction decision was its additional\\n\\nfinding that, in light of Rangarajan’s conduct, the court had “little confidence that\\n\\n[Rangarajan’s] counsel would be able to ensure [Rangarajan’s] compliance with the rules\\n\\nof discovery,” a finding that the court made while expressing doubt about the merits of\\n\\nRangarajan’s claims.\\n\\n We are mindful of the strong policy favoring the disposition of cases on the merits\\n\\nand disfavoring dismissals without a merits decision. See Shaffer, 11 F.3d at 462. But\\n\\nwhen a party “abuses the process at a level that is utterly inconsistent with the orderly\\n\\nadministration of justice or undermines the integrity of the process” — as we conclude\\n\\nRangarajan did here — she forfeits her right to use the process. Id. We hold that the\\n\\ndistrict court did not abuse its discretion in dismissing the actions.\\n\\n\\n C\\n\\n Finally, Rangarajan contends that the sanction imposed by the district court should\\n\\nnot have included dismissal of the fourth action because the reasons that the district court\\n\\ngave for dismissal of the first and second actions were not applicable to the fourth action.\\n\\nThe district court, however, noted that the fourth action was essentially the same as the\\n\\n\\n 19\\n\\fthird action, which it had dismissed earlier for nonprosecution. It also noted that the\\n\\nfourth action related to “transactions that took place as long as nine years ago.”\\n\\nMoreover, we note that the claims in the fourth action were not only the same as the\\n\\nclaims in the third action, they were also the same as the claims that Rangarajan was\\n\\nbarred from repleading in the first action based on the court’s finding that they were\\n\\nuntimely and prejudicial.\\n\\n All four actions that Rangarajan filed against Johns Hopkins were based on the\\n\\nsame term of employment and the same course of events, and the fact that two of the\\n\\nactions specifically suffered from Rangarajan’s misconduct does not spare the other two\\n\\nactions from being infected by the same misconduct. As the court found, Rangarajan’s\\n\\nmisconduct in litigating would not likely have abated in the future. We believe,\\n\\nmoreover, that the unnecessary multiplicity of actions was an abuse that colored\\n\\nRangarajan’s entire litigation efforts. The district court thus did not abuse its discretion\\n\\nin including the fourth action in the scope of its sanction.\\n\\n Accordingly, we affirm the judgment of the district court.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 20\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4370396/\", \"author_raw\": \"NIEMEYER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"GREGORY"},"judge2":{"kind":"string","value":"NIEMEYER"},"judge3":{"kind":"string","value":"HARRIS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4593143/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Mitra RANGARAJAN, Plaintiff - Appellant, v. JOHNS HOPKINS UNIVERSITY, Defendant - Appellee. Mitra Rangarajan, United States of America, State of Maryland, Ex Rel., Plaintiff - Appellant, v. Johns Hopkins Health System Corporation; Johns Hopkins Hospital, Incorporated, Trading as Johns Hopkins Medicine; Anthony Kalloo, M.D.; Johns Hopkins University, Defendants - Appellees. Mitra Rangarajan, United States of America, State of Maryland, Ex Rel., Plaintiff - Appellant, v. Johns Hopkins Health System Corporation and Johns Hopkins University, Trading as Johns Hopkins Medicine; Johns Hopkins Hospital, Incorporated, Defendants - Appellees.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-1834\n\n\nMITRA RANGARAJAN,\n\n Plaintiff – Appellant,\n\n v.\n\nJOHNS HOPKINS UNIVERSITY,\n\n Defendant – Appellee.\n\n\n\n No. 17-1835\n\n\nMITRA RANGARAJAN, United States of America, State of Maryland, ex rel.,\n\n Plaintiff – Appellant,\n\n v.\n\nJOHNS HOPKINS HEALTH SYSTEM CORPORATION; JOHNS HOPKINS\nHOSPITAL, INCORPORATED, trading as Johns Hopkins Medicine; ANTHONY\nKALLOO, M.D.; JOHNS HOPKINS UNIVERSITY,\n\n Defendants – Appellees.\n\n\n\n No. 17-1836\n\n\nMITRA RANGARAJAN, United States of America, State of Maryland, ex rel.,\n\f Plaintiff – Appellant,\n\n v.\n\nJOHNS HOPKINS HEALTH SYSTEM CORPORATION AND JOHNS\nHOPKINS UNIVERSITY, trading as Johns Hopkins Medicine; JOHNS HOPKINS\nHOSPITAL, INCORPORATED,\n\n Defendants – Appellees.\n\n\nAppeals from the United States District Court for the District of Maryland, at Baltimore.\nWilliam M. Nickerson, Senior District Judge. (1:12-cv-01953-WMN; 1:13-cv-03630-\nWMN; 1:17-cv-00807-WMN)\n\n\nArgued: November 1, 2018 Decided: February 22, 2019\n\n\nBefore GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Niemeyer wrote the opinion, in which Chief\nJudge Gregory and Judge Harris joined.\n\n\nARGUED: Erienne A. Sutherell, HANSEL LAW, P.C., Baltimore, Maryland, for\nAppellant. Robert Thomas Smith, KATTEN MUCHIN ROSENMAN LLP, Washington\nD.C., for Appellees. ON BRIEF: Cary J. Hansel, III, HANSEL LAW, P.C., Baltimore,\nMaryland, for Appellant. Maria E. Rodriguez, Elizabeth Clark Rinehart, VENABLE,\nLLP, Baltimore, Maryland; Daniel E. Lipton, KATTEN MUCHIN ROSENMAN LLP,\nWashington, D.C., for Appellees.\n\n\n\n\n 2\n\fNIEMEYER, Circuit Judge:\n\n Mitra Rangarajan, who claims that she was constructively discharged as a nurse\n\npractitioner at the School of Medicine of Johns Hopkins University — whether because\n\nof discrimination and retaliation, as she contends, or because of her performance, as\n\nJohns Hopkins contends — commenced four separate actions against the University *\n\narising out of the same course of events and alleging state torts of defamation and\n\ninterference with prospective advantage, as well as violations of the False Claims Act, the\n\nMaryland False Health Claims Act, Title VII, and 42 U.S.C. § 1981. Over the long\n\ncourse of proceedings in these cases, the district court dismissed one action for failure to\n\nprosecute and the remaining three actions as the sanction for Rangarajan’s “flagrant and\n\nunremitting” violations of the Federal Rules of Civil Procedure, especially with respect to\n\ndiscovery and summary judgment practice.\n\n On appeal, Rangarajan contends that the district court abused its discretion by\n\nfailing to give her adequate warning of the sanction and failing to show required restraint\n\nby imposing lesser sanctions. After careful review of the lengthy procedural history of\n\nthe cases, we conclude that the district court did not abuse its discretion. Rangarajan’s\n\nconduct under the procedural rules was inept and abusive to the degree that, as the district\n\ncourt found in its thorough 44-page opinion, it rendered virtually useless five years of\n\n\n *\n Rangarajan sued not only Johns Hopkins University but also the Johns Hopkins\nHealth System Corp., the Johns Hopkins Hospital Inc., and related personnel whom she\nrefers to in her brief collectively as Johns Hopkins or JH. We are satisfied also to refer to\nJohns Hopkins collectively, as the issues in this appeal are not implicated by which entity\nmight have been involved in any given activity.\n\n 3\n\fproceedings before the district court, and such abuse would likely have continued in any\n\nfuture proceedings. Accordingly, we affirm.\n\n\n I\n\n Rangarajan’s employment at Johns Hopkins as a nurse over the period from 2007\n\nto 2011 was volatile and unsatisfactory to both Rangarajan and Johns Hopkins. From\n\nRangarajan’s viewpoint, as the district court summarized, she was a stellar healthcare\n\nprovider who was treated unfairly by supervisors and coworkers in the following\n\nrespects:\n\n [S]he was denied the $95,000 salary that she was allegedly promised; she\n was assigned unmanageable workloads; she was not provided the training\n she needed to advance her career while Dr. [Anthony] Kalloo, [the director\n of the GI Division in which Rangarajan worked] showed favoritism and\n provided those opportunities to another Nurse Practitioner . . . ; [she]\n applied for but was denied permission to participate in a Nurse Practitioner\n Fellowship Program; while she was accepted into a Doctor of Nursing\n Practice (DNP) program, once in the program she was treated unfairly by\n the program director . . . ; she was given an undeserved failing grade by the\n Capstone Professor in the DNP program . . . ; and, she was denied vacation\n leave and reimbursement for attending professional conferences.\n\nBut from Johns Hopkins’ point of view, again as the district court summarized, she failed\n\nas a professional nurse:\n\n [Rangarajan] had attendance and tardiness issues, she failed to timely check\n for test results and follow-up with patients, and her notes in medical\n histories were often disorganized and unreliable. In response to a round of\n negative performance reviews, [Rangarajan] was placed on a performance\n improvement plan in January of 2011. Before that plan could be fully\n implemented, [she] demonstrated poor judgment in the care of a patient that\n [Johns Hopkins] assert[s] could have had catastrophic results for that\n patient. In response to those concerns, Dr. Anthony Kalloo, the director of\n the GI Division, suspended [Rangarajan’s] clinical privileges.\n\n\n 4\n\fAfter Rangarajan was suspended, she resigned from Johns Hopkins in May 2011,\n\nclaiming that she was constructively discharged. She then began litigation against Johns\n\nHopkins, filing four separate actions based on its treatment of her.\n\n In the first action filed in October 2012 — No. 12-1953 — Rangarajan alleged that\n\nJohns Hopkins engaged in widespread fraudulent billing of the U.S. Government and\n\nthen retaliated against her for reporting it internally. Because her claims under the False\n\nClaims Act and the Maryland False Health Claims Act were qui tam actions, the U.S.\n\nDepartment of Justice and the Maryland Attorney General investigated them but then\n\ndeclined to intervene, as those statutes would allow. Rangarajan thereafter voluntarily\n\ndismissed the qui tam claims but continued her claim alleging that Johns Hopkins\n\nretaliated against her for reporting fraudulent billing practices. Later, however, she filed\n\na motion to amend her complaint to reallege the qui tam claims, but the district court\n\ndenied her motion as untimely and prejudicial.\n\n Several months after filing the first action, Rangarajan filed a second action\n\nagainst Johns Hopkins — No. 13-3630 — alleging that Johns Hopkins had discriminated\n\nagainst her on the basis of race, national origin, age, and sex, in violation of Title VII and\n\n42 U.S.C. § 1981. This action was based on the same conduct that formed the basis for\n\nher claims in the first action.\n\n A month after the district court denied Rangarajan’s motion to amend the first\n\naction to re-allege her qui tam claims, Rangarajan filed a third action — No. 15-1394 —\n\nalleging those same qui tam action claims again. She did not, however, pursue this action\n\n\n\n 5\n\fin accordance with the rules of procedure, and, after it languished for over a year and a\n\nhalf, the district court dismissed it for failure to prosecute.\n\n Rather than appealing the district court’s ruling in the third action, Rangarajan\n\nfiled a fourth action — No. 17-807 — which the district court concluded was “essentially\n\nidentical to the just-dismissed [third] action.” The court by then, however, had before it\n\nJohns Hopkins’ motion for sanctions based on Rangarajan’s discovery and summary\n\njudgment practices in the first and second actions, and accordingly it stayed the fourth\n\naction pending its ruling on the sanctions motion.\n\n After the second action was filed, the district court consolidated the first and\n\nsecond actions, and the parties conducted discovery in the consolidated actions. During\n\ndiscovery, Johns Hopkins provided Rangarajan with nearly 50,000 pages of documents,\n\nincluding tens of thousands of emails. It also arranged for and participated in the\n\ndepositions of 14 former and current employees of Johns Hopkins. During this period,\n\nRangarajan also responded to Johns Hopkins’ discovery requests. In response to Johns\n\nHopkins’ request for all “jhmi.edu” and “jhu.edu” emails in her possession, Rangarajan\n\nmade no objection and produced 1,573 pages of documents. After the close of discovery,\n\nshe produced an additional 85 pages, stating that they also responded to Johns Hopkins’\n\nrequest for her “jhmi.edu” and “jhu.edu” emails. Rangarajan also gave a deposition,\n\nwhich lasted roughly seven hours.\n\n After discovery closed in September 2016 as directed in the district court’s\n\nscheduling order, Johns Hopkins filed a motion for summary judgment in both\n\nconsolidated actions, based on the record that discovery had produced. Johns Hopkins\n\n 6\n\fcontended that summary judgment in its favor was justified by “overwhelming evidence\n\nthat Ms. Rangarajan did not satisfy the basic requirements of her job[] and that there were\n\nlegitimate, non-discriminatory and non-retaliatory reasons for any adverse employment\n\naction that she allegedly suffered.”\n\n In response to Johns Hopkins’ motion for summary judgment, Rangarajan took a\n\nnumber of steps to expand, embellish, alter, and recast her deposition testimony. First,\n\nshe submitted a 51-page errata sheet to her deposition, proposing hundreds of edits to her\n\ntestimony and justifying many of the changes by claiming that the court reporter had\n\nintentionally altered both the transcript and the audio and video recording of her\n\ndeposition. She stated:\n\n The Court Reporters’ Office has informed me that they edited my video,\n audio and typed deposition transcripts. It is clear that key testimony is\n deleted, altered, cloned from various sound bites etc., to accomplish two\n things. 1. Change the testimony 2. To induce grammar mistakes thus\n making me sound as if I am speaking broken English.\n\nShe also sent an ex parte letter to the district court for the district judge’s “eyes only,”\n\nclaiming similarly that the court reporter improperly edited her deposition.\n\n Second, in support of her opposition to the summary judgment motion, Rangarajan\n\nfiled a 54-page Declaration in which she introduced new allegations, attached 19 exhibits\n\nthat had never before been produced during discovery, and revised testimony that\n\nallegedly contradicted her deposition testimony. While the district court did not find the\n\nDeclaration to be “diametrically opposed” to Rangarajan’s statements in the deposition, it\n\nnonetheless concluded that reliance on the Declaration “would render the taking of\n\n[Rangarajan’s] deposition essentially useless.” Rangarajan’s opposition to Johns\n\n 7\n\fHopkins’ motion for summary judgment was grounded mainly on her Declaration and not\n\nthe evidence produced during discovery. As the district court noted, while Rangarajan\n\ncited her deposition testimony only 3 times in her opposition, she cited her subsequently\n\nfiled Declaration “over 750 times.”\n\n In addition, the newly disclosed exhibits revealed major failures by Rangarajan to\n\nproduce documents requested of her during discovery. For instance, several exhibits —\n\nscreenshots of Rangarajan’s emails — revealed her computer’s entire display showing\n\nretained copies of emails in two inboxes labeled “Jhmi” and “Jhmi 1,” and one of those\n\ninboxes contained 8,612 emails, most of which had never been produced during\n\ndiscovery; Rangarajan had only produced 1,658 documents during discovery.\n\n After receiving Rangarajan’s opposition to its motion for summary judgment,\n\nJohns Hopkins filed a motion to stay further briefing on the summary judgment motion,\n\nto strike Rangarajan’s opposition to its motion for summary judgment, and to dismiss\n\nRangarajan’s actions as the sanction for her improper conduct. In support of its motion,\n\nit claimed that Rangarajan had “attempted to fundamentally alter the record that existed\n\nwhen discovery closed” by, among other things,\n\n (1) submitting her 51-page errata, which baselessly accused the court\n reporter of altering hundreds of lines of key testimony; (2) including\n a 54-page declaration that sought to fill critical holes in her story;\n (3) attaching at least 19 documents to her opposition that had not\n been produced during discovery; and (4) concealing thousands of e-\n mails responsive to [Johns Hopkins’] requests after falsely certifying\n that she would produce these documents.\n\nAfter receiving Johns Hopkins’ motion, the district court issued an order staying further\n\nproceedings on the summary judgment motion and informing Rangarajan that Johns\n\n 8\n\fHopkins’ motion for sanctions “raise[d] some serious issues regarding [Rangarajan’s]\n\nlack of compliance with the Federal Rules of Civil Procedure, both throughout the\n\ndiscovery process and in the submission of her opposition to the summary judgment\n\nmotion.”\n\n The next day, the court unsealed Rangarajan’s third action, which was again a qui\n\ntam action, and dismissed it for nonprosecution. Nonetheless, Rangarajan then proceeded\n\nto file the fourth action repeating the qui tam allegations she had made in the first and\n\nthird actions. The district court stayed the fourth action, pending disposition of the\n\nmotion for sanctions.\n\n In response to the motion for sanctions, Rangarajan argued that her Declaration\n\ndid not contradict her deposition testimony and that her errata sheet properly clarified her\n\ndeposition testimony. As to her accusation that the court reporter altered the deposition\n\ntranscript, she stated:\n\n Ms. Rangarajan believes that her deposition transcript was changed and that\n Defendants are attempting to divert attention to this discrepancy through its\n Motion to Strike. However, Ms. Rangarajan does not know who changed\n the transcript. She also believes that the exhibits provided by the Court\n Reporter were different than those shown to her during her deposition. In\n addition, she believes that she did not receive her original deposition video.\n Ms. Rangarajan has provided a detailed chart with examples of the\n testimony in the transcript to show the discrepancy in the written testimony\n and video and the statement of an expert who viewed the video, which\n confirm her position.\n\nAs to her nonproduction of emails, Rangarajan stated that she “believe[d] that she\n\nprovided all her emails to her counsel.”\n\n\n\n\n 9\n\f After briefing on the motion for sanctions was completed, Rangarajan filed yet\n\nanother paper entitled “Notice of Plaintiff’s Analysis,” again purporting to demonstrate\n\nthat the Court Reporter had altered the videotape of her deposition, again asserting\n\nmalfeasance, and again embellishing her testimony.\n\n By order dated June 16, 2017, the district court granted Johns Hopkins’ motion for\n\nsanctions, dismissing Rangarajan’s three pending actions — the first, the second, and the\n\nfourth. In its thorough written opinion, which recited Rangarajan’s misconduct chapter\n\nand verse, the court concluded that “[n]othing that [Rangarajan] submitted lends any\n\ncredence to her claims that the videotape or transcript of her deposition was purposely\n\naltered in any way. . . . The Court suspects that [Rangarajan’s] inexorable need to deflect\n\nresponsibility and to project it on others perhaps sheds more light on [her] difficulties in\n\nthe GI Division than any of the actual testimony in her deposition.” With respect to the\n\nDeclaration that Rangarajan had filed, the court concluded that it was an effort “to\n\nreplace [Rangarajan’s deposition testimony] with [a] more favorable narrative of events.”\n\nThe court noted that if it were to rely on the Declaration, the Declaration “would render\n\nthe taking of [Rangarajan’s] deposition essentially useless.” And with respect to Johns\n\nHopkins’ claims that Rangarajan withheld documents during discovery, the court\n\nconcluded that Rangarajan “failed to fulfill her discovery obligations under Rule 26(e).”\n\nMoreover, the court found that Rangarajan “flagrantly and unremittingly violated the\n\nrules governing discovery and summary judgment motions practice” and that Rangarajan\n\nherself was clearly culpable. “The responsibility for the lack of compliance with the\n\npertinent rules [lay] primarily with her and not with her counsel.” While the court\n\n 10\n\fcriticized Rangarajan’s counsel for his judgment, the court concluded that Rangarajan\n\nherself “has been and continues to be the prime offender.” Finally, the court concluded\n\nthat Rangarajan’s conduct “rendered much of [the litigation] activity essentially\n\nmeaningless,” and her conduct “impacted the dozen witnesses who could not care for\n\npatients while responding to her claims and has also depleted the resources of [the\n\nvarious agencies that were necessarily involved].” And to justify dismissal rather than a\n\nlesser sanction, the court concluded that “there is not another remedy that would\n\neffectively address [Rangarajan’s] violations.” Even if it attempted a more limited\n\nsanction, it noted, “discovery would need to be reopened and it is likely that plaintiff\n\nwould need to be re-deposed and [Johns Hopkins’] motion for summary judgment\n\nre-briefed. Doing so would foist considerabl[y] more expense on [Johns Hopkins].\n\nGiven the history of this litigation, were discovery to be reopened, the Court has little\n\nconfidence that [Rangarajan’s] counsel would be able to ensure [Rangarajan’s]\n\ncompliance with the rules of discovery.” The court also recognized “the futility of\n\nredoing discovery and motions practice” because “it [was] apparent from the current\n\nrecord that those claims would fail on the merits.”\n\n From the district court’s order, Rangarajan filed this appeal.\n\n\n II\n\n Rangarajan does not challenge the district court’s factual findings. Indeed, she\n\nappears to acknowledge her “irregularities” and “transgressions,” blaming them on\n\n“disagreements between [her] and her previous attorney.” Rather, she contends (1) that\n\n\n 11\n\fthe district court abused its discretion in imposing the sanction “without providing the\n\nrequired clear and explicit warning to [her] that her discovery transgressions could lead to\n\ndismissal” and (2) that the court abused its discretion in “fail[ing] to use the restraint\n\nrequired in exercising this most extreme sanction without adequately addressing the\n\nrequired factors,” arguing that the “transgressions . . . would have been rectifiable by\n\nlesser sanctions.” She also contends that the district court abused its discretion in\n\ndismissing the fourth action as part of the sanction. We address these points in order.\n\n\n A\n\n Rangarajan first argues that prior warning of sanctions was required and that she\n\ndid not receive prior warning. We reject both arguments.\n\n First, as a factual matter, Rangarajan did receive notice that dismissal of her\n\nactions was a potential sanction when the district court, in response to Johns Hopkins’\n\nmotion for sanctions, alerted her that the motion “raised some serious issues” regarding\n\nher failure to comply with rules relating to discovery and summary judgment. Johns\n\nHopkins’ motion itself detailed the alleged failures and sought dismissal of the first and\n\nsecond actions as a sanction. The gravity of the issues was also conveyed to Rangarajan\n\nby the district court’s order staying proceedings in not only the first and second actions,\n\nbut also in the fourth action. Moreover, Rangarajan conceded in her response that she\n\nknew that the sanction of dismissal was on the table, as she fully addressed the sanction\n\nof dismissal, arguing that it was “not warranted” and that Johns Hopkins’ motion was\n\nonly an effort at distracting the court from the truth. She also argued that she had not\n\n\n 12\n\freceived clear notice of potential dismissal, yet, in making that argument itself before any\n\nsanction was imposed, she revealed that she had notice. It does not ring true, therefore,\n\nthat the district court failed to warn Rangarajan. The fact remains that she not only was\n\nwarned, she argued her position on both the sanction of dismissal and the lack of notice\n\nbefore any sanction was issued.\n\n Moreover, Rangarajan’s contention that a clear and explicit warning of dismissal\n\nmust always be given is not supported by any specific authority. To be sure, giving\n\nnotice is an aspect of fairness in procedure that might relate to the ultimate fairness of\n\nimposing any sanction. But it is not a rubric to be applied mechanically. Federal Rule of\n\nCivil Procedure 37, on which Rangarajan relies, imposes no such requirement, and\n\nHathcock v. Navistar International Transportation Corp., 53 F.3d 36 (4th Cir. 1995), on\n\nwhich she also relies, did not mandate it in every situation. In Hathcock, we recognized\n\nthe “significance of warning a defendant about the possibility of default before entering\n\nsuch a harsh sanction” in circumstances where the district court had entered a default\n\njudgment for the defendant’s failure to follow general scheduling orders. Id. at 40. But a\n\nwarning was not held to be a necessary element for imposing a Rule 37 sanction. Rather,\n\nthe lack of warning was a deficiency reflecting on the district court’s exercise of\n\ndiscretion in selecting a particular sanction for violating the court’s general scheduling\n\norders.\n\n As importantly, in this case, the district court did not impose its sanction under\n\nRule 37. While the court did recognize its authority under Rule 37 to dismiss actions, it\n\nrelied on its inherent power to do so because the circumstances presented a party who\n\n 13\n\f“abuse[d] the process at a level that [was] utterly inconsistent with the orderly\n\nadministration of justice or undermine[d] the integrity of the process,” quoting Projects\n\nManagement Co. v. Dyncorp International, LLC, 734 F.3d 366, 373 (4th Cir. 2013)\n\n(quoting United States v. Shaffer Equip. Co., 11 F.3d 450, 462 (4th Cir. 1993)). In\n\nDyncorp, we affirmed dismissal of an action as a sanction where the plaintiff “was on\n\nclear notice of the district court’s consideration of the use of its inherent authority and\n\nhad a full opportunity to argue its position before the court.” Id. at 376. So it was here,\n\nas the court stated in response to Johns Hopkins’ motion for dismissal, that Johns\n\nHopkins had presented the court with “serious issues,” and Rangarajan then had a full\n\nopportunity to respond — and did respond — before any decision on sanctions was\n\nmade.\n\n\n B\n\n Rangarajan’s argument that the district court failed to exhibit restraint by declining\n\nto impose lesser sanctions challenges the court’s exercise of discretion with respect to its\n\ninherent power to dismiss an action. We review that exercise of discretion for abuse. See\n\nShaffer, 11 F.3d at 462.\n\n In exercising its discretion, the district court relied on the six factors set forth in\n\nShaffer, 11 F.3d at 462–63. As we explained in Shaffer, when exercising its power to\n\ndismiss as a sanction, a court must consider:\n\n (1) the degree of the wrongdoer’s culpability; (2) the extent of the client’s\n blameworthiness if the wrongful conduct is committed by its attorney,\n recognizing that we seldom dismiss claims against blameless clients; (3) the\n prejudice to the judicial process and the administration of justice; (4) the\n\n 14\n\f prejudice to the victim; (5) the availability of other sanctions to rectify the\n wrong by punishing culpable persons, compensating harmed persons, and\n deterring similar conduct in the future; and (6) the public interest.\n\nId. In addressing the first two factors, the district court found that Rangarajan was\n\npersonally responsible for her actions. As to the third and fourth factors, the court noted\n\nthat “Defendants have been forced to expend a tremendous amount of time, effort, and\n\nexpense in the discovery process and motions practice” and that Rangarajan’s “conduct\n\nhas rendered much of that activity essentially meaningless.” As to the fifth factor, while\n\nrecognizing that striking Rangarajan’s Declaration and the exhibits not produced in\n\ndiscovery could have cured the prejudice resulting from those specific failures, the court\n\nconcluded that such a sanction “would not address her failure to produce the thousands of\n\nemails contained on her home computer.” Moreover, the court expressed its lack of\n\nconfidence that counsel could ensure Rangarajan’s compliance given her previous\n\nfailures. The court also concluded that reopening discovery would be futile because\n\nRangarajan’s “desperate attempt to disavow her deposition testimony and replace it with\n\nher Declaration [was] an implicit acknowledgement that her claims were unsupported\n\nunder the record produced through discovery.” Finally, as to the sixth factor, the court\n\nfound that the public interest supported dismissal because the “litigation ha[d] interrupted\n\nthe provision of care of numerous health care providers and impacted the resources of\n\nthis Court and several administrative agencies” and Rangarajan’s actions “seriously\n\nundermined the truth-seeking function of the Court.” Finding that all of the six factors\n\nweighed against Rangarajan and in favor of dismissal, the court imposed the sanction of\n\ndismissal.\n\n 15\n\f Rangarajan argues nonetheless that the district court abused its discretion in\n\nbypassing “the analysis set forth by the Fourth Circuit for determining whether sanction\n\nis even appropriate for [her] failures to update disclosure in discovery and proceed[ing]\n\ndirectly to selecting a penalty.” She also argues that, “[i]n seeking an appropriate\n\npenalty, the court also bypassed those penalties contemplated specifically for this failure\n\nto disclose, as set forth in Rule 37(c)(1), and proceed[ed] directly to [the] harshest of the\n\nother sanctions enumerated under Rule 37(b)(2).” She then concludes:\n\n The several irregularities of discovery cited by the lower court in the instant\n matter either do not rise to the level of a violation worthy of sanction or, if\n found to be sanctionable, were by no means permanent, surprising, or\n fatally prejudicial. The lower court could have easily remedied these by\n sanctions tailored to the transgression, even though it may not be exactly\n commensurate, and still remain within its discretion.\n\nTo support that conclusion, Rangarajan then launches into a discussion of how each\n\n“irregularity” or “transgression” was justified, could have been rectified, or in any case\n\ndid not justify dismissal. For example, with respect to her failure to produce thousands of\n\nemails that she was required to produce during discovery, she argues that “there has been\n\nno effort by the court and no agreement by the parties to provide for a finding of fact or\n\nagreeable method of determining which of those [8,612 emails] [was] discoverable,\n\nwhich may be personal or even privileged, or how they should be provided in discovery.”\n\nYet, during the discovery, Rangarajan made no objection to the request for documents —\n\nwhich called for the production of all emails in her “Jhmi” and “Jhmi 1” inboxes, and\n\nmore — but rather confirmed that she was producing all of the documents covered by\n\nJohns Hopkins’ requests. Her arguments typically turn a blind eye to the scope of her\n\n\n 16\n\fmisconduct as found by the district court and thus fail to address the specific misconduct\n\nfound.\n\n When reviewed it its totality, the record in this case reveals a totally dysfunctional\n\nperformance by Rangarajan and her counsel, but mostly by her, as she acknowledged in\n\nher brief that “[t]hough [I] was, in fact, represented by an attorney, the court was well\n\naware that [I] was in many ways acting without the benefit of counsel.”\n\n To begin, Rangarajan commenced four actions, when only one was proper and\n\nwould have sufficed, repeatedly reasserting claims that the district court had dismissed.\n\nAfter the district court denied her motion to replead qui tam claims in the first action, she\n\nnonetheless repleaded them in the third action, and when the district court dismissed the\n\nthird action, she refiled the same claims in the fourth action.\n\n In the course of discovery, Rangarajan flagrantly failed to produce thousands of\n\ndocuments, several of which were core documents relating to her claims. She later\n\nproduced some of those documents for the first time during the summary judgment\n\nprocess, because she thought she needed them to make her points. Also, after giving a\n\ndaylong deposition, she sought to undermine and recant her testimony in a long, 54-page\n\nDeclaration that, as the district court found, rendered her deposition essentially useless.\n\nFinally, she challenged the transcription of her deposition, claiming it was deliberately\n\naltered and recreated by the court reporter, a conclusion that the district court found to be\n\nconclusively false. In short, she rendered virtually useless the entire discovery process, in\n\nwhich the parties had invested substantial time and money.\n\n\n\n 17\n\f During summary judgment, which required additional expenditures of time and\n\nmoney, Rangarajan relied almost exclusively on her Declaration, which had not been\n\nmade part of the discovery record and which was often inconsistent with her deposition\n\ntestimony, placing the summary judgment practice on an untenable and virtually useless\n\nfooting.\n\n In addition to these specifics, it was also apparent throughout the entire\n\nproceedings that, while Rangarajan was represented by an attorney, she refused to follow\n\nhis advice and engaged in inappropriate actions, such as communicating arguments\n\ndirectly to the court ex parte and including substantive matters in her errata sheet. And\n\nthe district court attributed this dysfunction between attorney and client to Rangarajan\n\npersonally, a finding that Rangarajan has not disputed. As the court stated:\n\n It [was] [Rangarajan] who continue[d] the attempt to support the\n unsupportable contention that the court reporting service made hundreds of\n alterations to her deposition video and transcript. It is clear that it was\n [Rangarajan] who authored the embellished narrative contained in her\n Declaration. It was [Rangarajan] who failed to turn over to her counsel\n documents that were clearly responsive to discovery requests and it [was]\n [Rangarajan] who misrepresented the amount of emails from her work\n email account that were stored on her home computer.\n\nThe court also pointed to the statement of Rangarajan’s counsel that “[Rangarajan] had\n\nadditions and revisions to her declaration which . . . result[ed] in changes to the\n\nopposition, and [Rangarajan] and her counsel [were] not in agreement with the final\n\ncontent of the opposition.”\n\n Any effort to have retrieved useful products of some five years of the litigation\n\nprocess would undoubtedly have failed to produce much of what was needed to\n\n\n 18\n\fadjudicate the case. The district court so concluded — “Rangarajan’s conduct has\n\nrendered much of [the litigation] activity essentially meaningless.” It observed that any\n\nattempt to remedy this would require a do-over — “discovery would need to be reopened\n\nand it is likely that [Rangarajan] would need to be re-deposed and [Johns Hopkins’]\n\nmotion for summary judgment re-briefed.” And all of this would be at much additional\n\nexpense. Also important to the court’s ultimate sanction decision was its additional\n\nfinding that, in light of Rangarajan’s conduct, the court had “little confidence that\n\n[Rangarajan’s] counsel would be able to ensure [Rangarajan’s] compliance with the rules\n\nof discovery,” a finding that the court made while expressing doubt about the merits of\n\nRangarajan’s claims.\n\n We are mindful of the strong policy favoring the disposition of cases on the merits\n\nand disfavoring dismissals without a merits decision. See Shaffer, 11 F.3d at 462. But\n\nwhen a party “abuses the process at a level that is utterly inconsistent with the orderly\n\nadministration of justice or undermines the integrity of the process” — as we conclude\n\nRangarajan did here — she forfeits her right to use the process. Id. We hold that the\n\ndistrict court did not abuse its discretion in dismissing the actions.\n\n\n C\n\n Finally, Rangarajan contends that the sanction imposed by the district court should\n\nnot have included dismissal of the fourth action because the reasons that the district court\n\ngave for dismissal of the first and second actions were not applicable to the fourth action.\n\nThe district court, however, noted that the fourth action was essentially the same as the\n\n\n 19\n\fthird action, which it had dismissed earlier for nonprosecution. It also noted that the\n\nfourth action related to “transactions that took place as long as nine years ago.”\n\nMoreover, we note that the claims in the fourth action were not only the same as the\n\nclaims in the third action, they were also the same as the claims that Rangarajan was\n\nbarred from repleading in the first action based on the court’s finding that they were\n\nuntimely and prejudicial.\n\n All four actions that Rangarajan filed against Johns Hopkins were based on the\n\nsame term of employment and the same course of events, and the fact that two of the\n\nactions specifically suffered from Rangarajan’s misconduct does not spare the other two\n\nactions from being infected by the same misconduct. As the court found, Rangarajan’s\n\nmisconduct in litigating would not likely have abated in the future. We believe,\n\nmoreover, that the unnecessary multiplicity of actions was an abuse that colored\n\nRangarajan’s entire litigation efforts. The district court thus did not abuse its discretion\n\nin including the fourth action in the scope of its sanction.\n\n Accordingly, we affirm the judgment of the district court.\n\n AFFIRMED\n\n\n\n\n 20\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Mitra RANGARAJAN, Plaintiff - Appellant, v. JOHNS HOPKINS UNIVERSITY, Defendant - Appellee. Mitra Rangarajan, United States of America, State of Maryland, Ex Rel., Plaintiff - Appellant, v. Johns Hopkins Health System Corporation; Johns Hopkins Hospital, Incorporated, Trading as Johns Hopkins Medicine; Anthony Kalloo, M.D.; Johns Hopkins University, Defendants - Appellees. Mitra Rangarajan, United States of America, State of Maryland, Ex Rel., Plaintiff - Appellant, v. Johns Hopkins Health System Corporation and Johns Hopkins University, Trading as Johns Hopkins Medicine; Johns Hopkins Hospital, Incorporated, Defendants - Appellees.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-1834\\n\\n\\nMITRA RANGARAJAN,\\n\\n Plaintiff – Appellant,\\n\\n v.\\n\\nJOHNS HOPKINS UNIVERSITY,\\n\\n Defendant – Appellee.\\n\\n\\n\\n No. 17-1835\\n\\n\\nMITRA RANGARAJAN, United States of America, State of Maryland, ex rel.,\\n\\n Plaintiff – Appellant,\\n\\n v.\\n\\nJOHNS HOPKINS HEALTH SYSTEM CORPORATION; JOHNS HOPKINS\\nHOSPITAL, INCORPORATED, trading as Johns Hopkins Medicine; ANTHONY\\nKALLOO, M.D.; JOHNS HOPKINS UNIVERSITY,\\n\\n Defendants – Appellees.\\n\\n\\n\\n No. 17-1836\\n\\n\\nMITRA RANGARAJAN, United States of America, State of Maryland, ex rel.,\\n\\f Plaintiff – Appellant,\\n\\n v.\\n\\nJOHNS HOPKINS HEALTH SYSTEM CORPORATION AND JOHNS\\nHOPKINS UNIVERSITY, trading as Johns Hopkins Medicine; JOHNS HOPKINS\\nHOSPITAL, INCORPORATED,\\n\\n Defendants – Appellees.\\n\\n\\nAppeals from the United States District Court for the District of Maryland, at Baltimore.\\nWilliam M. Nickerson, Senior District Judge. (1:12-cv-01953-WMN; 1:13-cv-03630-\\nWMN; 1:17-cv-00807-WMN)\\n\\n\\nArgued: November 1, 2018 Decided: February 22, 2019\\n\\n\\nBefore GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Niemeyer wrote the opinion, in which Chief\\nJudge Gregory and Judge Harris joined.\\n\\n\\nARGUED: Erienne A. Sutherell, HANSEL LAW, P.C., Baltimore, Maryland, for\\nAppellant. Robert Thomas Smith, KATTEN MUCHIN ROSENMAN LLP, Washington\\nD.C., for Appellees. ON BRIEF: Cary J. Hansel, III, HANSEL LAW, P.C., Baltimore,\\nMaryland, for Appellant. Maria E. Rodriguez, Elizabeth Clark Rinehart, VENABLE,\\nLLP, Baltimore, Maryland; Daniel E. Lipton, KATTEN MUCHIN ROSENMAN LLP,\\nWashington, D.C., for Appellees.\\n\\n\\n\\n\\n 2\\n\\fNIEMEYER, Circuit Judge:\\n\\n Mitra Rangarajan, who claims that she was constructively discharged as a nurse\\n\\npractitioner at the School of Medicine of Johns Hopkins University — whether because\\n\\nof discrimination and retaliation, as she contends, or because of her performance, as\\n\\nJohns Hopkins contends — commenced four separate actions against the University *\\n\\narising out of the same course of events and alleging state torts of defamation and\\n\\ninterference with prospective advantage, as well as violations of the False Claims Act, the\\n\\nMaryland False Health Claims Act, Title VII, and 42 U.S.C. § 1981. Over the long\\n\\ncourse of proceedings in these cases, the district court dismissed one action for failure to\\n\\nprosecute and the remaining three actions as the sanction for Rangarajan’s “flagrant and\\n\\nunremitting” violations of the Federal Rules of Civil Procedure, especially with respect to\\n\\ndiscovery and summary judgment practice.\\n\\n On appeal, Rangarajan contends that the district court abused its discretion by\\n\\nfailing to give her adequate warning of the sanction and failing to show required restraint\\n\\nby imposing lesser sanctions. After careful review of the lengthy procedural history of\\n\\nthe cases, we conclude that the district court did not abuse its discretion. Rangarajan’s\\n\\nconduct under the procedural rules was inept and abusive to the degree that, as the district\\n\\ncourt found in its thorough 44-page opinion, it rendered virtually useless five years of\\n\\n\\n *\\n Rangarajan sued not only Johns Hopkins University but also the Johns Hopkins\\nHealth System Corp., the Johns Hopkins Hospital Inc., and related personnel whom she\\nrefers to in her brief collectively as Johns Hopkins or JH. We are satisfied also to refer to\\nJohns Hopkins collectively, as the issues in this appeal are not implicated by which entity\\nmight have been involved in any given activity.\\n\\n 3\\n\\fproceedings before the district court, and such abuse would likely have continued in any\\n\\nfuture proceedings. Accordingly, we affirm.\\n\\n\\n I\\n\\n Rangarajan’s employment at Johns Hopkins as a nurse over the period from 2007\\n\\nto 2011 was volatile and unsatisfactory to both Rangarajan and Johns Hopkins. From\\n\\nRangarajan’s viewpoint, as the district court summarized, she was a stellar healthcare\\n\\nprovider who was treated unfairly by supervisors and coworkers in the following\\n\\nrespects:\\n\\n [S]he was denied the $95,000 salary that she was allegedly promised; she\\n was assigned unmanageable workloads; she was not provided the training\\n she needed to advance her career while Dr. [Anthony] Kalloo, [the director\\n of the GI Division in which Rangarajan worked] showed favoritism and\\n provided those opportunities to another Nurse Practitioner . . . ; [she]\\n applied for but was denied permission to participate in a Nurse Practitioner\\n Fellowship Program; while she was accepted into a Doctor of Nursing\\n Practice (DNP) program, once in the program she was treated unfairly by\\n the program director . . . ; she was given an undeserved failing grade by the\\n Capstone Professor in the DNP program . . . ; and, she was denied vacation\\n leave and reimbursement for attending professional conferences.\\n\\nBut from Johns Hopkins’ point of view, again as the district court summarized, she failed\\n\\nas a professional nurse:\\n\\n [Rangarajan] had attendance and tardiness issues, she failed to timely check\\n for test results and follow-up with patients, and her notes in medical\\n histories were often disorganized and unreliable. In response to a round of\\n negative performance reviews, [Rangarajan] was placed on a performance\\n improvement plan in January of 2011. Before that plan could be fully\\n implemented, [she] demonstrated poor judgment in the care of a patient that\\n [Johns Hopkins] assert[s] could have had catastrophic results for that\\n patient. In response to those concerns, Dr. Anthony Kalloo, the director of\\n the GI Division, suspended [Rangarajan’s] clinical privileges.\\n\\n\\n 4\\n\\fAfter Rangarajan was suspended, she resigned from Johns Hopkins in May 2011,\\n\\nclaiming that she was constructively discharged. She then began litigation against Johns\\n\\nHopkins, filing four separate actions based on its treatment of her.\\n\\n In the first action filed in October 2012 — No. 12-1953 — Rangarajan alleged that\\n\\nJohns Hopkins engaged in widespread fraudulent billing of the U.S. Government and\\n\\nthen retaliated against her for reporting it internally. Because her claims under the False\\n\\nClaims Act and the Maryland False Health Claims Act were qui tam actions, the U.S.\\n\\nDepartment of Justice and the Maryland Attorney General investigated them but then\\n\\ndeclined to intervene, as those statutes would allow. Rangarajan thereafter voluntarily\\n\\ndismissed the qui tam claims but continued her claim alleging that Johns Hopkins\\n\\nretaliated against her for reporting fraudulent billing practices. Later, however, she filed\\n\\na motion to amend her complaint to reallege the qui tam claims, but the district court\\n\\ndenied her motion as untimely and prejudicial.\\n\\n Several months after filing the first action, Rangarajan filed a second action\\n\\nagainst Johns Hopkins — No. 13-3630 — alleging that Johns Hopkins had discriminated\\n\\nagainst her on the basis of race, national origin, age, and sex, in violation of Title VII and\\n\\n42 U.S.C. § 1981. This action was based on the same conduct that formed the basis for\\n\\nher claims in the first action.\\n\\n A month after the district court denied Rangarajan’s motion to amend the first\\n\\naction to re-allege her qui tam claims, Rangarajan filed a third action — No. 15-1394 —\\n\\nalleging those same qui tam action claims again. She did not, however, pursue this action\\n\\n\\n\\n 5\\n\\fin accordance with the rules of procedure, and, after it languished for over a year and a\\n\\nhalf, the district court dismissed it for failure to prosecute.\\n\\n Rather than appealing the district court’s ruling in the third action, Rangarajan\\n\\nfiled a fourth action — No. 17-807 — which the district court concluded was “essentially\\n\\nidentical to the just-dismissed [third] action.” The court by then, however, had before it\\n\\nJohns Hopkins’ motion for sanctions based on Rangarajan’s discovery and summary\\n\\njudgment practices in the first and second actions, and accordingly it stayed the fourth\\n\\naction pending its ruling on the sanctions motion.\\n\\n After the second action was filed, the district court consolidated the first and\\n\\nsecond actions, and the parties conducted discovery in the consolidated actions. During\\n\\ndiscovery, Johns Hopkins provided Rangarajan with nearly 50,000 pages of documents,\\n\\nincluding tens of thousands of emails. It also arranged for and participated in the\\n\\ndepositions of 14 former and current employees of Johns Hopkins. During this period,\\n\\nRangarajan also responded to Johns Hopkins’ discovery requests. In response to Johns\\n\\nHopkins’ request for all “jhmi.edu” and “jhu.edu” emails in her possession, Rangarajan\\n\\nmade no objection and produced 1,573 pages of documents. After the close of discovery,\\n\\nshe produced an additional 85 pages, stating that they also responded to Johns Hopkins’\\n\\nrequest for her “jhmi.edu” and “jhu.edu” emails. Rangarajan also gave a deposition,\\n\\nwhich lasted roughly seven hours.\\n\\n After discovery closed in September 2016 as directed in the district court’s\\n\\nscheduling order, Johns Hopkins filed a motion for summary judgment in both\\n\\nconsolidated actions, based on the record that discovery had produced. Johns Hopkins\\n\\n 6\\n\\fcontended that summary judgment in its favor was justified by “overwhelming evidence\\n\\nthat Ms. Rangarajan did not satisfy the basic requirements of her job[] and that there were\\n\\nlegitimate, non-discriminatory and non-retaliatory reasons for any adverse employment\\n\\naction that she allegedly suffered.”\\n\\n In response to Johns Hopkins’ motion for summary judgment, Rangarajan took a\\n\\nnumber of steps to expand, embellish, alter, and recast her deposition testimony. First,\\n\\nshe submitted a 51-page errata sheet to her deposition, proposing hundreds of edits to her\\n\\ntestimony and justifying many of the changes by claiming that the court reporter had\\n\\nintentionally altered both the transcript and the audio and video recording of her\\n\\ndeposition. She stated:\\n\\n The Court Reporters’ Office has informed me that they edited my video,\\n audio and typed deposition transcripts. It is clear that key testimony is\\n deleted, altered, cloned from various sound bites etc., to accomplish two\\n things. 1. Change the testimony 2. To induce grammar mistakes thus\\n making me sound as if I am speaking broken English.\\n\\nShe also sent an ex parte letter to the district court for the district judge’s “eyes only,”\\n\\nclaiming similarly that the court reporter improperly edited her deposition.\\n\\n Second, in support of her opposition to the summary judgment motion, Rangarajan\\n\\nfiled a 54-page Declaration in which she introduced new allegations, attached 19 exhibits\\n\\nthat had never before been produced during discovery, and revised testimony that\\n\\nallegedly contradicted her deposition testimony. While the district court did not find the\\n\\nDeclaration to be “diametrically opposed” to Rangarajan’s statements in the deposition, it\\n\\nnonetheless concluded that reliance on the Declaration “would render the taking of\\n\\n[Rangarajan’s] deposition essentially useless.” Rangarajan’s opposition to Johns\\n\\n 7\\n\\fHopkins’ motion for summary judgment was grounded mainly on her Declaration and not\\n\\nthe evidence produced during discovery. As the district court noted, while Rangarajan\\n\\ncited her deposition testimony only 3 times in her opposition, she cited her subsequently\\n\\nfiled Declaration “over 750 times.”\\n\\n In addition, the newly disclosed exhibits revealed major failures by Rangarajan to\\n\\nproduce documents requested of her during discovery. For instance, several exhibits —\\n\\nscreenshots of Rangarajan’s emails — revealed her computer’s entire display showing\\n\\nretained copies of emails in two inboxes labeled “Jhmi” and “Jhmi 1,” and one of those\\n\\ninboxes contained 8,612 emails, most of which had never been produced during\\n\\ndiscovery; Rangarajan had only produced 1,658 documents during discovery.\\n\\n After receiving Rangarajan’s opposition to its motion for summary judgment,\\n\\nJohns Hopkins filed a motion to stay further briefing on the summary judgment motion,\\n\\nto strike Rangarajan’s opposition to its motion for summary judgment, and to dismiss\\n\\nRangarajan’s actions as the sanction for her improper conduct. In support of its motion,\\n\\nit claimed that Rangarajan had “attempted to fundamentally alter the record that existed\\n\\nwhen discovery closed” by, among other things,\\n\\n (1) submitting her 51-page errata, which baselessly accused the court\\n reporter of altering hundreds of lines of key testimony; (2) including\\n a 54-page declaration that sought to fill critical holes in her story;\\n (3) attaching at least 19 documents to her opposition that had not\\n been produced during discovery; and (4) concealing thousands of e-\\n mails responsive to [Johns Hopkins’] requests after falsely certifying\\n that she would produce these documents.\\n\\nAfter receiving Johns Hopkins’ motion, the district court issued an order staying further\\n\\nproceedings on the summary judgment motion and informing Rangarajan that Johns\\n\\n 8\\n\\fHopkins’ motion for sanctions “raise[d] some serious issues regarding [Rangarajan’s]\\n\\nlack of compliance with the Federal Rules of Civil Procedure, both throughout the\\n\\ndiscovery process and in the submission of her opposition to the summary judgment\\n\\nmotion.”\\n\\n The next day, the court unsealed Rangarajan’s third action, which was again a qui\\n\\ntam action, and dismissed it for nonprosecution. Nonetheless, Rangarajan then proceeded\\n\\nto file the fourth action repeating the qui tam allegations she had made in the first and\\n\\nthird actions. The district court stayed the fourth action, pending disposition of the\\n\\nmotion for sanctions.\\n\\n In response to the motion for sanctions, Rangarajan argued that her Declaration\\n\\ndid not contradict her deposition testimony and that her errata sheet properly clarified her\\n\\ndeposition testimony. As to her accusation that the court reporter altered the deposition\\n\\ntranscript, she stated:\\n\\n Ms. Rangarajan believes that her deposition transcript was changed and that\\n Defendants are attempting to divert attention to this discrepancy through its\\n Motion to Strike. However, Ms. Rangarajan does not know who changed\\n the transcript. She also believes that the exhibits provided by the Court\\n Reporter were different than those shown to her during her deposition. In\\n addition, she believes that she did not receive her original deposition video.\\n Ms. Rangarajan has provided a detailed chart with examples of the\\n testimony in the transcript to show the discrepancy in the written testimony\\n and video and the statement of an expert who viewed the video, which\\n confirm her position.\\n\\nAs to her nonproduction of emails, Rangarajan stated that she “believe[d] that she\\n\\nprovided all her emails to her counsel.”\\n\\n\\n\\n\\n 9\\n\\f After briefing on the motion for sanctions was completed, Rangarajan filed yet\\n\\nanother paper entitled “Notice of Plaintiff’s Analysis,” again purporting to demonstrate\\n\\nthat the Court Reporter had altered the videotape of her deposition, again asserting\\n\\nmalfeasance, and again embellishing her testimony.\\n\\n By order dated June 16, 2017, the district court granted Johns Hopkins’ motion for\\n\\nsanctions, dismissing Rangarajan’s three pending actions — the first, the second, and the\\n\\nfourth. In its thorough written opinion, which recited Rangarajan’s misconduct chapter\\n\\nand verse, the court concluded that “[n]othing that [Rangarajan] submitted lends any\\n\\ncredence to her claims that the videotape or transcript of her deposition was purposely\\n\\naltered in any way. . . . The Court suspects that [Rangarajan’s] inexorable need to deflect\\n\\nresponsibility and to project it on others perhaps sheds more light on [her] difficulties in\\n\\nthe GI Division than any of the actual testimony in her deposition.” With respect to the\\n\\nDeclaration that Rangarajan had filed, the court concluded that it was an effort “to\\n\\nreplace [Rangarajan’s deposition testimony] with [a] more favorable narrative of events.”\\n\\nThe court noted that if it were to rely on the Declaration, the Declaration “would render\\n\\nthe taking of [Rangarajan’s] deposition essentially useless.” And with respect to Johns\\n\\nHopkins’ claims that Rangarajan withheld documents during discovery, the court\\n\\nconcluded that Rangarajan “failed to fulfill her discovery obligations under Rule 26(e).”\\n\\nMoreover, the court found that Rangarajan “flagrantly and unremittingly violated the\\n\\nrules governing discovery and summary judgment motions practice” and that Rangarajan\\n\\nherself was clearly culpable. “The responsibility for the lack of compliance with the\\n\\npertinent rules [lay] primarily with her and not with her counsel.” While the court\\n\\n 10\\n\\fcriticized Rangarajan’s counsel for his judgment, the court concluded that Rangarajan\\n\\nherself “has been and continues to be the prime offender.” Finally, the court concluded\\n\\nthat Rangarajan’s conduct “rendered much of [the litigation] activity essentially\\n\\nmeaningless,” and her conduct “impacted the dozen witnesses who could not care for\\n\\npatients while responding to her claims and has also depleted the resources of [the\\n\\nvarious agencies that were necessarily involved].” And to justify dismissal rather than a\\n\\nlesser sanction, the court concluded that “there is not another remedy that would\\n\\neffectively address [Rangarajan’s] violations.” Even if it attempted a more limited\\n\\nsanction, it noted, “discovery would need to be reopened and it is likely that plaintiff\\n\\nwould need to be re-deposed and [Johns Hopkins’] motion for summary judgment\\n\\nre-briefed. Doing so would foist considerabl[y] more expense on [Johns Hopkins].\\n\\nGiven the history of this litigation, were discovery to be reopened, the Court has little\\n\\nconfidence that [Rangarajan’s] counsel would be able to ensure [Rangarajan’s]\\n\\ncompliance with the rules of discovery.” The court also recognized “the futility of\\n\\nredoing discovery and motions practice” because “it [was] apparent from the current\\n\\nrecord that those claims would fail on the merits.”\\n\\n From the district court’s order, Rangarajan filed this appeal.\\n\\n\\n II\\n\\n Rangarajan does not challenge the district court’s factual findings. Indeed, she\\n\\nappears to acknowledge her “irregularities” and “transgressions,” blaming them on\\n\\n“disagreements between [her] and her previous attorney.” Rather, she contends (1) that\\n\\n\\n 11\\n\\fthe district court abused its discretion in imposing the sanction “without providing the\\n\\nrequired clear and explicit warning to [her] that her discovery transgressions could lead to\\n\\ndismissal” and (2) that the court abused its discretion in “fail[ing] to use the restraint\\n\\nrequired in exercising this most extreme sanction without adequately addressing the\\n\\nrequired factors,” arguing that the “transgressions . . . would have been rectifiable by\\n\\nlesser sanctions.” She also contends that the district court abused its discretion in\\n\\ndismissing the fourth action as part of the sanction. We address these points in order.\\n\\n\\n A\\n\\n Rangarajan first argues that prior warning of sanctions was required and that she\\n\\ndid not receive prior warning. We reject both arguments.\\n\\n First, as a factual matter, Rangarajan did receive notice that dismissal of her\\n\\nactions was a potential sanction when the district court, in response to Johns Hopkins’\\n\\nmotion for sanctions, alerted her that the motion “raised some serious issues” regarding\\n\\nher failure to comply with rules relating to discovery and summary judgment. Johns\\n\\nHopkins’ motion itself detailed the alleged failures and sought dismissal of the first and\\n\\nsecond actions as a sanction. The gravity of the issues was also conveyed to Rangarajan\\n\\nby the district court’s order staying proceedings in not only the first and second actions,\\n\\nbut also in the fourth action. Moreover, Rangarajan conceded in her response that she\\n\\nknew that the sanction of dismissal was on the table, as she fully addressed the sanction\\n\\nof dismissal, arguing that it was “not warranted” and that Johns Hopkins’ motion was\\n\\nonly an effort at distracting the court from the truth. She also argued that she had not\\n\\n\\n 12\\n\\freceived clear notice of potential dismissal, yet, in making that argument itself before any\\n\\nsanction was imposed, she revealed that she had notice. It does not ring true, therefore,\\n\\nthat the district court failed to warn Rangarajan. The fact remains that she not only was\\n\\nwarned, she argued her position on both the sanction of dismissal and the lack of notice\\n\\nbefore any sanction was issued.\\n\\n Moreover, Rangarajan’s contention that a clear and explicit warning of dismissal\\n\\nmust always be given is not supported by any specific authority. To be sure, giving\\n\\nnotice is an aspect of fairness in procedure that might relate to the ultimate fairness of\\n\\nimposing any sanction. But it is not a rubric to be applied mechanically. Federal Rule of\\n\\nCivil Procedure 37, on which Rangarajan relies, imposes no such requirement, and\\n\\nHathcock v. Navistar International Transportation Corp., 53 F.3d 36 (4th Cir. 1995), on\\n\\nwhich she also relies, did not mandate it in every situation. In Hathcock, we recognized\\n\\nthe “significance of warning a defendant about the possibility of default before entering\\n\\nsuch a harsh sanction” in circumstances where the district court had entered a default\\n\\njudgment for the defendant’s failure to follow general scheduling orders. Id. at 40. But a\\n\\nwarning was not held to be a necessary element for imposing a Rule 37 sanction. Rather,\\n\\nthe lack of warning was a deficiency reflecting on the district court’s exercise of\\n\\ndiscretion in selecting a particular sanction for violating the court’s general scheduling\\n\\norders.\\n\\n As importantly, in this case, the district court did not impose its sanction under\\n\\nRule 37. While the court did recognize its authority under Rule 37 to dismiss actions, it\\n\\nrelied on its inherent power to do so because the circumstances presented a party who\\n\\n 13\\n\\f“abuse[d] the process at a level that [was] utterly inconsistent with the orderly\\n\\nadministration of justice or undermine[d] the integrity of the process,” quoting Projects\\n\\nManagement Co. v. Dyncorp International, LLC, 734 F.3d 366, 373 (4th Cir. 2013)\\n\\n(quoting United States v. Shaffer Equip. Co., 11 F.3d 450, 462 (4th Cir. 1993)). In\\n\\nDyncorp, we affirmed dismissal of an action as a sanction where the plaintiff “was on\\n\\nclear notice of the district court’s consideration of the use of its inherent authority and\\n\\nhad a full opportunity to argue its position before the court.” Id. at 376. So it was here,\\n\\nas the court stated in response to Johns Hopkins’ motion for dismissal, that Johns\\n\\nHopkins had presented the court with “serious issues,” and Rangarajan then had a full\\n\\nopportunity to respond — and did respond — before any decision on sanctions was\\n\\nmade.\\n\\n\\n B\\n\\n Rangarajan’s argument that the district court failed to exhibit restraint by declining\\n\\nto impose lesser sanctions challenges the court’s exercise of discretion with respect to its\\n\\ninherent power to dismiss an action. We review that exercise of discretion for abuse. See\\n\\nShaffer, 11 F.3d at 462.\\n\\n In exercising its discretion, the district court relied on the six factors set forth in\\n\\nShaffer, 11 F.3d at 462–63. As we explained in Shaffer, when exercising its power to\\n\\ndismiss as a sanction, a court must consider:\\n\\n (1) the degree of the wrongdoer’s culpability; (2) the extent of the client’s\\n blameworthiness if the wrongful conduct is committed by its attorney,\\n recognizing that we seldom dismiss claims against blameless clients; (3) the\\n prejudice to the judicial process and the administration of justice; (4) the\\n\\n 14\\n\\f prejudice to the victim; (5) the availability of other sanctions to rectify the\\n wrong by punishing culpable persons, compensating harmed persons, and\\n deterring similar conduct in the future; and (6) the public interest.\\n\\nId. In addressing the first two factors, the district court found that Rangarajan was\\n\\npersonally responsible for her actions. As to the third and fourth factors, the court noted\\n\\nthat “Defendants have been forced to expend a tremendous amount of time, effort, and\\n\\nexpense in the discovery process and motions practice” and that Rangarajan’s “conduct\\n\\nhas rendered much of that activity essentially meaningless.” As to the fifth factor, while\\n\\nrecognizing that striking Rangarajan’s Declaration and the exhibits not produced in\\n\\ndiscovery could have cured the prejudice resulting from those specific failures, the court\\n\\nconcluded that such a sanction “would not address her failure to produce the thousands of\\n\\nemails contained on her home computer.” Moreover, the court expressed its lack of\\n\\nconfidence that counsel could ensure Rangarajan’s compliance given her previous\\n\\nfailures. The court also concluded that reopening discovery would be futile because\\n\\nRangarajan’s “desperate attempt to disavow her deposition testimony and replace it with\\n\\nher Declaration [was] an implicit acknowledgement that her claims were unsupported\\n\\nunder the record produced through discovery.” Finally, as to the sixth factor, the court\\n\\nfound that the public interest supported dismissal because the “litigation ha[d] interrupted\\n\\nthe provision of care of numerous health care providers and impacted the resources of\\n\\nthis Court and several administrative agencies” and Rangarajan’s actions “seriously\\n\\nundermined the truth-seeking function of the Court.” Finding that all of the six factors\\n\\nweighed against Rangarajan and in favor of dismissal, the court imposed the sanction of\\n\\ndismissal.\\n\\n 15\\n\\f Rangarajan argues nonetheless that the district court abused its discretion in\\n\\nbypassing “the analysis set forth by the Fourth Circuit for determining whether sanction\\n\\nis even appropriate for [her] failures to update disclosure in discovery and proceed[ing]\\n\\ndirectly to selecting a penalty.” She also argues that, “[i]n seeking an appropriate\\n\\npenalty, the court also bypassed those penalties contemplated specifically for this failure\\n\\nto disclose, as set forth in Rule 37(c)(1), and proceed[ed] directly to [the] harshest of the\\n\\nother sanctions enumerated under Rule 37(b)(2).” She then concludes:\\n\\n The several irregularities of discovery cited by the lower court in the instant\\n matter either do not rise to the level of a violation worthy of sanction or, if\\n found to be sanctionable, were by no means permanent, surprising, or\\n fatally prejudicial. The lower court could have easily remedied these by\\n sanctions tailored to the transgression, even though it may not be exactly\\n commensurate, and still remain within its discretion.\\n\\nTo support that conclusion, Rangarajan then launches into a discussion of how each\\n\\n“irregularity” or “transgression” was justified, could have been rectified, or in any case\\n\\ndid not justify dismissal. For example, with respect to her failure to produce thousands of\\n\\nemails that she was required to produce during discovery, she argues that “there has been\\n\\nno effort by the court and no agreement by the parties to provide for a finding of fact or\\n\\nagreeable method of determining which of those [8,612 emails] [was] discoverable,\\n\\nwhich may be personal or even privileged, or how they should be provided in discovery.”\\n\\nYet, during the discovery, Rangarajan made no objection to the request for documents —\\n\\nwhich called for the production of all emails in her “Jhmi” and “Jhmi 1” inboxes, and\\n\\nmore — but rather confirmed that she was producing all of the documents covered by\\n\\nJohns Hopkins’ requests. Her arguments typically turn a blind eye to the scope of her\\n\\n\\n 16\\n\\fmisconduct as found by the district court and thus fail to address the specific misconduct\\n\\nfound.\\n\\n When reviewed it its totality, the record in this case reveals a totally dysfunctional\\n\\nperformance by Rangarajan and her counsel, but mostly by her, as she acknowledged in\\n\\nher brief that “[t]hough [I] was, in fact, represented by an attorney, the court was well\\n\\naware that [I] was in many ways acting without the benefit of counsel.”\\n\\n To begin, Rangarajan commenced four actions, when only one was proper and\\n\\nwould have sufficed, repeatedly reasserting claims that the district court had dismissed.\\n\\nAfter the district court denied her motion to replead qui tam claims in the first action, she\\n\\nnonetheless repleaded them in the third action, and when the district court dismissed the\\n\\nthird action, she refiled the same claims in the fourth action.\\n\\n In the course of discovery, Rangarajan flagrantly failed to produce thousands of\\n\\ndocuments, several of which were core documents relating to her claims. She later\\n\\nproduced some of those documents for the first time during the summary judgment\\n\\nprocess, because she thought she needed them to make her points. Also, after giving a\\n\\ndaylong deposition, she sought to undermine and recant her testimony in a long, 54-page\\n\\nDeclaration that, as the district court found, rendered her deposition essentially useless.\\n\\nFinally, she challenged the transcription of her deposition, claiming it was deliberately\\n\\naltered and recreated by the court reporter, a conclusion that the district court found to be\\n\\nconclusively false. In short, she rendered virtually useless the entire discovery process, in\\n\\nwhich the parties had invested substantial time and money.\\n\\n\\n\\n 17\\n\\f During summary judgment, which required additional expenditures of time and\\n\\nmoney, Rangarajan relied almost exclusively on her Declaration, which had not been\\n\\nmade part of the discovery record and which was often inconsistent with her deposition\\n\\ntestimony, placing the summary judgment practice on an untenable and virtually useless\\n\\nfooting.\\n\\n In addition to these specifics, it was also apparent throughout the entire\\n\\nproceedings that, while Rangarajan was represented by an attorney, she refused to follow\\n\\nhis advice and engaged in inappropriate actions, such as communicating arguments\\n\\ndirectly to the court ex parte and including substantive matters in her errata sheet. And\\n\\nthe district court attributed this dysfunction between attorney and client to Rangarajan\\n\\npersonally, a finding that Rangarajan has not disputed. As the court stated:\\n\\n It [was] [Rangarajan] who continue[d] the attempt to support the\\n unsupportable contention that the court reporting service made hundreds of\\n alterations to her deposition video and transcript. It is clear that it was\\n [Rangarajan] who authored the embellished narrative contained in her\\n Declaration. It was [Rangarajan] who failed to turn over to her counsel\\n documents that were clearly responsive to discovery requests and it [was]\\n [Rangarajan] who misrepresented the amount of emails from her work\\n email account that were stored on her home computer.\\n\\nThe court also pointed to the statement of Rangarajan’s counsel that “[Rangarajan] had\\n\\nadditions and revisions to her declaration which . . . result[ed] in changes to the\\n\\nopposition, and [Rangarajan] and her counsel [were] not in agreement with the final\\n\\ncontent of the opposition.”\\n\\n Any effort to have retrieved useful products of some five years of the litigation\\n\\nprocess would undoubtedly have failed to produce much of what was needed to\\n\\n\\n 18\\n\\fadjudicate the case. The district court so concluded — “Rangarajan’s conduct has\\n\\nrendered much of [the litigation] activity essentially meaningless.” It observed that any\\n\\nattempt to remedy this would require a do-over — “discovery would need to be reopened\\n\\nand it is likely that [Rangarajan] would need to be re-deposed and [Johns Hopkins’]\\n\\nmotion for summary judgment re-briefed.” And all of this would be at much additional\\n\\nexpense. Also important to the court’s ultimate sanction decision was its additional\\n\\nfinding that, in light of Rangarajan’s conduct, the court had “little confidence that\\n\\n[Rangarajan’s] counsel would be able to ensure [Rangarajan’s] compliance with the rules\\n\\nof discovery,” a finding that the court made while expressing doubt about the merits of\\n\\nRangarajan’s claims.\\n\\n We are mindful of the strong policy favoring the disposition of cases on the merits\\n\\nand disfavoring dismissals without a merits decision. See Shaffer, 11 F.3d at 462. But\\n\\nwhen a party “abuses the process at a level that is utterly inconsistent with the orderly\\n\\nadministration of justice or undermines the integrity of the process” — as we conclude\\n\\nRangarajan did here — she forfeits her right to use the process. Id. We hold that the\\n\\ndistrict court did not abuse its discretion in dismissing the actions.\\n\\n\\n C\\n\\n Finally, Rangarajan contends that the sanction imposed by the district court should\\n\\nnot have included dismissal of the fourth action because the reasons that the district court\\n\\ngave for dismissal of the first and second actions were not applicable to the fourth action.\\n\\nThe district court, however, noted that the fourth action was essentially the same as the\\n\\n\\n 19\\n\\fthird action, which it had dismissed earlier for nonprosecution. It also noted that the\\n\\nfourth action related to “transactions that took place as long as nine years ago.”\\n\\nMoreover, we note that the claims in the fourth action were not only the same as the\\n\\nclaims in the third action, they were also the same as the claims that Rangarajan was\\n\\nbarred from repleading in the first action based on the court’s finding that they were\\n\\nuntimely and prejudicial.\\n\\n All four actions that Rangarajan filed against Johns Hopkins were based on the\\n\\nsame term of employment and the same course of events, and the fact that two of the\\n\\nactions specifically suffered from Rangarajan’s misconduct does not spare the other two\\n\\nactions from being infected by the same misconduct. As the court found, Rangarajan’s\\n\\nmisconduct in litigating would not likely have abated in the future. We believe,\\n\\nmoreover, that the unnecessary multiplicity of actions was an abuse that colored\\n\\nRangarajan’s entire litigation efforts. The district court thus did not abuse its discretion\\n\\nin including the fourth action in the scope of its sanction.\\n\\n Accordingly, we affirm the judgment of the district court.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 20\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":567,"cells":{"id":{"kind":"number","value":4593595,"string":"4,593,595"},"name":{"kind":"string","value":"Sarah ROE, Plaintiff - Appellee, v. Linda HOWARD, Defendant - Appellant, and Estate of Russell Howard, Defendant."},"name_abbreviation":{"kind":"string","value":"Sarah Roe v. Linda Howard"},"decision_date":{"kind":"string","value":"2019-02-25"},"docket_number":{"kind":"string","value":"17-2338"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Wilkinson, King, Quattlebaum\", \"parties\": \"\", \"opinions\": [{\"author\": \"KING, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-2338\\n\\n\\nSARAH ROE,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\n\\nLINDA HOWARD,\\n\\n Defendant – Appellant,\\n and\\n\\nESTATE OF RUSSELL HOWARD,\\n\\n Defendant.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nAlexandria. Liam O’Grady, District Judge. (1:16-cv-00562-LO-JFA)\\n\\n\\nArgued: October 30, 2018 Decided: February 25, 2019\\n\\n\\nBefore WILKINSON, KING, and QUATTLEBAUM, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge King wrote the opinion in which Judge Wilkinson\\nand Judge Quattlebaum joined.\\n\\n\\nARGUED: Richard Francis Rinaldo, JONES, GREGG, CREEHAN & GERACE LLP,\\nPittsburgh, Pennsylvania, for Appellant. Melissa Lim Patterson, JONES DAY,\\nWashington, D.C., for Appellee. ON BRIEF: Timothy J. Battle, Alexandria, Virginia,\\n\\ffor Appellant. Alison B. Marshall, Christian G. Vergonis, JONES DAY, Washington,\\nD.C., for Appellee.\\n\\n\\n\\n\\n 2\\n\\fKING, Circuit Judge:\\n\\n Defendant Linda Howard appeals from a judgment entered against her in the\\n\\nEastern District of Virginia after a jury found her civilly liable to plaintiff Sarah Roe\\n\\nunder the Trafficking Victims Protection Act (the “TVPA”). 1 Roe had sued Howard for\\n\\nher role in sexual abuse that Roe suffered at the hands of Russell Howard, Linda’s\\n\\nhusband, when Roe worked in 2007 as the Howards’ housekeeper in housing provided by\\n\\nthe Embassy of the United States in Yemen. 2 The jury found that Linda’s conduct in\\n\\nYemen contravened criminal provisions of the TVPA and thus awarded Roe $3 million in\\n\\ndamages pursuant to the TVPA’s civil remedy provision. See 18 U.S.C. § 1595. On\\n\\nappeal, Linda challenges the district court’s denial of her post-trial motion for judgment\\n\\nas a matter of law, wherein she sought relief on the ground that, in 2007, the TVPA’s\\n\\ncivil remedy provision did not apply extraterritorially. Linda also challenges the court’s\\n\\nadmission of testimonial evidence from another former housekeeper of Linda and Russell\\n\\nwhom they had similarly abused. As explained below, we are satisfied to affirm the\\n\\njudgment.\\n\\n\\n\\n\\n 1\\n The TVPA is generally codified at 18 U.S.C. § 1581 et seq.\\n 2\\n To avoid confusion, we generally refer to Linda Howard and Russell Howard by\\ntheir first names, that is, simply as Linda and Russell. We refer to the plaintiff by her\\npseudonym “Sarah Roe,” pursuant to the district court’s ruling in that regard. See Roe v.\\nHoward, No. 16-cv-562 (E.D. Va. May 27, 2016), ECF No. 11.\\n\\n\\n 3\\n\\f I.\\n\\n A.\\n\\n On July 31, 2017, following a four-day trial, a jury in the Eastern District of\\n\\nVirginia found Linda Howard civilly liable for contravening criminal provisions of the\\n\\nTVPA. More specifically, the jury found that Linda had engaged in forced labor in\\n\\nviolation of 18 U.S.C. § 1589, forced labor trafficking in violation of § 1590, commercial\\n\\nsex trafficking in violation of § 1591, and conspiring to engage in those offenses in\\n\\nviolation of § 1594. See J.A. 115-17. 3\\n\\n When we review an appeal following a jury verdict, we view the trial evidence in\\n\\nthe light most favorable to the prevailing party. See Randall v. Prince George’s Cty., 302\\n\\nF.3d 188, 195 n.8 (4th Cir. 2002) (citing Lowery v. Cir. City Stores, Inc., 206 F.3d 431,\\n\\n442-43 (4th Cir. 2000)). We are likewise obliged to accord the prevailing party the\\n\\nbenefit of all reasonable inferences to be drawn from the evidence. See Lowery, 206 F.3d\\n\\nat 443. The facts recited herein are taken in that light and drawn from the record, which\\n\\nincludes evidence presented at trial and the parties’ joint submission of stipulated facts.\\n\\n 1.\\n\\n Linda is an American citizen. She began working for the Department of State in\\n\\n1991 as a Communications Officer in Paris, France. In Paris, Linda met and married\\n\\nRussell, an Australian citizen who then worked for the Australian Embassy in France.\\n\\n\\n 3\\n Citations herein to “J.A.__” refer to the contents of the Joint Appendix filed by\\nthe parties in this appeal.\\n\\n\\n 4\\n\\fOver the next decade, Linda and Russell held similar postings around the world, usually\\n\\narranging their assignments so that they could pursue their careers in the same country.\\n\\nIn 2001, Russell retired from his position with the Australian government, and he\\n\\nthereafter followed Linda as she continued her career with the State Department.\\n\\n In 2005, the State Department assigned Linda to our Embassy in Sana’a, Yemen.\\n\\nRussell accompanied Linda to Sana’a and also found work at the Embassy. Among other\\n\\njobs, Russell performed administrative work for the Embassy Commissary. In Sana’a,\\n\\nLinda and Russell lived in housing provided by the State Department, and they were\\n\\nprotected by U.S. government security. Linda and Russell remained in Sana’a for\\n\\napproximately three years. Around December 2008, Linda and Russell moved to Japan,\\n\\nwhere Linda received her next State Department posting. By 2012, Linda and Russell\\n\\nhad relocated to Melbourne, Australia, where Russell died of pancreatic cancer that\\n\\nSeptember. Linda continues to reside in Melbourne.\\n\\n 2.\\n\\n Sarah Roe first met the Howards in September 2005, soon after their arrival in\\n\\nYemen. At that time, Roe was twenty years old. Born into an impoverished family in\\n\\nEthiopia, Roe had moved to Yemen to seek work, and she initially secured various\\n\\nhousekeeping and cleaning jobs. In September 2005, Roe was employed there as a\\n\\nwaitress at a restaurant on U.S. Embassy grounds called Uncle Sam’s. It was at Uncle\\n\\nSam’s that the Howards first encountered Roe and sought to befriend her.\\n\\n As one of his odd jobs around the U.S. Embassy, Russell worked in a shop next\\n\\ndoor to Uncle Sam’s. He first introduced himself to Roe, and then introduced Roe to\\n\\n 5\\n\\fLinda. Both Howards paid special attention to Roe: they complimented her appearance,\\n\\ninitiated friendly conversations, and encouraged her to work for them as their live-in\\n\\nhousekeeper. At first Roe declined the job offer, and Russell asked her to help “find a\\n\\nbeautiful woman like [her]self to work in [the Howards’] home.” See J.A. 232. Linda\\n\\nwould stop by Uncle Sam’s three or four times a week, where she would “greet” and\\n\\n“hug” Roe. Id. at 231. Linda even gave Roe her personal phone number. Id. at 234.\\n\\n Around 2006, Roe returned to Ethiopia from Yemen for several months to care for\\n\\nher mother. As a result, she lost her job at Uncle Sam’s. When Roe returned to Sana’a, a\\n\\nyoung Ethiopian woman named Sabha was then employed as the Howards’ live-in\\n\\nhousekeeper, but Linda helped Roe obtain a data-entry job at the U.S. Embassy. Linda\\n\\ngave Roe an application for the data-entry position and taught her how to use a basic\\n\\ndata-entry program on Linda’s home computer. After Roe got the job, Linda continued\\n\\nto befriend her, meeting Roe to talk about her hair stylist and other non-work matters.\\n\\nLinda presented herself to Roe “as a friend, someone very easy to talk to, someone with a\\n\\nvery good heart.” See J.A. 239. Linda also promised to help Roe find another job after\\n\\nthe data-entry position ended. Roe believed Linda offered such help because Linda\\n\\n“really liked” her. Id. at 241.\\n\\n Some months later, in the spring of 2007, the Howards’ then live-in housekeeper\\n\\n(another young Ethiopian woman named Brhan) left them. At the time, Roe was looking\\n\\nfor a new job and the Howards renewed their offer to Roe to fill the housekeeping\\n\\nposition. Roe was uncertain about accepting the Howards’ offer. She made more money\\n\\nwhen she had jobs that allowed her to accept tips, like waitressing. Roe also had her own\\n\\n 6\\n\\fapartment and did not want to move in with the Howards, which was a requirement of the\\n\\nposition. But the Howards offered to help Roe get medical treatment for an eye ailment,\\n\\nrenew her work visa, and aid her family in Ethiopia. Linda also “knew that [Roe] had a\\n\\ndesire to improve [her] language skills,” and promised that Russell could help her with\\n\\nher English. See J.A. 247. As part of their discussions about the live-in position, Linda\\n\\nexplained to Roe “that Russell is usually at home, he needs a friend.” Id. Linda told Roe\\n\\nthat “the main part of this job is to make Russell happy.” Id. at 250. Roe understood this\\n\\nto mean that “doing my job, cleaning, doing everything else was what was going to make\\n\\nhim happy.” Id. Roe accepted the position and agreed to move in with the Howards.\\n\\nShe began working for the Howards in June 2007.\\n\\n Once Roe moved into the Howards’ apartment, she discovered that, although she\\n\\nhad her own room and bathroom, the door to her room could not be locked without a key.\\n\\nThe Howards told Roe they did not have the key. The Howards then presented Roe with\\n\\na uniform consisting of a “very short” skirt and a blouse that “looked like something you\\n\\nwould wear . . . when you go out.” See J.A. 253. Linda had made the outfit herself.\\n\\n When Roe refused to wear the uniform, Russell took Roe to the mall to go\\n\\nshopping. At the mall, he purchased a “very revealing” “one-piece” that “open[ed] in the\\n\\nfront,” and “underwear . . . with one tiny string” and “many holes.” See J.A. 253. Back\\n\\nat the apartment, Russell asked Roe to put on the new purchases “and show him what it\\n\\nlooks like.” Id. at 254. Roe refused again and went to the kitchen to prepare Russell’s\\n\\nlunch. She then retired to her room. Suddenly, Russell entered the room, naked. Roe\\n\\ntried to escape but Russell cornered her, pinned her down on the bed, and raped her.\\n\\n 7\\n\\fRussell continually raped and sexually assaulted Roe for the duration of her time with the\\n\\nHowards. He repeatedly threatened Roe to maintain her silence: he verbally abused her,\\n\\nhe warned Roe that he could have her thrown in jail, he threatened to tell her religiously\\n\\nconservative family about the assaults, and he retained possession of her passport.\\n\\n As the district court succinctly put it in its post-trial opinion, “Linda Howard was\\n\\naware of these assaults.” See J.A. 145-46. Linda often watched as Russell touched Roe’s\\n\\nrear end and breasts. Roe overheard Russell talking to Linda on the phone about the\\n\\nassaults, including complaining that Roe “wasn’t like Brhan.” Id. at 258, 334. Roe knew\\n\\nit was Linda on the other end of the line based on the nature and content of those\\n\\nconversations. On one occasion, Russell related events to Linda over the phone as he\\n\\ntook Roe to a hospital to have an intrauterine contraceptive device implanted. Russell\\n\\nalso told Roe that he talked to Linda about the rapes.\\n\\n Eventually, Roe’s continued resistance to Russell’s repeated assaults and open,\\n\\nabject misery so enraged Russell that he fired her in December 2007. Linda then helped\\n\\nRoe obtain another restaurant job near the Howards’ apartment and wrote a letter of\\n\\nrecommendation for her. Even then, Russell would often stop by the restaurant to\\n\\nthreaten Roe to maintain her silence about the rapes he had perpetrated.\\n\\n B.\\n\\n Congress enacted the TVPA in the year 2000 “to combat trafficking in persons, a\\n\\ncontemporary manifestation of slavery whose victims are predominantly women and\\n\\nchildren, to ensure just and effective punishment of traffickers, and to protect their\\n\\nvictims.” TVPA, Pub. L. No. 106-386, § 102(a), 114 Stat. 1464, 1466 (codified at 22\\n\\n 8\\n\\fU.S.C. § 7101(a)). The congressional findings that accompanied the TVPA in its original\\n\\nform repeatedly emphasized the transnational nature of human trafficking and sexual\\n\\nexploitation, and the enforcement challenges posed by the international scope of that\\n\\ncriminal activity. See id., § 102(b), 114 Stat. at 1466-69.\\n\\n By way of the TVPA, Congress created several new federal criminal offenses\\n\\nintended to more comprehensively and effectively combat human trafficking. Among\\n\\nother provisions, the TVPA criminalized: “Forced labor,” “[t]rafficking with respect to\\n\\npeonage, slavery, involuntary servitude, or forced labor,” and “[s]ex trafficking of\\n\\nchildren or by force, fraud or coercion.” See TVPA, § 112(a)(2), 114 Stat. at 1486-88.\\n\\nThose provisions are respectively codified at 18 U.S.C. §§ 1589, 1590, and 1591, all\\n\\nwithin chapter 77 of Title 18.\\n\\n In 2003, Congress reauthorized and amended the TVPA. See Trafficking Victims\\n\\nProtection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875 (the “2003\\n\\nTVPRA”). In the findings accompanying the 2003 TVPRA, Congress stressed the\\n\\nchallenges that remained “in responding to the needs of victims of trafficking in the\\n\\nUnited States and abroad.” See id., § 2(2), 117 Stat. at 2875. As part of the 2003\\n\\nTVPRA amendments, Congress added a civil remedy provision to chapter 77. See 2003\\n\\nTVPRA, § 4(a)(4)(A), 117 Stat. at 2878. That civil remedy provision is codified at 18\\n\\nU.S.C. § 1595(a), which provides:\\n\\n (a) An individual who is a victim of a violation of [chapter 77] may bring a\\n civil action against the perpetrator . . . in an appropriate district court of the\\n United States and may recover damages . . . .\\n\\n\\n\\n 9\\n\\f The 2003 TVPRA also amended § 1591, which prohibits “[s]ex trafficking of\\n\\nchildren or by force, fraud, or coercion.” That amendment altered § 1591 to expressly\\n\\napply to acts committed “within the special maritime and territorial jurisdiction of the\\n\\nUnited States.” See 2003 TVPRA, § 5(a)(2), 117 Stat. at 2879. The phrase “special\\n\\nmaritime and territorial jurisdiction of the United States” is a term of art defined\\n\\nelsewhere in the U.S. Code. That term encompasses a variety of locations under varying\\n\\ndegrees of control by the United States and includes, with respect to offenses committed\\n\\nby U.S. nationals, the grounds of U.S. diplomatic installations and related premises. See\\n\\n18 U.S.C. § 7(9). Specifically, § 7(9) defines the term to reach:\\n\\n (A) the premises of United States diplomatic, consular, military or other\\n United States Government missions or entities in foreign States, including\\n the buildings, parts of buildings, and land appurtenant or ancillary thereto\\n or used for purposes of those missions or entities, irrespective of\\n ownership; and\\n\\n (B) residences in foreign States and the land appurtenant or ancillary\\n thereto, irrespective of ownership, used for purposes of those missions or\\n entities or used by United States personnel assigned to those missions or\\n entities.\\n\\nSee id.\\n\\n In 2006, Congress again reauthorized the TVPA. See Trafficking Victims\\n\\nProtection Reauthorization Act of 2005, Pub. L. No. 109-164, 119 Stat. 3558 (effective\\n\\nJan. 10, 2006) (the “2005 TVPRA”). This time, Congress expressly found that “[t]he\\n\\ninvolvement of employees and contractors of the United States Government . . . in\\n\\ntrafficking in persons, facilitating the trafficking in persons, or exploiting the victims of\\n\\ntrafficking in persons is inconsistent with United States laws and policies and undermines\\n\\n\\n 10\\n\\fthe credibility and mission of the United States Government programs in post-conflict\\n\\nregions.” See id., § 2(10), 119 Stat. at 3559. Accordingly, Congress further expanded the\\n\\nTVPA’s extraterritorial reach by providing:\\n\\n Whoever, while employed by . . . the Federal Government outside the\\n United States, engages in conduct outside the United States that would\\n constitute an offense under chapter 77 . . . of this title if the conduct had\\n been engaged in within the United States or within the special maritime and\\n territorial jurisdiction of the United States shall be punished as provided for\\n that offense.\\n\\nSee id., § 103, 119 Stat. at 3562 (codified at 18 U.S.C. § 3271). Each of the statutory\\n\\nprovisions and amendments discussed heretofore was in effect between June and\\n\\nDecember 2007, when the Howards exploited and abused Roe.\\n\\n In 2008, after Roe had left the Howards, Congress further amended and\\n\\nreauthorized the TVPA. See William Wilberforce Trafficking Victims Protection\\n\\nReauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044 (the “2008 TVPRA”).\\n\\nThe 2008 TVPRA further expanded the extraterritorial reach of the TVPA by providing:\\n\\n In addition to any domestic or extra-territorial jurisdiction otherwise\\n provided by law, the courts of the United States have extra-territorial\\n jurisdiction over any offense (or any attempt or conspiracy to commit an\\n offense) under section . . . 1589, 1590, or 1591 if—\\n\\n (1) an alleged offender is a national of the United States . . . .\\n\\nSee id., § 223, 122 Stat. at 5071 (codified at 18 U.S.C. § 1596). The 2008 TVPRA also\\n\\nexpanded chapter 77 to prohibit conspiracy to commit the offenses codified at, inter alia,\\n\\n18 U.S.C. §§ 1589, 1590, and 1591. See id., § 222, 122 Stat. at 5070 (codified at 18\\n\\nU.S.C. § 1594(b)-(c)).\\n\\n\\n\\n 11\\n\\f C.\\n\\n In May 2016, Roe sued Linda in the Eastern District of Virginia pursuant to the\\n\\nTVPA civil remedy provision codified at 18 U.S.C. § 1595. 4 See J.A. 15. Roe alleged\\n\\nthat Linda had violated multiple criminal provisions of the TVPA, including its\\n\\nprohibitions of forced labor under 18 U.S.C. § 1589, forced labor trafficking under\\n\\n§ 1590, commercial sex trafficking under § 1591, and conspiracy to engage in those\\n\\noffenses under § 1594.\\n\\n Before trial, Linda sought summary judgment on the grounds that the TVPA did\\n\\nnot apply extraterritorially to reach her conduct in 2007, and that the 2008 amendments\\n\\nexpanding its extraterritorial application did not apply retroactively. The district court\\n\\ndenied that request without prejudice after argument.\\n\\n Linda also filed a motion in limine to exclude the testimony of Jane Doe, a live-in\\n\\nhousekeeper who worked for the Howards after Roe was fired. 5 The district court denied\\n\\nthat motion and ruled that Doe’s testimony was admissible under either Rule 404(b) or\\n\\nRule 415 of the Federal Rules of Evidence. Roe’s claims proceeded to trial in Alexandria\\n\\non July 26, 2017.\\n\\n\\n\\n\\n 4\\n Roe originally sued Russell’s estate in addition to Linda, but later dismissed the\\nestate as a defendant in these proceedings. See Roe v. Howard, No. 16-cv-562 (E.D. Va.\\nJuly 26, 2017), ECF No. 78.\\n 5\\n The district court permitted Jane Doe to testify using this pseudonym. See J.A.\\n156.\\n\\n\\n 12\\n\\f In accordance with the district court’s ruling, Jane Doe took the stand at trial.\\n\\nLike Roe, Doe was a young Ethiopian woman who came to Yemen in search of work.\\n\\nDoe testified, inter alia, that she began working for the Howards in Sana’a as a live-in\\n\\nhousekeeper in 2008. Doe followed the Howards to Tokyo when they relocated at the\\n\\nend of that year, based in part on the Howards’ promises that they would increase her pay\\n\\nand help her obtain health insurance. Such insurance was a benefit of particular value to\\n\\nDoe, who had “kidney issues.” See J.A. 162-63. Doe knew no one in Japan other than\\n\\nthe Howards and did not speak Japanese.\\n\\n Shortly after Doe and the Howards arrived in Tokyo, Russell’s behavior toward\\n\\nDoe changed. Doe testified, over objection, that Russell told her about “some of the\\n\\nways he abused his former employees.” See J.A. 165. She described how Russell began\\n\\nto touch her inappropriately, on her butt and thigh. Doe then testified that Russell\\n\\ncornered her in her bedroom in the Howards’ home and raped her. Russell raped Doe\\n\\nrepeatedly during her employment with the Howards. Doe testified, over objection, that\\n\\nRussell told her that Linda knew “everything that is happening.” Id. at 174. Doe also\\n\\nrelated that, after they had arrived in Tokyo, Linda told Doe “to make sure that I please\\n\\n[Russell], and that’s my primary job, that she didn’t want him to be mad.” Id. at 175.\\n\\nSome months later, while Doe and the Howards were still in Tokyo, Russell fired Doe\\n\\nand threatened to have her deported.\\n\\n On July 31, 2017, after additional testimony and stipulated submissions consistent\\n\\nwith the preceding recitation of facts, the jury returned its verdict. The jury found Linda\\n\\nliable for each of the four alleged violations of the TVPA. The jury calculated Roe’s\\n\\n 13\\n\\fcompensatory damages at $1 million for each violation. The jury found, however, that\\n\\nthose compensatory damages were duplicative, and thus awarded Roe $1 million in total\\n\\ncompensatory damages. The jury also awarded Roe $2 million in punitive damages. See\\n\\nJ.A. 115-17.\\n\\n In September 2017, Linda filed multiple post-trial motions seeking to overturn the\\n\\njury’s verdict. As relevant to this appeal, Linda sought a new trial pursuant to Federal\\n\\nRule of Civil Procedure 59(a), contending that the district court had erred in admitting\\n\\nDoe’s testimony. Linda also renewed her Rule 50 motion for judgment as a matter of law\\n\\non the grounds that the TVPA did not apply to her extraterritorial conduct in 2007, and\\n\\nthat the 2008 TVPRA amendments did not apply retroactively. In October 2017, the\\n\\ncourt denied Linda’s post-trial motions. The court then entered judgment in favor of Roe\\n\\nin accordance with the verdict.\\n\\n In January 2018, the district court issued a post-trial opinion that addressed, inter\\n\\nalia, Linda’s contention that the TVPA’s civil remedy provision did not apply\\n\\nextraterritorially to reach her conduct in Yemen in 2007. See Roe v. Howard, No. 16-cv-\\n\\n562 (E.D. Va. Jan. 3, 2018), ECF No. 125. The court ruled that, under the version of the\\n\\nTVPA in effect in 2007, the presumption against extraterritoriality was rebutted with\\n\\nrespect to Linda’s relevant conduct. Specifically, the court applied the Supreme Court’s\\n\\ndecision in Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), and this Court’s\\n\\ndecision in Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516 (4th Cir. 2014), to\\n\\nconclude that Linda’s conduct sufficiently “touche[d] and concern[ed] the United States”\\n\\nto displace the presumption against extraterritoriality. See J.A. 148-49. Alternatively,\\n\\n 14\\n\\fthe court determined that 18 U.S.C. § 1596, enacted in 2008, could apply retroactively\\n\\nand supported the extraterritorial application of the TVPA civil remedy provision to\\n\\nLinda’s conduct.\\n\\n Linda has timely appealed the judgment of the district court, and we possess\\n\\nappellate jurisdiction pursuant to 28 U.S.C. § 1291.\\n\\n\\n\\n II.\\n\\n We review de novo a district court’s denial of a Rule 50 motion for judgment as a\\n\\nmatter of law, viewing the evidence in the light most favorable to the nonmoving party.\\n\\nSee Fontenot v. Taser Int’l, Inc., 736 F.3d 318, 332 (4th Cir. 2013). We also review de\\n\\nnovo “the conclusions of law on which the court’s denial of judgment as a matter of law\\n\\nwas premised.” Adkins v. Crown Auto, Inc., 488 F.3d 225, 231 (4th Cir. 2007). Our de\\n\\nnovo review extends to all questions of statutory interpretation encompassed therein.\\n\\nSee, e.g., Stone v. Instrumentation Lab. Co., 591 F.3d 239, 242-43 (4th Cir. 2009).\\n\\n By contrast, we review a district court’s denial of a Rule 59 motion for a new trial\\n\\nfor abuse of discretion, and we will reverse only “in the most exceptional circumstances.”\\n\\nMinter v. Wells Fargo Bank, N.A., 762 F.3d 339, 346 (4th Cir. 2014). Likewise, we\\n\\nreview rulings on the admissibility of evidence, including testimony, for abuse of\\n\\ndiscretion. See, e.g., United States v. Vidacak, 553 F.3d 344, 348 (4th Cir. 2009).\\n\\n\\n\\n\\n 15\\n\\f III.\\n\\n Linda seeks to overturn the jury verdict against her by challenging two of the\\n\\ndistrict court’s rulings in the proceedings below. First, Linda maintains that the court\\n\\nerred in concluding that the TVPA’s civil remedy provision applied to her extraterritorial\\n\\nconduct in 2007, and thus erred in denying her motion for judgment as a matter of law.\\n\\nBy her second contention, Linda argues that the court erred in admitting Jane Doe’s trial\\n\\ntestimony regarding her abuse by the Howards in 2008. We address each contention in\\n\\nturn.\\n\\n A.\\n\\n Linda seeks to vacate the judgment against her on the ground that the TVPA’s\\n\\ncivil remedy provision, codified at 18 U.S.C. § 1595, did not apply extraterritorially\\n\\nbefore 2008. Linda contends that this precludes any liability for her conduct toward Roe,\\n\\nwhich took place in Yemen in 2007. The district court rejected that argument when it\\n\\ndenied Linda’s post-trial motion for judgment as a matter of law. In so ruling, the court\\n\\nrelied on the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co., and\\n\\nconcluded that Linda’s conduct sufficiently “touch[ed] and concern[ed] the United\\n\\nStates” to displace the presumption against extraterritoriality. See J.A. 149 (citing\\n\\nKiobel, 569 U.S. 108, 124-25 (2013)). Alternatively, the court determined that 18 U.S.C.\\n\\n§ 1596 — which expanded the extraterritorial reach of the TVPA in 2008 — applied\\n\\nretroactively and sustained Linda’s liability under the TVPA.\\n\\n As explained below, we affirm the district court and conclude that the TVPA’s\\n\\ncivil remedy provision applied to Linda’s conduct in Yemen in 2007. We reach this\\n\\n 16\\n\\fconclusion, however, based on a somewhat different analysis than that employed by the\\n\\ndistrict court. See United States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005) (confirming\\n\\nthat this Court “may affirm on any grounds apparent from the record”). Specifically, we\\n\\nrely on the Supreme Court’s more recent decision on extraterritoriality in RJR Nabisco,\\n\\nInc. v. European Cmty., 136 S. Ct. 2090 (2016). Adhering to the framework explained in\\n\\nRJR Nabisco, we ground our ruling on the text and structure of the relevant TVPA\\n\\nprovisions. Pursuant to our analysis, we are satisfied that the TVPA’s civil remedy\\n\\nprovision applied to Linda’s conduct toward Roe in 2007.\\n\\n 1.\\n\\n Congress has the undisputed authority to apply its laws beyond “the territorial\\n\\nboundaries of the United States.” See United States v. Ayesh, 702 F.3d 162, 166 (4th Cir.\\n\\n2012). Whether it has exercised that authority “is a matter of statutory construction.” Id.\\n\\n(citing E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991), superseded in part by\\n\\nstatute, Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1074, as recognized in\\n\\nLandgraf v. USI Film Prods., 511 U.S. 244, 251 (1994)). The canon of statutory\\n\\ninterpretation known as the “presumption against extraterritoriality” instructs that\\n\\n“[a]bsent clearly expressed congressional intent to the contrary, federal laws will be\\n\\nconstrued to have only domestic application.” RJR Nabisco, 136 S. Ct. at 2100.\\n\\n In its 2016 ruling in RJR Nabisco, the Supreme Court drew on its precedent to\\n\\ndescribe a “two-step framework for analyzing extraterritoriality issues.” See id. at 2101\\n\\n(citing Kiobel, 569 U.S. 108; Morrison v. Nat’l Austr. Bank Ltd., 561 U.S. 247 (2010)).\\n\\nThe first step of the RJR Nabisco framework asks “whether the statute gives a clear,\\n\\n 17\\n\\faffirmative indication that it applies extraterritorially,” and thereby rebuts the\\n\\npresumption against extraterritoriality. Id. In making that determination, courts look to\\n\\nthe text of the statute, but “an express statement of extraterritoriality is not essential.” Id.\\n\\nat 2102. The structure and history of the statute are also relevant to this analysis, and in\\n\\nsome circumstances the statute’s “context” may be “dispositive.” Id. at 2102-03.\\n\\n If the first step reveals that a statute — or a specific statutory provision — has\\n\\nextraterritorial effect, our analysis is complete. See id. at 2101. If, on the other hand, the\\n\\nfirst step shows that a statute does not apply extraterritorially, a court must proceed to the\\n\\nsecond step identified in RJR Nabisco. Specifically, the court must then “determine\\n\\nwhether the case involves a domestic application of the statute” by considering the\\n\\nchallenged conduct in light of the statute’s “focus.” Id. at 2101. If “the conduct relevant\\n\\nto the statute’s focus” occurred “in U.S. Territory,” then the application of the statute is\\n\\nnot truly extraterritorial. See id. 6 That is, such conduct would represent a “permissible\\n\\ndomestic application” of the statute at issue. See id. at 2100.\\n\\n\\n\\n\\n 6\\n In delineating the two-step framework in RJR Nabisco, the Supreme Court drew\\non two of its key precedents addressing extraterritoriality: Morrison and Kiobel. The\\nsecond step described in RJR Nabisco, however, appears to privilege consideration of a\\nstatute’s “focus” — the approach set out in Morrison — over the inquiry articulated in\\nKiobel, which asked whether the claims at issue “touch and concern the territory of the\\nUnited States.” See RJR Nabisco, 136 S. Ct. at 2102; Kiobel, 569 U.S. at 124-25. On the\\nother hand, RJR Nabisco did not overturn Kiobel and — in step two — retains a similar\\nemphasis on the relevant claim’s connection to U.S. territory. See RJR Nabisco, 136 S.\\nCt. at 2101. We need not resolve the effect of RJR Nabisco on Kiobel because, as\\nexplained herein, we do not reach the second step of the RJR Nabisco framework.\\n\\n 18\\n\\f 2.\\n\\n The first step of the RJR Nabisco framework requires us to assess the specific\\n\\nstatutory provisions at issue to determine whether those provisions demonstrate “clearly\\n\\nexpressed congressional intent” that they will apply extraterritorially. See 136 S. Ct. at\\n\\n2100, 2102; see also Morrison, 561 U.S. at 265 (emphasizing that “when a statute\\n\\nprovides for some extraterritorial application, the presumption against extraterritoriality\\n\\noperates to limit that provision to its terms”). Here, Roe sued Linda pursuant to the civil\\n\\nremedy provision of the TVPA, codified at 18 U.S.C. § 1595. Section 1595 permits\\n\\nvictims of the trafficking offenses specified in chapter 77 of Title 18 to sue the\\n\\nperpetrator of such an offense. Roe sought to recover damages based on Linda’s\\n\\nviolations of the trafficking offenses codified at 18 U.S.C. §§ 1589, 1590, and 1591,\\n\\nwhich prohibit forced labor, trafficking in forced labor, and forced sex trafficking,\\n\\nrespectively. Roe also alleged that Linda conspired to commit those offenses in violation\\n\\nof § 1594. As described above, the jury at Linda’s trial found that she had committed\\n\\neach of those four offenses and awarded Roe damages under § 1595.\\n\\n Applying the first step of the RJR Nabisco inquiry, we are satisfied that § 1595 of\\n\\nthe TVPA evinces a “clear indication of extraterritorial effect,” at least with respect to the\\n\\nconduct at issue here. See 136 S. Ct. at 2102. Of crucial importance, § 1595 directly\\n\\nincorporates predicate offenses that govern foreign conduct, providing strong textual\\n\\nevidence of its extraterritorial effect when applied to those predicates. See id. at 2102-03.\\n\\nAdditionally, the purpose, structure, history, and context of the TVPA militate toward the\\n\\nextraterritorial application of § 1595, to the extent that the relevant predicate offenses\\n\\n 19\\n\\freach the challenged foreign conduct at issue. See id. at 2102 (consulting “context” to\\n\\ndetermine extraterritoriality); In re French, 440 F.3d 145, 151 (4th Cir. 2006) (explaining\\n\\nthat courts should consult “all available evidence,” including text, statutory scheme, and\\n\\nlegislative history to determine extraterritorial effect of statute).\\n\\n We begin our analysis by looking to the Supreme Court’s application of the first\\n\\nRJR Nabisco step to the circumstances of that case. In RJR Nabisco, the Court addressed\\n\\nwhether the Racketeer Influenced and Corrupt Organizations Act (“RICO”) applied\\n\\nextraterritorially. See 136 S. Ct. at 2099. The central RICO provision, 18 U.S.C. § 1962,\\n\\ncontains four substantive prohibitions that criminalize certain means of influencing or\\n\\noperating an enterprise through “a pattern of racketeering activity.” See id. at 2097\\n\\n(citing 18 U.S.C. § 1962(a)-(d)). RICO defines “racketeering activity” as comprising a\\n\\nrange of state and federal offenses, referred to as predicate offenses. See id. at 2096\\n\\n(citing 18 U.S.C. § 1961). To determine whether the substantive RICO provisions\\n\\napplied to foreign conduct, the Court examined the text and context of § 1962. See id. at\\n\\n2101-03.\\n\\n The Court explained that “[t]he most obvious textual clue” that § 1962 applied\\n\\nextraterritorially was that RICO defined “racketeering activity” to include “a number of\\n\\npredicates that plainly apply to at least some foreign conduct.” See id. at 2101. The\\n\\nCourt reasoned that “Congress’s incorporation of [such] extraterritorial predicates into\\n\\nRICO gives a clear, affirmative indication that § 1962 applies to foreign racketeering\\n\\nactivity — but only to the extent that the predicates alleged in a particular case\\n\\nthemselves apply extraterritorially.” See id. at 2102. Thus, although Congress had not\\n\\n 20\\n\\fincluded “an express statement of extraterritoriality” in RICO’s text, the context and\\n\\nstructure of § 1962 — specifically, its incorporation of “predicate statutes that do apply\\n\\nextraterritorially” — nonetheless provided the necessary “clear, affirmative indication”\\n\\nthat § 1962 applied extraterritorially. See id. at 2101, 2102-03.\\n\\n Put simply, RJR Nabisco teaches that, even absent an express statement of\\n\\nextraterritoriality, a statute may apply to foreign conduct insofar as it clearly and directly\\n\\nincorporates a predicate statutory provision that applies extraterritorially. See 136 S. Ct.\\n\\nat 2102-03. Applying this rule to the TVPA, we are satisfied that § 1595 reflects\\n\\ncongressional intent that it applies extraterritorially to the extent that a plaintiff seeks\\n\\nredress for a predicate offense “that is itself extraterritorial.” See id. at 2103.\\n\\n Like § 1962, the TVPA’s civil remedy provision directly incorporates a set of\\n\\npredicate offenses “that plainly apply to at least some foreign conduct.” See RJR\\n\\nNabisco, 136 S. Ct. at 2101. More specifically, § 1595 permits “a victim of a violation of\\n\\nthis chapter [chapter 77 of Title 18]” to bring “a civil action against the perpetrator.” See\\n\\n18 U.S.C. § 1595. Many of the predicate offenses proscribed by chapter 77 apply\\n\\nextraterritorially, either expressly or by way of other provisions delineating their\\n\\nextraterritorial application. See, e.g., 18 U.S.C. § 1585 (prohibiting, inter alia, seizure of\\n\\npersons “on any foreign shore” with “intent to make that person a slave”). Thus,\\n\\npursuant to RJR Nabisco, “Congress’s incorporation” of such “extraterritorial predicates”\\n\\ninto § 1595 “gives a clear, affirmative indication” that § 1595 provides a civil remedy for\\n\\nthe foreign conduct that is prohibited by chapter 77. See 136 S. Ct. at 2102. That is,\\n\\n\\n\\n 21\\n\\f§ 1595 applies extraterritorially to the extent that the particular predicate offense\\n\\nsupporting a specific claim applies extraterritorially. See id. at 2103.\\n\\n Reinforcing that conclusion, the purpose, structure, history, and context of the\\n\\nTVPA all support the extraterritorial application of § 1595 for an appropriate predicate\\n\\noffense. The TVPA’s stated purpose and accompanying congressional findings\\n\\ndemonstrate that Congress enacted it to address the problem of human trafficking\\n\\n“throughout the world.” See Pub. L. 106-386 §§ 101-102, 114 Stat. 1464, 1466-69\\n\\n(2000). The TVPA contains numerous provisions authorizing funds and programs to\\n\\nsupport international efforts to address that global problem. See, e.g., 22 U.S.C.\\n\\n§ 7104(c) (creating “border interdiction” programs to combat trafficking at “key border\\n\\ncrossings”); § 7105 (authorizing foreign assistance programs to protect and aid\\n\\ntrafficking victims abroad). Notably, Congress has consistently amended the TVPA to\\n\\nreach and proscribe additional categories of foreign conduct. See, e.g., 18 U.S.C. § 1591\\n\\n(amended by 2003 TVPRA to cover conduct committed in special maritime and\\n\\nterritorial jurisdiction of United States); § 3271 (enacted as part of 2006 TVPRA\\n\\namendments to cover trafficking offenses by U.S. government employees abroad).\\n\\nViewed as a whole, the TVPA represents a far-reaching congressional effort to combat\\n\\ntransnational human trafficking on numerous fronts, including by expanding the civil\\n\\nclaims and remedies available to its victims.\\n\\n This is, in short, a situation in which Congress was clearly concerned with\\n\\ninternational rather than purely domestic matters. In these circumstances, unduly limiting\\n\\nthe TVPA’s scope risks frustrating its animating purpose. See Ayesh, 702 F.3d at 166\\n\\n 22\\n\\f(ruling that federal statute prohibiting U.S. employees from pilfering public funds applied\\n\\nextraterritorially because holding otherwise would immunize broad category of conduct\\n\\nand frustrate congressional intent); United States v. Delgado-Garcia, 374 F.3d 1337,\\n\\n1345 (D.C. Cir. 2004) (concluding that statutes prohibiting inducement of aliens to enter\\n\\nUnited States illegally applied extraterritorially because, inter alia, they were\\n\\n“fundamentally international” in “focus and effect”).\\n\\n Although we are satisfied that RJR Nabisco compels the extraterritorial application\\n\\nof § 1595 with respect to its extraterritorial predicates, we recognize that Part IV of that\\n\\ndecision declined to apply RICO’s civil cause of action to foreign conduct. See 136 S.\\n\\nCt. at 2106. But that part of Justice Alito’s opinion for the Court depended on factors\\n\\nthat do not apply to § 1595 of the TVPA. First, RICO’s civil remedy provision, codified\\n\\nat 18 U.S.C. § 1964(c), does not directly incorporate any extraterritorial predicates.\\n\\nIndeed, it makes no reference to any extraterritorial provision whatsoever. Rather, civil\\n\\nliability under § 1964(c) is premised on § 1962 criminal liability, but — crucially — is\\n\\nnot coextensive with § 1962 liability. Justice Alito emphasized that the text of § 1964(c)\\n\\nlimited its application to certain types of injuries, and thereby created a gap between the\\n\\nreach of § 1964(c) civil liability and § 1962 criminal liability. See id. at 2106, 2108.\\n\\nFurther, § 1964 contained no other indication that it should apply extraterritorially; that\\n\\nis, it lacked the kind of “foreign-oriented language” or reference to foreign activity that\\n\\ncould sustain its extraterritorial application. See id. at 2108-10 & n.12.\\n\\n None of the foregoing considerations apply to § 1595 of the TVPA. As explained\\n\\nabove, § 1595 expressly and directly incorporates the TVPA’s criminal predicates, many\\n\\n 23\\n\\fof which manifestly apply to foreign conduct. See RJR Nabisco, 136 S. Ct. at 2102. In\\n\\nthat regard, § 1595 of the TVPA resembles § 1962 of RICO rather than the circumscribed\\n\\ntext of § 1964(c). See id. at 2109-10 (comparing and distinguishing § 1962 and § 1964);\\n\\nacc. Pfizer, Inc. v. Gov’t of India, 434 U.S. 308, 313-14 (1978) (sustaining extraterritorial\\n\\napplication of Clayton Act civil remedy due to, inter alia, its incorporation of definitions\\n\\nexpressly addressing foreign entities). Moreover, the text of § 1595 shows that it applies\\n\\ncoextensively with its predicate offenses, omitting any qualifying or modifying language,\\n\\nwhich further distinguishes it from § 1964(c). Notably, as discussed above, the TVPA is\\n\\nreplete with the “foreign-oriented language” that Justice Alito found lacking in § 1964(c),\\n\\nincluding in the predicates underpinning Roe’s claim. See RJR Nabisco, 136 S. Ct. at\\n\\n2110 n.12. Indeed, the TVPA more clearly targets foreign conduct than any provision of\\n\\nRICO, as demonstrated by its international scope and Congress’s repeated expansions of\\n\\nits extraterritorial reach. See, e.g., 2005 TVPRA, 119 Stat. at 3562.\\n\\n In short, § 1595 evinces the same relationship to its extraterritorial predicate\\n\\noffenses that RICO’s substantive criminal provision does to its predicates, and is not\\n\\nsubject to textual limitations like those found in RICO’s private cause of action. Section\\n\\n1595 therefore provides a civil remedy for conduct that comes within the extraterritorial\\n\\npredicates of the TVPA. Accordingly, we now turn to the question of whether the\\n\\npredicate offenses underlying Roe’s civil suit applied to Linda’s extraterritorial conduct\\n\\nin 2007.\\n\\n\\n\\n\\n 24\\n\\f 3.\\n\\n The jury awarded Roe damages based on their findings that Linda had violated 18\\n\\nU.S.C. §§ 1589, 1590, 1591, and 1594. Each of those offenses is a qualifying predicate\\n\\noffense for § 1595 civil liability, as they are all found within chapter 77 of Title 18 of the\\n\\nU.S. Code. See 18 U.S.C. § 1595 (authorizing civil suits by “a victim of a violation of\\n\\nthis chapter [chapter 77]” against the perpetrator or “whoever knowingly benefits” from\\n\\nthat violation). The remaining question for us today is whether those predicates applied\\n\\nextraterritorially and reached Linda’s foreign conduct in 2007. See RJR Nabisco, 136 S.\\n\\nCt. at 2102. We will therefore assess each predicate offense, mindful that “the inclusion\\n\\nof some extraterritorial predicates does not mean that all [statutory] predicates extend to\\n\\nforeign conduct.” See id.\\n\\n a.\\n\\n Section 1591 — prohibiting sex trafficking — presents the simplest analysis.\\n\\nSince 2003, § 1591 has applied to conduct committed “within the special maritime and\\n\\nterritorial jurisdiction of the United States.” See 18 U.S.C. § 1591; 2003 TVPRA, 117\\n\\nStat. at 2879. Where an offense is committed by a United States national like Linda,\\n\\nTitle 18 defines the “special maritime and territorial jurisdiction of the United States” to\\n\\ninclude the “premises of United States diplomatic, consular, military or other United\\n\\nStates Government missions or entities in foreign States,” including related residences,\\n\\nbuildings, and land, that, “irrespective of ownership,” are used “for purposes of those\\n\\nmissions or entities.” See 18 U.S.C. § 7(9). It is undisputed that Linda’s part in Roe’s\\n\\nabuse occurred entirely on U.S. embassy grounds and housing in Sana’a. Those premises\\n\\n 25\\n\\funquestionably fall within the “special maritime and territorial jurisdiction of the United\\n\\nStates,” as defined in Title 18. See id.; see also United States v. Passaro, 577 F.3d 207,\\n\\n214 (4th Cir. 2009) (observing that American embassies are “plainly within § 7(9)’s\\n\\nscope”); United States v. Erdos, 474 F.2d 157, 160 (4th Cir. 1973) (ruling that embassies\\n\\ncomprise part of “special territorial jurisdiction” of United States); H.R. Rep. No. 107-\\n\\n236, at 74 (2001) (agreeing with Erdos and explaining that “embassies and embassy\\n\\nhousing of the United States in foreign states are included in the special maritime and\\n\\nterritorial jurisdiction of the United States”). Thus, § 1591 expressly applied to Linda’s\\n\\nconduct in Sana’a in 2007, and she is liable for her violation thereof under § 1595.\\n\\n b.\\n\\n Sections 1589 and 1590 of Title 18 — prohibiting forced labor and forced labor\\n\\ntrafficking — do not directly refer to foreign conduct. But since 2006, those sections\\n\\nhave applied to extraterritorial acts committed by United States employees like Linda.\\n\\nThe 2005 TVPRA amended the TVPA by enacting 18 U.S.C. § 3271, which provides:\\n\\n Whoever, while employed by . . . the Federal Government outside the\\n United States, engages in conduct outside the United States that would\\n constitute an offense under chapter 77 [of Title 18] if the conduct had been\\n engaged in within the United States or within the special maritime and\\n territorial jurisdiction of the United States shall be punished as provided for\\n that offense.\\n\\nSee 18 U.S.C. § 3271; see also 2005 TVPRA, § 103, 119 Stat. at 3562. Such language\\n\\n“manifests an unmistakable congressional intent to apply extraterritorially.” See RJR\\n\\nNabisco, 136 S. Ct. at 2102 (internal quotation marks omitted). If a plainer indication\\n\\nwas needed, Congress included § 3271 in chapter 212A, titled “Extraterritorial\\n\\n\\n 26\\n\\fJurisdiction Over Certain Trafficking in Persons Offenses.” See 2005 TVPRA, 119 Stat.\\n\\nat 3562. By the TVPA’s own terms, this extraterritorial application is limited in scope;\\n\\nthat is, it applies only to persons employed abroad by the federal government. Linda,\\n\\nhowever, falls within that class of employees. Consequently, her actions in Sana’a were\\n\\nwithin the extraterritorial scope of § 1589 and § 1590 in 2007. The jury therefore\\n\\nproperly found her liable for violating those provisions under § 1595.\\n\\n c.\\n\\n Turning to § 1594, however, our analysis differs. Regardless of § 1594’s\\n\\nextraterritoriality, the conspiracy provision for which the jury found Linda liable had not\\n\\nbeen enacted by 2007. Rather, the conspiracy prohibitions contained in § 1594(b) and (c)\\n\\nwere added as part of the 2008 TVPRA amendments. See 2008 TVPRA, § 222, 122 Stat.\\n\\nat 5070. That said, we need not resolve whether § 1594 applies retroactively in order to\\n\\naffirm the award of damages to Roe. If this Court is “reasonably certain” that the jury\\n\\nwould have awarded the same amount of damages regardless of the “issues erroneously\\n\\nsubmitted to it,” we are entitled to affirm the award. See Tire Eng’g & Distribution, LLC\\n\\nv. Shandong Linglong Rubber Co., 682 F.3d 292, 314 (4th Cir. 2012). That rule holds\\n\\nparticular force where, as here, the jury has completed a special verdict form addressing\\n\\nliability and damages. See id. at 313-14 (collecting and comparing cases). Because the\\n\\njury indicated that it calculated Roe’s damages at $1 million for each of the four TVPA\\n\\nviolations, but awarded only $1 million total because those damages were duplicative, it\\n\\nis beyond reasonable debate that the jury would have awarded Roe $1 million in\\n\\n\\n\\n 27\\n\\fcompensatory damages for any one of Linda’s violations, and for any combination\\n\\nthereof. See J.A. 115-17.\\n\\n In sum, the facts established at trial show that Linda committed at least three\\n\\npredicate offenses that applied to her extraterritorial conduct toward Roe in 2007.\\n\\nPursuant to the Supreme Court’s decision in RJR Nabisco, § 1595 authorizes Linda’s\\n\\ncivil liability based on her commission of those offenses. 7 We are entitled to affirm the\\n\\njury’s award of damages because they were properly awarded pursuant to § 1595, and\\n\\nbecause any error with regard to the applicability of § 1594 did not affect that result.\\n\\n Because step one of the RJR Nabisco framework demonstrates that § 1595 applied\\n\\nextraterritorially to Linda’s conduct, we need not proceed to step two, which guides our\\n\\nanalysis only where the pertinent statute does not apply extraterritorially. See RJR\\n\\nNabisco, 136 S. Ct. at 2101. We thus have no occasion to determine whether, under step\\n\\ntwo, Linda’s offenses involved “a domestic application” of the TVPA. See id.\\n\\nAccordingly, we reserve for another day the issue of whether conduct occurring entirely\\n\\nwithin U.S. embassy grounds and associated housing takes place “in U.S. territory.” See\\n\\nid.; see also Arabian Am. Oil Co., 499 U.S. at 248. We confine our analysis today to the\\n\\ntext and context of § 1595, and affirm the jury’s award of damages to Roe on that basis.\\n\\n 7\\n Linda’s argument against the extraterritorial application of § 1595 relies almost\\nentirely on the Fifth Circuit’s ruling in Adhikari v. Kellogg Brown & Root, Inc., where\\nthat court determined that § 1595 failed to provide a remedy for the plaintiffs’\\nextraterritorial TVPA claims. See 845 F.3d 184, 201-06 (5th Cir. 2017); see also Br. of\\nAppellant 8-16. That decision, however, is readily distinguishable because the Adhikari\\nplaintiffs did not allege a violation of 18 U.S.C. § 1591 and the defendants’ conduct\\noccurred before the enactment of § 3271. See Adhikari, 845 F.3d at 190, 200.\\n\\n\\n 28\\n\\f B.\\n\\n Turning to Linda’s second and final appellate contention, we must resolve whether\\n\\nthe district court properly admitted Jane Doe’s evidence concerning the sexual abuse she\\n\\nsuffered while working as the Howards’ housekeeper in 2008. Linda raises various\\n\\nobjections to Doe’s testimony: that it was impermissible character evidence barred by\\n\\nFederal Rule of Evidence 404(a); that it could not be admitted under Rule 415, which\\n\\npermits testimony of “similar acts” in sexual assault lawsuits; that it was unfairly\\n\\nprejudicial and thus barred by Rule 403; and that the portion of Doe’s testimony relating\\n\\nto Russell’s statements constituted inadmissible hearsay. Each assertion is without merit.\\n\\n First, Doe’s testimony was plainly admissible under Rule 404(b)’s exception to\\n\\nRule 404(a)’s general prohibition of character evidence to prove an action in conformity\\n\\ntherewith. Doe’s testimony described Linda’s efforts to recruit Doe to work as the\\n\\nHowards’ housekeeper, and her knowledge and facilitation of Russell’s repeated sexual\\n\\nassaults on Doe. Consistent with the permissible uses of character evidence under Rule\\n\\n404(b), Doe’s testimony constituted highly probative evidence regarding Linda’s\\n\\nintentions in her interactions with Roe; the existence of a plan or pattern of behavior by\\n\\nthe Howards toward their live-in housekeepers; and Linda’s knowledge of Russell’s\\n\\nabuse of their staff. Doe’s testimony was therefore admissible under Rule 404(b)(2),\\n\\nwhich permits the introduction of evidence of “a crime, wrong, or other act” to show,\\n\\ninter alia, intent, preparation, plan, knowledge, or absence of mistake. Indeed, the\\n\\nsimilarity between Doe and Roe’s accounts of their abuse enhances the probative value\\n\\nand relevance of Doe’s evidence. See United States v. Queen, 132 F.3d 991, 997 (4th\\n\\n 29\\n\\fCir. 1997). 8 Because we are satisfied that Doe’s testimony was properly admitted under\\n\\nRule 404(b), we need not assess whether it was also admissible under Rule 415.\\n\\n Nor was Doe’s testimony barred by Rule 403. Pursuant to Rule 403, a court may\\n\\nexclude evidence if its “probative value” is “substantially outweighed” by, inter alia, the\\n\\nrisk of “unfair prejudice.” As noted above, Doe’s testimony provided highly probative\\n\\nevidence of a pattern of abusive behavior by Russell, knowingly facilitated by Linda.\\n\\nMoreover, because the assaults Roe suffered occurred in Yemen nearly a decade prior to\\n\\nLinda’s trial, Doe’s evidence was particularly important given the lack of available\\n\\nphysical evidence to corroborate Roe’s claims. Finally, the district court limited the\\n\\nscope of Doe’s testimony to avoid revealing the upsetting details of Russell’s past\\n\\nassaults, and thus reduced the risk of unfair prejudice. See United States v. Mark, 943\\n\\nF.2d 444, 449 (4th Cir. 1991). In these circumstances, the court did not abuse its\\n\\ndiscretion in permitting Doe to testify. See Mohr, 318 F.3d at 619-20 (emphasizing that\\n\\nRule 403 only requires exclusion of evidence resulting in unfair prejudice that\\n\\n“substantially” outweighs its probative value); United States v. Van Metre, 150 F.3d 339,\\n\\n351 (4th Cir. 1998) (sustaining admission of evidence of prior sexual assault in light of its\\n\\n“significant probative value” and trial court’s effort to reduce its prejudicial impact).\\n\\n\\n\\n 8\\n Linda argues that the standard for admitting evidence under Rule 404(b) changes\\nwhen that evidence concerns “subsequent” (rather than prior) acts. Br. of Appellant 26.\\nNo such rule exists in this Circuit. Put simply, Rule 404(b) does not function differently\\nmerely because Doe’s experience occurred after Roe’s. See United States v. Mohr, 318\\nF.3d 613, 617 (4th Cir. 2003).\\n\\n\\n 30\\n\\f Lastly, Doe’s testimony concerning Russell’s past statements was not inadmissible\\n\\nhearsay. Rule 804(b)(3) authorizes the admission of hearsay statements by an\\n\\nunavailable declarant that are manifestly against the declarant’s interest. Specifically, the\\n\\nstatement must be one that “a reasonable person in the declarant’s position would have\\n\\nmade only if the person believed it to be true because, when made, it . . . had so great a\\n\\ntendency . . . to expose the declarant to civil or criminal liability.” Fed. R. Evid.\\n\\n804(b)(3). Russell’s statements to Doe — admitting to his past assaults of his former\\n\\nemployees — more than qualify as statements against interest as so defined, and his death\\n\\nin 2012 establishes his unavailability to testify. Thus, the trial court did not abuse its\\n\\ndiscretion by relying on that exception to admit Doe’s testimony regarding Russell’s\\n\\nincriminating statements. See, e.g., United States v. Udeozor, 515 F.3d 260, 267-68 (4th\\n\\nCir. 2008) (evaluating flexible requirements of Rule 804(b)(3) and sustaining admission\\n\\nof hearsay statements that implicated declarant in multiple crimes).\\n\\n In short, the district court did not abuse its discretion in admitting Doe’s\\n\\ntestimony, and we are satisfied to affirm the court’s rulings in that regard.\\n\\n\\n\\n IV.\\n\\n Pursuant to the foregoing, we affirm the district court’s judgment in favor of Roe\\n\\nand against Linda Howard.\\n\\n\\n AFFIRMED\\n\\n\\n\\n\\n 31\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4370848/\", \"author_raw\": \"KING, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WILKINSON"},"judge2":{"kind":"string","value":"KING"},"judge3":{"kind":"string","value":"QUATTLEBAUM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4593595/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Sarah ROE, Plaintiff - Appellee, v. Linda HOWARD, Defendant - Appellant, and Estate of Russell Howard, Defendant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-2338\n\n\nSARAH ROE,\n\n Plaintiff – Appellee,\n\n v.\n\n\nLINDA HOWARD,\n\n Defendant – Appellant,\n and\n\nESTATE OF RUSSELL HOWARD,\n\n Defendant.\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nAlexandria. Liam O’Grady, District Judge. (1:16-cv-00562-LO-JFA)\n\n\nArgued: October 30, 2018 Decided: February 25, 2019\n\n\nBefore WILKINSON, KING, and QUATTLEBAUM, Circuit Judges.\n\n\nAffirmed by published opinion. Judge King wrote the opinion in which Judge Wilkinson\nand Judge Quattlebaum joined.\n\n\nARGUED: Richard Francis Rinaldo, JONES, GREGG, CREEHAN & GERACE LLP,\nPittsburgh, Pennsylvania, for Appellant. Melissa Lim Patterson, JONES DAY,\nWashington, D.C., for Appellee. ON BRIEF: Timothy J. Battle, Alexandria, Virginia,\n\ffor Appellant. Alison B. Marshall, Christian G. Vergonis, JONES DAY, Washington,\nD.C., for Appellee.\n\n\n\n\n 2\n\fKING, Circuit Judge:\n\n Defendant Linda Howard appeals from a judgment entered against her in the\n\nEastern District of Virginia after a jury found her civilly liable to plaintiff Sarah Roe\n\nunder the Trafficking Victims Protection Act (the “TVPA”). 1 Roe had sued Howard for\n\nher role in sexual abuse that Roe suffered at the hands of Russell Howard, Linda’s\n\nhusband, when Roe worked in 2007 as the Howards’ housekeeper in housing provided by\n\nthe Embassy of the United States in Yemen. 2 The jury found that Linda’s conduct in\n\nYemen contravened criminal provisions of the TVPA and thus awarded Roe $3 million in\n\ndamages pursuant to the TVPA’s civil remedy provision. See 18 U.S.C. § 1595. On\n\nappeal, Linda challenges the district court’s denial of her post-trial motion for judgment\n\nas a matter of law, wherein she sought relief on the ground that, in 2007, the TVPA’s\n\ncivil remedy provision did not apply extraterritorially. Linda also challenges the court’s\n\nadmission of testimonial evidence from another former housekeeper of Linda and Russell\n\nwhom they had similarly abused. As explained below, we are satisfied to affirm the\n\njudgment.\n\n\n\n\n 1\n The TVPA is generally codified at 18 U.S.C. § 1581 et seq.\n 2\n To avoid confusion, we generally refer to Linda Howard and Russell Howard by\ntheir first names, that is, simply as Linda and Russell. We refer to the plaintiff by her\npseudonym “Sarah Roe,” pursuant to the district court’s ruling in that regard. See Roe v.\nHoward, No. 16-cv-562 (E.D. Va. May 27, 2016), ECF No. 11.\n\n\n 3\n\f I.\n\n A.\n\n On July 31, 2017, following a four-day trial, a jury in the Eastern District of\n\nVirginia found Linda Howard civilly liable for contravening criminal provisions of the\n\nTVPA. More specifically, the jury found that Linda had engaged in forced labor in\n\nviolation of 18 U.S.C. § 1589, forced labor trafficking in violation of § 1590, commercial\n\nsex trafficking in violation of § 1591, and conspiring to engage in those offenses in\n\nviolation of § 1594. See J.A. 115-17. 3\n\n When we review an appeal following a jury verdict, we view the trial evidence in\n\nthe light most favorable to the prevailing party. See Randall v. Prince George’s Cty., 302\n\nF.3d 188, 195 n.8 (4th Cir. 2002) (citing Lowery v. Cir. City Stores, Inc., 206 F.3d 431,\n\n442-43 (4th Cir. 2000)). We are likewise obliged to accord the prevailing party the\n\nbenefit of all reasonable inferences to be drawn from the evidence. See Lowery, 206 F.3d\n\nat 443. The facts recited herein are taken in that light and drawn from the record, which\n\nincludes evidence presented at trial and the parties’ joint submission of stipulated facts.\n\n 1.\n\n Linda is an American citizen. She began working for the Department of State in\n\n1991 as a Communications Officer in Paris, France. In Paris, Linda met and married\n\nRussell, an Australian citizen who then worked for the Australian Embassy in France.\n\n\n 3\n Citations herein to “J.A.__” refer to the contents of the Joint Appendix filed by\nthe parties in this appeal.\n\n\n 4\n\fOver the next decade, Linda and Russell held similar postings around the world, usually\n\narranging their assignments so that they could pursue their careers in the same country.\n\nIn 2001, Russell retired from his position with the Australian government, and he\n\nthereafter followed Linda as she continued her career with the State Department.\n\n In 2005, the State Department assigned Linda to our Embassy in Sana’a, Yemen.\n\nRussell accompanied Linda to Sana’a and also found work at the Embassy. Among other\n\njobs, Russell performed administrative work for the Embassy Commissary. In Sana’a,\n\nLinda and Russell lived in housing provided by the State Department, and they were\n\nprotected by U.S. government security. Linda and Russell remained in Sana’a for\n\napproximately three years. Around December 2008, Linda and Russell moved to Japan,\n\nwhere Linda received her next State Department posting. By 2012, Linda and Russell\n\nhad relocated to Melbourne, Australia, where Russell died of pancreatic cancer that\n\nSeptember. Linda continues to reside in Melbourne.\n\n 2.\n\n Sarah Roe first met the Howards in September 2005, soon after their arrival in\n\nYemen. At that time, Roe was twenty years old. Born into an impoverished family in\n\nEthiopia, Roe had moved to Yemen to seek work, and she initially secured various\n\nhousekeeping and cleaning jobs. In September 2005, Roe was employed there as a\n\nwaitress at a restaurant on U.S. Embassy grounds called Uncle Sam’s. It was at Uncle\n\nSam’s that the Howards first encountered Roe and sought to befriend her.\n\n As one of his odd jobs around the U.S. Embassy, Russell worked in a shop next\n\ndoor to Uncle Sam’s. He first introduced himself to Roe, and then introduced Roe to\n\n 5\n\fLinda. Both Howards paid special attention to Roe: they complimented her appearance,\n\ninitiated friendly conversations, and encouraged her to work for them as their live-in\n\nhousekeeper. At first Roe declined the job offer, and Russell asked her to help “find a\n\nbeautiful woman like [her]self to work in [the Howards’] home.” See J.A. 232. Linda\n\nwould stop by Uncle Sam’s three or four times a week, where she would “greet” and\n\n“hug” Roe. Id. at 231. Linda even gave Roe her personal phone number. Id. at 234.\n\n Around 2006, Roe returned to Ethiopia from Yemen for several months to care for\n\nher mother. As a result, she lost her job at Uncle Sam’s. When Roe returned to Sana’a, a\n\nyoung Ethiopian woman named Sabha was then employed as the Howards’ live-in\n\nhousekeeper, but Linda helped Roe obtain a data-entry job at the U.S. Embassy. Linda\n\ngave Roe an application for the data-entry position and taught her how to use a basic\n\ndata-entry program on Linda’s home computer. After Roe got the job, Linda continued\n\nto befriend her, meeting Roe to talk about her hair stylist and other non-work matters.\n\nLinda presented herself to Roe “as a friend, someone very easy to talk to, someone with a\n\nvery good heart.” See J.A. 239. Linda also promised to help Roe find another job after\n\nthe data-entry position ended. Roe believed Linda offered such help because Linda\n\n“really liked” her. Id. at 241.\n\n Some months later, in the spring of 2007, the Howards’ then live-in housekeeper\n\n(another young Ethiopian woman named Brhan) left them. At the time, Roe was looking\n\nfor a new job and the Howards renewed their offer to Roe to fill the housekeeping\n\nposition. Roe was uncertain about accepting the Howards’ offer. She made more money\n\nwhen she had jobs that allowed her to accept tips, like waitressing. Roe also had her own\n\n 6\n\fapartment and did not want to move in with the Howards, which was a requirement of the\n\nposition. But the Howards offered to help Roe get medical treatment for an eye ailment,\n\nrenew her work visa, and aid her family in Ethiopia. Linda also “knew that [Roe] had a\n\ndesire to improve [her] language skills,” and promised that Russell could help her with\n\nher English. See J.A. 247. As part of their discussions about the live-in position, Linda\n\nexplained to Roe “that Russell is usually at home, he needs a friend.” Id. Linda told Roe\n\nthat “the main part of this job is to make Russell happy.” Id. at 250. Roe understood this\n\nto mean that “doing my job, cleaning, doing everything else was what was going to make\n\nhim happy.” Id. Roe accepted the position and agreed to move in with the Howards.\n\nShe began working for the Howards in June 2007.\n\n Once Roe moved into the Howards’ apartment, she discovered that, although she\n\nhad her own room and bathroom, the door to her room could not be locked without a key.\n\nThe Howards told Roe they did not have the key. The Howards then presented Roe with\n\na uniform consisting of a “very short” skirt and a blouse that “looked like something you\n\nwould wear . . . when you go out.” See J.A. 253. Linda had made the outfit herself.\n\n When Roe refused to wear the uniform, Russell took Roe to the mall to go\n\nshopping. At the mall, he purchased a “very revealing” “one-piece” that “open[ed] in the\n\nfront,” and “underwear . . . with one tiny string” and “many holes.” See J.A. 253. Back\n\nat the apartment, Russell asked Roe to put on the new purchases “and show him what it\n\nlooks like.” Id. at 254. Roe refused again and went to the kitchen to prepare Russell’s\n\nlunch. She then retired to her room. Suddenly, Russell entered the room, naked. Roe\n\ntried to escape but Russell cornered her, pinned her down on the bed, and raped her.\n\n 7\n\fRussell continually raped and sexually assaulted Roe for the duration of her time with the\n\nHowards. He repeatedly threatened Roe to maintain her silence: he verbally abused her,\n\nhe warned Roe that he could have her thrown in jail, he threatened to tell her religiously\n\nconservative family about the assaults, and he retained possession of her passport.\n\n As the district court succinctly put it in its post-trial opinion, “Linda Howard was\n\naware of these assaults.” See J.A. 145-46. Linda often watched as Russell touched Roe’s\n\nrear end and breasts. Roe overheard Russell talking to Linda on the phone about the\n\nassaults, including complaining that Roe “wasn’t like Brhan.” Id. at 258, 334. Roe knew\n\nit was Linda on the other end of the line based on the nature and content of those\n\nconversations. On one occasion, Russell related events to Linda over the phone as he\n\ntook Roe to a hospital to have an intrauterine contraceptive device implanted. Russell\n\nalso told Roe that he talked to Linda about the rapes.\n\n Eventually, Roe’s continued resistance to Russell’s repeated assaults and open,\n\nabject misery so enraged Russell that he fired her in December 2007. Linda then helped\n\nRoe obtain another restaurant job near the Howards’ apartment and wrote a letter of\n\nrecommendation for her. Even then, Russell would often stop by the restaurant to\n\nthreaten Roe to maintain her silence about the rapes he had perpetrated.\n\n B.\n\n Congress enacted the TVPA in the year 2000 “to combat trafficking in persons, a\n\ncontemporary manifestation of slavery whose victims are predominantly women and\n\nchildren, to ensure just and effective punishment of traffickers, and to protect their\n\nvictims.” TVPA, Pub. L. No. 106-386, § 102(a), 114 Stat. 1464, 1466 (codified at 22\n\n 8\n\fU.S.C. § 7101(a)). The congressional findings that accompanied the TVPA in its original\n\nform repeatedly emphasized the transnational nature of human trafficking and sexual\n\nexploitation, and the enforcement challenges posed by the international scope of that\n\ncriminal activity. See id., § 102(b), 114 Stat. at 1466-69.\n\n By way of the TVPA, Congress created several new federal criminal offenses\n\nintended to more comprehensively and effectively combat human trafficking. Among\n\nother provisions, the TVPA criminalized: “Forced labor,” “[t]rafficking with respect to\n\npeonage, slavery, involuntary servitude, or forced labor,” and “[s]ex trafficking of\n\nchildren or by force, fraud or coercion.” See TVPA, § 112(a)(2), 114 Stat. at 1486-88.\n\nThose provisions are respectively codified at 18 U.S.C. §§ 1589, 1590, and 1591, all\n\nwithin chapter 77 of Title 18.\n\n In 2003, Congress reauthorized and amended the TVPA. See Trafficking Victims\n\nProtection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875 (the “2003\n\nTVPRA”). In the findings accompanying the 2003 TVPRA, Congress stressed the\n\nchallenges that remained “in responding to the needs of victims of trafficking in the\n\nUnited States and abroad.” See id., § 2(2), 117 Stat. at 2875. As part of the 2003\n\nTVPRA amendments, Congress added a civil remedy provision to chapter 77. See 2003\n\nTVPRA, § 4(a)(4)(A), 117 Stat. at 2878. That civil remedy provision is codified at 18\n\nU.S.C. § 1595(a), which provides:\n\n (a) An individual who is a victim of a violation of [chapter 77] may bring a\n civil action against the perpetrator . . . in an appropriate district court of the\n United States and may recover damages . . . .\n\n\n\n 9\n\f The 2003 TVPRA also amended § 1591, which prohibits “[s]ex trafficking of\n\nchildren or by force, fraud, or coercion.” That amendment altered § 1591 to expressly\n\napply to acts committed “within the special maritime and territorial jurisdiction of the\n\nUnited States.” See 2003 TVPRA, § 5(a)(2), 117 Stat. at 2879. The phrase “special\n\nmaritime and territorial jurisdiction of the United States” is a term of art defined\n\nelsewhere in the U.S. Code. That term encompasses a variety of locations under varying\n\ndegrees of control by the United States and includes, with respect to offenses committed\n\nby U.S. nationals, the grounds of U.S. diplomatic installations and related premises. See\n\n18 U.S.C. § 7(9). Specifically, § 7(9) defines the term to reach:\n\n (A) the premises of United States diplomatic, consular, military or other\n United States Government missions or entities in foreign States, including\n the buildings, parts of buildings, and land appurtenant or ancillary thereto\n or used for purposes of those missions or entities, irrespective of\n ownership; and\n\n (B) residences in foreign States and the land appurtenant or ancillary\n thereto, irrespective of ownership, used for purposes of those missions or\n entities or used by United States personnel assigned to those missions or\n entities.\n\nSee id.\n\n In 2006, Congress again reauthorized the TVPA. See Trafficking Victims\n\nProtection Reauthorization Act of 2005, Pub. L. No. 109-164, 119 Stat. 3558 (effective\n\nJan. 10, 2006) (the “2005 TVPRA”). This time, Congress expressly found that “[t]he\n\ninvolvement of employees and contractors of the United States Government . . . in\n\ntrafficking in persons, facilitating the trafficking in persons, or exploiting the victims of\n\ntrafficking in persons is inconsistent with United States laws and policies and undermines\n\n\n 10\n\fthe credibility and mission of the United States Government programs in post-conflict\n\nregions.” See id., § 2(10), 119 Stat. at 3559. Accordingly, Congress further expanded the\n\nTVPA’s extraterritorial reach by providing:\n\n Whoever, while employed by . . . the Federal Government outside the\n United States, engages in conduct outside the United States that would\n constitute an offense under chapter 77 . . . of this title if the conduct had\n been engaged in within the United States or within the special maritime and\n territorial jurisdiction of the United States shall be punished as provided for\n that offense.\n\nSee id., § 103, 119 Stat. at 3562 (codified at 18 U.S.C. § 3271). Each of the statutory\n\nprovisions and amendments discussed heretofore was in effect between June and\n\nDecember 2007, when the Howards exploited and abused Roe.\n\n In 2008, after Roe had left the Howards, Congress further amended and\n\nreauthorized the TVPA. See William Wilberforce Trafficking Victims Protection\n\nReauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044 (the “2008 TVPRA”).\n\nThe 2008 TVPRA further expanded the extraterritorial reach of the TVPA by providing:\n\n In addition to any domestic or extra-territorial jurisdiction otherwise\n provided by law, the courts of the United States have extra-territorial\n jurisdiction over any offense (or any attempt or conspiracy to commit an\n offense) under section . . . 1589, 1590, or 1591 if—\n\n (1) an alleged offender is a national of the United States . . . .\n\nSee id., § 223, 122 Stat. at 5071 (codified at 18 U.S.C. § 1596). The 2008 TVPRA also\n\nexpanded chapter 77 to prohibit conspiracy to commit the offenses codified at, inter alia,\n\n18 U.S.C. §§ 1589, 1590, and 1591. See id., § 222, 122 Stat. at 5070 (codified at 18\n\nU.S.C. § 1594(b)-(c)).\n\n\n\n 11\n\f C.\n\n In May 2016, Roe sued Linda in the Eastern District of Virginia pursuant to the\n\nTVPA civil remedy provision codified at 18 U.S.C. § 1595. 4 See J.A. 15. Roe alleged\n\nthat Linda had violated multiple criminal provisions of the TVPA, including its\n\nprohibitions of forced labor under 18 U.S.C. § 1589, forced labor trafficking under\n\n§ 1590, commercial sex trafficking under § 1591, and conspiracy to engage in those\n\noffenses under § 1594.\n\n Before trial, Linda sought summary judgment on the grounds that the TVPA did\n\nnot apply extraterritorially to reach her conduct in 2007, and that the 2008 amendments\n\nexpanding its extraterritorial application did not apply retroactively. The district court\n\ndenied that request without prejudice after argument.\n\n Linda also filed a motion in limine to exclude the testimony of Jane Doe, a live-in\n\nhousekeeper who worked for the Howards after Roe was fired. 5 The district court denied\n\nthat motion and ruled that Doe’s testimony was admissible under either Rule 404(b) or\n\nRule 415 of the Federal Rules of Evidence. Roe’s claims proceeded to trial in Alexandria\n\non July 26, 2017.\n\n\n\n\n 4\n Roe originally sued Russell’s estate in addition to Linda, but later dismissed the\nestate as a defendant in these proceedings. See Roe v. Howard, No. 16-cv-562 (E.D. Va.\nJuly 26, 2017), ECF No. 78.\n 5\n The district court permitted Jane Doe to testify using this pseudonym. See J.A.\n156.\n\n\n 12\n\f In accordance with the district court’s ruling, Jane Doe took the stand at trial.\n\nLike Roe, Doe was a young Ethiopian woman who came to Yemen in search of work.\n\nDoe testified, inter alia, that she began working for the Howards in Sana’a as a live-in\n\nhousekeeper in 2008. Doe followed the Howards to Tokyo when they relocated at the\n\nend of that year, based in part on the Howards’ promises that they would increase her pay\n\nand help her obtain health insurance. Such insurance was a benefit of particular value to\n\nDoe, who had “kidney issues.” See J.A. 162-63. Doe knew no one in Japan other than\n\nthe Howards and did not speak Japanese.\n\n Shortly after Doe and the Howards arrived in Tokyo, Russell’s behavior toward\n\nDoe changed. Doe testified, over objection, that Russell told her about “some of the\n\nways he abused his former employees.” See J.A. 165. She described how Russell began\n\nto touch her inappropriately, on her butt and thigh. Doe then testified that Russell\n\ncornered her in her bedroom in the Howards’ home and raped her. Russell raped Doe\n\nrepeatedly during her employment with the Howards. Doe testified, over objection, that\n\nRussell told her that Linda knew “everything that is happening.” Id. at 174. Doe also\n\nrelated that, after they had arrived in Tokyo, Linda told Doe “to make sure that I please\n\n[Russell], and that’s my primary job, that she didn’t want him to be mad.” Id. at 175.\n\nSome months later, while Doe and the Howards were still in Tokyo, Russell fired Doe\n\nand threatened to have her deported.\n\n On July 31, 2017, after additional testimony and stipulated submissions consistent\n\nwith the preceding recitation of facts, the jury returned its verdict. The jury found Linda\n\nliable for each of the four alleged violations of the TVPA. The jury calculated Roe’s\n\n 13\n\fcompensatory damages at $1 million for each violation. The jury found, however, that\n\nthose compensatory damages were duplicative, and thus awarded Roe $1 million in total\n\ncompensatory damages. The jury also awarded Roe $2 million in punitive damages. See\n\nJ.A. 115-17.\n\n In September 2017, Linda filed multiple post-trial motions seeking to overturn the\n\njury’s verdict. As relevant to this appeal, Linda sought a new trial pursuant to Federal\n\nRule of Civil Procedure 59(a), contending that the district court had erred in admitting\n\nDoe’s testimony. Linda also renewed her Rule 50 motion for judgment as a matter of law\n\non the grounds that the TVPA did not apply to her extraterritorial conduct in 2007, and\n\nthat the 2008 TVPRA amendments did not apply retroactively. In October 2017, the\n\ncourt denied Linda’s post-trial motions. The court then entered judgment in favor of Roe\n\nin accordance with the verdict.\n\n In January 2018, the district court issued a post-trial opinion that addressed, inter\n\nalia, Linda’s contention that the TVPA’s civil remedy provision did not apply\n\nextraterritorially to reach her conduct in Yemen in 2007. See Roe v. Howard, No. 16-cv-\n\n562 (E.D. Va. Jan. 3, 2018), ECF No. 125. The court ruled that, under the version of the\n\nTVPA in effect in 2007, the presumption against extraterritoriality was rebutted with\n\nrespect to Linda’s relevant conduct. Specifically, the court applied the Supreme Court’s\n\ndecision in Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), and this Court’s\n\ndecision in Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516 (4th Cir. 2014), to\n\nconclude that Linda’s conduct sufficiently “touche[d] and concern[ed] the United States”\n\nto displace the presumption against extraterritoriality. See J.A. 148-49. Alternatively,\n\n 14\n\fthe court determined that 18 U.S.C. § 1596, enacted in 2008, could apply retroactively\n\nand supported the extraterritorial application of the TVPA civil remedy provision to\n\nLinda’s conduct.\n\n Linda has timely appealed the judgment of the district court, and we possess\n\nappellate jurisdiction pursuant to 28 U.S.C. § 1291.\n\n\n\n II.\n\n We review de novo a district court’s denial of a Rule 50 motion for judgment as a\n\nmatter of law, viewing the evidence in the light most favorable to the nonmoving party.\n\nSee Fontenot v. Taser Int’l, Inc., 736 F.3d 318, 332 (4th Cir. 2013). We also review de\n\nnovo “the conclusions of law on which the court’s denial of judgment as a matter of law\n\nwas premised.” Adkins v. Crown Auto, Inc., 488 F.3d 225, 231 (4th Cir. 2007). Our de\n\nnovo review extends to all questions of statutory interpretation encompassed therein.\n\nSee, e.g., Stone v. Instrumentation Lab. Co., 591 F.3d 239, 242-43 (4th Cir. 2009).\n\n By contrast, we review a district court’s denial of a Rule 59 motion for a new trial\n\nfor abuse of discretion, and we will reverse only “in the most exceptional circumstances.”\n\nMinter v. Wells Fargo Bank, N.A., 762 F.3d 339, 346 (4th Cir. 2014). Likewise, we\n\nreview rulings on the admissibility of evidence, including testimony, for abuse of\n\ndiscretion. See, e.g., United States v. Vidacak, 553 F.3d 344, 348 (4th Cir. 2009).\n\n\n\n\n 15\n\f III.\n\n Linda seeks to overturn the jury verdict against her by challenging two of the\n\ndistrict court’s rulings in the proceedings below. First, Linda maintains that the court\n\nerred in concluding that the TVPA’s civil remedy provision applied to her extraterritorial\n\nconduct in 2007, and thus erred in denying her motion for judgment as a matter of law.\n\nBy her second contention, Linda argues that the court erred in admitting Jane Doe’s trial\n\ntestimony regarding her abuse by the Howards in 2008. We address each contention in\n\nturn.\n\n A.\n\n Linda seeks to vacate the judgment against her on the ground that the TVPA’s\n\ncivil remedy provision, codified at 18 U.S.C. § 1595, did not apply extraterritorially\n\nbefore 2008. Linda contends that this precludes any liability for her conduct toward Roe,\n\nwhich took place in Yemen in 2007. The district court rejected that argument when it\n\ndenied Linda’s post-trial motion for judgment as a matter of law. In so ruling, the court\n\nrelied on the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co., and\n\nconcluded that Linda’s conduct sufficiently “touch[ed] and concern[ed] the United\n\nStates” to displace the presumption against extraterritoriality. See J.A. 149 (citing\n\nKiobel, 569 U.S. 108, 124-25 (2013)). Alternatively, the court determined that 18 U.S.C.\n\n§ 1596 — which expanded the extraterritorial reach of the TVPA in 2008 — applied\n\nretroactively and sustained Linda’s liability under the TVPA.\n\n As explained below, we affirm the district court and conclude that the TVPA’s\n\ncivil remedy provision applied to Linda’s conduct in Yemen in 2007. We reach this\n\n 16\n\fconclusion, however, based on a somewhat different analysis than that employed by the\n\ndistrict court. See United States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005) (confirming\n\nthat this Court “may affirm on any grounds apparent from the record”). Specifically, we\n\nrely on the Supreme Court’s more recent decision on extraterritoriality in RJR Nabisco,\n\nInc. v. European Cmty., 136 S. Ct. 2090 (2016). Adhering to the framework explained in\n\nRJR Nabisco, we ground our ruling on the text and structure of the relevant TVPA\n\nprovisions. Pursuant to our analysis, we are satisfied that the TVPA’s civil remedy\n\nprovision applied to Linda’s conduct toward Roe in 2007.\n\n 1.\n\n Congress has the undisputed authority to apply its laws beyond “the territorial\n\nboundaries of the United States.” See United States v. Ayesh, 702 F.3d 162, 166 (4th Cir.\n\n2012). Whether it has exercised that authority “is a matter of statutory construction.” Id.\n\n(citing E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991), superseded in part by\n\nstatute, Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1074, as recognized in\n\nLandgraf v. USI Film Prods., 511 U.S. 244, 251 (1994)). The canon of statutory\n\ninterpretation known as the “presumption against extraterritoriality” instructs that\n\n“[a]bsent clearly expressed congressional intent to the contrary, federal laws will be\n\nconstrued to have only domestic application.” RJR Nabisco, 136 S. Ct. at 2100.\n\n In its 2016 ruling in RJR Nabisco, the Supreme Court drew on its precedent to\n\ndescribe a “two-step framework for analyzing extraterritoriality issues.” See id. at 2101\n\n(citing Kiobel, 569 U.S. 108; Morrison v. Nat’l Austr. Bank Ltd., 561 U.S. 247 (2010)).\n\nThe first step of the RJR Nabisco framework asks “whether the statute gives a clear,\n\n 17\n\faffirmative indication that it applies extraterritorially,” and thereby rebuts the\n\npresumption against extraterritoriality. Id. In making that determination, courts look to\n\nthe text of the statute, but “an express statement of extraterritoriality is not essential.” Id.\n\nat 2102. The structure and history of the statute are also relevant to this analysis, and in\n\nsome circumstances the statute’s “context” may be “dispositive.” Id. at 2102-03.\n\n If the first step reveals that a statute — or a specific statutory provision — has\n\nextraterritorial effect, our analysis is complete. See id. at 2101. If, on the other hand, the\n\nfirst step shows that a statute does not apply extraterritorially, a court must proceed to the\n\nsecond step identified in RJR Nabisco. Specifically, the court must then “determine\n\nwhether the case involves a domestic application of the statute” by considering the\n\nchallenged conduct in light of the statute’s “focus.” Id. at 2101. If “the conduct relevant\n\nto the statute’s focus” occurred “in U.S. Territory,” then the application of the statute is\n\nnot truly extraterritorial. See id. 6 That is, such conduct would represent a “permissible\n\ndomestic application” of the statute at issue. See id. at 2100.\n\n\n\n\n 6\n In delineating the two-step framework in RJR Nabisco, the Supreme Court drew\non two of its key precedents addressing extraterritoriality: Morrison and Kiobel. The\nsecond step described in RJR Nabisco, however, appears to privilege consideration of a\nstatute’s “focus” — the approach set out in Morrison — over the inquiry articulated in\nKiobel, which asked whether the claims at issue “touch and concern the territory of the\nUnited States.” See RJR Nabisco, 136 S. Ct. at 2102; Kiobel, 569 U.S. at 124-25. On the\nother hand, RJR Nabisco did not overturn Kiobel and — in step two — retains a similar\nemphasis on the relevant claim’s connection to U.S. territory. See RJR Nabisco, 136 S.\nCt. at 2101. We need not resolve the effect of RJR Nabisco on Kiobel because, as\nexplained herein, we do not reach the second step of the RJR Nabisco framework.\n\n 18\n\f 2.\n\n The first step of the RJR Nabisco framework requires us to assess the specific\n\nstatutory provisions at issue to determine whether those provisions demonstrate “clearly\n\nexpressed congressional intent” that they will apply extraterritorially. See 136 S. Ct. at\n\n2100, 2102; see also Morrison, 561 U.S. at 265 (emphasizing that “when a statute\n\nprovides for some extraterritorial application, the presumption against extraterritoriality\n\noperates to limit that provision to its terms”). Here, Roe sued Linda pursuant to the civil\n\nremedy provision of the TVPA, codified at 18 U.S.C. § 1595. Section 1595 permits\n\nvictims of the trafficking offenses specified in chapter 77 of Title 18 to sue the\n\nperpetrator of such an offense. Roe sought to recover damages based on Linda’s\n\nviolations of the trafficking offenses codified at 18 U.S.C. §§ 1589, 1590, and 1591,\n\nwhich prohibit forced labor, trafficking in forced labor, and forced sex trafficking,\n\nrespectively. Roe also alleged that Linda conspired to commit those offenses in violation\n\nof § 1594. As described above, the jury at Linda’s trial found that she had committed\n\neach of those four offenses and awarded Roe damages under § 1595.\n\n Applying the first step of the RJR Nabisco inquiry, we are satisfied that § 1595 of\n\nthe TVPA evinces a “clear indication of extraterritorial effect,” at least with respect to the\n\nconduct at issue here. See 136 S. Ct. at 2102. Of crucial importance, § 1595 directly\n\nincorporates predicate offenses that govern foreign conduct, providing strong textual\n\nevidence of its extraterritorial effect when applied to those predicates. See id. at 2102-03.\n\nAdditionally, the purpose, structure, history, and context of the TVPA militate toward the\n\nextraterritorial application of § 1595, to the extent that the relevant predicate offenses\n\n 19\n\freach the challenged foreign conduct at issue. See id. at 2102 (consulting “context” to\n\ndetermine extraterritoriality); In re French, 440 F.3d 145, 151 (4th Cir. 2006) (explaining\n\nthat courts should consult “all available evidence,” including text, statutory scheme, and\n\nlegislative history to determine extraterritorial effect of statute).\n\n We begin our analysis by looking to the Supreme Court’s application of the first\n\nRJR Nabisco step to the circumstances of that case. In RJR Nabisco, the Court addressed\n\nwhether the Racketeer Influenced and Corrupt Organizations Act (“RICO”) applied\n\nextraterritorially. See 136 S. Ct. at 2099. The central RICO provision, 18 U.S.C. § 1962,\n\ncontains four substantive prohibitions that criminalize certain means of influencing or\n\noperating an enterprise through “a pattern of racketeering activity.” See id. at 2097\n\n(citing 18 U.S.C. § 1962(a)-(d)). RICO defines “racketeering activity” as comprising a\n\nrange of state and federal offenses, referred to as predicate offenses. See id. at 2096\n\n(citing 18 U.S.C. § 1961). To determine whether the substantive RICO provisions\n\napplied to foreign conduct, the Court examined the text and context of § 1962. See id. at\n\n2101-03.\n\n The Court explained that “[t]he most obvious textual clue” that § 1962 applied\n\nextraterritorially was that RICO defined “racketeering activity” to include “a number of\n\npredicates that plainly apply to at least some foreign conduct.” See id. at 2101. The\n\nCourt reasoned that “Congress’s incorporation of [such] extraterritorial predicates into\n\nRICO gives a clear, affirmative indication that § 1962 applies to foreign racketeering\n\nactivity — but only to the extent that the predicates alleged in a particular case\n\nthemselves apply extraterritorially.” See id. at 2102. Thus, although Congress had not\n\n 20\n\fincluded “an express statement of extraterritoriality” in RICO’s text, the context and\n\nstructure of § 1962 — specifically, its incorporation of “predicate statutes that do apply\n\nextraterritorially” — nonetheless provided the necessary “clear, affirmative indication”\n\nthat § 1962 applied extraterritorially. See id. at 2101, 2102-03.\n\n Put simply, RJR Nabisco teaches that, even absent an express statement of\n\nextraterritoriality, a statute may apply to foreign conduct insofar as it clearly and directly\n\nincorporates a predicate statutory provision that applies extraterritorially. See 136 S. Ct.\n\nat 2102-03. Applying this rule to the TVPA, we are satisfied that § 1595 reflects\n\ncongressional intent that it applies extraterritorially to the extent that a plaintiff seeks\n\nredress for a predicate offense “that is itself extraterritorial.” See id. at 2103.\n\n Like § 1962, the TVPA’s civil remedy provision directly incorporates a set of\n\npredicate offenses “that plainly apply to at least some foreign conduct.” See RJR\n\nNabisco, 136 S. Ct. at 2101. More specifically, § 1595 permits “a victim of a violation of\n\nthis chapter [chapter 77 of Title 18]” to bring “a civil action against the perpetrator.” See\n\n18 U.S.C. § 1595. Many of the predicate offenses proscribed by chapter 77 apply\n\nextraterritorially, either expressly or by way of other provisions delineating their\n\nextraterritorial application. See, e.g., 18 U.S.C. § 1585 (prohibiting, inter alia, seizure of\n\npersons “on any foreign shore” with “intent to make that person a slave”). Thus,\n\npursuant to RJR Nabisco, “Congress’s incorporation” of such “extraterritorial predicates”\n\ninto § 1595 “gives a clear, affirmative indication” that § 1595 provides a civil remedy for\n\nthe foreign conduct that is prohibited by chapter 77. See 136 S. Ct. at 2102. That is,\n\n\n\n 21\n\f§ 1595 applies extraterritorially to the extent that the particular predicate offense\n\nsupporting a specific claim applies extraterritorially. See id. at 2103.\n\n Reinforcing that conclusion, the purpose, structure, history, and context of the\n\nTVPA all support the extraterritorial application of § 1595 for an appropriate predicate\n\noffense. The TVPA’s stated purpose and accompanying congressional findings\n\ndemonstrate that Congress enacted it to address the problem of human trafficking\n\n“throughout the world.” See Pub. L. 106-386 §§ 101-102, 114 Stat. 1464, 1466-69\n\n(2000). The TVPA contains numerous provisions authorizing funds and programs to\n\nsupport international efforts to address that global problem. See, e.g., 22 U.S.C.\n\n§ 7104(c) (creating “border interdiction” programs to combat trafficking at “key border\n\ncrossings”); § 7105 (authorizing foreign assistance programs to protect and aid\n\ntrafficking victims abroad). Notably, Congress has consistently amended the TVPA to\n\nreach and proscribe additional categories of foreign conduct. See, e.g., 18 U.S.C. § 1591\n\n(amended by 2003 TVPRA to cover conduct committed in special maritime and\n\nterritorial jurisdiction of United States); § 3271 (enacted as part of 2006 TVPRA\n\namendments to cover trafficking offenses by U.S. government employees abroad).\n\nViewed as a whole, the TVPA represents a far-reaching congressional effort to combat\n\ntransnational human trafficking on numerous fronts, including by expanding the civil\n\nclaims and remedies available to its victims.\n\n This is, in short, a situation in which Congress was clearly concerned with\n\ninternational rather than purely domestic matters. In these circumstances, unduly limiting\n\nthe TVPA’s scope risks frustrating its animating purpose. See Ayesh, 702 F.3d at 166\n\n 22\n\f(ruling that federal statute prohibiting U.S. employees from pilfering public funds applied\n\nextraterritorially because holding otherwise would immunize broad category of conduct\n\nand frustrate congressional intent); United States v. Delgado-Garcia, 374 F.3d 1337,\n\n1345 (D.C. Cir. 2004) (concluding that statutes prohibiting inducement of aliens to enter\n\nUnited States illegally applied extraterritorially because, inter alia, they were\n\n“fundamentally international” in “focus and effect”).\n\n Although we are satisfied that RJR Nabisco compels the extraterritorial application\n\nof § 1595 with respect to its extraterritorial predicates, we recognize that Part IV of that\n\ndecision declined to apply RICO’s civil cause of action to foreign conduct. See 136 S.\n\nCt. at 2106. But that part of Justice Alito’s opinion for the Court depended on factors\n\nthat do not apply to § 1595 of the TVPA. First, RICO’s civil remedy provision, codified\n\nat 18 U.S.C. § 1964(c), does not directly incorporate any extraterritorial predicates.\n\nIndeed, it makes no reference to any extraterritorial provision whatsoever. Rather, civil\n\nliability under § 1964(c) is premised on § 1962 criminal liability, but — crucially — is\n\nnot coextensive with § 1962 liability. Justice Alito emphasized that the text of § 1964(c)\n\nlimited its application to certain types of injuries, and thereby created a gap between the\n\nreach of § 1964(c) civil liability and § 1962 criminal liability. See id. at 2106, 2108.\n\nFurther, § 1964 contained no other indication that it should apply extraterritorially; that\n\nis, it lacked the kind of “foreign-oriented language” or reference to foreign activity that\n\ncould sustain its extraterritorial application. See id. at 2108-10 & n.12.\n\n None of the foregoing considerations apply to § 1595 of the TVPA. As explained\n\nabove, § 1595 expressly and directly incorporates the TVPA’s criminal predicates, many\n\n 23\n\fof which manifestly apply to foreign conduct. See RJR Nabisco, 136 S. Ct. at 2102. In\n\nthat regard, § 1595 of the TVPA resembles § 1962 of RICO rather than the circumscribed\n\ntext of § 1964(c). See id. at 2109-10 (comparing and distinguishing § 1962 and § 1964);\n\nacc. Pfizer, Inc. v. Gov’t of India, 434 U.S. 308, 313-14 (1978) (sustaining extraterritorial\n\napplication of Clayton Act civil remedy due to, inter alia, its incorporation of definitions\n\nexpressly addressing foreign entities). Moreover, the text of § 1595 shows that it applies\n\ncoextensively with its predicate offenses, omitting any qualifying or modifying language,\n\nwhich further distinguishes it from § 1964(c). Notably, as discussed above, the TVPA is\n\nreplete with the “foreign-oriented language” that Justice Alito found lacking in § 1964(c),\n\nincluding in the predicates underpinning Roe’s claim. See RJR Nabisco, 136 S. Ct. at\n\n2110 n.12. Indeed, the TVPA more clearly targets foreign conduct than any provision of\n\nRICO, as demonstrated by its international scope and Congress’s repeated expansions of\n\nits extraterritorial reach. See, e.g., 2005 TVPRA, 119 Stat. at 3562.\n\n In short, § 1595 evinces the same relationship to its extraterritorial predicate\n\noffenses that RICO’s substantive criminal provision does to its predicates, and is not\n\nsubject to textual limitations like those found in RICO’s private cause of action. Section\n\n1595 therefore provides a civil remedy for conduct that comes within the extraterritorial\n\npredicates of the TVPA. Accordingly, we now turn to the question of whether the\n\npredicate offenses underlying Roe’s civil suit applied to Linda’s extraterritorial conduct\n\nin 2007.\n\n\n\n\n 24\n\f 3.\n\n The jury awarded Roe damages based on their findings that Linda had violated 18\n\nU.S.C. §§ 1589, 1590, 1591, and 1594. Each of those offenses is a qualifying predicate\n\noffense for § 1595 civil liability, as they are all found within chapter 77 of Title 18 of the\n\nU.S. Code. See 18 U.S.C. § 1595 (authorizing civil suits by “a victim of a violation of\n\nthis chapter [chapter 77]” against the perpetrator or “whoever knowingly benefits” from\n\nthat violation). The remaining question for us today is whether those predicates applied\n\nextraterritorially and reached Linda’s foreign conduct in 2007. See RJR Nabisco, 136 S.\n\nCt. at 2102. We will therefore assess each predicate offense, mindful that “the inclusion\n\nof some extraterritorial predicates does not mean that all [statutory] predicates extend to\n\nforeign conduct.” See id.\n\n a.\n\n Section 1591 — prohibiting sex trafficking — presents the simplest analysis.\n\nSince 2003, § 1591 has applied to conduct committed “within the special maritime and\n\nterritorial jurisdiction of the United States.” See 18 U.S.C. § 1591; 2003 TVPRA, 117\n\nStat. at 2879. Where an offense is committed by a United States national like Linda,\n\nTitle 18 defines the “special maritime and territorial jurisdiction of the United States” to\n\ninclude the “premises of United States diplomatic, consular, military or other United\n\nStates Government missions or entities in foreign States,” including related residences,\n\nbuildings, and land, that, “irrespective of ownership,” are used “for purposes of those\n\nmissions or entities.” See 18 U.S.C. § 7(9). It is undisputed that Linda’s part in Roe’s\n\nabuse occurred entirely on U.S. embassy grounds and housing in Sana’a. Those premises\n\n 25\n\funquestionably fall within the “special maritime and territorial jurisdiction of the United\n\nStates,” as defined in Title 18. See id.; see also United States v. Passaro, 577 F.3d 207,\n\n214 (4th Cir. 2009) (observing that American embassies are “plainly within § 7(9)’s\n\nscope”); United States v. Erdos, 474 F.2d 157, 160 (4th Cir. 1973) (ruling that embassies\n\ncomprise part of “special territorial jurisdiction” of United States); H.R. Rep. No. 107-\n\n236, at 74 (2001) (agreeing with Erdos and explaining that “embassies and embassy\n\nhousing of the United States in foreign states are included in the special maritime and\n\nterritorial jurisdiction of the United States”). Thus, § 1591 expressly applied to Linda’s\n\nconduct in Sana’a in 2007, and she is liable for her violation thereof under § 1595.\n\n b.\n\n Sections 1589 and 1590 of Title 18 — prohibiting forced labor and forced labor\n\ntrafficking — do not directly refer to foreign conduct. But since 2006, those sections\n\nhave applied to extraterritorial acts committed by United States employees like Linda.\n\nThe 2005 TVPRA amended the TVPA by enacting 18 U.S.C. § 3271, which provides:\n\n Whoever, while employed by . . . the Federal Government outside the\n United States, engages in conduct outside the United States that would\n constitute an offense under chapter 77 [of Title 18] if the conduct had been\n engaged in within the United States or within the special maritime and\n territorial jurisdiction of the United States shall be punished as provided for\n that offense.\n\nSee 18 U.S.C. § 3271; see also 2005 TVPRA, § 103, 119 Stat. at 3562. Such language\n\n“manifests an unmistakable congressional intent to apply extraterritorially.” See RJR\n\nNabisco, 136 S. Ct. at 2102 (internal quotation marks omitted). If a plainer indication\n\nwas needed, Congress included § 3271 in chapter 212A, titled “Extraterritorial\n\n\n 26\n\fJurisdiction Over Certain Trafficking in Persons Offenses.” See 2005 TVPRA, 119 Stat.\n\nat 3562. By the TVPA’s own terms, this extraterritorial application is limited in scope;\n\nthat is, it applies only to persons employed abroad by the federal government. Linda,\n\nhowever, falls within that class of employees. Consequently, her actions in Sana’a were\n\nwithin the extraterritorial scope of § 1589 and § 1590 in 2007. The jury therefore\n\nproperly found her liable for violating those provisions under § 1595.\n\n c.\n\n Turning to § 1594, however, our analysis differs. Regardless of § 1594’s\n\nextraterritoriality, the conspiracy provision for which the jury found Linda liable had not\n\nbeen enacted by 2007. Rather, the conspiracy prohibitions contained in § 1594(b) and (c)\n\nwere added as part of the 2008 TVPRA amendments. See 2008 TVPRA, § 222, 122 Stat.\n\nat 5070. That said, we need not resolve whether § 1594 applies retroactively in order to\n\naffirm the award of damages to Roe. If this Court is “reasonably certain” that the jury\n\nwould have awarded the same amount of damages regardless of the “issues erroneously\n\nsubmitted to it,” we are entitled to affirm the award. See Tire Eng’g & Distribution, LLC\n\nv. Shandong Linglong Rubber Co., 682 F.3d 292, 314 (4th Cir. 2012). That rule holds\n\nparticular force where, as here, the jury has completed a special verdict form addressing\n\nliability and damages. See id. at 313-14 (collecting and comparing cases). Because the\n\njury indicated that it calculated Roe’s damages at $1 million for each of the four TVPA\n\nviolations, but awarded only $1 million total because those damages were duplicative, it\n\nis beyond reasonable debate that the jury would have awarded Roe $1 million in\n\n\n\n 27\n\fcompensatory damages for any one of Linda’s violations, and for any combination\n\nthereof. See J.A. 115-17.\n\n In sum, the facts established at trial show that Linda committed at least three\n\npredicate offenses that applied to her extraterritorial conduct toward Roe in 2007.\n\nPursuant to the Supreme Court’s decision in RJR Nabisco, § 1595 authorizes Linda’s\n\ncivil liability based on her commission of those offenses. 7 We are entitled to affirm the\n\njury’s award of damages because they were properly awarded pursuant to § 1595, and\n\nbecause any error with regard to the applicability of § 1594 did not affect that result.\n\n Because step one of the RJR Nabisco framework demonstrates that § 1595 applied\n\nextraterritorially to Linda’s conduct, we need not proceed to step two, which guides our\n\nanalysis only where the pertinent statute does not apply extraterritorially. See RJR\n\nNabisco, 136 S. Ct. at 2101. We thus have no occasion to determine whether, under step\n\ntwo, Linda’s offenses involved “a domestic application” of the TVPA. See id.\n\nAccordingly, we reserve for another day the issue of whether conduct occurring entirely\n\nwithin U.S. embassy grounds and associated housing takes place “in U.S. territory.” See\n\nid.; see also Arabian Am. Oil Co., 499 U.S. at 248. We confine our analysis today to the\n\ntext and context of § 1595, and affirm the jury’s award of damages to Roe on that basis.\n\n 7\n Linda’s argument against the extraterritorial application of § 1595 relies almost\nentirely on the Fifth Circuit’s ruling in Adhikari v. Kellogg Brown & Root, Inc., where\nthat court determined that § 1595 failed to provide a remedy for the plaintiffs’\nextraterritorial TVPA claims. See 845 F.3d 184, 201-06 (5th Cir. 2017); see also Br. of\nAppellant 8-16. That decision, however, is readily distinguishable because the Adhikari\nplaintiffs did not allege a violation of 18 U.S.C. § 1591 and the defendants’ conduct\noccurred before the enactment of § 3271. See Adhikari, 845 F.3d at 190, 200.\n\n\n 28\n\f B.\n\n Turning to Linda’s second and final appellate contention, we must resolve whether\n\nthe district court properly admitted Jane Doe’s evidence concerning the sexual abuse she\n\nsuffered while working as the Howards’ housekeeper in 2008. Linda raises various\n\nobjections to Doe’s testimony: that it was impermissible character evidence barred by\n\nFederal Rule of Evidence 404(a); that it could not be admitted under Rule 415, which\n\npermits testimony of “similar acts” in sexual assault lawsuits; that it was unfairly\n\nprejudicial and thus barred by Rule 403; and that the portion of Doe’s testimony relating\n\nto Russell’s statements constituted inadmissible hearsay. Each assertion is without merit.\n\n First, Doe’s testimony was plainly admissible under Rule 404(b)’s exception to\n\nRule 404(a)’s general prohibition of character evidence to prove an action in conformity\n\ntherewith. Doe’s testimony described Linda’s efforts to recruit Doe to work as the\n\nHowards’ housekeeper, and her knowledge and facilitation of Russell’s repeated sexual\n\nassaults on Doe. Consistent with the permissible uses of character evidence under Rule\n\n404(b), Doe’s testimony constituted highly probative evidence regarding Linda’s\n\nintentions in her interactions with Roe; the existence of a plan or pattern of behavior by\n\nthe Howards toward their live-in housekeepers; and Linda’s knowledge of Russell’s\n\nabuse of their staff. Doe’s testimony was therefore admissible under Rule 404(b)(2),\n\nwhich permits the introduction of evidence of “a crime, wrong, or other act” to show,\n\ninter alia, intent, preparation, plan, knowledge, or absence of mistake. Indeed, the\n\nsimilarity between Doe and Roe’s accounts of their abuse enhances the probative value\n\nand relevance of Doe’s evidence. See United States v. Queen, 132 F.3d 991, 997 (4th\n\n 29\n\fCir. 1997). 8 Because we are satisfied that Doe’s testimony was properly admitted under\n\nRule 404(b), we need not assess whether it was also admissible under Rule 415.\n\n Nor was Doe’s testimony barred by Rule 403. Pursuant to Rule 403, a court may\n\nexclude evidence if its “probative value” is “substantially outweighed” by, inter alia, the\n\nrisk of “unfair prejudice.” As noted above, Doe’s testimony provided highly probative\n\nevidence of a pattern of abusive behavior by Russell, knowingly facilitated by Linda.\n\nMoreover, because the assaults Roe suffered occurred in Yemen nearly a decade prior to\n\nLinda’s trial, Doe’s evidence was particularly important given the lack of available\n\nphysical evidence to corroborate Roe’s claims. Finally, the district court limited the\n\nscope of Doe’s testimony to avoid revealing the upsetting details of Russell’s past\n\nassaults, and thus reduced the risk of unfair prejudice. See United States v. Mark, 943\n\nF.2d 444, 449 (4th Cir. 1991). In these circumstances, the court did not abuse its\n\ndiscretion in permitting Doe to testify. See Mohr, 318 F.3d at 619-20 (emphasizing that\n\nRule 403 only requires exclusion of evidence resulting in unfair prejudice that\n\n“substantially” outweighs its probative value); United States v. Van Metre, 150 F.3d 339,\n\n351 (4th Cir. 1998) (sustaining admission of evidence of prior sexual assault in light of its\n\n“significant probative value” and trial court’s effort to reduce its prejudicial impact).\n\n\n\n 8\n Linda argues that the standard for admitting evidence under Rule 404(b) changes\nwhen that evidence concerns “subsequent” (rather than prior) acts. Br. of Appellant 26.\nNo such rule exists in this Circuit. Put simply, Rule 404(b) does not function differently\nmerely because Doe’s experience occurred after Roe’s. See United States v. Mohr, 318\nF.3d 613, 617 (4th Cir. 2003).\n\n\n 30\n\f Lastly, Doe’s testimony concerning Russell’s past statements was not inadmissible\n\nhearsay. Rule 804(b)(3) authorizes the admission of hearsay statements by an\n\nunavailable declarant that are manifestly against the declarant’s interest. Specifically, the\n\nstatement must be one that “a reasonable person in the declarant’s position would have\n\nmade only if the person believed it to be true because, when made, it . . . had so great a\n\ntendency . . . to expose the declarant to civil or criminal liability.” Fed. R. Evid.\n\n804(b)(3). Russell’s statements to Doe — admitting to his past assaults of his former\n\nemployees — more than qualify as statements against interest as so defined, and his death\n\nin 2012 establishes his unavailability to testify. Thus, the trial court did not abuse its\n\ndiscretion by relying on that exception to admit Doe’s testimony regarding Russell’s\n\nincriminating statements. See, e.g., United States v. Udeozor, 515 F.3d 260, 267-68 (4th\n\nCir. 2008) (evaluating flexible requirements of Rule 804(b)(3) and sustaining admission\n\nof hearsay statements that implicated declarant in multiple crimes).\n\n In short, the district court did not abuse its discretion in admitting Doe’s\n\ntestimony, and we are satisfied to affirm the court’s rulings in that regard.\n\n\n\n IV.\n\n Pursuant to the foregoing, we affirm the district court’s judgment in favor of Roe\n\nand against Linda Howard.\n\n\n AFFIRMED\n\n\n\n\n 31\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Sarah ROE, Plaintiff - Appellee, v. Linda HOWARD, Defendant - Appellant, and Estate of Russell Howard, Defendant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-25\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-2338\\n\\n\\nSARAH ROE,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\n\\nLINDA HOWARD,\\n\\n Defendant – Appellant,\\n and\\n\\nESTATE OF RUSSELL HOWARD,\\n\\n Defendant.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nAlexandria. Liam O’Grady, District Judge. (1:16-cv-00562-LO-JFA)\\n\\n\\nArgued: October 30, 2018 Decided: February 25, 2019\\n\\n\\nBefore WILKINSON, KING, and QUATTLEBAUM, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge King wrote the opinion in which Judge Wilkinson\\nand Judge Quattlebaum joined.\\n\\n\\nARGUED: Richard Francis Rinaldo, JONES, GREGG, CREEHAN & GERACE LLP,\\nPittsburgh, Pennsylvania, for Appellant. Melissa Lim Patterson, JONES DAY,\\nWashington, D.C., for Appellee. ON BRIEF: Timothy J. Battle, Alexandria, Virginia,\\n\\ffor Appellant. Alison B. Marshall, Christian G. Vergonis, JONES DAY, Washington,\\nD.C., for Appellee.\\n\\n\\n\\n\\n 2\\n\\fKING, Circuit Judge:\\n\\n Defendant Linda Howard appeals from a judgment entered against her in the\\n\\nEastern District of Virginia after a jury found her civilly liable to plaintiff Sarah Roe\\n\\nunder the Trafficking Victims Protection Act (the “TVPA”). 1 Roe had sued Howard for\\n\\nher role in sexual abuse that Roe suffered at the hands of Russell Howard, Linda’s\\n\\nhusband, when Roe worked in 2007 as the Howards’ housekeeper in housing provided by\\n\\nthe Embassy of the United States in Yemen. 2 The jury found that Linda’s conduct in\\n\\nYemen contravened criminal provisions of the TVPA and thus awarded Roe $3 million in\\n\\ndamages pursuant to the TVPA’s civil remedy provision. See 18 U.S.C. § 1595. On\\n\\nappeal, Linda challenges the district court’s denial of her post-trial motion for judgment\\n\\nas a matter of law, wherein she sought relief on the ground that, in 2007, the TVPA’s\\n\\ncivil remedy provision did not apply extraterritorially. Linda also challenges the court’s\\n\\nadmission of testimonial evidence from another former housekeeper of Linda and Russell\\n\\nwhom they had similarly abused. As explained below, we are satisfied to affirm the\\n\\njudgment.\\n\\n\\n\\n\\n 1\\n The TVPA is generally codified at 18 U.S.C. § 1581 et seq.\\n 2\\n To avoid confusion, we generally refer to Linda Howard and Russell Howard by\\ntheir first names, that is, simply as Linda and Russell. We refer to the plaintiff by her\\npseudonym “Sarah Roe,” pursuant to the district court’s ruling in that regard. See Roe v.\\nHoward, No. 16-cv-562 (E.D. Va. May 27, 2016), ECF No. 11.\\n\\n\\n 3\\n\\f I.\\n\\n A.\\n\\n On July 31, 2017, following a four-day trial, a jury in the Eastern District of\\n\\nVirginia found Linda Howard civilly liable for contravening criminal provisions of the\\n\\nTVPA. More specifically, the jury found that Linda had engaged in forced labor in\\n\\nviolation of 18 U.S.C. § 1589, forced labor trafficking in violation of § 1590, commercial\\n\\nsex trafficking in violation of § 1591, and conspiring to engage in those offenses in\\n\\nviolation of § 1594. See J.A. 115-17. 3\\n\\n When we review an appeal following a jury verdict, we view the trial evidence in\\n\\nthe light most favorable to the prevailing party. See Randall v. Prince George’s Cty., 302\\n\\nF.3d 188, 195 n.8 (4th Cir. 2002) (citing Lowery v. Cir. City Stores, Inc., 206 F.3d 431,\\n\\n442-43 (4th Cir. 2000)). We are likewise obliged to accord the prevailing party the\\n\\nbenefit of all reasonable inferences to be drawn from the evidence. See Lowery, 206 F.3d\\n\\nat 443. The facts recited herein are taken in that light and drawn from the record, which\\n\\nincludes evidence presented at trial and the parties’ joint submission of stipulated facts.\\n\\n 1.\\n\\n Linda is an American citizen. She began working for the Department of State in\\n\\n1991 as a Communications Officer in Paris, France. In Paris, Linda met and married\\n\\nRussell, an Australian citizen who then worked for the Australian Embassy in France.\\n\\n\\n 3\\n Citations herein to “J.A.__” refer to the contents of the Joint Appendix filed by\\nthe parties in this appeal.\\n\\n\\n 4\\n\\fOver the next decade, Linda and Russell held similar postings around the world, usually\\n\\narranging their assignments so that they could pursue their careers in the same country.\\n\\nIn 2001, Russell retired from his position with the Australian government, and he\\n\\nthereafter followed Linda as she continued her career with the State Department.\\n\\n In 2005, the State Department assigned Linda to our Embassy in Sana’a, Yemen.\\n\\nRussell accompanied Linda to Sana’a and also found work at the Embassy. Among other\\n\\njobs, Russell performed administrative work for the Embassy Commissary. In Sana’a,\\n\\nLinda and Russell lived in housing provided by the State Department, and they were\\n\\nprotected by U.S. government security. Linda and Russell remained in Sana’a for\\n\\napproximately three years. Around December 2008, Linda and Russell moved to Japan,\\n\\nwhere Linda received her next State Department posting. By 2012, Linda and Russell\\n\\nhad relocated to Melbourne, Australia, where Russell died of pancreatic cancer that\\n\\nSeptember. Linda continues to reside in Melbourne.\\n\\n 2.\\n\\n Sarah Roe first met the Howards in September 2005, soon after their arrival in\\n\\nYemen. At that time, Roe was twenty years old. Born into an impoverished family in\\n\\nEthiopia, Roe had moved to Yemen to seek work, and she initially secured various\\n\\nhousekeeping and cleaning jobs. In September 2005, Roe was employed there as a\\n\\nwaitress at a restaurant on U.S. Embassy grounds called Uncle Sam’s. It was at Uncle\\n\\nSam’s that the Howards first encountered Roe and sought to befriend her.\\n\\n As one of his odd jobs around the U.S. Embassy, Russell worked in a shop next\\n\\ndoor to Uncle Sam’s. He first introduced himself to Roe, and then introduced Roe to\\n\\n 5\\n\\fLinda. Both Howards paid special attention to Roe: they complimented her appearance,\\n\\ninitiated friendly conversations, and encouraged her to work for them as their live-in\\n\\nhousekeeper. At first Roe declined the job offer, and Russell asked her to help “find a\\n\\nbeautiful woman like [her]self to work in [the Howards’] home.” See J.A. 232. Linda\\n\\nwould stop by Uncle Sam’s three or four times a week, where she would “greet” and\\n\\n“hug” Roe. Id. at 231. Linda even gave Roe her personal phone number. Id. at 234.\\n\\n Around 2006, Roe returned to Ethiopia from Yemen for several months to care for\\n\\nher mother. As a result, she lost her job at Uncle Sam’s. When Roe returned to Sana’a, a\\n\\nyoung Ethiopian woman named Sabha was then employed as the Howards’ live-in\\n\\nhousekeeper, but Linda helped Roe obtain a data-entry job at the U.S. Embassy. Linda\\n\\ngave Roe an application for the data-entry position and taught her how to use a basic\\n\\ndata-entry program on Linda’s home computer. After Roe got the job, Linda continued\\n\\nto befriend her, meeting Roe to talk about her hair stylist and other non-work matters.\\n\\nLinda presented herself to Roe “as a friend, someone very easy to talk to, someone with a\\n\\nvery good heart.” See J.A. 239. Linda also promised to help Roe find another job after\\n\\nthe data-entry position ended. Roe believed Linda offered such help because Linda\\n\\n“really liked” her. Id. at 241.\\n\\n Some months later, in the spring of 2007, the Howards’ then live-in housekeeper\\n\\n(another young Ethiopian woman named Brhan) left them. At the time, Roe was looking\\n\\nfor a new job and the Howards renewed their offer to Roe to fill the housekeeping\\n\\nposition. Roe was uncertain about accepting the Howards’ offer. She made more money\\n\\nwhen she had jobs that allowed her to accept tips, like waitressing. Roe also had her own\\n\\n 6\\n\\fapartment and did not want to move in with the Howards, which was a requirement of the\\n\\nposition. But the Howards offered to help Roe get medical treatment for an eye ailment,\\n\\nrenew her work visa, and aid her family in Ethiopia. Linda also “knew that [Roe] had a\\n\\ndesire to improve [her] language skills,” and promised that Russell could help her with\\n\\nher English. See J.A. 247. As part of their discussions about the live-in position, Linda\\n\\nexplained to Roe “that Russell is usually at home, he needs a friend.” Id. Linda told Roe\\n\\nthat “the main part of this job is to make Russell happy.” Id. at 250. Roe understood this\\n\\nto mean that “doing my job, cleaning, doing everything else was what was going to make\\n\\nhim happy.” Id. Roe accepted the position and agreed to move in with the Howards.\\n\\nShe began working for the Howards in June 2007.\\n\\n Once Roe moved into the Howards’ apartment, she discovered that, although she\\n\\nhad her own room and bathroom, the door to her room could not be locked without a key.\\n\\nThe Howards told Roe they did not have the key. The Howards then presented Roe with\\n\\na uniform consisting of a “very short” skirt and a blouse that “looked like something you\\n\\nwould wear . . . when you go out.” See J.A. 253. Linda had made the outfit herself.\\n\\n When Roe refused to wear the uniform, Russell took Roe to the mall to go\\n\\nshopping. At the mall, he purchased a “very revealing” “one-piece” that “open[ed] in the\\n\\nfront,” and “underwear . . . with one tiny string” and “many holes.” See J.A. 253. Back\\n\\nat the apartment, Russell asked Roe to put on the new purchases “and show him what it\\n\\nlooks like.” Id. at 254. Roe refused again and went to the kitchen to prepare Russell’s\\n\\nlunch. She then retired to her room. Suddenly, Russell entered the room, naked. Roe\\n\\ntried to escape but Russell cornered her, pinned her down on the bed, and raped her.\\n\\n 7\\n\\fRussell continually raped and sexually assaulted Roe for the duration of her time with the\\n\\nHowards. He repeatedly threatened Roe to maintain her silence: he verbally abused her,\\n\\nhe warned Roe that he could have her thrown in jail, he threatened to tell her religiously\\n\\nconservative family about the assaults, and he retained possession of her passport.\\n\\n As the district court succinctly put it in its post-trial opinion, “Linda Howard was\\n\\naware of these assaults.” See J.A. 145-46. Linda often watched as Russell touched Roe’s\\n\\nrear end and breasts. Roe overheard Russell talking to Linda on the phone about the\\n\\nassaults, including complaining that Roe “wasn’t like Brhan.” Id. at 258, 334. Roe knew\\n\\nit was Linda on the other end of the line based on the nature and content of those\\n\\nconversations. On one occasion, Russell related events to Linda over the phone as he\\n\\ntook Roe to a hospital to have an intrauterine contraceptive device implanted. Russell\\n\\nalso told Roe that he talked to Linda about the rapes.\\n\\n Eventually, Roe’s continued resistance to Russell’s repeated assaults and open,\\n\\nabject misery so enraged Russell that he fired her in December 2007. Linda then helped\\n\\nRoe obtain another restaurant job near the Howards’ apartment and wrote a letter of\\n\\nrecommendation for her. Even then, Russell would often stop by the restaurant to\\n\\nthreaten Roe to maintain her silence about the rapes he had perpetrated.\\n\\n B.\\n\\n Congress enacted the TVPA in the year 2000 “to combat trafficking in persons, a\\n\\ncontemporary manifestation of slavery whose victims are predominantly women and\\n\\nchildren, to ensure just and effective punishment of traffickers, and to protect their\\n\\nvictims.” TVPA, Pub. L. No. 106-386, § 102(a), 114 Stat. 1464, 1466 (codified at 22\\n\\n 8\\n\\fU.S.C. § 7101(a)). The congressional findings that accompanied the TVPA in its original\\n\\nform repeatedly emphasized the transnational nature of human trafficking and sexual\\n\\nexploitation, and the enforcement challenges posed by the international scope of that\\n\\ncriminal activity. See id., § 102(b), 114 Stat. at 1466-69.\\n\\n By way of the TVPA, Congress created several new federal criminal offenses\\n\\nintended to more comprehensively and effectively combat human trafficking. Among\\n\\nother provisions, the TVPA criminalized: “Forced labor,” “[t]rafficking with respect to\\n\\npeonage, slavery, involuntary servitude, or forced labor,” and “[s]ex trafficking of\\n\\nchildren or by force, fraud or coercion.” See TVPA, § 112(a)(2), 114 Stat. at 1486-88.\\n\\nThose provisions are respectively codified at 18 U.S.C. §§ 1589, 1590, and 1591, all\\n\\nwithin chapter 77 of Title 18.\\n\\n In 2003, Congress reauthorized and amended the TVPA. See Trafficking Victims\\n\\nProtection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875 (the “2003\\n\\nTVPRA”). In the findings accompanying the 2003 TVPRA, Congress stressed the\\n\\nchallenges that remained “in responding to the needs of victims of trafficking in the\\n\\nUnited States and abroad.” See id., § 2(2), 117 Stat. at 2875. As part of the 2003\\n\\nTVPRA amendments, Congress added a civil remedy provision to chapter 77. See 2003\\n\\nTVPRA, § 4(a)(4)(A), 117 Stat. at 2878. That civil remedy provision is codified at 18\\n\\nU.S.C. § 1595(a), which provides:\\n\\n (a) An individual who is a victim of a violation of [chapter 77] may bring a\\n civil action against the perpetrator . . . in an appropriate district court of the\\n United States and may recover damages . . . .\\n\\n\\n\\n 9\\n\\f The 2003 TVPRA also amended § 1591, which prohibits “[s]ex trafficking of\\n\\nchildren or by force, fraud, or coercion.” That amendment altered § 1591 to expressly\\n\\napply to acts committed “within the special maritime and territorial jurisdiction of the\\n\\nUnited States.” See 2003 TVPRA, § 5(a)(2), 117 Stat. at 2879. The phrase “special\\n\\nmaritime and territorial jurisdiction of the United States” is a term of art defined\\n\\nelsewhere in the U.S. Code. That term encompasses a variety of locations under varying\\n\\ndegrees of control by the United States and includes, with respect to offenses committed\\n\\nby U.S. nationals, the grounds of U.S. diplomatic installations and related premises. See\\n\\n18 U.S.C. § 7(9). Specifically, § 7(9) defines the term to reach:\\n\\n (A) the premises of United States diplomatic, consular, military or other\\n United States Government missions or entities in foreign States, including\\n the buildings, parts of buildings, and land appurtenant or ancillary thereto\\n or used for purposes of those missions or entities, irrespective of\\n ownership; and\\n\\n (B) residences in foreign States and the land appurtenant or ancillary\\n thereto, irrespective of ownership, used for purposes of those missions or\\n entities or used by United States personnel assigned to those missions or\\n entities.\\n\\nSee id.\\n\\n In 2006, Congress again reauthorized the TVPA. See Trafficking Victims\\n\\nProtection Reauthorization Act of 2005, Pub. L. No. 109-164, 119 Stat. 3558 (effective\\n\\nJan. 10, 2006) (the “2005 TVPRA”). This time, Congress expressly found that “[t]he\\n\\ninvolvement of employees and contractors of the United States Government . . . in\\n\\ntrafficking in persons, facilitating the trafficking in persons, or exploiting the victims of\\n\\ntrafficking in persons is inconsistent with United States laws and policies and undermines\\n\\n\\n 10\\n\\fthe credibility and mission of the United States Government programs in post-conflict\\n\\nregions.” See id., § 2(10), 119 Stat. at 3559. Accordingly, Congress further expanded the\\n\\nTVPA’s extraterritorial reach by providing:\\n\\n Whoever, while employed by . . . the Federal Government outside the\\n United States, engages in conduct outside the United States that would\\n constitute an offense under chapter 77 . . . of this title if the conduct had\\n been engaged in within the United States or within the special maritime and\\n territorial jurisdiction of the United States shall be punished as provided for\\n that offense.\\n\\nSee id., § 103, 119 Stat. at 3562 (codified at 18 U.S.C. § 3271). Each of the statutory\\n\\nprovisions and amendments discussed heretofore was in effect between June and\\n\\nDecember 2007, when the Howards exploited and abused Roe.\\n\\n In 2008, after Roe had left the Howards, Congress further amended and\\n\\nreauthorized the TVPA. See William Wilberforce Trafficking Victims Protection\\n\\nReauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044 (the “2008 TVPRA”).\\n\\nThe 2008 TVPRA further expanded the extraterritorial reach of the TVPA by providing:\\n\\n In addition to any domestic or extra-territorial jurisdiction otherwise\\n provided by law, the courts of the United States have extra-territorial\\n jurisdiction over any offense (or any attempt or conspiracy to commit an\\n offense) under section . . . 1589, 1590, or 1591 if—\\n\\n (1) an alleged offender is a national of the United States . . . .\\n\\nSee id., § 223, 122 Stat. at 5071 (codified at 18 U.S.C. § 1596). The 2008 TVPRA also\\n\\nexpanded chapter 77 to prohibit conspiracy to commit the offenses codified at, inter alia,\\n\\n18 U.S.C. §§ 1589, 1590, and 1591. See id., § 222, 122 Stat. at 5070 (codified at 18\\n\\nU.S.C. § 1594(b)-(c)).\\n\\n\\n\\n 11\\n\\f C.\\n\\n In May 2016, Roe sued Linda in the Eastern District of Virginia pursuant to the\\n\\nTVPA civil remedy provision codified at 18 U.S.C. § 1595. 4 See J.A. 15. Roe alleged\\n\\nthat Linda had violated multiple criminal provisions of the TVPA, including its\\n\\nprohibitions of forced labor under 18 U.S.C. § 1589, forced labor trafficking under\\n\\n§ 1590, commercial sex trafficking under § 1591, and conspiracy to engage in those\\n\\noffenses under § 1594.\\n\\n Before trial, Linda sought summary judgment on the grounds that the TVPA did\\n\\nnot apply extraterritorially to reach her conduct in 2007, and that the 2008 amendments\\n\\nexpanding its extraterritorial application did not apply retroactively. The district court\\n\\ndenied that request without prejudice after argument.\\n\\n Linda also filed a motion in limine to exclude the testimony of Jane Doe, a live-in\\n\\nhousekeeper who worked for the Howards after Roe was fired. 5 The district court denied\\n\\nthat motion and ruled that Doe’s testimony was admissible under either Rule 404(b) or\\n\\nRule 415 of the Federal Rules of Evidence. Roe’s claims proceeded to trial in Alexandria\\n\\non July 26, 2017.\\n\\n\\n\\n\\n 4\\n Roe originally sued Russell’s estate in addition to Linda, but later dismissed the\\nestate as a defendant in these proceedings. See Roe v. Howard, No. 16-cv-562 (E.D. Va.\\nJuly 26, 2017), ECF No. 78.\\n 5\\n The district court permitted Jane Doe to testify using this pseudonym. See J.A.\\n156.\\n\\n\\n 12\\n\\f In accordance with the district court’s ruling, Jane Doe took the stand at trial.\\n\\nLike Roe, Doe was a young Ethiopian woman who came to Yemen in search of work.\\n\\nDoe testified, inter alia, that she began working for the Howards in Sana’a as a live-in\\n\\nhousekeeper in 2008. Doe followed the Howards to Tokyo when they relocated at the\\n\\nend of that year, based in part on the Howards’ promises that they would increase her pay\\n\\nand help her obtain health insurance. Such insurance was a benefit of particular value to\\n\\nDoe, who had “kidney issues.” See J.A. 162-63. Doe knew no one in Japan other than\\n\\nthe Howards and did not speak Japanese.\\n\\n Shortly after Doe and the Howards arrived in Tokyo, Russell’s behavior toward\\n\\nDoe changed. Doe testified, over objection, that Russell told her about “some of the\\n\\nways he abused his former employees.” See J.A. 165. She described how Russell began\\n\\nto touch her inappropriately, on her butt and thigh. Doe then testified that Russell\\n\\ncornered her in her bedroom in the Howards’ home and raped her. Russell raped Doe\\n\\nrepeatedly during her employment with the Howards. Doe testified, over objection, that\\n\\nRussell told her that Linda knew “everything that is happening.” Id. at 174. Doe also\\n\\nrelated that, after they had arrived in Tokyo, Linda told Doe “to make sure that I please\\n\\n[Russell], and that’s my primary job, that she didn’t want him to be mad.” Id. at 175.\\n\\nSome months later, while Doe and the Howards were still in Tokyo, Russell fired Doe\\n\\nand threatened to have her deported.\\n\\n On July 31, 2017, after additional testimony and stipulated submissions consistent\\n\\nwith the preceding recitation of facts, the jury returned its verdict. The jury found Linda\\n\\nliable for each of the four alleged violations of the TVPA. The jury calculated Roe’s\\n\\n 13\\n\\fcompensatory damages at $1 million for each violation. The jury found, however, that\\n\\nthose compensatory damages were duplicative, and thus awarded Roe $1 million in total\\n\\ncompensatory damages. The jury also awarded Roe $2 million in punitive damages. See\\n\\nJ.A. 115-17.\\n\\n In September 2017, Linda filed multiple post-trial motions seeking to overturn the\\n\\njury’s verdict. As relevant to this appeal, Linda sought a new trial pursuant to Federal\\n\\nRule of Civil Procedure 59(a), contending that the district court had erred in admitting\\n\\nDoe’s testimony. Linda also renewed her Rule 50 motion for judgment as a matter of law\\n\\non the grounds that the TVPA did not apply to her extraterritorial conduct in 2007, and\\n\\nthat the 2008 TVPRA amendments did not apply retroactively. In October 2017, the\\n\\ncourt denied Linda’s post-trial motions. The court then entered judgment in favor of Roe\\n\\nin accordance with the verdict.\\n\\n In January 2018, the district court issued a post-trial opinion that addressed, inter\\n\\nalia, Linda’s contention that the TVPA’s civil remedy provision did not apply\\n\\nextraterritorially to reach her conduct in Yemen in 2007. See Roe v. Howard, No. 16-cv-\\n\\n562 (E.D. Va. Jan. 3, 2018), ECF No. 125. The court ruled that, under the version of the\\n\\nTVPA in effect in 2007, the presumption against extraterritoriality was rebutted with\\n\\nrespect to Linda’s relevant conduct. Specifically, the court applied the Supreme Court’s\\n\\ndecision in Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), and this Court’s\\n\\ndecision in Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516 (4th Cir. 2014), to\\n\\nconclude that Linda’s conduct sufficiently “touche[d] and concern[ed] the United States”\\n\\nto displace the presumption against extraterritoriality. See J.A. 148-49. Alternatively,\\n\\n 14\\n\\fthe court determined that 18 U.S.C. § 1596, enacted in 2008, could apply retroactively\\n\\nand supported the extraterritorial application of the TVPA civil remedy provision to\\n\\nLinda’s conduct.\\n\\n Linda has timely appealed the judgment of the district court, and we possess\\n\\nappellate jurisdiction pursuant to 28 U.S.C. § 1291.\\n\\n\\n\\n II.\\n\\n We review de novo a district court’s denial of a Rule 50 motion for judgment as a\\n\\nmatter of law, viewing the evidence in the light most favorable to the nonmoving party.\\n\\nSee Fontenot v. Taser Int’l, Inc., 736 F.3d 318, 332 (4th Cir. 2013). We also review de\\n\\nnovo “the conclusions of law on which the court’s denial of judgment as a matter of law\\n\\nwas premised.” Adkins v. Crown Auto, Inc., 488 F.3d 225, 231 (4th Cir. 2007). Our de\\n\\nnovo review extends to all questions of statutory interpretation encompassed therein.\\n\\nSee, e.g., Stone v. Instrumentation Lab. Co., 591 F.3d 239, 242-43 (4th Cir. 2009).\\n\\n By contrast, we review a district court’s denial of a Rule 59 motion for a new trial\\n\\nfor abuse of discretion, and we will reverse only “in the most exceptional circumstances.”\\n\\nMinter v. Wells Fargo Bank, N.A., 762 F.3d 339, 346 (4th Cir. 2014). Likewise, we\\n\\nreview rulings on the admissibility of evidence, including testimony, for abuse of\\n\\ndiscretion. See, e.g., United States v. Vidacak, 553 F.3d 344, 348 (4th Cir. 2009).\\n\\n\\n\\n\\n 15\\n\\f III.\\n\\n Linda seeks to overturn the jury verdict against her by challenging two of the\\n\\ndistrict court’s rulings in the proceedings below. First, Linda maintains that the court\\n\\nerred in concluding that the TVPA’s civil remedy provision applied to her extraterritorial\\n\\nconduct in 2007, and thus erred in denying her motion for judgment as a matter of law.\\n\\nBy her second contention, Linda argues that the court erred in admitting Jane Doe’s trial\\n\\ntestimony regarding her abuse by the Howards in 2008. We address each contention in\\n\\nturn.\\n\\n A.\\n\\n Linda seeks to vacate the judgment against her on the ground that the TVPA’s\\n\\ncivil remedy provision, codified at 18 U.S.C. § 1595, did not apply extraterritorially\\n\\nbefore 2008. Linda contends that this precludes any liability for her conduct toward Roe,\\n\\nwhich took place in Yemen in 2007. The district court rejected that argument when it\\n\\ndenied Linda’s post-trial motion for judgment as a matter of law. In so ruling, the court\\n\\nrelied on the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co., and\\n\\nconcluded that Linda’s conduct sufficiently “touch[ed] and concern[ed] the United\\n\\nStates” to displace the presumption against extraterritoriality. See J.A. 149 (citing\\n\\nKiobel, 569 U.S. 108, 124-25 (2013)). Alternatively, the court determined that 18 U.S.C.\\n\\n§ 1596 — which expanded the extraterritorial reach of the TVPA in 2008 — applied\\n\\nretroactively and sustained Linda’s liability under the TVPA.\\n\\n As explained below, we affirm the district court and conclude that the TVPA’s\\n\\ncivil remedy provision applied to Linda’s conduct in Yemen in 2007. We reach this\\n\\n 16\\n\\fconclusion, however, based on a somewhat different analysis than that employed by the\\n\\ndistrict court. See United States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005) (confirming\\n\\nthat this Court “may affirm on any grounds apparent from the record”). Specifically, we\\n\\nrely on the Supreme Court’s more recent decision on extraterritoriality in RJR Nabisco,\\n\\nInc. v. European Cmty., 136 S. Ct. 2090 (2016). Adhering to the framework explained in\\n\\nRJR Nabisco, we ground our ruling on the text and structure of the relevant TVPA\\n\\nprovisions. Pursuant to our analysis, we are satisfied that the TVPA’s civil remedy\\n\\nprovision applied to Linda’s conduct toward Roe in 2007.\\n\\n 1.\\n\\n Congress has the undisputed authority to apply its laws beyond “the territorial\\n\\nboundaries of the United States.” See United States v. Ayesh, 702 F.3d 162, 166 (4th Cir.\\n\\n2012). Whether it has exercised that authority “is a matter of statutory construction.” Id.\\n\\n(citing E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991), superseded in part by\\n\\nstatute, Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1074, as recognized in\\n\\nLandgraf v. USI Film Prods., 511 U.S. 244, 251 (1994)). The canon of statutory\\n\\ninterpretation known as the “presumption against extraterritoriality” instructs that\\n\\n“[a]bsent clearly expressed congressional intent to the contrary, federal laws will be\\n\\nconstrued to have only domestic application.” RJR Nabisco, 136 S. Ct. at 2100.\\n\\n In its 2016 ruling in RJR Nabisco, the Supreme Court drew on its precedent to\\n\\ndescribe a “two-step framework for analyzing extraterritoriality issues.” See id. at 2101\\n\\n(citing Kiobel, 569 U.S. 108; Morrison v. Nat’l Austr. Bank Ltd., 561 U.S. 247 (2010)).\\n\\nThe first step of the RJR Nabisco framework asks “whether the statute gives a clear,\\n\\n 17\\n\\faffirmative indication that it applies extraterritorially,” and thereby rebuts the\\n\\npresumption against extraterritoriality. Id. In making that determination, courts look to\\n\\nthe text of the statute, but “an express statement of extraterritoriality is not essential.” Id.\\n\\nat 2102. The structure and history of the statute are also relevant to this analysis, and in\\n\\nsome circumstances the statute’s “context” may be “dispositive.” Id. at 2102-03.\\n\\n If the first step reveals that a statute — or a specific statutory provision — has\\n\\nextraterritorial effect, our analysis is complete. See id. at 2101. If, on the other hand, the\\n\\nfirst step shows that a statute does not apply extraterritorially, a court must proceed to the\\n\\nsecond step identified in RJR Nabisco. Specifically, the court must then “determine\\n\\nwhether the case involves a domestic application of the statute” by considering the\\n\\nchallenged conduct in light of the statute’s “focus.” Id. at 2101. If “the conduct relevant\\n\\nto the statute’s focus” occurred “in U.S. Territory,” then the application of the statute is\\n\\nnot truly extraterritorial. See id. 6 That is, such conduct would represent a “permissible\\n\\ndomestic application” of the statute at issue. See id. at 2100.\\n\\n\\n\\n\\n 6\\n In delineating the two-step framework in RJR Nabisco, the Supreme Court drew\\non two of its key precedents addressing extraterritoriality: Morrison and Kiobel. The\\nsecond step described in RJR Nabisco, however, appears to privilege consideration of a\\nstatute’s “focus” — the approach set out in Morrison — over the inquiry articulated in\\nKiobel, which asked whether the claims at issue “touch and concern the territory of the\\nUnited States.” See RJR Nabisco, 136 S. Ct. at 2102; Kiobel, 569 U.S. at 124-25. On the\\nother hand, RJR Nabisco did not overturn Kiobel and — in step two — retains a similar\\nemphasis on the relevant claim’s connection to U.S. territory. See RJR Nabisco, 136 S.\\nCt. at 2101. We need not resolve the effect of RJR Nabisco on Kiobel because, as\\nexplained herein, we do not reach the second step of the RJR Nabisco framework.\\n\\n 18\\n\\f 2.\\n\\n The first step of the RJR Nabisco framework requires us to assess the specific\\n\\nstatutory provisions at issue to determine whether those provisions demonstrate “clearly\\n\\nexpressed congressional intent” that they will apply extraterritorially. See 136 S. Ct. at\\n\\n2100, 2102; see also Morrison, 561 U.S. at 265 (emphasizing that “when a statute\\n\\nprovides for some extraterritorial application, the presumption against extraterritoriality\\n\\noperates to limit that provision to its terms”). Here, Roe sued Linda pursuant to the civil\\n\\nremedy provision of the TVPA, codified at 18 U.S.C. § 1595. Section 1595 permits\\n\\nvictims of the trafficking offenses specified in chapter 77 of Title 18 to sue the\\n\\nperpetrator of such an offense. Roe sought to recover damages based on Linda’s\\n\\nviolations of the trafficking offenses codified at 18 U.S.C. §§ 1589, 1590, and 1591,\\n\\nwhich prohibit forced labor, trafficking in forced labor, and forced sex trafficking,\\n\\nrespectively. Roe also alleged that Linda conspired to commit those offenses in violation\\n\\nof § 1594. As described above, the jury at Linda’s trial found that she had committed\\n\\neach of those four offenses and awarded Roe damages under § 1595.\\n\\n Applying the first step of the RJR Nabisco inquiry, we are satisfied that § 1595 of\\n\\nthe TVPA evinces a “clear indication of extraterritorial effect,” at least with respect to the\\n\\nconduct at issue here. See 136 S. Ct. at 2102. Of crucial importance, § 1595 directly\\n\\nincorporates predicate offenses that govern foreign conduct, providing strong textual\\n\\nevidence of its extraterritorial effect when applied to those predicates. See id. at 2102-03.\\n\\nAdditionally, the purpose, structure, history, and context of the TVPA militate toward the\\n\\nextraterritorial application of § 1595, to the extent that the relevant predicate offenses\\n\\n 19\\n\\freach the challenged foreign conduct at issue. See id. at 2102 (consulting “context” to\\n\\ndetermine extraterritoriality); In re French, 440 F.3d 145, 151 (4th Cir. 2006) (explaining\\n\\nthat courts should consult “all available evidence,” including text, statutory scheme, and\\n\\nlegislative history to determine extraterritorial effect of statute).\\n\\n We begin our analysis by looking to the Supreme Court’s application of the first\\n\\nRJR Nabisco step to the circumstances of that case. In RJR Nabisco, the Court addressed\\n\\nwhether the Racketeer Influenced and Corrupt Organizations Act (“RICO”) applied\\n\\nextraterritorially. See 136 S. Ct. at 2099. The central RICO provision, 18 U.S.C. § 1962,\\n\\ncontains four substantive prohibitions that criminalize certain means of influencing or\\n\\noperating an enterprise through “a pattern of racketeering activity.” See id. at 2097\\n\\n(citing 18 U.S.C. § 1962(a)-(d)). RICO defines “racketeering activity” as comprising a\\n\\nrange of state and federal offenses, referred to as predicate offenses. See id. at 2096\\n\\n(citing 18 U.S.C. § 1961). To determine whether the substantive RICO provisions\\n\\napplied to foreign conduct, the Court examined the text and context of § 1962. See id. at\\n\\n2101-03.\\n\\n The Court explained that “[t]he most obvious textual clue” that § 1962 applied\\n\\nextraterritorially was that RICO defined “racketeering activity” to include “a number of\\n\\npredicates that plainly apply to at least some foreign conduct.” See id. at 2101. The\\n\\nCourt reasoned that “Congress’s incorporation of [such] extraterritorial predicates into\\n\\nRICO gives a clear, affirmative indication that § 1962 applies to foreign racketeering\\n\\nactivity — but only to the extent that the predicates alleged in a particular case\\n\\nthemselves apply extraterritorially.” See id. at 2102. Thus, although Congress had not\\n\\n 20\\n\\fincluded “an express statement of extraterritoriality” in RICO’s text, the context and\\n\\nstructure of § 1962 — specifically, its incorporation of “predicate statutes that do apply\\n\\nextraterritorially” — nonetheless provided the necessary “clear, affirmative indication”\\n\\nthat § 1962 applied extraterritorially. See id. at 2101, 2102-03.\\n\\n Put simply, RJR Nabisco teaches that, even absent an express statement of\\n\\nextraterritoriality, a statute may apply to foreign conduct insofar as it clearly and directly\\n\\nincorporates a predicate statutory provision that applies extraterritorially. See 136 S. Ct.\\n\\nat 2102-03. Applying this rule to the TVPA, we are satisfied that § 1595 reflects\\n\\ncongressional intent that it applies extraterritorially to the extent that a plaintiff seeks\\n\\nredress for a predicate offense “that is itself extraterritorial.” See id. at 2103.\\n\\n Like § 1962, the TVPA’s civil remedy provision directly incorporates a set of\\n\\npredicate offenses “that plainly apply to at least some foreign conduct.” See RJR\\n\\nNabisco, 136 S. Ct. at 2101. More specifically, § 1595 permits “a victim of a violation of\\n\\nthis chapter [chapter 77 of Title 18]” to bring “a civil action against the perpetrator.” See\\n\\n18 U.S.C. § 1595. Many of the predicate offenses proscribed by chapter 77 apply\\n\\nextraterritorially, either expressly or by way of other provisions delineating their\\n\\nextraterritorial application. See, e.g., 18 U.S.C. § 1585 (prohibiting, inter alia, seizure of\\n\\npersons “on any foreign shore” with “intent to make that person a slave”). Thus,\\n\\npursuant to RJR Nabisco, “Congress’s incorporation” of such “extraterritorial predicates”\\n\\ninto § 1595 “gives a clear, affirmative indication” that § 1595 provides a civil remedy for\\n\\nthe foreign conduct that is prohibited by chapter 77. See 136 S. Ct. at 2102. That is,\\n\\n\\n\\n 21\\n\\f§ 1595 applies extraterritorially to the extent that the particular predicate offense\\n\\nsupporting a specific claim applies extraterritorially. See id. at 2103.\\n\\n Reinforcing that conclusion, the purpose, structure, history, and context of the\\n\\nTVPA all support the extraterritorial application of § 1595 for an appropriate predicate\\n\\noffense. The TVPA’s stated purpose and accompanying congressional findings\\n\\ndemonstrate that Congress enacted it to address the problem of human trafficking\\n\\n“throughout the world.” See Pub. L. 106-386 §§ 101-102, 114 Stat. 1464, 1466-69\\n\\n(2000). The TVPA contains numerous provisions authorizing funds and programs to\\n\\nsupport international efforts to address that global problem. See, e.g., 22 U.S.C.\\n\\n§ 7104(c) (creating “border interdiction” programs to combat trafficking at “key border\\n\\ncrossings”); § 7105 (authorizing foreign assistance programs to protect and aid\\n\\ntrafficking victims abroad). Notably, Congress has consistently amended the TVPA to\\n\\nreach and proscribe additional categories of foreign conduct. See, e.g., 18 U.S.C. § 1591\\n\\n(amended by 2003 TVPRA to cover conduct committed in special maritime and\\n\\nterritorial jurisdiction of United States); § 3271 (enacted as part of 2006 TVPRA\\n\\namendments to cover trafficking offenses by U.S. government employees abroad).\\n\\nViewed as a whole, the TVPA represents a far-reaching congressional effort to combat\\n\\ntransnational human trafficking on numerous fronts, including by expanding the civil\\n\\nclaims and remedies available to its victims.\\n\\n This is, in short, a situation in which Congress was clearly concerned with\\n\\ninternational rather than purely domestic matters. In these circumstances, unduly limiting\\n\\nthe TVPA’s scope risks frustrating its animating purpose. See Ayesh, 702 F.3d at 166\\n\\n 22\\n\\f(ruling that federal statute prohibiting U.S. employees from pilfering public funds applied\\n\\nextraterritorially because holding otherwise would immunize broad category of conduct\\n\\nand frustrate congressional intent); United States v. Delgado-Garcia, 374 F.3d 1337,\\n\\n1345 (D.C. Cir. 2004) (concluding that statutes prohibiting inducement of aliens to enter\\n\\nUnited States illegally applied extraterritorially because, inter alia, they were\\n\\n“fundamentally international” in “focus and effect”).\\n\\n Although we are satisfied that RJR Nabisco compels the extraterritorial application\\n\\nof § 1595 with respect to its extraterritorial predicates, we recognize that Part IV of that\\n\\ndecision declined to apply RICO’s civil cause of action to foreign conduct. See 136 S.\\n\\nCt. at 2106. But that part of Justice Alito’s opinion for the Court depended on factors\\n\\nthat do not apply to § 1595 of the TVPA. First, RICO’s civil remedy provision, codified\\n\\nat 18 U.S.C. § 1964(c), does not directly incorporate any extraterritorial predicates.\\n\\nIndeed, it makes no reference to any extraterritorial provision whatsoever. Rather, civil\\n\\nliability under § 1964(c) is premised on § 1962 criminal liability, but — crucially — is\\n\\nnot coextensive with § 1962 liability. Justice Alito emphasized that the text of § 1964(c)\\n\\nlimited its application to certain types of injuries, and thereby created a gap between the\\n\\nreach of § 1964(c) civil liability and § 1962 criminal liability. See id. at 2106, 2108.\\n\\nFurther, § 1964 contained no other indication that it should apply extraterritorially; that\\n\\nis, it lacked the kind of “foreign-oriented language” or reference to foreign activity that\\n\\ncould sustain its extraterritorial application. See id. at 2108-10 & n.12.\\n\\n None of the foregoing considerations apply to § 1595 of the TVPA. As explained\\n\\nabove, § 1595 expressly and directly incorporates the TVPA’s criminal predicates, many\\n\\n 23\\n\\fof which manifestly apply to foreign conduct. See RJR Nabisco, 136 S. Ct. at 2102. In\\n\\nthat regard, § 1595 of the TVPA resembles § 1962 of RICO rather than the circumscribed\\n\\ntext of § 1964(c). See id. at 2109-10 (comparing and distinguishing § 1962 and § 1964);\\n\\nacc. Pfizer, Inc. v. Gov’t of India, 434 U.S. 308, 313-14 (1978) (sustaining extraterritorial\\n\\napplication of Clayton Act civil remedy due to, inter alia, its incorporation of definitions\\n\\nexpressly addressing foreign entities). Moreover, the text of § 1595 shows that it applies\\n\\ncoextensively with its predicate offenses, omitting any qualifying or modifying language,\\n\\nwhich further distinguishes it from § 1964(c). Notably, as discussed above, the TVPA is\\n\\nreplete with the “foreign-oriented language” that Justice Alito found lacking in § 1964(c),\\n\\nincluding in the predicates underpinning Roe’s claim. See RJR Nabisco, 136 S. Ct. at\\n\\n2110 n.12. Indeed, the TVPA more clearly targets foreign conduct than any provision of\\n\\nRICO, as demonstrated by its international scope and Congress’s repeated expansions of\\n\\nits extraterritorial reach. See, e.g., 2005 TVPRA, 119 Stat. at 3562.\\n\\n In short, § 1595 evinces the same relationship to its extraterritorial predicate\\n\\noffenses that RICO’s substantive criminal provision does to its predicates, and is not\\n\\nsubject to textual limitations like those found in RICO’s private cause of action. Section\\n\\n1595 therefore provides a civil remedy for conduct that comes within the extraterritorial\\n\\npredicates of the TVPA. Accordingly, we now turn to the question of whether the\\n\\npredicate offenses underlying Roe’s civil suit applied to Linda’s extraterritorial conduct\\n\\nin 2007.\\n\\n\\n\\n\\n 24\\n\\f 3.\\n\\n The jury awarded Roe damages based on their findings that Linda had violated 18\\n\\nU.S.C. §§ 1589, 1590, 1591, and 1594. Each of those offenses is a qualifying predicate\\n\\noffense for § 1595 civil liability, as they are all found within chapter 77 of Title 18 of the\\n\\nU.S. Code. See 18 U.S.C. § 1595 (authorizing civil suits by “a victim of a violation of\\n\\nthis chapter [chapter 77]” against the perpetrator or “whoever knowingly benefits” from\\n\\nthat violation). The remaining question for us today is whether those predicates applied\\n\\nextraterritorially and reached Linda’s foreign conduct in 2007. See RJR Nabisco, 136 S.\\n\\nCt. at 2102. We will therefore assess each predicate offense, mindful that “the inclusion\\n\\nof some extraterritorial predicates does not mean that all [statutory] predicates extend to\\n\\nforeign conduct.” See id.\\n\\n a.\\n\\n Section 1591 — prohibiting sex trafficking — presents the simplest analysis.\\n\\nSince 2003, § 1591 has applied to conduct committed “within the special maritime and\\n\\nterritorial jurisdiction of the United States.” See 18 U.S.C. § 1591; 2003 TVPRA, 117\\n\\nStat. at 2879. Where an offense is committed by a United States national like Linda,\\n\\nTitle 18 defines the “special maritime and territorial jurisdiction of the United States” to\\n\\ninclude the “premises of United States diplomatic, consular, military or other United\\n\\nStates Government missions or entities in foreign States,” including related residences,\\n\\nbuildings, and land, that, “irrespective of ownership,” are used “for purposes of those\\n\\nmissions or entities.” See 18 U.S.C. § 7(9). It is undisputed that Linda’s part in Roe’s\\n\\nabuse occurred entirely on U.S. embassy grounds and housing in Sana’a. Those premises\\n\\n 25\\n\\funquestionably fall within the “special maritime and territorial jurisdiction of the United\\n\\nStates,” as defined in Title 18. See id.; see also United States v. Passaro, 577 F.3d 207,\\n\\n214 (4th Cir. 2009) (observing that American embassies are “plainly within § 7(9)’s\\n\\nscope”); United States v. Erdos, 474 F.2d 157, 160 (4th Cir. 1973) (ruling that embassies\\n\\ncomprise part of “special territorial jurisdiction” of United States); H.R. Rep. No. 107-\\n\\n236, at 74 (2001) (agreeing with Erdos and explaining that “embassies and embassy\\n\\nhousing of the United States in foreign states are included in the special maritime and\\n\\nterritorial jurisdiction of the United States”). Thus, § 1591 expressly applied to Linda’s\\n\\nconduct in Sana’a in 2007, and she is liable for her violation thereof under § 1595.\\n\\n b.\\n\\n Sections 1589 and 1590 of Title 18 — prohibiting forced labor and forced labor\\n\\ntrafficking — do not directly refer to foreign conduct. But since 2006, those sections\\n\\nhave applied to extraterritorial acts committed by United States employees like Linda.\\n\\nThe 2005 TVPRA amended the TVPA by enacting 18 U.S.C. § 3271, which provides:\\n\\n Whoever, while employed by . . . the Federal Government outside the\\n United States, engages in conduct outside the United States that would\\n constitute an offense under chapter 77 [of Title 18] if the conduct had been\\n engaged in within the United States or within the special maritime and\\n territorial jurisdiction of the United States shall be punished as provided for\\n that offense.\\n\\nSee 18 U.S.C. § 3271; see also 2005 TVPRA, § 103, 119 Stat. at 3562. Such language\\n\\n“manifests an unmistakable congressional intent to apply extraterritorially.” See RJR\\n\\nNabisco, 136 S. Ct. at 2102 (internal quotation marks omitted). If a plainer indication\\n\\nwas needed, Congress included § 3271 in chapter 212A, titled “Extraterritorial\\n\\n\\n 26\\n\\fJurisdiction Over Certain Trafficking in Persons Offenses.” See 2005 TVPRA, 119 Stat.\\n\\nat 3562. By the TVPA’s own terms, this extraterritorial application is limited in scope;\\n\\nthat is, it applies only to persons employed abroad by the federal government. Linda,\\n\\nhowever, falls within that class of employees. Consequently, her actions in Sana’a were\\n\\nwithin the extraterritorial scope of § 1589 and § 1590 in 2007. The jury therefore\\n\\nproperly found her liable for violating those provisions under § 1595.\\n\\n c.\\n\\n Turning to § 1594, however, our analysis differs. Regardless of § 1594’s\\n\\nextraterritoriality, the conspiracy provision for which the jury found Linda liable had not\\n\\nbeen enacted by 2007. Rather, the conspiracy prohibitions contained in § 1594(b) and (c)\\n\\nwere added as part of the 2008 TVPRA amendments. See 2008 TVPRA, § 222, 122 Stat.\\n\\nat 5070. That said, we need not resolve whether § 1594 applies retroactively in order to\\n\\naffirm the award of damages to Roe. If this Court is “reasonably certain” that the jury\\n\\nwould have awarded the same amount of damages regardless of the “issues erroneously\\n\\nsubmitted to it,” we are entitled to affirm the award. See Tire Eng’g & Distribution, LLC\\n\\nv. Shandong Linglong Rubber Co., 682 F.3d 292, 314 (4th Cir. 2012). That rule holds\\n\\nparticular force where, as here, the jury has completed a special verdict form addressing\\n\\nliability and damages. See id. at 313-14 (collecting and comparing cases). Because the\\n\\njury indicated that it calculated Roe’s damages at $1 million for each of the four TVPA\\n\\nviolations, but awarded only $1 million total because those damages were duplicative, it\\n\\nis beyond reasonable debate that the jury would have awarded Roe $1 million in\\n\\n\\n\\n 27\\n\\fcompensatory damages for any one of Linda’s violations, and for any combination\\n\\nthereof. See J.A. 115-17.\\n\\n In sum, the facts established at trial show that Linda committed at least three\\n\\npredicate offenses that applied to her extraterritorial conduct toward Roe in 2007.\\n\\nPursuant to the Supreme Court’s decision in RJR Nabisco, § 1595 authorizes Linda’s\\n\\ncivil liability based on her commission of those offenses. 7 We are entitled to affirm the\\n\\njury’s award of damages because they were properly awarded pursuant to § 1595, and\\n\\nbecause any error with regard to the applicability of § 1594 did not affect that result.\\n\\n Because step one of the RJR Nabisco framework demonstrates that § 1595 applied\\n\\nextraterritorially to Linda’s conduct, we need not proceed to step two, which guides our\\n\\nanalysis only where the pertinent statute does not apply extraterritorially. See RJR\\n\\nNabisco, 136 S. Ct. at 2101. We thus have no occasion to determine whether, under step\\n\\ntwo, Linda’s offenses involved “a domestic application” of the TVPA. See id.\\n\\nAccordingly, we reserve for another day the issue of whether conduct occurring entirely\\n\\nwithin U.S. embassy grounds and associated housing takes place “in U.S. territory.” See\\n\\nid.; see also Arabian Am. Oil Co., 499 U.S. at 248. We confine our analysis today to the\\n\\ntext and context of § 1595, and affirm the jury’s award of damages to Roe on that basis.\\n\\n 7\\n Linda’s argument against the extraterritorial application of § 1595 relies almost\\nentirely on the Fifth Circuit’s ruling in Adhikari v. Kellogg Brown & Root, Inc., where\\nthat court determined that § 1595 failed to provide a remedy for the plaintiffs’\\nextraterritorial TVPA claims. See 845 F.3d 184, 201-06 (5th Cir. 2017); see also Br. of\\nAppellant 8-16. That decision, however, is readily distinguishable because the Adhikari\\nplaintiffs did not allege a violation of 18 U.S.C. § 1591 and the defendants’ conduct\\noccurred before the enactment of § 3271. See Adhikari, 845 F.3d at 190, 200.\\n\\n\\n 28\\n\\f B.\\n\\n Turning to Linda’s second and final appellate contention, we must resolve whether\\n\\nthe district court properly admitted Jane Doe’s evidence concerning the sexual abuse she\\n\\nsuffered while working as the Howards’ housekeeper in 2008. Linda raises various\\n\\nobjections to Doe’s testimony: that it was impermissible character evidence barred by\\n\\nFederal Rule of Evidence 404(a); that it could not be admitted under Rule 415, which\\n\\npermits testimony of “similar acts” in sexual assault lawsuits; that it was unfairly\\n\\nprejudicial and thus barred by Rule 403; and that the portion of Doe’s testimony relating\\n\\nto Russell’s statements constituted inadmissible hearsay. Each assertion is without merit.\\n\\n First, Doe’s testimony was plainly admissible under Rule 404(b)’s exception to\\n\\nRule 404(a)’s general prohibition of character evidence to prove an action in conformity\\n\\ntherewith. Doe’s testimony described Linda’s efforts to recruit Doe to work as the\\n\\nHowards’ housekeeper, and her knowledge and facilitation of Russell’s repeated sexual\\n\\nassaults on Doe. Consistent with the permissible uses of character evidence under Rule\\n\\n404(b), Doe’s testimony constituted highly probative evidence regarding Linda’s\\n\\nintentions in her interactions with Roe; the existence of a plan or pattern of behavior by\\n\\nthe Howards toward their live-in housekeepers; and Linda’s knowledge of Russell’s\\n\\nabuse of their staff. Doe’s testimony was therefore admissible under Rule 404(b)(2),\\n\\nwhich permits the introduction of evidence of “a crime, wrong, or other act” to show,\\n\\ninter alia, intent, preparation, plan, knowledge, or absence of mistake. Indeed, the\\n\\nsimilarity between Doe and Roe’s accounts of their abuse enhances the probative value\\n\\nand relevance of Doe’s evidence. See United States v. Queen, 132 F.3d 991, 997 (4th\\n\\n 29\\n\\fCir. 1997). 8 Because we are satisfied that Doe’s testimony was properly admitted under\\n\\nRule 404(b), we need not assess whether it was also admissible under Rule 415.\\n\\n Nor was Doe’s testimony barred by Rule 403. Pursuant to Rule 403, a court may\\n\\nexclude evidence if its “probative value” is “substantially outweighed” by, inter alia, the\\n\\nrisk of “unfair prejudice.” As noted above, Doe’s testimony provided highly probative\\n\\nevidence of a pattern of abusive behavior by Russell, knowingly facilitated by Linda.\\n\\nMoreover, because the assaults Roe suffered occurred in Yemen nearly a decade prior to\\n\\nLinda’s trial, Doe’s evidence was particularly important given the lack of available\\n\\nphysical evidence to corroborate Roe’s claims. Finally, the district court limited the\\n\\nscope of Doe’s testimony to avoid revealing the upsetting details of Russell’s past\\n\\nassaults, and thus reduced the risk of unfair prejudice. See United States v. Mark, 943\\n\\nF.2d 444, 449 (4th Cir. 1991). In these circumstances, the court did not abuse its\\n\\ndiscretion in permitting Doe to testify. See Mohr, 318 F.3d at 619-20 (emphasizing that\\n\\nRule 403 only requires exclusion of evidence resulting in unfair prejudice that\\n\\n“substantially” outweighs its probative value); United States v. Van Metre, 150 F.3d 339,\\n\\n351 (4th Cir. 1998) (sustaining admission of evidence of prior sexual assault in light of its\\n\\n“significant probative value” and trial court’s effort to reduce its prejudicial impact).\\n\\n\\n\\n 8\\n Linda argues that the standard for admitting evidence under Rule 404(b) changes\\nwhen that evidence concerns “subsequent” (rather than prior) acts. Br. of Appellant 26.\\nNo such rule exists in this Circuit. Put simply, Rule 404(b) does not function differently\\nmerely because Doe’s experience occurred after Roe’s. See United States v. Mohr, 318\\nF.3d 613, 617 (4th Cir. 2003).\\n\\n\\n 30\\n\\f Lastly, Doe’s testimony concerning Russell’s past statements was not inadmissible\\n\\nhearsay. Rule 804(b)(3) authorizes the admission of hearsay statements by an\\n\\nunavailable declarant that are manifestly against the declarant’s interest. Specifically, the\\n\\nstatement must be one that “a reasonable person in the declarant’s position would have\\n\\nmade only if the person believed it to be true because, when made, it . . . had so great a\\n\\ntendency . . . to expose the declarant to civil or criminal liability.” Fed. R. Evid.\\n\\n804(b)(3). Russell’s statements to Doe — admitting to his past assaults of his former\\n\\nemployees — more than qualify as statements against interest as so defined, and his death\\n\\nin 2012 establishes his unavailability to testify. Thus, the trial court did not abuse its\\n\\ndiscretion by relying on that exception to admit Doe’s testimony regarding Russell’s\\n\\nincriminating statements. See, e.g., United States v. Udeozor, 515 F.3d 260, 267-68 (4th\\n\\nCir. 2008) (evaluating flexible requirements of Rule 804(b)(3) and sustaining admission\\n\\nof hearsay statements that implicated declarant in multiple crimes).\\n\\n In short, the district court did not abuse its discretion in admitting Doe’s\\n\\ntestimony, and we are satisfied to affirm the court’s rulings in that regard.\\n\\n\\n\\n IV.\\n\\n Pursuant to the foregoing, we affirm the district court’s judgment in favor of Roe\\n\\nand against Linda Howard.\\n\\n\\n AFFIRMED\\n\\n\\n\\n\\n 31\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":568,"cells":{"id":{"kind":"number","value":4593603,"string":"4,593,603"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Jesus Christ is the Answer v. Baltimore County, Maryland"},"decision_date":{"kind":"string","value":"2019-02-25"},"docket_number":{"kind":"string","value":"18-1450"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before NIEMEYER, AGEE, and DIAZ, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"DIAZ, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1450\\n\\n\\nJESUS CHRIST IS THE ANSWER MINISTRIES, INC.; REV. LUCY WARE,\\n\\n Plaintiffs − Appellants,\\n\\n v.\\n\\nBALTIMORE COUNTY, MARYLAND; BOARD OF APPEALS OF\\nBALTIMORE COUNTY, MARYLAND,\\n\\n Defendants – Appellees.\\n\\n------------------------------\\n\\nUNITED STATES OF AMERICA,\\n\\n Amicus Supporting Appellants.\\n\\n\\nAppeal from the United States District Court for the District of Maryland, at Baltimore.\\nRichard D. Bennett, District Judge. (1:17-cv-03010-RDB)\\n\\n\\nArgued: October 31, 2018 Decided: February 7, 2019\\n Amended: February 25, 2019\\n\\n\\nBefore NIEMEYER, AGEE, and DIAZ, Circuit Judges.\\n\\n\\nVacated and remanded by published opinion. Judge Diaz wrote the opinion, in which\\nJudge Niemeyer and Judge Agee joined.\\n\\fARGUED: Roman P. Storzer, STORZER & ASSOCIATES, P.C., Washington, D.C.,\\nfor Appellants. James Joseph Nolan, Jr., Paul M. Mayhew, BALTIMORE COUNTY\\nOFFICE OF LAW, Towson, Maryland, for Appellees. John Matthew Gore, UNITED\\nSTATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States of\\nAmerica. ON BRIEF: Sieglinde K. Rath, STORZER & ASSOCIATES, P.C.,\\nWashington, D.C.; Lawrence E. Schmidt, SMITH GILDEA & SCHMIDT LLC, Towson,\\nMaryland, for Appellants. Michael E. Field, County Attorney, R. Brady Locher,\\nAssistant County Attorney, BALTIMORE COUNTY OFFICE OF LAW, Towson,\\nMaryland, for Appellees. Tovah R. Calderon, Katherine E. Lamm, Appellate Section,\\nCivil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,\\nD.C., for Amicus United States of America.\\n\\n\\n\\n\\n 2\\n\\fDIAZ, Circuit Judge:\\n\\n Jesus Christ Is the Answer Ministries, Inc. (the “Church”) and Reverend Lucy\\n\\nWare appeal the dismissal of their claims against Baltimore County and the Board of\\n\\nAppeals of Baltimore County. The district court dismissed Plaintiffs’ suit for failure to\\n\\nstate a claim under the Religious Land Use and Institutionalized Persons Act\\n\\n(“RLUIPA”), 42 U.S.C. § 2000cc et seq., the Free Exercise Clause, the Equal Protection\\n\\nClause, and Article 36 of the Maryland Declaration of Rights. For the reasons that\\n\\nfollow, we vacate and remand for further proceedings.\\n\\n\\n\\n I.\\n\\n A.\\n\\n Jesus Christ is the Answer Ministries, Inc. is a nondenominational Christian\\n\\nchurch founded in Baltimore in 1997 by Reverend Lucy Ware. 1 The Church describes\\n\\nitself as evangelical and multicultural. It has associated churches in Kenya and the\\n\\nSeychelles, and many of the Church’s congregants were born in Africa. Reverend Ware\\n\\nwas born in Kenya, where she was active in her family church until moving to the United\\n\\nStates.\\n\\n The Church has struggled to secure an adequate house of worship, and this has\\n\\nimpeded its religious mission. This lawsuit arises from Ware’s unsuccessful efforts to\\n\\n 1\\n Our recitation of the facts is based on the allegations in Plaintiffs’ complaint,\\nwhich we accept as true at the motion to dismiss stage. Edwards v. City of Goldsboro,\\n178 F.3d 231, 244 (4th Cir. 1999).\\n\\n\\n 3\\n\\fobtain County approval to operate a church on property that she purchased for that\\n\\npurpose in 2012 (the “Property”).\\n\\n The Property consists of 1.2 acres of land with a building previously used as a\\n\\ndwelling. It is zoned under the Baltimore County Zoning Regulations (“BCZR”) as\\n\\n“Density Residential 3.5.”\\n\\n In this zone, churches are permitted as of right subject to certain conditions,\\n\\nincluding that parking lots and structures are (1) set back 75 feet from tract boundaries,\\n\\nand (2) separated from adjacent lots by a 50-foot landscaped buffer. BCZR\\n\\n§§ 1B01.1.A.3, 1B01.1.B.1.e. These conditions, however, don’t apply to new churches\\n\\nwhose site plans have been approved after a public hearing finding that compliance with\\n\\nthe conditions will be maintained “to the extent possible,” and that the plan “can\\n\\notherwise be expected to be compatible with the character and general welfare of the\\n\\nsurrounding residential premises.” Id. § 1B01.1.B.1.g.(6).\\n\\n Before Ware purchased the Property, her realtor advised her that a church was a\\n\\npermitted use on the Property.\\n\\n After buying the Property, Ware made improvements to the building and parking\\n\\nlot and held a church service and cookout. Neighbors complained to the County, and a\\n\\nCounty inspector notified Ware that she couldn’t use the Property as a church unless she\\n\\ncomplied with applicable zoning requirements.\\n\\n Ware filed a petition with the County to approve use of the Property as a church.\\n\\nThe petition proposed a buffer and setback of zero feet, seeking complete relief from the\\n\\nzoning requirements. It also sought variances from parking requirements. The County\\n\\n 4\\n\\fDirector of the Department of Planning did not oppose the petition, “provided a\\n\\nlandscape and signage plan is submitted to the department for review and approval.” J.A.\\n\\n19 ¶ 105. A hearing was held before an Administrative Law Judge (“ALJ”). Neighbors\\n\\nwho opposed the petition attended and participated.\\n\\n At the hearing, several neighbors made comments displaying open hostility to\\n\\nWare and the Church. These comments included: (1) “dancing and hollering like they\\n\\nback at their home back in Africa somewhere”; (2) “[s]he can come over here from\\n\\nAfrica . . . branch out from another church and put all of this in our neighborhood”; and\\n\\n(3) “[t]hey were out here dancing like from Africa. We don’t have that in our block.”\\n\\nJ.A. 19 ¶ 108. Since the hearing, neighbors have subjected the Church and its members\\n\\nto a sustained barrage of harassment, including racial slurs. The Property has also been\\n\\nsubject to vandalism and theft.\\n\\n The ALJ recommended denying Ware’s petition. Ware appealed this\\n\\nrecommendation to the Board of Appeals. The Board denied the petition, finding that\\n\\n“the proposed Church does not even minimally comply” with the applicable zoning\\n\\nrequirements and that the plan would not be compatible with “the character or general\\n\\nwelfare of the surrounding homes which homes are occupied by the [neighbors] who\\n\\ntestified.” J.A. 57. The Board’s decision was affirmed by the Circuit Court for\\n\\nBaltimore County and the Court of Special Appeals of Maryland. Ware v. People’s\\n\\nCounsel, 117 A.3d 628 (Md. Ct. Spec. App. 2015).\\n\\n While the first petition was pending appeal, Ware filed a second petition. This\\n\\nnew petition included a modified site plan that (1) moved the parking lot to increase the\\n\\n 5\\n\\fsetback to 55–72.7 feet and the buffer to 50 feet, and (2) did not seek any parking\\n\\nvariances. The new petition also differed from its predecessor in that it sought approval\\n\\nnot only under the zoning provision governing new churches, but also under a separate\\n\\nprovision governing existing churches.\\n\\n The People’s Counsel (a county official) initially sought dismissal of the new\\n\\npetition, on the ground that it sought essentially the same relief as its predecessor. The\\n\\nneighbors who opposed the first petition adopted the People’s Counsel’s motion to\\n\\ndismiss. But the People’s Counsel subsequently withdrew his motion based on the\\n\\ndifferences between the two petitions. Nevertheless, the neighbors continued to pursue\\n\\ndismissal. The Board granted the motion to dismiss, holding that the new petition was\\n\\nbarred by res judicata and collateral estoppel.\\n\\n B.\\n\\n Ware and the Church then filed suit in federal district court, alleging that the\\n\\nBoard’s dismissal of the second petition violated RLUIPA’s substantial burden and\\n\\nnondiscrimination provisions, the First Amendment’s Free Exercise Clause, the\\n\\nFourteenth Amendment’s Equal Protection Clause, and Article 36 of the Maryland\\n\\nDeclaration of Rights, which protects freedom of religion at the state level. The district\\n\\ncourt dismissed the complaint for failure to state a claim. This appeal followed.\\n\\n\\n\\n II.\\n\\n We review the district court’s dismissal order de novo, accepting as true the facts\\n\\nalleged in the complaint and drawing all reasonable inferences in Plaintiffs’ favor, to\\n\\n 6\\n\\fdetermine whether the complaint contains facts sufficient to state a claim that is\\n\\n“plausible on its face.” Kensington Volunteer Fire Dep’t, Inc. v. Montgomery County,\\n\\n684 F.3d 462, 467 (4th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570\\n\\n(2007)).\\n\\n A.\\n\\n We begin with Plaintiffs’ claim that Defendants substantially burdened their\\n\\nreligious exercise, in violation of RLUIPA, by dismissing the second petition. 2 We agree\\n\\nwith the Plaintiffs that the district court erred in dismissing this claim.\\n\\n RLUIPA prohibits land use regulations that impose a “substantial burden” on\\n\\nreligious practice, unless they are the least restrictive means of furthering a compelling\\n\\ngovernmental interest. 42 U.S.C. § 2000cc(a)(1). A substantial burden exists where a\\n\\nregulation “puts substantial pressure on [the plaintiff] to modify its behavior.” Bethel\\n\\nWorld Outreach Ministries v. Montgomery Cty. Council, 706 F.3d 548, 556 (4th Cir.\\n\\n2013).\\n\\n As relevant here, land use regulations can substantially burden religious exercise\\n\\nwhere an organization acquires property expecting to use it for a religious purpose but is\\n\\n\\n 2\\n Defendants argue, for the first time on appeal, that the Church can’t bring an\\nRLUIPA claim because it doesn’t own the Property (Ware does). This argument doesn’t\\nimplicate any jurisdictional issue such as the Church’s constitutional standing. Instead, it\\nconcerns whether a regulation affecting the Church fits within RLUIPA’s definition of\\n“land use regulation.” See 42 U.S.C. § 2000cc-5(5). Because Defendants’ argument\\ndoesn’t call our subject matter jurisdiction into question or implicate “exceptional\\ncircumstances,” we decline to consider it for the first time on appeal. Muth v. United\\nStates, 1 F.3d 246, 250 (4th Cir. 1993).\\n\\n\\n 7\\n\\fprevented from doing so by the application of a zoning ordinance. In such a case, two\\n\\nquestions are usually relevant to determining whether RLUIPA has been violated.\\n\\n First, is the impediment to the organization’s religious practice substantial? The\\n\\nanswer will usually be “yes” where use of the property would serve an unmet religious\\n\\nneed, the restriction on religious use is absolute rather than conditional, and the\\n\\norganization must acquire a different property as a result. See Bethel, 706 F.3d at 557–\\n\\n58.\\n\\n Second, who is responsible for the impediment—the government, or the religious\\n\\norganization? In answering this question, we have considered whether the organization\\n\\nhad a “reasonable expectation” of religious land use, see Bethel, 706 F.3d at 558, and\\n\\nwhether the burden faced by the organization is “self-imposed,” see Andon, LLC v. City\\n\\nof Newport News, 813 F.3d 510, 515 (4th Cir. 2016).\\n\\n In this case there is little dispute that the impediment is substantial, since the\\n\\nChurch is barred from using the Property, so the district court sensibly focused on the\\n\\nsecond question: Are Plaintiffs responsible for their present inability to use the Property\\n\\nas a church? But in addressing this question, the court wrongly emphasized Plaintiffs’\\n\\npurported “failure to exercise due diligence before acquiring and altering the property”\\n\\nand their “subsequent proposal [in Ware’s first petition] of a site plan that disregarded the\\n\\nzoning requirements.” Jesus Christ Is the Answer Ministries, Inc. v. Baltimore County,\\n\\n303 F. Supp. 3d 378, 396 (D. Md. 2018). The first of these supposed failings is irrelevant\\n\\nto whether the zoning regulations in fact authorize Plaintiffs to use the Property as a\\n\\nchurch. And the second is irrelevant to whether Plaintiffs were responsible for the\\n\\n 8\\n\\fdismissal of Ware’s second petition, which is what now stands in the way of their\\n\\nreligious practice.\\n\\n Ware sufficiently alleged that she had a reasonable expectation of using the\\n\\nProperty as a church. Her realtor told her that such a use was permitted on the Property.\\n\\nThis advice was of course correct because churches are “permitted as of right,” provided\\n\\nthat their site plans comply “to the extent possible with [applicable] requirements” and\\n\\ncan “otherwise be expected to be compatible with the character and general welfare of the\\n\\nsurrounding residential premises.” BCZR §§ 1B01.1.A.3, 1B01.1.B.1.g.(6). Ware was\\n\\njustified in believing that she could satisfy these broadly and permissibly phrased\\n\\nconditions, especially given that the zoning regulations permit churches as of right.\\n\\n Ware’s efforts to meet the zoning conditions were frustrated, however, when the\\n\\nBoard dismissed her second petition. As the district court recognized, the second petition\\n\\nwas based on a site plan that substantially differed from and attempted to address the\\n\\nshortcomings of its predecessor. The Board failed to recognize these differences when it\\n\\ndismissed the petition based on res judicata and collateral estoppel, relying on the faulty\\n\\npremise that the two petitions sought essentially the same relief.\\n\\n The district court declined to dismiss Plaintiffs’ suit on grounds of res judicata and\\n\\ncollateral estoppel, but nonetheless determined that the Board correctly dismissed the\\n\\nsecond petition on these grounds. The court explained this anomaly by noting that Ware\\n\\nadvanced different bases for distinguishing the two petitions before the Board and the\\n\\ndistrict court. Specifically, the Board took the “real thrust” of Ware’s argument to be that\\n\\nthe second petition invoked a different subsection of the zoning regulations than the first.\\n\\n 9\\n\\fJ.A. 125. Before the district court, however, Plaintiffs emphasized the differences\\n\\nbetween the site plans accompanying the two petitions.\\n\\n We are not persuaded by the district court’s reasoning. First, Ware did highlight\\n\\nthe differences between the site plans in the administrative proceedings. See J.A. 90,\\n\\n106–10, 113. It was the Board (not Ware) that decided the “real thrust” of Ware’s\\n\\nargument was the different zoning provisions invoked by the two petitions. Second, and\\n\\nmore importantly, the two site plans are in fact markedly different. The second plan\\n\\naddressed the first one’s main deficiencies by moving the parking lot to the center of the\\n\\nProperty. This increased the landscaped buffer from zero to 50 feet, which fully\\n\\ncomplied with the buffer requirements. The second plan also increased the parking lot’s\\n\\nsetback from zero to between 55 and 72.7 feet, which complied to a much greater extent\\n\\n(and arguably “to the extent possible”) with the 75-foot setback requirement. In light of\\n\\nthese substantial changes and improvements, we cannot say that the dismissal of Ware’s\\n\\nsecond petition was self-imposed.\\n\\n Plaintiffs have sufficiently alleged that the dismissal of the second petition\\n\\nimposed a substantial burden on their religious practice. We therefore vacate the district\\n\\ncourt’s dismissal of Plaintiffs’ substantial burden claim. 3\\n\\n\\n 3\\n The district court did not reach RLUIPA’s second prong, which considers\\nwhether, despite substantially burdening religious exercise, a government action “is the\\nleast restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C.\\n§ 2000cc–1. As we discuss, Plaintiffs have sufficiently alleged that dismissal of the\\nsecond petition was motivated by religious animus. Such animus is not a permissible\\ngovernment interest, much less a compelling one. And the dismissal wasn’t narrowly\\ntailored to further the finality interests that are normally served by res judicata and\\n(Continued)\\n 10\\n\\f B.\\n\\n Next, we consider the Church’s claim that Defendants discriminated against it\\n\\nbased on religion or religious denomination in violation of RLUIPA. 4 The district court\\n\\ndismissed this claim, concluding that the Church failed to allege that the Board approved\\n\\nspecial exceptions to the zoning regulations for similarly situated churches or that its\\n\\ndecision was influenced by discriminatory intent.\\n\\n The Church argues that the district court erred by ignoring allegations that the\\n\\n“Board was knowingly responsive to a hostile community” of bigoted neighbors. J.A. 8\\n\\n¶ 5. Defendants respond that the neighbors’ discriminatory remarks can’t be attributed to\\n\\nthem, and that the remarks couldn’t have influenced the decision to dismiss the second\\n\\npetition because they were allegedly made during the hearing on the first petition.\\n\\n RLUIPA prohibits land use regulations that discriminate “on the basis of religion\\n\\nor religious denomination.” 42 U.S.C. § 2000cc(b)(2). In applying RLUIPA’s\\n\\nnondiscrimination provision, courts have looked to equal protection precedent. Chabad\\n\\nLubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 198\\n\\n\\n\\n\\ncollateral estoppel because the second petition substantially differed from the first.\\nTherefore, RLUIPA’s second prong poses no barrier to Plaintiffs’ substantial burden\\nclaim at this stage of the case.\\n 4\\n The complaint alleges religious discrimination against both the Church and\\nWare. J.A. 32 ¶ 203. However, RLUIPA’s nondiscrimination provision applies only to\\nregulations that discriminate against “any assembly or institution.” 42 U.S.C.\\n§ 2000cc(b)(2). The district court was therefore correct to dismiss Ware’s\\nnondiscrimination claim.\\n\\n\\n 11\\n\\f(2d Cir. 2014) (citing Bethel, 706 F.3d at 559). Under that precedent, a plaintiff must\\n\\ndemonstrate that the government decision was motivated at least in part by discriminatory\\n\\nintent, which is evaluated using the “sensitive inquiry” established in Village of Arlington\\n\\nHeights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266–68 (1977).\\n\\n One factor which this inquiry recognizes as potentially probative of the\\n\\ndecisionmaker’s intent is the “specific sequence of events leading up to the challenged\\n\\ndecision.” Id. at 267. Departures from normal procedures can suggest that the decision\\n\\nwas based on unlawful motives, as can “[s]ubstantive departures . . . particularly if the\\n\\nfactors usually considered important by the decisionmaker strongly favor a decision\\n\\ncontrary to the one reached.” Id. (citing Dailey v. City of Lawton, 425 F.2d 1037, 1040\\n\\n(10th Cir. 1970) (finding racial motivation where a city refused to rezone a plot despite\\n\\npresent and former city planning directors’ testimony that there was no reason not to\\n\\nrezone)).\\n\\n Particularly relevant to this case, a government decision influenced by community\\n\\nmembers’ religious bias is unlawful, even if the government decisionmakers display no\\n\\nbias themselves. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985);\\n\\nMarks v. City of Chesapeake, 883 F.2d 308, 311–13 (4th Cir. 1989). Such impermissible\\n\\ninfluence may be inferred where expressions of community bias are followed by\\n\\nirregularities in government decision-making. See Smith v. Town of Clarkton, 682 F.2d\\n\\n1055, 1066 (4th Cir. 1982).\\n\\n Under RLUIPA, a plaintiff need only establish a prima facie claim of religious\\n\\ndiscrimination, after which the defendant bears the burden of persuasion on all elements\\n\\n 12\\n\\fof the claim. 42 U.S.C. § 2000cc-2(b); Chabad Lubavitch, 768 F.3d at 198. And as with\\n\\nall claims, at the motion to dismiss stage “a plaintiff need not demonstrate that her right\\n\\nto relief is probable or that alternative explanations are less likely; rather, she must\\n\\nmerely advance her claim ‘across the line from conceivable to plausible.’” Houck v.\\n\\nSubstitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015) (quoting Twombly, 550 U.S.\\n\\nat 570). So long as a plaintiff alleges a plausible prima facie claim of discrimination, a\\n\\ncourt may not dismiss that claim—even if the defendant advances a nondiscriminatory\\n\\nalternative explanation for its decision, and even if that alternative appears more\\n\\nprobable. Id.; see Woods v. City of Greensboro, 855 F.3d 639, 649 (4th Cir. 2017) (“The\\n\\nquestion is not whether there are more likely explanations for the City’s action . . . but\\n\\nwhether the City’s impliedly proffered reason . . . is so obviously an irrefutably sound\\n\\nand unambiguously nondiscriminatory and non-pretextual explanation that it renders [the\\n\\nplaintiff’s] claim of pretext implausible.”).\\n\\n The district court reasoned that the complaint failed to allege disparate treatment\\n\\nbecause other churches that ultimately received approval are situated on larger lots and\\n\\nhave sufficient space for parking. However, RLUIPA’s nondiscrimination provision\\n\\ndoesn’t require a comparison to similarly situated entities. Chabad Lubavitch, 768 F.3d\\n\\nat 199. The Church has alleged that the Board’s dismissal of Ware’s second petition was\\n\\nmotivated by religious discrimination. This is enough to make out a prima facie claim of\\n\\nreligious discrimination, provided that the Church can establish discriminatory intent.\\n\\n In this case, the alleged sequence of events leading to the challenged decision is\\n\\nhighly probative of Defendants’ motives. It is especially significant that irregularities in\\n\\n 13\\n\\fDefendants’ decision-making process followed the neighbors’ expressions of animus.\\n\\nSee Town of Clarkton, 682 F.2d at 1066 (describing a town’s unprecedented use of an\\n\\nopinion poll following expressions of racial opposition to a public housing project as a\\n\\n“significant” and “suspect” deviation from the procedural norm).\\n\\n The first irregularity occurred when the Board denied Ware’s first petition even\\n\\nthough the County Director of the Department of Planning didn’t oppose it. The\\n\\nneighbors who opposed the first petition allegedly made bigoted remarks in the hearing\\n\\nbefore the ALJ, and seven neighbors also testified during the Board’s hearing on the first\\n\\npetition.\\n\\n In our view, the neighbors’ remarks clearly display ethnic bias, and they can\\n\\nplausibly be understood as displaying religious bias too. We recognize that RLUIPA by\\n\\nits terms prohibits discrimination “on the basis of religion or religious denomination.” 42\\n\\nU.S.C. § 2000cc(b)(2). But we do not attempt to disentangle Plaintiffs’ allegations of\\n\\nreligious and ethnic bias, at least at the motion to dismiss stage where we must view the\\n\\nalleged facts in Plaintiffs’ favor.\\n\\n The remarks targeted (1) Ware’s African heritage and that of other congregants,\\n\\n(2) a Church gathering that (according to the neighbors) involved “dancing” and\\n\\n“hollering,” and (3) the fact that the Church “branch[ed] out from another church.” J.A.\\n\\n19 ¶ 108. The first of these topics targets the Church’s multicultural identity. The\\n\\nsecond targets activities conducted at Church gatherings, which we may infer involved\\n\\nreligious exercise as defined in RLUIPA. See 42 U.S.C. § 2000cc-5(7). The third targets\\n\\n\\n\\n 14\\n\\fthe Church’s connection to other churches and denominations—a paradigm example of\\n\\nreligious bias.\\n\\n Plaintiffs also alleged that they “have faced tremendous opposition based on the\\n\\nnature of their ministry and the ethnic background of Reverend Ware and the\\n\\ncongregation” and “their status as African immigrants.” J.A. 27 ¶ 166–67. Though the\\n\\nChurch is expressly “nondenominational,” J.A. 9 ¶ 15, and has no religious affiliation\\n\\nexcept its “associat[ion with] churches in Kenya and the Seychelles,” J.A. 10 ¶ 18,\\n\\nPlaintiffs’ other allegations are drafted in such a way that we can infer their religious\\n\\npractice is tied to their ethnicity.\\n\\n Accordingly, when we draw reasonable inferences in Plaintiffs’ favor and consider\\n\\nRLUIPA’s “very broad protection for religious liberty,” Holt v. Hobbs, 135 S. Ct. 853,\\n\\n859 (2015) (internal quotation marks omitted), we are convinced that, as alleged, the\\n\\nneighbors displayed the behavior Congress sought to eradicate from zoning decisions.\\n\\nRLUIPA is designed to protect “[c]hurches in general, and new, small, or unfamiliar\\n\\nchurches in particular, [from being] frequently discriminated against” in land use\\n\\nregulation, including when “zoning board members or neighborhood residents explicitly\\n\\noffer race or religion as the reason to exclude a proposed church, especially in cases of\\n\\nblack churches and Jewish shuls and synagogues.” 146 Cong. Rec. S7774 (July 27,\\n\\n2000) (joint statement of Sen. Hatch and Sen. Kennedy).\\n\\n Following the neighbors’ remarks, the Board denied the petition. Although the\\n\\nCounty Director’s statement that she didn’t oppose the petition doesn’t bind the Board, it\\n\\nis a “factor[] usually considered important” in zoning proceedings, and it “strongly\\n\\n 15\\n\\ffavor[s] a decision contrary to the one reached” by the Board. Arlington Heights, 429\\n\\nU.S. at 267. And although Plaintiffs didn’t allege how often the Board departs from the\\n\\nCounty Director’s recommendations, the fact that the Board disagreed with a County\\n\\nofficial who has relevant expertise and a formal role as the Board’s advisor is enough to\\n\\nraise a plausible suspicion of improper motive.\\n\\n As Defendants rightly point out, the neighbors’ remarks before the ALJ and the\\n\\nBoard’s disagreement with the County Director occurred well before the Board decided\\n\\nto dismiss the second petition. But these events are part of the sequence that led to the\\n\\nchallenged decision, and Plaintiffs plausibly alleged that they influenced it. This\\n\\nconnection is strengthened by the neighbors’ ongoing involvement in the dispute, right up\\n\\nthrough the dismissal of the second petition.\\n\\n The second irregularity occurred when the Board granted the neighbors’ motion to\\n\\ndismiss the second petition, contrary to the position of the People’s Counsel (a County\\n\\nofficial). The People’s Counsel initially sought dismissal based on res judicata and\\n\\ncollateral estoppel, but later abandoned this posture. The neighbors continued to seek\\n\\ndismissal on these grounds, and the Board adopted their position. This second\\n\\nirregularity adds further plausibility to the inference that Defendants dismissed the\\n\\nsecond petition based on improper motives.\\n\\n We express no opinion on whether the neighbors’ animus ultimately swayed the\\n\\nBoard’s decision to dismiss the second petition. Rather, we conclude only that the\\n\\ncomplaint plausibly alleges a prima facie claim of religious discrimination.\\n\\n\\n\\n 16\\n\\f C.\\n\\n Plaintiffs also appeal the district court’s dismissal of their First Amendment free\\n\\nexercise claim and their Fourteenth Amendment equal protection claim, in which they\\n\\nallege (as in their RLUIPA claims) that Defendants substantially burdened their religious\\n\\nexercise and discriminated against them on the basis of religion.\\n\\n We first must determine the correct standard of review. Under the Supreme\\n\\nCourt’s free exercise doctrine, a neutral government decision of general applicability is\\n\\nsubject to rational basis review, even where it has the incidental effect of burdening\\n\\nreligious exercise. Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 879 (1990).\\n\\nHowever, a decision whose object “is to infringe upon or restrict practices because of\\n\\ntheir religious motivation” is not neutral and is subject to strict scrutiny. Church of the\\n\\nLukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 546 (1993). As we\\n\\nexplained in Section II.B, Plaintiffs have alleged that the object of the Board’s decision\\n\\nwas to restrict their use of the Property in response to community opposition to the\\n\\nChurch’s religious denomination. This allegedly discriminatory motive triggers strict\\n\\nscrutiny.\\n\\n Similarly, we apply strict scrutiny under the Equal Protection Clause where (as\\n\\nhere) the challenged action interferes with a fundamental right. Bostic v. Schaefer, 760\\n\\nF.3d 352, 375 (4th Cir. 2014) (citing Zablocki v. Redhail, 434 U.S. 374, 383 (1978)).\\n\\nAnd “[u]nquestionably, the free exercise of religion is a fundamental constitutional\\n\\nright.” Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974); see also Reaching Hearts\\n\\nInt’l, Inc. v. Prince George’s County, 584 F. Supp. 2d 766, 781 n.9 (D. Md. 2008) (citing\\n\\n 17\\n\\fJohnson v. Robison in applying strict scrutiny to an equal protection claim based on\\n\\nreligious discrimination).\\n\\n A government decision fails strict scrutiny if it is not narrowly tailored to advance\\n\\na compelling state interest. Lukumi Babalu Aye, 508 U.S. at 546. While Baltimore\\n\\nCounty may have a significant interest in finality and economy that would ordinarily be\\n\\nserved by the doctrines of res judicata and collateral estoppel, the dismissal of Ware’s\\n\\nsecond petition isn’t narrowly tailored to serve that interest because the second petition\\n\\ndidn’t seek to revisit the Board’s decision about the first petition. We therefore vacate\\n\\nthe dismissal of their free exercise and equal protection claims.\\n\\n D.\\n\\n Finally, Plaintiffs brought a claim under Article 36 of the Maryland Declaration of\\n\\nRights, which protects freedom of religion at the state level. The district court had\\n\\nsupplemental jurisdiction over this state constitutional claim under 28 U.S.C. § 1367(a)\\n\\nbecause it formed part of the same case or controversy as Plaintiffs’ federal claims.\\n\\nHowever, after dismissing the federal claims, the district court exercised its discretion\\n\\nunder 28 U.S.C. § 1367(c)(3) to dismiss the state constitutional claim. 5 Given our\\n\\ndecision on Plaintiffs’ federal claims, § 1367(c)(3) no longer provides a basis for\\n\\ndismissing the state constitutional claim. We therefore vacate the dismissal of the state\\n\\n 5\\n The district court also noted that Maryland state law is unsettled regarding\\nwhether Article 36 provides a private cause of action. However, the court didn’t\\nexpressly invoke 28 U.S.C. § 1367(c)(1), which authorizes it to decline to exercise\\nsupplemental jurisdiction over claims that raise novel or complex issues of state law. We\\nexpress no opinion about whether dismissal under § 1367(c)(1) is appropriate on remand.\\n\\n\\n 18\\n\\fconstitutional claim and remand so that the district court may decide whether to retain\\n\\nsupplemental jurisdiction over it.\\n\\n\\n\\n III.\\n\\n For the foregoing reasons, we vacate the district court’s judgment and remand for\\n\\nfurther proceedings consistent with this opinion.\\n\\n VACATED AND REMANDED\\n\\n\\n\\n\\n 19\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4370856/\", \"author_raw\": \"DIAZ, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"NIEMEYER"},"judge2":{"kind":"string","value":"AGEE"},"judge3":{"kind":"string","value":"DIAZ"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"NIEMEYER\": \", Circuit\", \"AGEE\": \", Circuit\", \"DIAZ\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4593603/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jesus Christ is the Answer v. Baltimore County, Maryland\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1450\n\n\nJESUS CHRIST IS THE ANSWER MINISTRIES, INC.; REV. LUCY WARE,\n\n Plaintiffs − Appellants,\n\n v.\n\nBALTIMORE COUNTY, MARYLAND; BOARD OF APPEALS OF\nBALTIMORE COUNTY, MARYLAND,\n\n Defendants – Appellees.\n\n------------------------------\n\nUNITED STATES OF AMERICA,\n\n Amicus Supporting Appellants.\n\n\nAppeal from the United States District Court for the District of Maryland, at Baltimore.\nRichard D. Bennett, District Judge. (1:17-cv-03010-RDB)\n\n\nArgued: October 31, 2018 Decided: February 7, 2019\n Amended: February 25, 2019\n\n\nBefore NIEMEYER, AGEE, and DIAZ, Circuit Judges.\n\n\nVacated and remanded by published opinion. Judge Diaz wrote the opinion, in which\nJudge Niemeyer and Judge Agee joined.\n\fARGUED: Roman P. Storzer, STORZER & ASSOCIATES, P.C., Washington, D.C.,\nfor Appellants. James Joseph Nolan, Jr., Paul M. Mayhew, BALTIMORE COUNTY\nOFFICE OF LAW, Towson, Maryland, for Appellees. John Matthew Gore, UNITED\nSTATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States of\nAmerica. ON BRIEF: Sieglinde K. Rath, STORZER & ASSOCIATES, P.C.,\nWashington, D.C.; Lawrence E. Schmidt, SMITH GILDEA & SCHMIDT LLC, Towson,\nMaryland, for Appellants. Michael E. Field, County Attorney, R. Brady Locher,\nAssistant County Attorney, BALTIMORE COUNTY OFFICE OF LAW, Towson,\nMaryland, for Appellees. Tovah R. Calderon, Katherine E. Lamm, Appellate Section,\nCivil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,\nD.C., for Amicus United States of America.\n\n\n\n\n 2\n\fDIAZ, Circuit Judge:\n\n Jesus Christ Is the Answer Ministries, Inc. (the “Church”) and Reverend Lucy\n\nWare appeal the dismissal of their claims against Baltimore County and the Board of\n\nAppeals of Baltimore County. The district court dismissed Plaintiffs’ suit for failure to\n\nstate a claim under the Religious Land Use and Institutionalized Persons Act\n\n(“RLUIPA”), 42 U.S.C. § 2000cc et seq., the Free Exercise Clause, the Equal Protection\n\nClause, and Article 36 of the Maryland Declaration of Rights. For the reasons that\n\nfollow, we vacate and remand for further proceedings.\n\n\n\n I.\n\n A.\n\n Jesus Christ is the Answer Ministries, Inc. is a nondenominational Christian\n\nchurch founded in Baltimore in 1997 by Reverend Lucy Ware. 1 The Church describes\n\nitself as evangelical and multicultural. It has associated churches in Kenya and the\n\nSeychelles, and many of the Church’s congregants were born in Africa. Reverend Ware\n\nwas born in Kenya, where she was active in her family church until moving to the United\n\nStates.\n\n The Church has struggled to secure an adequate house of worship, and this has\n\nimpeded its religious mission. This lawsuit arises from Ware’s unsuccessful efforts to\n\n 1\n Our recitation of the facts is based on the allegations in Plaintiffs’ complaint,\nwhich we accept as true at the motion to dismiss stage. Edwards v. City of Goldsboro,\n178 F.3d 231, 244 (4th Cir. 1999).\n\n\n 3\n\fobtain County approval to operate a church on property that she purchased for that\n\npurpose in 2012 (the “Property”).\n\n The Property consists of 1.2 acres of land with a building previously used as a\n\ndwelling. It is zoned under the Baltimore County Zoning Regulations (“BCZR”) as\n\n“Density Residential 3.5.”\n\n In this zone, churches are permitted as of right subject to certain conditions,\n\nincluding that parking lots and structures are (1) set back 75 feet from tract boundaries,\n\nand (2) separated from adjacent lots by a 50-foot landscaped buffer. BCZR\n\n§§ 1B01.1.A.3, 1B01.1.B.1.e. These conditions, however, don’t apply to new churches\n\nwhose site plans have been approved after a public hearing finding that compliance with\n\nthe conditions will be maintained “to the extent possible,” and that the plan “can\n\notherwise be expected to be compatible with the character and general welfare of the\n\nsurrounding residential premises.” Id. § 1B01.1.B.1.g.(6).\n\n Before Ware purchased the Property, her realtor advised her that a church was a\n\npermitted use on the Property.\n\n After buying the Property, Ware made improvements to the building and parking\n\nlot and held a church service and cookout. Neighbors complained to the County, and a\n\nCounty inspector notified Ware that she couldn’t use the Property as a church unless she\n\ncomplied with applicable zoning requirements.\n\n Ware filed a petition with the County to approve use of the Property as a church.\n\nThe petition proposed a buffer and setback of zero feet, seeking complete relief from the\n\nzoning requirements. It also sought variances from parking requirements. The County\n\n 4\n\fDirector of the Department of Planning did not oppose the petition, “provided a\n\nlandscape and signage plan is submitted to the department for review and approval.” J.A.\n\n19 ¶ 105. A hearing was held before an Administrative Law Judge (“ALJ”). Neighbors\n\nwho opposed the petition attended and participated.\n\n At the hearing, several neighbors made comments displaying open hostility to\n\nWare and the Church. These comments included: (1) “dancing and hollering like they\n\nback at their home back in Africa somewhere”; (2) “[s]he can come over here from\n\nAfrica . . . branch out from another church and put all of this in our neighborhood”; and\n\n(3) “[t]hey were out here dancing like from Africa. We don’t have that in our block.”\n\nJ.A. 19 ¶ 108. Since the hearing, neighbors have subjected the Church and its members\n\nto a sustained barrage of harassment, including racial slurs. The Property has also been\n\nsubject to vandalism and theft.\n\n The ALJ recommended denying Ware’s petition. Ware appealed this\n\nrecommendation to the Board of Appeals. The Board denied the petition, finding that\n\n“the proposed Church does not even minimally comply” with the applicable zoning\n\nrequirements and that the plan would not be compatible with “the character or general\n\nwelfare of the surrounding homes which homes are occupied by the [neighbors] who\n\ntestified.” J.A. 57. The Board’s decision was affirmed by the Circuit Court for\n\nBaltimore County and the Court of Special Appeals of Maryland. Ware v. People’s\n\nCounsel, 117 A.3d 628 (Md. Ct. Spec. App. 2015).\n\n While the first petition was pending appeal, Ware filed a second petition. This\n\nnew petition included a modified site plan that (1) moved the parking lot to increase the\n\n 5\n\fsetback to 55–72.7 feet and the buffer to 50 feet, and (2) did not seek any parking\n\nvariances. The new petition also differed from its predecessor in that it sought approval\n\nnot only under the zoning provision governing new churches, but also under a separate\n\nprovision governing existing churches.\n\n The People’s Counsel (a county official) initially sought dismissal of the new\n\npetition, on the ground that it sought essentially the same relief as its predecessor. The\n\nneighbors who opposed the first petition adopted the People’s Counsel’s motion to\n\ndismiss. But the People’s Counsel subsequently withdrew his motion based on the\n\ndifferences between the two petitions. Nevertheless, the neighbors continued to pursue\n\ndismissal. The Board granted the motion to dismiss, holding that the new petition was\n\nbarred by res judicata and collateral estoppel.\n\n B.\n\n Ware and the Church then filed suit in federal district court, alleging that the\n\nBoard’s dismissal of the second petition violated RLUIPA’s substantial burden and\n\nnondiscrimination provisions, the First Amendment’s Free Exercise Clause, the\n\nFourteenth Amendment’s Equal Protection Clause, and Article 36 of the Maryland\n\nDeclaration of Rights, which protects freedom of religion at the state level. The district\n\ncourt dismissed the complaint for failure to state a claim. This appeal followed.\n\n\n\n II.\n\n We review the district court’s dismissal order de novo, accepting as true the facts\n\nalleged in the complaint and drawing all reasonable inferences in Plaintiffs’ favor, to\n\n 6\n\fdetermine whether the complaint contains facts sufficient to state a claim that is\n\n“plausible on its face.” Kensington Volunteer Fire Dep’t, Inc. v. Montgomery County,\n\n684 F.3d 462, 467 (4th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570\n\n(2007)).\n\n A.\n\n We begin with Plaintiffs’ claim that Defendants substantially burdened their\n\nreligious exercise, in violation of RLUIPA, by dismissing the second petition. 2 We agree\n\nwith the Plaintiffs that the district court erred in dismissing this claim.\n\n RLUIPA prohibits land use regulations that impose a “substantial burden” on\n\nreligious practice, unless they are the least restrictive means of furthering a compelling\n\ngovernmental interest. 42 U.S.C. § 2000cc(a)(1). A substantial burden exists where a\n\nregulation “puts substantial pressure on [the plaintiff] to modify its behavior.” Bethel\n\nWorld Outreach Ministries v. Montgomery Cty. Council, 706 F.3d 548, 556 (4th Cir.\n\n2013).\n\n As relevant here, land use regulations can substantially burden religious exercise\n\nwhere an organization acquires property expecting to use it for a religious purpose but is\n\n\n 2\n Defendants argue, for the first time on appeal, that the Church can’t bring an\nRLUIPA claim because it doesn’t own the Property (Ware does). This argument doesn’t\nimplicate any jurisdictional issue such as the Church’s constitutional standing. Instead, it\nconcerns whether a regulation affecting the Church fits within RLUIPA’s definition of\n“land use regulation.” See 42 U.S.C. § 2000cc-5(5). Because Defendants’ argument\ndoesn’t call our subject matter jurisdiction into question or implicate “exceptional\ncircumstances,” we decline to consider it for the first time on appeal. Muth v. United\nStates, 1 F.3d 246, 250 (4th Cir. 1993).\n\n\n 7\n\fprevented from doing so by the application of a zoning ordinance. In such a case, two\n\nquestions are usually relevant to determining whether RLUIPA has been violated.\n\n First, is the impediment to the organization’s religious practice substantial? The\n\nanswer will usually be “yes” where use of the property would serve an unmet religious\n\nneed, the restriction on religious use is absolute rather than conditional, and the\n\norganization must acquire a different property as a result. See Bethel, 706 F.3d at 557–\n\n58.\n\n Second, who is responsible for the impediment—the government, or the religious\n\norganization? In answering this question, we have considered whether the organization\n\nhad a “reasonable expectation” of religious land use, see Bethel, 706 F.3d at 558, and\n\nwhether the burden faced by the organization is “self-imposed,” see Andon, LLC v. City\n\nof Newport News, 813 F.3d 510, 515 (4th Cir. 2016).\n\n In this case there is little dispute that the impediment is substantial, since the\n\nChurch is barred from using the Property, so the district court sensibly focused on the\n\nsecond question: Are Plaintiffs responsible for their present inability to use the Property\n\nas a church? But in addressing this question, the court wrongly emphasized Plaintiffs’\n\npurported “failure to exercise due diligence before acquiring and altering the property”\n\nand their “subsequent proposal [in Ware’s first petition] of a site plan that disregarded the\n\nzoning requirements.” Jesus Christ Is the Answer Ministries, Inc. v. Baltimore County,\n\n303 F. Supp. 3d 378, 396 (D. Md. 2018). The first of these supposed failings is irrelevant\n\nto whether the zoning regulations in fact authorize Plaintiffs to use the Property as a\n\nchurch. And the second is irrelevant to whether Plaintiffs were responsible for the\n\n 8\n\fdismissal of Ware’s second petition, which is what now stands in the way of their\n\nreligious practice.\n\n Ware sufficiently alleged that she had a reasonable expectation of using the\n\nProperty as a church. Her realtor told her that such a use was permitted on the Property.\n\nThis advice was of course correct because churches are “permitted as of right,” provided\n\nthat their site plans comply “to the extent possible with [applicable] requirements” and\n\ncan “otherwise be expected to be compatible with the character and general welfare of the\n\nsurrounding residential premises.” BCZR §§ 1B01.1.A.3, 1B01.1.B.1.g.(6). Ware was\n\njustified in believing that she could satisfy these broadly and permissibly phrased\n\nconditions, especially given that the zoning regulations permit churches as of right.\n\n Ware’s efforts to meet the zoning conditions were frustrated, however, when the\n\nBoard dismissed her second petition. As the district court recognized, the second petition\n\nwas based on a site plan that substantially differed from and attempted to address the\n\nshortcomings of its predecessor. The Board failed to recognize these differences when it\n\ndismissed the petition based on res judicata and collateral estoppel, relying on the faulty\n\npremise that the two petitions sought essentially the same relief.\n\n The district court declined to dismiss Plaintiffs’ suit on grounds of res judicata and\n\ncollateral estoppel, but nonetheless determined that the Board correctly dismissed the\n\nsecond petition on these grounds. The court explained this anomaly by noting that Ware\n\nadvanced different bases for distinguishing the two petitions before the Board and the\n\ndistrict court. Specifically, the Board took the “real thrust” of Ware’s argument to be that\n\nthe second petition invoked a different subsection of the zoning regulations than the first.\n\n 9\n\fJ.A. 125. Before the district court, however, Plaintiffs emphasized the differences\n\nbetween the site plans accompanying the two petitions.\n\n We are not persuaded by the district court’s reasoning. First, Ware did highlight\n\nthe differences between the site plans in the administrative proceedings. See J.A. 90,\n\n106–10, 113. It was the Board (not Ware) that decided the “real thrust” of Ware’s\n\nargument was the different zoning provisions invoked by the two petitions. Second, and\n\nmore importantly, the two site plans are in fact markedly different. The second plan\n\naddressed the first one’s main deficiencies by moving the parking lot to the center of the\n\nProperty. This increased the landscaped buffer from zero to 50 feet, which fully\n\ncomplied with the buffer requirements. The second plan also increased the parking lot’s\n\nsetback from zero to between 55 and 72.7 feet, which complied to a much greater extent\n\n(and arguably “to the extent possible”) with the 75-foot setback requirement. In light of\n\nthese substantial changes and improvements, we cannot say that the dismissal of Ware’s\n\nsecond petition was self-imposed.\n\n Plaintiffs have sufficiently alleged that the dismissal of the second petition\n\nimposed a substantial burden on their religious practice. We therefore vacate the district\n\ncourt’s dismissal of Plaintiffs’ substantial burden claim. 3\n\n\n 3\n The district court did not reach RLUIPA’s second prong, which considers\nwhether, despite substantially burdening religious exercise, a government action “is the\nleast restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C.\n§ 2000cc–1. As we discuss, Plaintiffs have sufficiently alleged that dismissal of the\nsecond petition was motivated by religious animus. Such animus is not a permissible\ngovernment interest, much less a compelling one. And the dismissal wasn’t narrowly\ntailored to further the finality interests that are normally served by res judicata and\n(Continued)\n 10\n\f B.\n\n Next, we consider the Church’s claim that Defendants discriminated against it\n\nbased on religion or religious denomination in violation of RLUIPA. 4 The district court\n\ndismissed this claim, concluding that the Church failed to allege that the Board approved\n\nspecial exceptions to the zoning regulations for similarly situated churches or that its\n\ndecision was influenced by discriminatory intent.\n\n The Church argues that the district court erred by ignoring allegations that the\n\n“Board was knowingly responsive to a hostile community” of bigoted neighbors. J.A. 8\n\n¶ 5. Defendants respond that the neighbors’ discriminatory remarks can’t be attributed to\n\nthem, and that the remarks couldn’t have influenced the decision to dismiss the second\n\npetition because they were allegedly made during the hearing on the first petition.\n\n RLUIPA prohibits land use regulations that discriminate “on the basis of religion\n\nor religious denomination.” 42 U.S.C. § 2000cc(b)(2). In applying RLUIPA’s\n\nnondiscrimination provision, courts have looked to equal protection precedent. Chabad\n\nLubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 198\n\n\n\n\ncollateral estoppel because the second petition substantially differed from the first.\nTherefore, RLUIPA’s second prong poses no barrier to Plaintiffs’ substantial burden\nclaim at this stage of the case.\n 4\n The complaint alleges religious discrimination against both the Church and\nWare. J.A. 32 ¶ 203. However, RLUIPA’s nondiscrimination provision applies only to\nregulations that discriminate against “any assembly or institution.” 42 U.S.C.\n§ 2000cc(b)(2). The district court was therefore correct to dismiss Ware’s\nnondiscrimination claim.\n\n\n 11\n\f(2d Cir. 2014) (citing Bethel, 706 F.3d at 559). Under that precedent, a plaintiff must\n\ndemonstrate that the government decision was motivated at least in part by discriminatory\n\nintent, which is evaluated using the “sensitive inquiry” established in Village of Arlington\n\nHeights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266–68 (1977).\n\n One factor which this inquiry recognizes as potentially probative of the\n\ndecisionmaker’s intent is the “specific sequence of events leading up to the challenged\n\ndecision.” Id. at 267. Departures from normal procedures can suggest that the decision\n\nwas based on unlawful motives, as can “[s]ubstantive departures . . . particularly if the\n\nfactors usually considered important by the decisionmaker strongly favor a decision\n\ncontrary to the one reached.” Id. (citing Dailey v. City of Lawton, 425 F.2d 1037, 1040\n\n(10th Cir. 1970) (finding racial motivation where a city refused to rezone a plot despite\n\npresent and former city planning directors’ testimony that there was no reason not to\n\nrezone)).\n\n Particularly relevant to this case, a government decision influenced by community\n\nmembers’ religious bias is unlawful, even if the government decisionmakers display no\n\nbias themselves. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985);\n\nMarks v. City of Chesapeake, 883 F.2d 308, 311–13 (4th Cir. 1989). Such impermissible\n\ninfluence may be inferred where expressions of community bias are followed by\n\nirregularities in government decision-making. See Smith v. Town of Clarkton, 682 F.2d\n\n1055, 1066 (4th Cir. 1982).\n\n Under RLUIPA, a plaintiff need only establish a prima facie claim of religious\n\ndiscrimination, after which the defendant bears the burden of persuasion on all elements\n\n 12\n\fof the claim. 42 U.S.C. § 2000cc-2(b); Chabad Lubavitch, 768 F.3d at 198. And as with\n\nall claims, at the motion to dismiss stage “a plaintiff need not demonstrate that her right\n\nto relief is probable or that alternative explanations are less likely; rather, she must\n\nmerely advance her claim ‘across the line from conceivable to plausible.’” Houck v.\n\nSubstitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015) (quoting Twombly, 550 U.S.\n\nat 570). So long as a plaintiff alleges a plausible prima facie claim of discrimination, a\n\ncourt may not dismiss that claim—even if the defendant advances a nondiscriminatory\n\nalternative explanation for its decision, and even if that alternative appears more\n\nprobable. Id.; see Woods v. City of Greensboro, 855 F.3d 639, 649 (4th Cir. 2017) (“The\n\nquestion is not whether there are more likely explanations for the City’s action . . . but\n\nwhether the City’s impliedly proffered reason . . . is so obviously an irrefutably sound\n\nand unambiguously nondiscriminatory and non-pretextual explanation that it renders [the\n\nplaintiff’s] claim of pretext implausible.”).\n\n The district court reasoned that the complaint failed to allege disparate treatment\n\nbecause other churches that ultimately received approval are situated on larger lots and\n\nhave sufficient space for parking. However, RLUIPA’s nondiscrimination provision\n\ndoesn’t require a comparison to similarly situated entities. Chabad Lubavitch, 768 F.3d\n\nat 199. The Church has alleged that the Board’s dismissal of Ware’s second petition was\n\nmotivated by religious discrimination. This is enough to make out a prima facie claim of\n\nreligious discrimination, provided that the Church can establish discriminatory intent.\n\n In this case, the alleged sequence of events leading to the challenged decision is\n\nhighly probative of Defendants’ motives. It is especially significant that irregularities in\n\n 13\n\fDefendants’ decision-making process followed the neighbors’ expressions of animus.\n\nSee Town of Clarkton, 682 F.2d at 1066 (describing a town’s unprecedented use of an\n\nopinion poll following expressions of racial opposition to a public housing project as a\n\n“significant” and “suspect” deviation from the procedural norm).\n\n The first irregularity occurred when the Board denied Ware’s first petition even\n\nthough the County Director of the Department of Planning didn’t oppose it. The\n\nneighbors who opposed the first petition allegedly made bigoted remarks in the hearing\n\nbefore the ALJ, and seven neighbors also testified during the Board’s hearing on the first\n\npetition.\n\n In our view, the neighbors’ remarks clearly display ethnic bias, and they can\n\nplausibly be understood as displaying religious bias too. We recognize that RLUIPA by\n\nits terms prohibits discrimination “on the basis of religion or religious denomination.” 42\n\nU.S.C. § 2000cc(b)(2). But we do not attempt to disentangle Plaintiffs’ allegations of\n\nreligious and ethnic bias, at least at the motion to dismiss stage where we must view the\n\nalleged facts in Plaintiffs’ favor.\n\n The remarks targeted (1) Ware’s African heritage and that of other congregants,\n\n(2) a Church gathering that (according to the neighbors) involved “dancing” and\n\n“hollering,” and (3) the fact that the Church “branch[ed] out from another church.” J.A.\n\n19 ¶ 108. The first of these topics targets the Church’s multicultural identity. The\n\nsecond targets activities conducted at Church gatherings, which we may infer involved\n\nreligious exercise as defined in RLUIPA. See 42 U.S.C. § 2000cc-5(7). The third targets\n\n\n\n 14\n\fthe Church’s connection to other churches and denominations—a paradigm example of\n\nreligious bias.\n\n Plaintiffs also alleged that they “have faced tremendous opposition based on the\n\nnature of their ministry and the ethnic background of Reverend Ware and the\n\ncongregation” and “their status as African immigrants.” J.A. 27 ¶ 166–67. Though the\n\nChurch is expressly “nondenominational,” J.A. 9 ¶ 15, and has no religious affiliation\n\nexcept its “associat[ion with] churches in Kenya and the Seychelles,” J.A. 10 ¶ 18,\n\nPlaintiffs’ other allegations are drafted in such a way that we can infer their religious\n\npractice is tied to their ethnicity.\n\n Accordingly, when we draw reasonable inferences in Plaintiffs’ favor and consider\n\nRLUIPA’s “very broad protection for religious liberty,” Holt v. Hobbs, 135 S. Ct. 853,\n\n859 (2015) (internal quotation marks omitted), we are convinced that, as alleged, the\n\nneighbors displayed the behavior Congress sought to eradicate from zoning decisions.\n\nRLUIPA is designed to protect “[c]hurches in general, and new, small, or unfamiliar\n\nchurches in particular, [from being] frequently discriminated against” in land use\n\nregulation, including when “zoning board members or neighborhood residents explicitly\n\noffer race or religion as the reason to exclude a proposed church, especially in cases of\n\nblack churches and Jewish shuls and synagogues.” 146 Cong. Rec. S7774 (July 27,\n\n2000) (joint statement of Sen. Hatch and Sen. Kennedy).\n\n Following the neighbors’ remarks, the Board denied the petition. Although the\n\nCounty Director’s statement that she didn’t oppose the petition doesn’t bind the Board, it\n\nis a “factor[] usually considered important” in zoning proceedings, and it “strongly\n\n 15\n\ffavor[s] a decision contrary to the one reached” by the Board. Arlington Heights, 429\n\nU.S. at 267. And although Plaintiffs didn’t allege how often the Board departs from the\n\nCounty Director’s recommendations, the fact that the Board disagreed with a County\n\nofficial who has relevant expertise and a formal role as the Board’s advisor is enough to\n\nraise a plausible suspicion of improper motive.\n\n As Defendants rightly point out, the neighbors’ remarks before the ALJ and the\n\nBoard’s disagreement with the County Director occurred well before the Board decided\n\nto dismiss the second petition. But these events are part of the sequence that led to the\n\nchallenged decision, and Plaintiffs plausibly alleged that they influenced it. This\n\nconnection is strengthened by the neighbors’ ongoing involvement in the dispute, right up\n\nthrough the dismissal of the second petition.\n\n The second irregularity occurred when the Board granted the neighbors’ motion to\n\ndismiss the second petition, contrary to the position of the People’s Counsel (a County\n\nofficial). The People’s Counsel initially sought dismissal based on res judicata and\n\ncollateral estoppel, but later abandoned this posture. The neighbors continued to seek\n\ndismissal on these grounds, and the Board adopted their position. This second\n\nirregularity adds further plausibility to the inference that Defendants dismissed the\n\nsecond petition based on improper motives.\n\n We express no opinion on whether the neighbors’ animus ultimately swayed the\n\nBoard’s decision to dismiss the second petition. Rather, we conclude only that the\n\ncomplaint plausibly alleges a prima facie claim of religious discrimination.\n\n\n\n 16\n\f C.\n\n Plaintiffs also appeal the district court’s dismissal of their First Amendment free\n\nexercise claim and their Fourteenth Amendment equal protection claim, in which they\n\nallege (as in their RLUIPA claims) that Defendants substantially burdened their religious\n\nexercise and discriminated against them on the basis of religion.\n\n We first must determine the correct standard of review. Under the Supreme\n\nCourt’s free exercise doctrine, a neutral government decision of general applicability is\n\nsubject to rational basis review, even where it has the incidental effect of burdening\n\nreligious exercise. Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 879 (1990).\n\nHowever, a decision whose object “is to infringe upon or restrict practices because of\n\ntheir religious motivation” is not neutral and is subject to strict scrutiny. Church of the\n\nLukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 546 (1993). As we\n\nexplained in Section II.B, Plaintiffs have alleged that the object of the Board’s decision\n\nwas to restrict their use of the Property in response to community opposition to the\n\nChurch’s religious denomination. This allegedly discriminatory motive triggers strict\n\nscrutiny.\n\n Similarly, we apply strict scrutiny under the Equal Protection Clause where (as\n\nhere) the challenged action interferes with a fundamental right. Bostic v. Schaefer, 760\n\nF.3d 352, 375 (4th Cir. 2014) (citing Zablocki v. Redhail, 434 U.S. 374, 383 (1978)).\n\nAnd “[u]nquestionably, the free exercise of religion is a fundamental constitutional\n\nright.” Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974); see also Reaching Hearts\n\nInt’l, Inc. v. Prince George’s County, 584 F. Supp. 2d 766, 781 n.9 (D. Md. 2008) (citing\n\n 17\n\fJohnson v. Robison in applying strict scrutiny to an equal protection claim based on\n\nreligious discrimination).\n\n A government decision fails strict scrutiny if it is not narrowly tailored to advance\n\na compelling state interest. Lukumi Babalu Aye, 508 U.S. at 546. While Baltimore\n\nCounty may have a significant interest in finality and economy that would ordinarily be\n\nserved by the doctrines of res judicata and collateral estoppel, the dismissal of Ware’s\n\nsecond petition isn’t narrowly tailored to serve that interest because the second petition\n\ndidn’t seek to revisit the Board’s decision about the first petition. We therefore vacate\n\nthe dismissal of their free exercise and equal protection claims.\n\n D.\n\n Finally, Plaintiffs brought a claim under Article 36 of the Maryland Declaration of\n\nRights, which protects freedom of religion at the state level. The district court had\n\nsupplemental jurisdiction over this state constitutional claim under 28 U.S.C. § 1367(a)\n\nbecause it formed part of the same case or controversy as Plaintiffs’ federal claims.\n\nHowever, after dismissing the federal claims, the district court exercised its discretion\n\nunder 28 U.S.C. § 1367(c)(3) to dismiss the state constitutional claim. 5 Given our\n\ndecision on Plaintiffs’ federal claims, § 1367(c)(3) no longer provides a basis for\n\ndismissing the state constitutional claim. We therefore vacate the dismissal of the state\n\n 5\n The district court also noted that Maryland state law is unsettled regarding\nwhether Article 36 provides a private cause of action. However, the court didn’t\nexpressly invoke 28 U.S.C. § 1367(c)(1), which authorizes it to decline to exercise\nsupplemental jurisdiction over claims that raise novel or complex issues of state law. We\nexpress no opinion about whether dismissal under § 1367(c)(1) is appropriate on remand.\n\n\n 18\n\fconstitutional claim and remand so that the district court may decide whether to retain\n\nsupplemental jurisdiction over it.\n\n\n\n III.\n\n For the foregoing reasons, we vacate the district court’s judgment and remand for\n\nfurther proceedings consistent with this opinion.\n\n VACATED AND REMANDED\n\n\n\n\n 19\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jesus Christ is the Answer v. Baltimore County, Maryland\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-25\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1450\\n\\n\\nJESUS CHRIST IS THE ANSWER MINISTRIES, INC.; REV. LUCY WARE,\\n\\n Plaintiffs − Appellants,\\n\\n v.\\n\\nBALTIMORE COUNTY, MARYLAND; BOARD OF APPEALS OF\\nBALTIMORE COUNTY, MARYLAND,\\n\\n Defendants – Appellees.\\n\\n------------------------------\\n\\nUNITED STATES OF AMERICA,\\n\\n Amicus Supporting Appellants.\\n\\n\\nAppeal from the United States District Court for the District of Maryland, at Baltimore.\\nRichard D. Bennett, District Judge. (1:17-cv-03010-RDB)\\n\\n\\nArgued: October 31, 2018 Decided: February 7, 2019\\n Amended: February 25, 2019\\n\\n\\nBefore NIEMEYER, AGEE, and DIAZ, Circuit Judges.\\n\\n\\nVacated and remanded by published opinion. Judge Diaz wrote the opinion, in which\\nJudge Niemeyer and Judge Agee joined.\\n\\fARGUED: Roman P. Storzer, STORZER & ASSOCIATES, P.C., Washington, D.C.,\\nfor Appellants. James Joseph Nolan, Jr., Paul M. Mayhew, BALTIMORE COUNTY\\nOFFICE OF LAW, Towson, Maryland, for Appellees. John Matthew Gore, UNITED\\nSTATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States of\\nAmerica. ON BRIEF: Sieglinde K. Rath, STORZER & ASSOCIATES, P.C.,\\nWashington, D.C.; Lawrence E. Schmidt, SMITH GILDEA & SCHMIDT LLC, Towson,\\nMaryland, for Appellants. Michael E. Field, County Attorney, R. Brady Locher,\\nAssistant County Attorney, BALTIMORE COUNTY OFFICE OF LAW, Towson,\\nMaryland, for Appellees. Tovah R. Calderon, Katherine E. Lamm, Appellate Section,\\nCivil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,\\nD.C., for Amicus United States of America.\\n\\n\\n\\n\\n 2\\n\\fDIAZ, Circuit Judge:\\n\\n Jesus Christ Is the Answer Ministries, Inc. (the “Church”) and Reverend Lucy\\n\\nWare appeal the dismissal of their claims against Baltimore County and the Board of\\n\\nAppeals of Baltimore County. The district court dismissed Plaintiffs’ suit for failure to\\n\\nstate a claim under the Religious Land Use and Institutionalized Persons Act\\n\\n(“RLUIPA”), 42 U.S.C. § 2000cc et seq., the Free Exercise Clause, the Equal Protection\\n\\nClause, and Article 36 of the Maryland Declaration of Rights. For the reasons that\\n\\nfollow, we vacate and remand for further proceedings.\\n\\n\\n\\n I.\\n\\n A.\\n\\n Jesus Christ is the Answer Ministries, Inc. is a nondenominational Christian\\n\\nchurch founded in Baltimore in 1997 by Reverend Lucy Ware. 1 The Church describes\\n\\nitself as evangelical and multicultural. It has associated churches in Kenya and the\\n\\nSeychelles, and many of the Church’s congregants were born in Africa. Reverend Ware\\n\\nwas born in Kenya, where she was active in her family church until moving to the United\\n\\nStates.\\n\\n The Church has struggled to secure an adequate house of worship, and this has\\n\\nimpeded its religious mission. This lawsuit arises from Ware’s unsuccessful efforts to\\n\\n 1\\n Our recitation of the facts is based on the allegations in Plaintiffs’ complaint,\\nwhich we accept as true at the motion to dismiss stage. Edwards v. City of Goldsboro,\\n178 F.3d 231, 244 (4th Cir. 1999).\\n\\n\\n 3\\n\\fobtain County approval to operate a church on property that she purchased for that\\n\\npurpose in 2012 (the “Property”).\\n\\n The Property consists of 1.2 acres of land with a building previously used as a\\n\\ndwelling. It is zoned under the Baltimore County Zoning Regulations (“BCZR”) as\\n\\n“Density Residential 3.5.”\\n\\n In this zone, churches are permitted as of right subject to certain conditions,\\n\\nincluding that parking lots and structures are (1) set back 75 feet from tract boundaries,\\n\\nand (2) separated from adjacent lots by a 50-foot landscaped buffer. BCZR\\n\\n§§ 1B01.1.A.3, 1B01.1.B.1.e. These conditions, however, don’t apply to new churches\\n\\nwhose site plans have been approved after a public hearing finding that compliance with\\n\\nthe conditions will be maintained “to the extent possible,” and that the plan “can\\n\\notherwise be expected to be compatible with the character and general welfare of the\\n\\nsurrounding residential premises.” Id. § 1B01.1.B.1.g.(6).\\n\\n Before Ware purchased the Property, her realtor advised her that a church was a\\n\\npermitted use on the Property.\\n\\n After buying the Property, Ware made improvements to the building and parking\\n\\nlot and held a church service and cookout. Neighbors complained to the County, and a\\n\\nCounty inspector notified Ware that she couldn’t use the Property as a church unless she\\n\\ncomplied with applicable zoning requirements.\\n\\n Ware filed a petition with the County to approve use of the Property as a church.\\n\\nThe petition proposed a buffer and setback of zero feet, seeking complete relief from the\\n\\nzoning requirements. It also sought variances from parking requirements. The County\\n\\n 4\\n\\fDirector of the Department of Planning did not oppose the petition, “provided a\\n\\nlandscape and signage plan is submitted to the department for review and approval.” J.A.\\n\\n19 ¶ 105. A hearing was held before an Administrative Law Judge (“ALJ”). Neighbors\\n\\nwho opposed the petition attended and participated.\\n\\n At the hearing, several neighbors made comments displaying open hostility to\\n\\nWare and the Church. These comments included: (1) “dancing and hollering like they\\n\\nback at their home back in Africa somewhere”; (2) “[s]he can come over here from\\n\\nAfrica . . . branch out from another church and put all of this in our neighborhood”; and\\n\\n(3) “[t]hey were out here dancing like from Africa. We don’t have that in our block.”\\n\\nJ.A. 19 ¶ 108. Since the hearing, neighbors have subjected the Church and its members\\n\\nto a sustained barrage of harassment, including racial slurs. The Property has also been\\n\\nsubject to vandalism and theft.\\n\\n The ALJ recommended denying Ware’s petition. Ware appealed this\\n\\nrecommendation to the Board of Appeals. The Board denied the petition, finding that\\n\\n“the proposed Church does not even minimally comply” with the applicable zoning\\n\\nrequirements and that the plan would not be compatible with “the character or general\\n\\nwelfare of the surrounding homes which homes are occupied by the [neighbors] who\\n\\ntestified.” J.A. 57. The Board’s decision was affirmed by the Circuit Court for\\n\\nBaltimore County and the Court of Special Appeals of Maryland. Ware v. People’s\\n\\nCounsel, 117 A.3d 628 (Md. Ct. Spec. App. 2015).\\n\\n While the first petition was pending appeal, Ware filed a second petition. This\\n\\nnew petition included a modified site plan that (1) moved the parking lot to increase the\\n\\n 5\\n\\fsetback to 55–72.7 feet and the buffer to 50 feet, and (2) did not seek any parking\\n\\nvariances. The new petition also differed from its predecessor in that it sought approval\\n\\nnot only under the zoning provision governing new churches, but also under a separate\\n\\nprovision governing existing churches.\\n\\n The People’s Counsel (a county official) initially sought dismissal of the new\\n\\npetition, on the ground that it sought essentially the same relief as its predecessor. The\\n\\nneighbors who opposed the first petition adopted the People’s Counsel’s motion to\\n\\ndismiss. But the People’s Counsel subsequently withdrew his motion based on the\\n\\ndifferences between the two petitions. Nevertheless, the neighbors continued to pursue\\n\\ndismissal. The Board granted the motion to dismiss, holding that the new petition was\\n\\nbarred by res judicata and collateral estoppel.\\n\\n B.\\n\\n Ware and the Church then filed suit in federal district court, alleging that the\\n\\nBoard’s dismissal of the second petition violated RLUIPA’s substantial burden and\\n\\nnondiscrimination provisions, the First Amendment’s Free Exercise Clause, the\\n\\nFourteenth Amendment’s Equal Protection Clause, and Article 36 of the Maryland\\n\\nDeclaration of Rights, which protects freedom of religion at the state level. The district\\n\\ncourt dismissed the complaint for failure to state a claim. This appeal followed.\\n\\n\\n\\n II.\\n\\n We review the district court’s dismissal order de novo, accepting as true the facts\\n\\nalleged in the complaint and drawing all reasonable inferences in Plaintiffs’ favor, to\\n\\n 6\\n\\fdetermine whether the complaint contains facts sufficient to state a claim that is\\n\\n“plausible on its face.” Kensington Volunteer Fire Dep’t, Inc. v. Montgomery County,\\n\\n684 F.3d 462, 467 (4th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570\\n\\n(2007)).\\n\\n A.\\n\\n We begin with Plaintiffs’ claim that Defendants substantially burdened their\\n\\nreligious exercise, in violation of RLUIPA, by dismissing the second petition. 2 We agree\\n\\nwith the Plaintiffs that the district court erred in dismissing this claim.\\n\\n RLUIPA prohibits land use regulations that impose a “substantial burden” on\\n\\nreligious practice, unless they are the least restrictive means of furthering a compelling\\n\\ngovernmental interest. 42 U.S.C. § 2000cc(a)(1). A substantial burden exists where a\\n\\nregulation “puts substantial pressure on [the plaintiff] to modify its behavior.” Bethel\\n\\nWorld Outreach Ministries v. Montgomery Cty. Council, 706 F.3d 548, 556 (4th Cir.\\n\\n2013).\\n\\n As relevant here, land use regulations can substantially burden religious exercise\\n\\nwhere an organization acquires property expecting to use it for a religious purpose but is\\n\\n\\n 2\\n Defendants argue, for the first time on appeal, that the Church can’t bring an\\nRLUIPA claim because it doesn’t own the Property (Ware does). This argument doesn’t\\nimplicate any jurisdictional issue such as the Church’s constitutional standing. Instead, it\\nconcerns whether a regulation affecting the Church fits within RLUIPA’s definition of\\n“land use regulation.” See 42 U.S.C. § 2000cc-5(5). Because Defendants’ argument\\ndoesn’t call our subject matter jurisdiction into question or implicate “exceptional\\ncircumstances,” we decline to consider it for the first time on appeal. Muth v. United\\nStates, 1 F.3d 246, 250 (4th Cir. 1993).\\n\\n\\n 7\\n\\fprevented from doing so by the application of a zoning ordinance. In such a case, two\\n\\nquestions are usually relevant to determining whether RLUIPA has been violated.\\n\\n First, is the impediment to the organization’s religious practice substantial? The\\n\\nanswer will usually be “yes” where use of the property would serve an unmet religious\\n\\nneed, the restriction on religious use is absolute rather than conditional, and the\\n\\norganization must acquire a different property as a result. See Bethel, 706 F.3d at 557–\\n\\n58.\\n\\n Second, who is responsible for the impediment—the government, or the religious\\n\\norganization? In answering this question, we have considered whether the organization\\n\\nhad a “reasonable expectation” of religious land use, see Bethel, 706 F.3d at 558, and\\n\\nwhether the burden faced by the organization is “self-imposed,” see Andon, LLC v. City\\n\\nof Newport News, 813 F.3d 510, 515 (4th Cir. 2016).\\n\\n In this case there is little dispute that the impediment is substantial, since the\\n\\nChurch is barred from using the Property, so the district court sensibly focused on the\\n\\nsecond question: Are Plaintiffs responsible for their present inability to use the Property\\n\\nas a church? But in addressing this question, the court wrongly emphasized Plaintiffs’\\n\\npurported “failure to exercise due diligence before acquiring and altering the property”\\n\\nand their “subsequent proposal [in Ware’s first petition] of a site plan that disregarded the\\n\\nzoning requirements.” Jesus Christ Is the Answer Ministries, Inc. v. Baltimore County,\\n\\n303 F. Supp. 3d 378, 396 (D. Md. 2018). The first of these supposed failings is irrelevant\\n\\nto whether the zoning regulations in fact authorize Plaintiffs to use the Property as a\\n\\nchurch. And the second is irrelevant to whether Plaintiffs were responsible for the\\n\\n 8\\n\\fdismissal of Ware’s second petition, which is what now stands in the way of their\\n\\nreligious practice.\\n\\n Ware sufficiently alleged that she had a reasonable expectation of using the\\n\\nProperty as a church. Her realtor told her that such a use was permitted on the Property.\\n\\nThis advice was of course correct because churches are “permitted as of right,” provided\\n\\nthat their site plans comply “to the extent possible with [applicable] requirements” and\\n\\ncan “otherwise be expected to be compatible with the character and general welfare of the\\n\\nsurrounding residential premises.” BCZR §§ 1B01.1.A.3, 1B01.1.B.1.g.(6). Ware was\\n\\njustified in believing that she could satisfy these broadly and permissibly phrased\\n\\nconditions, especially given that the zoning regulations permit churches as of right.\\n\\n Ware’s efforts to meet the zoning conditions were frustrated, however, when the\\n\\nBoard dismissed her second petition. As the district court recognized, the second petition\\n\\nwas based on a site plan that substantially differed from and attempted to address the\\n\\nshortcomings of its predecessor. The Board failed to recognize these differences when it\\n\\ndismissed the petition based on res judicata and collateral estoppel, relying on the faulty\\n\\npremise that the two petitions sought essentially the same relief.\\n\\n The district court declined to dismiss Plaintiffs’ suit on grounds of res judicata and\\n\\ncollateral estoppel, but nonetheless determined that the Board correctly dismissed the\\n\\nsecond petition on these grounds. The court explained this anomaly by noting that Ware\\n\\nadvanced different bases for distinguishing the two petitions before the Board and the\\n\\ndistrict court. Specifically, the Board took the “real thrust” of Ware’s argument to be that\\n\\nthe second petition invoked a different subsection of the zoning regulations than the first.\\n\\n 9\\n\\fJ.A. 125. Before the district court, however, Plaintiffs emphasized the differences\\n\\nbetween the site plans accompanying the two petitions.\\n\\n We are not persuaded by the district court’s reasoning. First, Ware did highlight\\n\\nthe differences between the site plans in the administrative proceedings. See J.A. 90,\\n\\n106–10, 113. It was the Board (not Ware) that decided the “real thrust” of Ware’s\\n\\nargument was the different zoning provisions invoked by the two petitions. Second, and\\n\\nmore importantly, the two site plans are in fact markedly different. The second plan\\n\\naddressed the first one’s main deficiencies by moving the parking lot to the center of the\\n\\nProperty. This increased the landscaped buffer from zero to 50 feet, which fully\\n\\ncomplied with the buffer requirements. The second plan also increased the parking lot’s\\n\\nsetback from zero to between 55 and 72.7 feet, which complied to a much greater extent\\n\\n(and arguably “to the extent possible”) with the 75-foot setback requirement. In light of\\n\\nthese substantial changes and improvements, we cannot say that the dismissal of Ware’s\\n\\nsecond petition was self-imposed.\\n\\n Plaintiffs have sufficiently alleged that the dismissal of the second petition\\n\\nimposed a substantial burden on their religious practice. We therefore vacate the district\\n\\ncourt’s dismissal of Plaintiffs’ substantial burden claim. 3\\n\\n\\n 3\\n The district court did not reach RLUIPA’s second prong, which considers\\nwhether, despite substantially burdening religious exercise, a government action “is the\\nleast restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C.\\n§ 2000cc–1. As we discuss, Plaintiffs have sufficiently alleged that dismissal of the\\nsecond petition was motivated by religious animus. Such animus is not a permissible\\ngovernment interest, much less a compelling one. And the dismissal wasn’t narrowly\\ntailored to further the finality interests that are normally served by res judicata and\\n(Continued)\\n 10\\n\\f B.\\n\\n Next, we consider the Church’s claim that Defendants discriminated against it\\n\\nbased on religion or religious denomination in violation of RLUIPA. 4 The district court\\n\\ndismissed this claim, concluding that the Church failed to allege that the Board approved\\n\\nspecial exceptions to the zoning regulations for similarly situated churches or that its\\n\\ndecision was influenced by discriminatory intent.\\n\\n The Church argues that the district court erred by ignoring allegations that the\\n\\n“Board was knowingly responsive to a hostile community” of bigoted neighbors. J.A. 8\\n\\n¶ 5. Defendants respond that the neighbors’ discriminatory remarks can’t be attributed to\\n\\nthem, and that the remarks couldn’t have influenced the decision to dismiss the second\\n\\npetition because they were allegedly made during the hearing on the first petition.\\n\\n RLUIPA prohibits land use regulations that discriminate “on the basis of religion\\n\\nor religious denomination.” 42 U.S.C. § 2000cc(b)(2). In applying RLUIPA’s\\n\\nnondiscrimination provision, courts have looked to equal protection precedent. Chabad\\n\\nLubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 198\\n\\n\\n\\n\\ncollateral estoppel because the second petition substantially differed from the first.\\nTherefore, RLUIPA’s second prong poses no barrier to Plaintiffs’ substantial burden\\nclaim at this stage of the case.\\n 4\\n The complaint alleges religious discrimination against both the Church and\\nWare. J.A. 32 ¶ 203. However, RLUIPA’s nondiscrimination provision applies only to\\nregulations that discriminate against “any assembly or institution.” 42 U.S.C.\\n§ 2000cc(b)(2). The district court was therefore correct to dismiss Ware’s\\nnondiscrimination claim.\\n\\n\\n 11\\n\\f(2d Cir. 2014) (citing Bethel, 706 F.3d at 559). Under that precedent, a plaintiff must\\n\\ndemonstrate that the government decision was motivated at least in part by discriminatory\\n\\nintent, which is evaluated using the “sensitive inquiry” established in Village of Arlington\\n\\nHeights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266–68 (1977).\\n\\n One factor which this inquiry recognizes as potentially probative of the\\n\\ndecisionmaker’s intent is the “specific sequence of events leading up to the challenged\\n\\ndecision.” Id. at 267. Departures from normal procedures can suggest that the decision\\n\\nwas based on unlawful motives, as can “[s]ubstantive departures . . . particularly if the\\n\\nfactors usually considered important by the decisionmaker strongly favor a decision\\n\\ncontrary to the one reached.” Id. (citing Dailey v. City of Lawton, 425 F.2d 1037, 1040\\n\\n(10th Cir. 1970) (finding racial motivation where a city refused to rezone a plot despite\\n\\npresent and former city planning directors’ testimony that there was no reason not to\\n\\nrezone)).\\n\\n Particularly relevant to this case, a government decision influenced by community\\n\\nmembers’ religious bias is unlawful, even if the government decisionmakers display no\\n\\nbias themselves. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985);\\n\\nMarks v. City of Chesapeake, 883 F.2d 308, 311–13 (4th Cir. 1989). Such impermissible\\n\\ninfluence may be inferred where expressions of community bias are followed by\\n\\nirregularities in government decision-making. See Smith v. Town of Clarkton, 682 F.2d\\n\\n1055, 1066 (4th Cir. 1982).\\n\\n Under RLUIPA, a plaintiff need only establish a prima facie claim of religious\\n\\ndiscrimination, after which the defendant bears the burden of persuasion on all elements\\n\\n 12\\n\\fof the claim. 42 U.S.C. § 2000cc-2(b); Chabad Lubavitch, 768 F.3d at 198. And as with\\n\\nall claims, at the motion to dismiss stage “a plaintiff need not demonstrate that her right\\n\\nto relief is probable or that alternative explanations are less likely; rather, she must\\n\\nmerely advance her claim ‘across the line from conceivable to plausible.’” Houck v.\\n\\nSubstitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015) (quoting Twombly, 550 U.S.\\n\\nat 570). So long as a plaintiff alleges a plausible prima facie claim of discrimination, a\\n\\ncourt may not dismiss that claim—even if the defendant advances a nondiscriminatory\\n\\nalternative explanation for its decision, and even if that alternative appears more\\n\\nprobable. Id.; see Woods v. City of Greensboro, 855 F.3d 639, 649 (4th Cir. 2017) (“The\\n\\nquestion is not whether there are more likely explanations for the City’s action . . . but\\n\\nwhether the City’s impliedly proffered reason . . . is so obviously an irrefutably sound\\n\\nand unambiguously nondiscriminatory and non-pretextual explanation that it renders [the\\n\\nplaintiff’s] claim of pretext implausible.”).\\n\\n The district court reasoned that the complaint failed to allege disparate treatment\\n\\nbecause other churches that ultimately received approval are situated on larger lots and\\n\\nhave sufficient space for parking. However, RLUIPA’s nondiscrimination provision\\n\\ndoesn’t require a comparison to similarly situated entities. Chabad Lubavitch, 768 F.3d\\n\\nat 199. The Church has alleged that the Board’s dismissal of Ware’s second petition was\\n\\nmotivated by religious discrimination. This is enough to make out a prima facie claim of\\n\\nreligious discrimination, provided that the Church can establish discriminatory intent.\\n\\n In this case, the alleged sequence of events leading to the challenged decision is\\n\\nhighly probative of Defendants’ motives. It is especially significant that irregularities in\\n\\n 13\\n\\fDefendants’ decision-making process followed the neighbors’ expressions of animus.\\n\\nSee Town of Clarkton, 682 F.2d at 1066 (describing a town’s unprecedented use of an\\n\\nopinion poll following expressions of racial opposition to a public housing project as a\\n\\n“significant” and “suspect” deviation from the procedural norm).\\n\\n The first irregularity occurred when the Board denied Ware’s first petition even\\n\\nthough the County Director of the Department of Planning didn’t oppose it. The\\n\\nneighbors who opposed the first petition allegedly made bigoted remarks in the hearing\\n\\nbefore the ALJ, and seven neighbors also testified during the Board’s hearing on the first\\n\\npetition.\\n\\n In our view, the neighbors’ remarks clearly display ethnic bias, and they can\\n\\nplausibly be understood as displaying religious bias too. We recognize that RLUIPA by\\n\\nits terms prohibits discrimination “on the basis of religion or religious denomination.” 42\\n\\nU.S.C. § 2000cc(b)(2). But we do not attempt to disentangle Plaintiffs’ allegations of\\n\\nreligious and ethnic bias, at least at the motion to dismiss stage where we must view the\\n\\nalleged facts in Plaintiffs’ favor.\\n\\n The remarks targeted (1) Ware’s African heritage and that of other congregants,\\n\\n(2) a Church gathering that (according to the neighbors) involved “dancing” and\\n\\n“hollering,” and (3) the fact that the Church “branch[ed] out from another church.” J.A.\\n\\n19 ¶ 108. The first of these topics targets the Church’s multicultural identity. The\\n\\nsecond targets activities conducted at Church gatherings, which we may infer involved\\n\\nreligious exercise as defined in RLUIPA. See 42 U.S.C. § 2000cc-5(7). The third targets\\n\\n\\n\\n 14\\n\\fthe Church’s connection to other churches and denominations—a paradigm example of\\n\\nreligious bias.\\n\\n Plaintiffs also alleged that they “have faced tremendous opposition based on the\\n\\nnature of their ministry and the ethnic background of Reverend Ware and the\\n\\ncongregation” and “their status as African immigrants.” J.A. 27 ¶ 166–67. Though the\\n\\nChurch is expressly “nondenominational,” J.A. 9 ¶ 15, and has no religious affiliation\\n\\nexcept its “associat[ion with] churches in Kenya and the Seychelles,” J.A. 10 ¶ 18,\\n\\nPlaintiffs’ other allegations are drafted in such a way that we can infer their religious\\n\\npractice is tied to their ethnicity.\\n\\n Accordingly, when we draw reasonable inferences in Plaintiffs’ favor and consider\\n\\nRLUIPA’s “very broad protection for religious liberty,” Holt v. Hobbs, 135 S. Ct. 853,\\n\\n859 (2015) (internal quotation marks omitted), we are convinced that, as alleged, the\\n\\nneighbors displayed the behavior Congress sought to eradicate from zoning decisions.\\n\\nRLUIPA is designed to protect “[c]hurches in general, and new, small, or unfamiliar\\n\\nchurches in particular, [from being] frequently discriminated against” in land use\\n\\nregulation, including when “zoning board members or neighborhood residents explicitly\\n\\noffer race or religion as the reason to exclude a proposed church, especially in cases of\\n\\nblack churches and Jewish shuls and synagogues.” 146 Cong. Rec. S7774 (July 27,\\n\\n2000) (joint statement of Sen. Hatch and Sen. Kennedy).\\n\\n Following the neighbors’ remarks, the Board denied the petition. Although the\\n\\nCounty Director’s statement that she didn’t oppose the petition doesn’t bind the Board, it\\n\\nis a “factor[] usually considered important” in zoning proceedings, and it “strongly\\n\\n 15\\n\\ffavor[s] a decision contrary to the one reached” by the Board. Arlington Heights, 429\\n\\nU.S. at 267. And although Plaintiffs didn’t allege how often the Board departs from the\\n\\nCounty Director’s recommendations, the fact that the Board disagreed with a County\\n\\nofficial who has relevant expertise and a formal role as the Board’s advisor is enough to\\n\\nraise a plausible suspicion of improper motive.\\n\\n As Defendants rightly point out, the neighbors’ remarks before the ALJ and the\\n\\nBoard’s disagreement with the County Director occurred well before the Board decided\\n\\nto dismiss the second petition. But these events are part of the sequence that led to the\\n\\nchallenged decision, and Plaintiffs plausibly alleged that they influenced it. This\\n\\nconnection is strengthened by the neighbors’ ongoing involvement in the dispute, right up\\n\\nthrough the dismissal of the second petition.\\n\\n The second irregularity occurred when the Board granted the neighbors’ motion to\\n\\ndismiss the second petition, contrary to the position of the People’s Counsel (a County\\n\\nofficial). The People’s Counsel initially sought dismissal based on res judicata and\\n\\ncollateral estoppel, but later abandoned this posture. The neighbors continued to seek\\n\\ndismissal on these grounds, and the Board adopted their position. This second\\n\\nirregularity adds further plausibility to the inference that Defendants dismissed the\\n\\nsecond petition based on improper motives.\\n\\n We express no opinion on whether the neighbors’ animus ultimately swayed the\\n\\nBoard’s decision to dismiss the second petition. Rather, we conclude only that the\\n\\ncomplaint plausibly alleges a prima facie claim of religious discrimination.\\n\\n\\n\\n 16\\n\\f C.\\n\\n Plaintiffs also appeal the district court’s dismissal of their First Amendment free\\n\\nexercise claim and their Fourteenth Amendment equal protection claim, in which they\\n\\nallege (as in their RLUIPA claims) that Defendants substantially burdened their religious\\n\\nexercise and discriminated against them on the basis of religion.\\n\\n We first must determine the correct standard of review. Under the Supreme\\n\\nCourt’s free exercise doctrine, a neutral government decision of general applicability is\\n\\nsubject to rational basis review, even where it has the incidental effect of burdening\\n\\nreligious exercise. Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 879 (1990).\\n\\nHowever, a decision whose object “is to infringe upon or restrict practices because of\\n\\ntheir religious motivation” is not neutral and is subject to strict scrutiny. Church of the\\n\\nLukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 546 (1993). As we\\n\\nexplained in Section II.B, Plaintiffs have alleged that the object of the Board’s decision\\n\\nwas to restrict their use of the Property in response to community opposition to the\\n\\nChurch’s religious denomination. This allegedly discriminatory motive triggers strict\\n\\nscrutiny.\\n\\n Similarly, we apply strict scrutiny under the Equal Protection Clause where (as\\n\\nhere) the challenged action interferes with a fundamental right. Bostic v. Schaefer, 760\\n\\nF.3d 352, 375 (4th Cir. 2014) (citing Zablocki v. Redhail, 434 U.S. 374, 383 (1978)).\\n\\nAnd “[u]nquestionably, the free exercise of religion is a fundamental constitutional\\n\\nright.” Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974); see also Reaching Hearts\\n\\nInt’l, Inc. v. Prince George’s County, 584 F. Supp. 2d 766, 781 n.9 (D. Md. 2008) (citing\\n\\n 17\\n\\fJohnson v. Robison in applying strict scrutiny to an equal protection claim based on\\n\\nreligious discrimination).\\n\\n A government decision fails strict scrutiny if it is not narrowly tailored to advance\\n\\na compelling state interest. Lukumi Babalu Aye, 508 U.S. at 546. While Baltimore\\n\\nCounty may have a significant interest in finality and economy that would ordinarily be\\n\\nserved by the doctrines of res judicata and collateral estoppel, the dismissal of Ware’s\\n\\nsecond petition isn’t narrowly tailored to serve that interest because the second petition\\n\\ndidn’t seek to revisit the Board’s decision about the first petition. We therefore vacate\\n\\nthe dismissal of their free exercise and equal protection claims.\\n\\n D.\\n\\n Finally, Plaintiffs brought a claim under Article 36 of the Maryland Declaration of\\n\\nRights, which protects freedom of religion at the state level. The district court had\\n\\nsupplemental jurisdiction over this state constitutional claim under 28 U.S.C. § 1367(a)\\n\\nbecause it formed part of the same case or controversy as Plaintiffs’ federal claims.\\n\\nHowever, after dismissing the federal claims, the district court exercised its discretion\\n\\nunder 28 U.S.C. § 1367(c)(3) to dismiss the state constitutional claim. 5 Given our\\n\\ndecision on Plaintiffs’ federal claims, § 1367(c)(3) no longer provides a basis for\\n\\ndismissing the state constitutional claim. We therefore vacate the dismissal of the state\\n\\n 5\\n The district court also noted that Maryland state law is unsettled regarding\\nwhether Article 36 provides a private cause of action. However, the court didn’t\\nexpressly invoke 28 U.S.C. § 1367(c)(1), which authorizes it to decline to exercise\\nsupplemental jurisdiction over claims that raise novel or complex issues of state law. We\\nexpress no opinion about whether dismissal under § 1367(c)(1) is appropriate on remand.\\n\\n\\n 18\\n\\fconstitutional claim and remand so that the district court may decide whether to retain\\n\\nsupplemental jurisdiction over it.\\n\\n\\n\\n III.\\n\\n For the foregoing reasons, we vacate the district court’s judgment and remand for\\n\\nfurther proceedings consistent with this opinion.\\n\\n VACATED AND REMANDED\\n\\n\\n\\n\\n 19\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":569,"cells":{"id":{"kind":"number","value":4594017,"string":"4,594,017"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Paulette MARTIN, A/K/A Paulette Murphy, A/K/A Paulette Akuffo, A/K/A Paula Murphy, A/K/A Auntie, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Luis Felipe Mangual, Sr., Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Paulette Martin"},"decision_date":{"kind":"string","value":"2019-02-26"},"docket_number":{"kind":"string","value":"17-6199; 17-6200"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Gregory, Motz, Floyd\", \"parties\": \"\", \"opinions\": [{\"author\": \"Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-6199\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\nPAULETTE MARTIN, a/k/a Paulette Murphy, a/k/a Paulette Akuffo, a/k/a\\nPaula Murphy, a/k/a Auntie,\\n\\n Defendant – Appellant.\\n\\n\\nAppeal from the United States District Court for the District of Maryland, at Greenbelt.\\nRoger W. Titus, Senior District Judge. (8:04-cr-00235-RWT-1)\\n\\n\\n No. 17-6200\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\nLUIS FELIPE MANGUAL, SR.,\\n\\n Defendant – Appellant.\\n\\n\\nAppeal from the United States District Court for the District of Maryland, at Greenbelt.\\nRoger W. Titus, Senior District Judge. (8:04-cr-00235-RWT-25)\\n\\fArgued: December 11, 2018 Decided: February 26, 2019\\n\\n\\nBefore GREGORY, Chief Judge, MOTZ, and FLOYD, Circuit Judges.\\n\\n\\nVacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in\\nwhich Judge Motz and Judge Floyd joined.\\n\\n\\nARGUED: Sapna Mirchandani, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\\nGreenbelt, Maryland, for Appellant. Ellen Elisabeth Cobb, OFFICE OF THE UNITED\\nSTATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda,\\nFederal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\\nBaltimore, Maryland, for Appellant. Robert K. Hur, United States Attorney,\\nStephen M. Schenning, Acting United States Attorney, Baltimore, Maryland,\\nDavid I. Salem, Assistant United States Attorney, OFFICE OF THE UNITED STATES\\nATTORNEY, Greenbelt, Maryland, for Appellee.\\n\\n\\n\\n\\n 2\\n\\fGREGORY, Chief Judge:\\n\\n Defendants-Appellants Paulette Martin and Luis Felipe Mangual Sr. both filed\\n\\nmotions for sentence reductions under 18 U.S.C. § 3582(c)(2) and now appeal adverse\\n\\ndistrict court rulings. Because the district court failed to provide Martin and Mangual\\n\\nwith individualized explanations for its rulings on their respective motions, we vacate and\\n\\nremand.\\n\\n\\n\\n I.\\n\\n A.\\n\\n A jury convicted Martin in 2006 of various drug and drug-related offenses in\\n\\nviolation of 21 U.S.C. § 846, 21 U.S.C. § 843(b), and 21 U.S.C. § 841(a). Martin served\\n\\nas a leader in a drug conspiracy for at least seven years—a conspiracy involving a large\\n\\nquantity of cocaine and heroin—and even though she did not engage in violence, her co-\\n\\nconspirators carried firearms. Given this information, the Presentence Report calculated\\n\\nMartin’s adjusted combined offense level as a 44. Martin had only one prior conviction,\\n\\ndating back to 1986 and therefore had a criminal history category of I. The Sentencing\\n\\nGuidelines’ calculations recommended Martin face life imprisonment for her crimes.\\n\\nThe district court noted the severity of Martin’s criminal activity and sentenced her to life\\n\\nimprisonment, and this Court affirmed Martin’s conviction and sentence. United States\\n\\nv. Martin, 452 F. App’x 239 (4th Cir. 2011).\\n\\n\\n\\n\\n 3\\n\\f In February 2015, Martin filed a pro se motion for a sentence reduction under 18\\n\\nU.S.C. § 3582(c)(2), seeking the benefit of Amendment 782, * which lowered the base\\n\\noffense levels applicable to drug offenses by two offense levels. This could afford\\n\\nMartin sentencing relief if her Guidelines range were recalculated at an adjusted\\n\\ncombined offense level of 42 instead of her original 44. Martin asserted her eligibility for\\n\\nreduction based on Amendment 782, but also emphasized her work tutoring other\\n\\ninmates, the number and variety of courses she completed while incarcerated, and her\\n\\nexemplary prison record. Martin explained how she lacked any connection to organized\\n\\ndrug-based criminal enterprises and that she would not be a threat to society at her age.\\n\\nMartin further contended that she could possibly serve as a mentor to misguided youth\\n\\nupon her release from prison. In addition to Martin’s pro se motion, the Office of the\\n\\nFederal Public Defender filed a motion on her behalf, argued that her revised Guidelines\\n\\nrange after factoring in Amendment 782 would be 360 months to life imprisonment, and\\n\\nrequested the court to provide a sentence on the low end of that range. The probation\\n\\nofficer agreed and recommended a reduction in the sentence from life to 360 months.\\n\\n The Government opposed Martin’s motion and countered both that Martin was\\n\\nineligible for relief and that the § 3553(a) factors did not weigh in favor of granting the\\n\\n\\n * On November 1, 2014, the Sentencing Commission issued Amendment 782 to\\nits Sentencing Guidelines, which lowered the recommended sentences for certain drug\\ncrimes, including the crime of which Martin was convicted. See United States\\nSentencing Commission, Guidelines Manual, supp. App’x. C, amend. 782 (2014). At the\\nsame time, the Commission promulgated another amendment, Amendment 788, which\\namended § 1B1.10 of the Guidelines to authorize district courts to apply Amendment 782\\nretroactively to reduce the length of certain already imposed sentences.\\n\\n 4\\n\\fmotion, emphasizing the court’s comments at sentencing about the seriousness of the\\n\\ncrimes and the need to protect the public from Martin, a leader of an extensive drug-\\n\\ntrafficking operation.\\n\\n Martin’s counsel argued at the hearing that she is eligible for the reduction and\\n\\nthat the Sentencing Guidelines previously offered only one maximum advisory sentence\\n\\nto the court, life imprisonment, and that there was nothing to indicate from the sentencing\\n\\nhearing that a 360-month sentence would not also serve the goals of sentencing. Counsel\\n\\ninformed the court that Martin’s good behavior had earned her a place in a low security\\n\\nfacility and that she had earned her GED and become a respected tutor for other inmates.\\n\\nDespite this productive record, counsel explained, Martin is precluded from earning good\\n\\ntime credits and participating in other programs because of her life sentence. Counsel\\n\\nrejected the suggestion that Martin would be a threat to society if released after 360\\n\\nmonths, considering her history of nonviolence and her age of 84 at the time of her\\n\\nrelease. Finally, counsel argued that it would be costly and promote no legitimate\\n\\ngovernmental aim to incarcerate Martin in her advanced years.\\n\\n In March 2016, the district court denied Martin’s motion for a sentence reduction\\n\\nby checking the “DENIED” box on the form order. We vacated the judgment and\\n\\nremanded because we could not determine “whether the court concluded that Martin was\\n\\nineligible for a sentence reduction or, alternatively, whether the court decided that such a\\n\\nreduction was unwarranted in light of the § 3553(a) factors and Martin’s post-sentencing\\n\\nconduct.” United States v. Martin, 669 F. App’x 132, 133 (4th Cir. 2016). This Court\\n\\nfound that “[b]ecause the parties presented fully developed, nonfrivolous arguments as to\\n\\n 5\\n\\fboth steps of the sentence reduction inquiry, we could only speculate as to the basis for\\n\\nthe district court’s decision.” Id.\\n\\n Upon remand, the district court stated in an order that it had once again reviewed\\n\\nMartin’s motion for a sentence reduction, counsel’s correspondence to the court, and the\\n\\nGovernment’s response in opposition. As an initial matter, the district court found\\n\\nMartin eligible for relief because the bottom of her Guidelines range had been reduced\\n\\nfrom life to 360 months under Amendment 782. However, the court determined that a\\n\\nsentence reduction was not warranted based on its discretion “[a]fter carefully weighing\\n\\nthe § 3553(a) factors.” The court explained that Martin “ran a large, multi-million-dollar,\\n\\nmulti-jurisdiction drug operation, spanning Maryland, Virginia, and the District of\\n\\nColumbia, and operated it for years. The seriousness of her actions and offenses cannot\\n\\neasily be overstated.” For those reasons and the ones “set forth in the Government’s\\n\\nResponse,” the court denied Martin’s motion for a sentence reduction. Martin timely\\n\\nfiled her notice of appeal. This Court has jurisdiction over Martin’s appeal pursuant to 28\\n\\nU.S.C. § 1291 and 18 U.S.C. § 3742.\\n\\n B.\\n\\n In 2006, Mangual entered into a guilty plea agreement for a nonviolent drug\\n\\noffense in violation of 21 U.S.C. § 846. Mangual admitted that for about two years he\\n\\nengaged in a drug-trafficking conspiracy involving over 150 kilograms of cocaine and 20\\n\\nkilograms of heroin. The Presentence Report calculated Mangual’s adjusted combined\\n\\noffense level as a 36. Mangual had a 1994 drug offense and a criminal history category\\n\\nof II. His Sentencing Guidelines range was 210 to 262 months’ imprisonment.\\n\\n 6\\n\\f The district court sentenced Mangual to 262 months’ imprisonment, the top of the\\n\\nguidelines range. Mangual’s sentencing transcript is not in the record, and the only\\n\\nindication this Court has of the district court’s reasoning is a brief note included in the\\n\\nStatement of Reasons in the court’s Judgement. There, the district court stated that a\\n\\n“sentence at the top of the guideline range is appropriate because of the large quantity of\\n\\ndrugs and the defendant’s prior conviction of the same type of offense.”\\n\\n In April 2015, Mangual filed a pro se motion for a sentence reduction under\\n\\n§ 3582(c)(2), seeking the benefit of Amendment 782. Mangual contended that after the\\n\\napplication of Amendment 782, his Sentencing Guidelines range is 168 to 210 months’\\n\\nimprisonment. In a 2015 letter to the court, Mangual, a 75-year-old inmate at that time,\\n\\nasserted that, during his 10 years in prison, his sole disciplinary infraction was for\\n\\nmissing count when he did not hear the count call. He further notified the court that the\\n\\njail placed him on medical furloughs four times, that he has had open heart surgery, and\\n\\nthat he is in “chronic care” and taking multiple medications. Mangual explained that the\\n\\nmother of his children is also sick, and he expressed his desire to spend his last years with\\n\\nher and their children, 15 grandchildren, and 8 great grandchildren. Mangual said he\\n\\nexhausted the educational opportunities he had access to while incarcerated. Moreover,\\n\\nMangual asserted that he has tried to better himself while in jail: he and another inmate\\n\\n“put together a concept called ‘The People/The Solution,’” which is “an educational and\\n\\nawareness tool to motivate the people to help others” and thereby help themselves.\\n\\n On December 14, 2016, the Federal Defender filed a motion on Mangual’s behalf,\\n\\nurging the court to reduce his sentence to 168 months’ imprisonment, the bottom of his\\n\\n 7\\n\\famended Guidelines range. Counsel emphasized that Mangual “was not a leader or\\n\\nmanager of the conspiracy (of the 31 people charged, he was the 25th named defendant);\\n\\nhis conduct was not violent (he served as a middleman in drug sales); and he neither used\\n\\nnor possessed a weapon at any time.” Counsel also observed that Mangual’s post-\\n\\nsentencing conduct was “outstanding”: he “has built a solid employment record” in\\n\\nprison; “has completed his court-ordered financial obligations”; and “has a nearly\\n\\nflawless disciplinary record.” Indeed, due to his exemplary conduct, he has been\\n\\ndesignated to a minimum-security facility and is eligible to work outside the prison\\n\\ncompound. Finally, counsel argued that Mangual was unlikely to recidivate due to his\\n\\n“advanced age, his deteriorating health, and the stable home to which he will be\\n\\nreleased.”\\n\\n The probation officer agreed that Mangual was eligible for a sentence reduction\\n\\nbut recommended a sentence at the top of the amended range—210 months’\\n\\nimprisonment. Similarly, in a response dated December 16, 2016, the Government did\\n\\nnot oppose a sentence reduction but objected to the extent of the relief sought by\\n\\nMangual and urged the court to impose a 210-month sentence. The Government\\n\\nexplained that it “aims to recommend an amended sentence that is consistent with the\\n\\noriginal sentence” and, therefore, Mangual “is eligible for a comparable sentence at the\\n\\ntop of the amended guidelines range.” In a footnote, the Government acknowledged\\n\\nMangual’s “apparently positive post-sentencing conduct, advanced age, and minimal\\n\\ncriminal history” but “recommend[ed] a comparable sentence in the interest of fairness\\n\\nand consistency.”\\n\\n 8\\n\\f On December 21, 2016, the district court granted Mangual’s motion for a sentence\\n\\nreduction but did not reduce the sentence to the extent requested, instead imposing the\\n\\nsentence recommended by the Government—210 months’ imprisonment. The court used\\n\\nthe standard form, which included a statement confirming that the court had taken into\\n\\naccount the policy statement in USSG § 1B1.10 and the sentencing factors in § 3553(a).\\n\\nThe parties filed motions arguing over the propriety of the district court’s partial grant\\n\\nbased on the Government’s desire to have a sentence comparable to Mangual’s original\\n\\nterm of imprisonment. The district court agreed with the Government’s position.\\n\\nAccordingly, the court declined to modify its prior order. The court entered an order\\n\\ngranting in part Mangual’s motion for a reduced sentence on February 3, 2017 and\\n\\nreduced his sentence to 210 months. Mangual timely filed a notice of appeal on February\\n\\n17, 2017. This Court has jurisdiction over Mangual’s appeal pursuant to 28 U.S.C.\\n\\n§ 1291 and 18 U.S.C. § 3742.\\n\\n\\n\\n II.\\n\\n In general, a court “may not modify a term of imprisonment once it has been\\n\\nimposed.” 18 U.S.C. § 3582(c). However, section 3582(c)(2) provides that a district\\n\\ncourt may reduce a sentence “in the case of a defendant who has been sentenced to a term\\n\\nof imprisonment based on a sentencing range that has subsequently been lowered by the\\n\\nSentencing Commission.” The Supreme Court promulgated a two-step process for\\n\\ndetermining where, and to what extent, a reduction is permissible under section\\n\\n3582(c)(2).\\n\\n 9\\n\\f First, the court is required “to follow the Commission’s instructions in § 1B1.10 to\\n\\ndetermine the prisoner’s eligibility for a sentence modification and the extent of the\\n\\nreduction authorized.” Dillon v. United States, 560 U.S. 817, 827 (2010). In particular,\\n\\nsection “1B1.10(b)(1) requires the court to begin by determining the amended guideline\\n\\nrange that would have been applicable to the defendant had the relevant amendment been\\n\\nin effect at the time of the initial sentencing.” Dillon, 560 U.S. 817, 827 (internal\\n\\nquotation marks omitted). Second, the court is required to “consider any applicable\\n\\n§ 3553(a) factors and determine whether, in its discretion, the reduction authorized by\\n\\nreference to the policies relevant at step one is warranted in whole or in part under the\\n\\nparticular circumstances of the case.” Id.\\n\\n This Court “review[s] a district court’s grant or denial of a § 3582(c)(2) motion for\\n\\nabuse of discretion.” United States v. Smalls, 720 F.3d 193, 195 (4th Cir. 2013).\\n\\nNonetheless, whether a court ruling on a motion to reduce under § 3582(c)(2) must\\n\\nprovide an individualized explanation is considered de novo by this Court. Smalls, 720\\n\\nF.3d 193, 195.\\n\\n\\n\\n III.\\n\\n A.\\n\\n The Supreme Court’s recent holding in United States v. Chavez-Meza provides\\n\\nguidance regarding the level of detail a sentencing court must provide when evaluating\\n\\nsection 3582(c)(2) motions to reduce sentences like the ones filed by Martin and\\n\\nMangual. 138 S. Ct. 1959 (2018). It held that “[a]t bottom, the sentencing judge need\\n\\n 10\\n\\fonly set forth enough to satisfy the appellate court that he has considered the parties’\\n\\narguments and has a reasoned basis for exercising his own legal decisionmaking\\n\\nauthority.” Id. at 1964 (internal quotation marks and citations omitted). The Supreme\\n\\nCourt sets forth a fact specific legal standard.\\n\\n Just how much of an explanation this requires, however, depends, as we\\n have said, upon the circumstances of the particular case. In some cases, it\\n may be sufficient for purposes of appellate review that the judge simply\\n relied upon the record, while making clear that he or she has considered the\\n parties’ arguments and taken account of the § 3553(a) factors, among\\n others. But in other cases, more explanation may be necessary (depending,\\n perhaps, upon the legal arguments raised at sentencing).\\n\\nId. at 165. Similarly, in the Fourth Circuit, when evaluating the sufficiency of a\\n\\nsentencing court’s explanation, there is a presumption that the district court sufficiently\\n\\nconsidered relevant factors in deciding a section 3582(c)(2) motion. United States v.\\n\\nLegree, 205 F.3d 724, 729-30 (4th Cir. 2000); Smalls, 720 F.3d at 196. Nonetheless, the\\n\\npresumption is not irrebuttable, and this Court in Legree suggested that a defendant failed\\n\\nto overcome the presumption because “he point[ed] to no mitigating evidence which was\\n\\nnot before the sentencing court.” Legree, 205 F.3d 724, 730. Evidence of mitigating\\n\\nfactors not available at the original sentencing has indeed been used to rebut the Legree\\n\\npresumption. United States v. Hardy, 665 F. App’x 268, 272 (4th Cir. 2016); United\\n\\nStates v. McKenzie, 318 F. App’x 202, 204 (4th Cir. 2009).\\n\\n B.\\n\\n The district court improperly denied Martin’s motion to reduce her sentence by\\n\\nfailing to give her an individualized explanation for why it chose to deny her motion.\\n\\nSmalls, 720 F.3d at 198. The Supreme Court has clarified that the extent of explanation\\n\\n 11\\n\\frequired depends on the facts of each case, and “given the simplicity of [Chavez-Meza],\\n\\nthe judge’s awareness of the arguments, his consideration of the relevant sentencing\\n\\nfactors, and the intuitive reason why he picked a sentence above the very bottom of the\\n\\nnew range,” the Court held that “the judge’s explanation (minimal as it was) fell within\\n\\nthe scope of the lawful professional judgment that the law confers upon the sentencing\\n\\njudge.” 138 S. Ct. at 1967-68.\\n\\n In contrast, the complexity of Martin’s case required the district court to provide a\\n\\nmore robust and detailed explanation for why it denied her motion to reduce. Martin has\\n\\npresented a mountain of new mitigating evidence that the sentencing court never\\n\\nevaluated. For example, Martin not only successfully pursued her GED but also became\\n\\na respected tutor for other inmates and helped incarcerated women follow her footsteps in\\n\\nachieving their educational goals. Martin exhibited such exemplary behavior while\\n\\nincarcerated that correctional staff moved her into a low security facility. Martin also\\n\\nsubmitted documentary evidence that corroborates her coursework and her good\\n\\nbehavior. Moreover, given her old age and marked rehabilitation, Martin argues that she\\n\\nis no longer a threat to society.\\n\\n The district court, during Martin’s remand proceedings, failed to address any of\\n\\nthis new mitigation evidence. In Chavez-Meza, the defendant’s educational classes and\\n\\n114-month sentence did not warrant a significant explanation of the district court’s\\n\\nreasoning regarding the motion to reduce. In Martin’s case, her years of being both a\\n\\nstudent and now a tutor/instructor to other inmates, coupled with a sentence of life\\n\\nimprisonment, entitle her to a more robust explanation for why her mitigation evidence\\n\\n 12\\n\\fholds no weight. The failure to provide an individualized explanation, especially in light\\n\\nof the significant amount of mitigation evidence, runs afoul of Chavez-Meza and allows\\n\\nMartin to rebut the Fourth Circuit’s Legree presumption.\\n\\n The Supreme Court has made it clear that a “sentence modification is not a plenary\\n\\nresentencing proceeding. We therefore need not turn a blind eye to what the judge said at\\n\\npetitioner’s initial sentencing.” Chavez-Meza, 138 S. Ct. at 1967 (internal quotations\\n\\nomitted). However, Martin does not ask this Court to disregard the old evidence of the\\n\\nrationale from her original sentence. Rather Martin asks this Court to follow our\\n\\nprecedent which requires a district court to consider evidence of post-sentencing\\n\\nmitigation that would be relevant to the § 3553(a) factors.\\n\\n The explanation the district court provided upon remand was merely a recitation of\\n\\nMartin’s original criminal behavior. That is not the standard that the Supreme Court and\\n\\nthe Fourth Circuit articulate for sentence-reduction motions. The district court was\\n\\ncontent to memorialize Martin’s past transgressions without giving any weight to the\\n\\nmultitude of redemptive measures that Martin has taken since she was initially sentenced\\n\\nto life in prison. The Government at oral argument even conceded that Martin’s post-\\n\\nsentencing behavior is among the best that it has seen. Martin’s journey toward\\n\\nrehabilitation is especially noteworthy because she was given a life sentence and had no\\n\\nidea that Amendment 782 would eventually arrive to give her a glimmer of hope. Martin\\n\\nstrove to better herself and those around her without the prospect of any incentive or\\n\\nreward. The district court must provide an individualized explanation for why Martin’s\\n\\nsteps toward rehabilitation are meaningless. On remand, the district court should explain\\n\\n 13\\n\\fto Martin why her sentence of life imprisonment for a nonviolent drug offense must\\n\\nremain undisturbed despite overwhelming evidence of rehabilitation.\\n\\n C.\\n\\n Mangual is also entitled to relief under the law of this Circuit and the Supreme\\n\\nCourt. As an initial matter, Mangual, like Martin, has significant evidence of mitigation\\n\\nthat was not addressed by the district court when it partially granted his motion. In his\\n\\nten years of incarceration Mangual has been a model inmate. The only infraction on his\\n\\ndisciplinary record stems from his failure to hear his name during count call. He has used\\n\\nhis time while incarcerated to create an educational and awareness tool to help his fellow\\n\\ninmates help each other. Mangual’s behavior has led to his placement in a minimum-\\n\\nsecurity facility. Prison officials trust Mangual at such a high level that he is allowed to\\n\\nwork outside of the prison compound. The evidence of his exemplary conduct must\\n\\nproperly be factored into the decision regarding his liberty interests. In addition,\\n\\nMangual argues that he is unlikely to recidivate due to his advanced age, deteriorating\\n\\nhealth, and stable home upon release. Given that there is no reference to Mangual’s new\\n\\nmitigation evidence, it is clear that the district court did not comply with the standards set\\n\\nforth in Chavez-Meza, and Mangual has rebutted the Legree presumption.\\n\\n Moreover, this Court lacks Mangual’s original sentencing transcript, and this\\n\\nomission provides another basis for remand given that we cannot conduct meaningful\\n\\nappellate review without such a transcript. See Chavez-Meza, 138 S. Ct. at 1965. In a\\n\\nprior decision, this Court found that a defendant rebutted the Legree presumption in a\\n\\nsimilar situation where the record did not contain the original sentencing transcript.\\n\\n 14\\n\\fMcKenzie, 318 F. App’x at 203. Here, without the transcript, this Court is left to\\n\\nspeculate as to the reasons that led to Mangual’s original sentence. At the initial\\n\\nsentencing hearing, the court explained in the statement of reasons that a sentence at the\\n\\ntop of the Guidelines range was appropriate because of the significant quantity of drugs\\n\\ninvolved in the offense and Mangual’s prior drug conviction. This Court cannot look to\\n\\nlanguage about drug quantities and ascertain how the original sentencing court’s rationale\\n\\nwould interact with the host of mitigation evidence that arose post-sentencing. The\\n\\ndistrict court must provide Mangual an individualized explanation as to why his lengthy\\n\\nsentence for a nonviolent drug offense must remain only partially reduced given the\\n\\nsignificant amount of mitigation evidence that Mangual has proffered post sentencing.\\n\\n Chavez-Meza grants appellate courts broad discretion in reviewing section\\n\\n3582(c)(2) orders. “If the court of appeals considers an explanation inadequate in a\\n\\nparticular case, it can send the case back to the district court for a more complete\\n\\nexplanation.” 138 S. Ct. at 1965. Here, given the complex record full of new mitigation\\n\\nevidence and the lack of the original sentencing transcript, this Court requires more\\n\\nexplanation. We cannot conduct a proper appellate review and must remand in order to\\n\\nensure that Mangual’s acts toward rehabilitation are properly examined and addressed\\n\\nthrough an individualized explanation.\\n\\n\\n\\n IV.\\n\\n There is no right to a sentence reduction under § 3582(c)(2). However, a district\\n\\ncourt cannot ignore a host of mitigation evidence and summarily deny a motion to reduce\\n\\n 15\\n\\fa sentence and leave both the defendant and the appellate court in the dark as to the\\n\\nreasons for its decision. This Court makes no assessments as to whether the motions to\\n\\nreduce appellants’ sentences should have been granted or to what extent they should have\\n\\nbeen granted. However, the district court must provide a rationale as to why two\\n\\nindividuals who have placed themselves on a positive life trajectory, despite the\\n\\nchallenges of a lengthy period of incarceration, should receive no relief for their\\n\\nrehabilitation. The district court needs to explain to Martin and Mangual why their\\n\\nattempts at rehabilitation are futile. Accordingly, we vacate the district court’s orders and\\n\\nremand the case for the district court to provide adequate reasoning for its decisions.\\n\\n\\n\\n VACATED AND REMANDED\\n\\n\\n\\n\\n 16\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4371270/\", \"author_raw\": \"Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in\"}]}"},"judge1":{"kind":"string","value":"GREGORY"},"judge2":{"kind":"string","value":"MOTZ"},"judge3":{"kind":"string","value":"FLOYD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4594017/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Paulette MARTIN, A/K/A Paulette Murphy, A/K/A Paulette Akuffo, A/K/A Paula Murphy, A/K/A Auntie, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Luis Felipe Mangual, Sr., Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-6199\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n\n v.\n\nPAULETTE MARTIN, a/k/a Paulette Murphy, a/k/a Paulette Akuffo, a/k/a\nPaula Murphy, a/k/a Auntie,\n\n Defendant – Appellant.\n\n\nAppeal from the United States District Court for the District of Maryland, at Greenbelt.\nRoger W. Titus, Senior District Judge. (8:04-cr-00235-RWT-1)\n\n\n No. 17-6200\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n\n v.\n\nLUIS FELIPE MANGUAL, SR.,\n\n Defendant – Appellant.\n\n\nAppeal from the United States District Court for the District of Maryland, at Greenbelt.\nRoger W. Titus, Senior District Judge. (8:04-cr-00235-RWT-25)\n\fArgued: December 11, 2018 Decided: February 26, 2019\n\n\nBefore GREGORY, Chief Judge, MOTZ, and FLOYD, Circuit Judges.\n\n\nVacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in\nwhich Judge Motz and Judge Floyd joined.\n\n\nARGUED: Sapna Mirchandani, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\nGreenbelt, Maryland, for Appellant. Ellen Elisabeth Cobb, OFFICE OF THE UNITED\nSTATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda,\nFederal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\nBaltimore, Maryland, for Appellant. Robert K. Hur, United States Attorney,\nStephen M. Schenning, Acting United States Attorney, Baltimore, Maryland,\nDavid I. Salem, Assistant United States Attorney, OFFICE OF THE UNITED STATES\nATTORNEY, Greenbelt, Maryland, for Appellee.\n\n\n\n\n 2\n\fGREGORY, Chief Judge:\n\n Defendants-Appellants Paulette Martin and Luis Felipe Mangual Sr. both filed\n\nmotions for sentence reductions under 18 U.S.C. § 3582(c)(2) and now appeal adverse\n\ndistrict court rulings. Because the district court failed to provide Martin and Mangual\n\nwith individualized explanations for its rulings on their respective motions, we vacate and\n\nremand.\n\n\n\n I.\n\n A.\n\n A jury convicted Martin in 2006 of various drug and drug-related offenses in\n\nviolation of 21 U.S.C. § 846, 21 U.S.C. § 843(b), and 21 U.S.C. § 841(a). Martin served\n\nas a leader in a drug conspiracy for at least seven years—a conspiracy involving a large\n\nquantity of cocaine and heroin—and even though she did not engage in violence, her co-\n\nconspirators carried firearms. Given this information, the Presentence Report calculated\n\nMartin’s adjusted combined offense level as a 44. Martin had only one prior conviction,\n\ndating back to 1986 and therefore had a criminal history category of I. The Sentencing\n\nGuidelines’ calculations recommended Martin face life imprisonment for her crimes.\n\nThe district court noted the severity of Martin’s criminal activity and sentenced her to life\n\nimprisonment, and this Court affirmed Martin’s conviction and sentence. United States\n\nv. Martin, 452 F. App’x 239 (4th Cir. 2011).\n\n\n\n\n 3\n\f In February 2015, Martin filed a pro se motion for a sentence reduction under 18\n\nU.S.C. § 3582(c)(2), seeking the benefit of Amendment 782, * which lowered the base\n\noffense levels applicable to drug offenses by two offense levels. This could afford\n\nMartin sentencing relief if her Guidelines range were recalculated at an adjusted\n\ncombined offense level of 42 instead of her original 44. Martin asserted her eligibility for\n\nreduction based on Amendment 782, but also emphasized her work tutoring other\n\ninmates, the number and variety of courses she completed while incarcerated, and her\n\nexemplary prison record. Martin explained how she lacked any connection to organized\n\ndrug-based criminal enterprises and that she would not be a threat to society at her age.\n\nMartin further contended that she could possibly serve as a mentor to misguided youth\n\nupon her release from prison. In addition to Martin’s pro se motion, the Office of the\n\nFederal Public Defender filed a motion on her behalf, argued that her revised Guidelines\n\nrange after factoring in Amendment 782 would be 360 months to life imprisonment, and\n\nrequested the court to provide a sentence on the low end of that range. The probation\n\nofficer agreed and recommended a reduction in the sentence from life to 360 months.\n\n The Government opposed Martin’s motion and countered both that Martin was\n\nineligible for relief and that the § 3553(a) factors did not weigh in favor of granting the\n\n\n * On November 1, 2014, the Sentencing Commission issued Amendment 782 to\nits Sentencing Guidelines, which lowered the recommended sentences for certain drug\ncrimes, including the crime of which Martin was convicted. See United States\nSentencing Commission, Guidelines Manual, supp. App’x. C, amend. 782 (2014). At the\nsame time, the Commission promulgated another amendment, Amendment 788, which\namended § 1B1.10 of the Guidelines to authorize district courts to apply Amendment 782\nretroactively to reduce the length of certain already imposed sentences.\n\n 4\n\fmotion, emphasizing the court’s comments at sentencing about the seriousness of the\n\ncrimes and the need to protect the public from Martin, a leader of an extensive drug-\n\ntrafficking operation.\n\n Martin’s counsel argued at the hearing that she is eligible for the reduction and\n\nthat the Sentencing Guidelines previously offered only one maximum advisory sentence\n\nto the court, life imprisonment, and that there was nothing to indicate from the sentencing\n\nhearing that a 360-month sentence would not also serve the goals of sentencing. Counsel\n\ninformed the court that Martin’s good behavior had earned her a place in a low security\n\nfacility and that she had earned her GED and become a respected tutor for other inmates.\n\nDespite this productive record, counsel explained, Martin is precluded from earning good\n\ntime credits and participating in other programs because of her life sentence. Counsel\n\nrejected the suggestion that Martin would be a threat to society if released after 360\n\nmonths, considering her history of nonviolence and her age of 84 at the time of her\n\nrelease. Finally, counsel argued that it would be costly and promote no legitimate\n\ngovernmental aim to incarcerate Martin in her advanced years.\n\n In March 2016, the district court denied Martin’s motion for a sentence reduction\n\nby checking the “DENIED” box on the form order. We vacated the judgment and\n\nremanded because we could not determine “whether the court concluded that Martin was\n\nineligible for a sentence reduction or, alternatively, whether the court decided that such a\n\nreduction was unwarranted in light of the § 3553(a) factors and Martin’s post-sentencing\n\nconduct.” United States v. Martin, 669 F. App’x 132, 133 (4th Cir. 2016). This Court\n\nfound that “[b]ecause the parties presented fully developed, nonfrivolous arguments as to\n\n 5\n\fboth steps of the sentence reduction inquiry, we could only speculate as to the basis for\n\nthe district court’s decision.” Id.\n\n Upon remand, the district court stated in an order that it had once again reviewed\n\nMartin’s motion for a sentence reduction, counsel’s correspondence to the court, and the\n\nGovernment’s response in opposition. As an initial matter, the district court found\n\nMartin eligible for relief because the bottom of her Guidelines range had been reduced\n\nfrom life to 360 months under Amendment 782. However, the court determined that a\n\nsentence reduction was not warranted based on its discretion “[a]fter carefully weighing\n\nthe § 3553(a) factors.” The court explained that Martin “ran a large, multi-million-dollar,\n\nmulti-jurisdiction drug operation, spanning Maryland, Virginia, and the District of\n\nColumbia, and operated it for years. The seriousness of her actions and offenses cannot\n\neasily be overstated.” For those reasons and the ones “set forth in the Government’s\n\nResponse,” the court denied Martin’s motion for a sentence reduction. Martin timely\n\nfiled her notice of appeal. This Court has jurisdiction over Martin’s appeal pursuant to 28\n\nU.S.C. § 1291 and 18 U.S.C. § 3742.\n\n B.\n\n In 2006, Mangual entered into a guilty plea agreement for a nonviolent drug\n\noffense in violation of 21 U.S.C. § 846. Mangual admitted that for about two years he\n\nengaged in a drug-trafficking conspiracy involving over 150 kilograms of cocaine and 20\n\nkilograms of heroin. The Presentence Report calculated Mangual’s adjusted combined\n\noffense level as a 36. Mangual had a 1994 drug offense and a criminal history category\n\nof II. His Sentencing Guidelines range was 210 to 262 months’ imprisonment.\n\n 6\n\f The district court sentenced Mangual to 262 months’ imprisonment, the top of the\n\nguidelines range. Mangual’s sentencing transcript is not in the record, and the only\n\nindication this Court has of the district court’s reasoning is a brief note included in the\n\nStatement of Reasons in the court’s Judgement. There, the district court stated that a\n\n“sentence at the top of the guideline range is appropriate because of the large quantity of\n\ndrugs and the defendant’s prior conviction of the same type of offense.”\n\n In April 2015, Mangual filed a pro se motion for a sentence reduction under\n\n§ 3582(c)(2), seeking the benefit of Amendment 782. Mangual contended that after the\n\napplication of Amendment 782, his Sentencing Guidelines range is 168 to 210 months’\n\nimprisonment. In a 2015 letter to the court, Mangual, a 75-year-old inmate at that time,\n\nasserted that, during his 10 years in prison, his sole disciplinary infraction was for\n\nmissing count when he did not hear the count call. He further notified the court that the\n\njail placed him on medical furloughs four times, that he has had open heart surgery, and\n\nthat he is in “chronic care” and taking multiple medications. Mangual explained that the\n\nmother of his children is also sick, and he expressed his desire to spend his last years with\n\nher and their children, 15 grandchildren, and 8 great grandchildren. Mangual said he\n\nexhausted the educational opportunities he had access to while incarcerated. Moreover,\n\nMangual asserted that he has tried to better himself while in jail: he and another inmate\n\n“put together a concept called ‘The People/The Solution,’” which is “an educational and\n\nawareness tool to motivate the people to help others” and thereby help themselves.\n\n On December 14, 2016, the Federal Defender filed a motion on Mangual’s behalf,\n\nurging the court to reduce his sentence to 168 months’ imprisonment, the bottom of his\n\n 7\n\famended Guidelines range. Counsel emphasized that Mangual “was not a leader or\n\nmanager of the conspiracy (of the 31 people charged, he was the 25th named defendant);\n\nhis conduct was not violent (he served as a middleman in drug sales); and he neither used\n\nnor possessed a weapon at any time.” Counsel also observed that Mangual’s post-\n\nsentencing conduct was “outstanding”: he “has built a solid employment record” in\n\nprison; “has completed his court-ordered financial obligations”; and “has a nearly\n\nflawless disciplinary record.” Indeed, due to his exemplary conduct, he has been\n\ndesignated to a minimum-security facility and is eligible to work outside the prison\n\ncompound. Finally, counsel argued that Mangual was unlikely to recidivate due to his\n\n“advanced age, his deteriorating health, and the stable home to which he will be\n\nreleased.”\n\n The probation officer agreed that Mangual was eligible for a sentence reduction\n\nbut recommended a sentence at the top of the amended range—210 months’\n\nimprisonment. Similarly, in a response dated December 16, 2016, the Government did\n\nnot oppose a sentence reduction but objected to the extent of the relief sought by\n\nMangual and urged the court to impose a 210-month sentence. The Government\n\nexplained that it “aims to recommend an amended sentence that is consistent with the\n\noriginal sentence” and, therefore, Mangual “is eligible for a comparable sentence at the\n\ntop of the amended guidelines range.” In a footnote, the Government acknowledged\n\nMangual’s “apparently positive post-sentencing conduct, advanced age, and minimal\n\ncriminal history” but “recommend[ed] a comparable sentence in the interest of fairness\n\nand consistency.”\n\n 8\n\f On December 21, 2016, the district court granted Mangual’s motion for a sentence\n\nreduction but did not reduce the sentence to the extent requested, instead imposing the\n\nsentence recommended by the Government—210 months’ imprisonment. The court used\n\nthe standard form, which included a statement confirming that the court had taken into\n\naccount the policy statement in USSG § 1B1.10 and the sentencing factors in § 3553(a).\n\nThe parties filed motions arguing over the propriety of the district court’s partial grant\n\nbased on the Government’s desire to have a sentence comparable to Mangual’s original\n\nterm of imprisonment. The district court agreed with the Government’s position.\n\nAccordingly, the court declined to modify its prior order. The court entered an order\n\ngranting in part Mangual’s motion for a reduced sentence on February 3, 2017 and\n\nreduced his sentence to 210 months. Mangual timely filed a notice of appeal on February\n\n17, 2017. This Court has jurisdiction over Mangual’s appeal pursuant to 28 U.S.C.\n\n§ 1291 and 18 U.S.C. § 3742.\n\n\n\n II.\n\n In general, a court “may not modify a term of imprisonment once it has been\n\nimposed.” 18 U.S.C. § 3582(c). However, section 3582(c)(2) provides that a district\n\ncourt may reduce a sentence “in the case of a defendant who has been sentenced to a term\n\nof imprisonment based on a sentencing range that has subsequently been lowered by the\n\nSentencing Commission.” The Supreme Court promulgated a two-step process for\n\ndetermining where, and to what extent, a reduction is permissible under section\n\n3582(c)(2).\n\n 9\n\f First, the court is required “to follow the Commission’s instructions in § 1B1.10 to\n\ndetermine the prisoner’s eligibility for a sentence modification and the extent of the\n\nreduction authorized.” Dillon v. United States, 560 U.S. 817, 827 (2010). In particular,\n\nsection “1B1.10(b)(1) requires the court to begin by determining the amended guideline\n\nrange that would have been applicable to the defendant had the relevant amendment been\n\nin effect at the time of the initial sentencing.” Dillon, 560 U.S. 817, 827 (internal\n\nquotation marks omitted). Second, the court is required to “consider any applicable\n\n§ 3553(a) factors and determine whether, in its discretion, the reduction authorized by\n\nreference to the policies relevant at step one is warranted in whole or in part under the\n\nparticular circumstances of the case.” Id.\n\n This Court “review[s] a district court’s grant or denial of a § 3582(c)(2) motion for\n\nabuse of discretion.” United States v. Smalls, 720 F.3d 193, 195 (4th Cir. 2013).\n\nNonetheless, whether a court ruling on a motion to reduce under § 3582(c)(2) must\n\nprovide an individualized explanation is considered de novo by this Court. Smalls, 720\n\nF.3d 193, 195.\n\n\n\n III.\n\n A.\n\n The Supreme Court’s recent holding in United States v. Chavez-Meza provides\n\nguidance regarding the level of detail a sentencing court must provide when evaluating\n\nsection 3582(c)(2) motions to reduce sentences like the ones filed by Martin and\n\nMangual. 138 S. Ct. 1959 (2018). It held that “[a]t bottom, the sentencing judge need\n\n 10\n\fonly set forth enough to satisfy the appellate court that he has considered the parties’\n\narguments and has a reasoned basis for exercising his own legal decisionmaking\n\nauthority.” Id. at 1964 (internal quotation marks and citations omitted). The Supreme\n\nCourt sets forth a fact specific legal standard.\n\n Just how much of an explanation this requires, however, depends, as we\n have said, upon the circumstances of the particular case. In some cases, it\n may be sufficient for purposes of appellate review that the judge simply\n relied upon the record, while making clear that he or she has considered the\n parties’ arguments and taken account of the § 3553(a) factors, among\n others. But in other cases, more explanation may be necessary (depending,\n perhaps, upon the legal arguments raised at sentencing).\n\nId. at 165. Similarly, in the Fourth Circuit, when evaluating the sufficiency of a\n\nsentencing court’s explanation, there is a presumption that the district court sufficiently\n\nconsidered relevant factors in deciding a section 3582(c)(2) motion. United States v.\n\nLegree, 205 F.3d 724, 729-30 (4th Cir. 2000); Smalls, 720 F.3d at 196. Nonetheless, the\n\npresumption is not irrebuttable, and this Court in Legree suggested that a defendant failed\n\nto overcome the presumption because “he point[ed] to no mitigating evidence which was\n\nnot before the sentencing court.” Legree, 205 F.3d 724, 730. Evidence of mitigating\n\nfactors not available at the original sentencing has indeed been used to rebut the Legree\n\npresumption. United States v. Hardy, 665 F. App’x 268, 272 (4th Cir. 2016); United\n\nStates v. McKenzie, 318 F. App’x 202, 204 (4th Cir. 2009).\n\n B.\n\n The district court improperly denied Martin’s motion to reduce her sentence by\n\nfailing to give her an individualized explanation for why it chose to deny her motion.\n\nSmalls, 720 F.3d at 198. The Supreme Court has clarified that the extent of explanation\n\n 11\n\frequired depends on the facts of each case, and “given the simplicity of [Chavez-Meza],\n\nthe judge’s awareness of the arguments, his consideration of the relevant sentencing\n\nfactors, and the intuitive reason why he picked a sentence above the very bottom of the\n\nnew range,” the Court held that “the judge’s explanation (minimal as it was) fell within\n\nthe scope of the lawful professional judgment that the law confers upon the sentencing\n\njudge.” 138 S. Ct. at 1967-68.\n\n In contrast, the complexity of Martin’s case required the district court to provide a\n\nmore robust and detailed explanation for why it denied her motion to reduce. Martin has\n\npresented a mountain of new mitigating evidence that the sentencing court never\n\nevaluated. For example, Martin not only successfully pursued her GED but also became\n\na respected tutor for other inmates and helped incarcerated women follow her footsteps in\n\nachieving their educational goals. Martin exhibited such exemplary behavior while\n\nincarcerated that correctional staff moved her into a low security facility. Martin also\n\nsubmitted documentary evidence that corroborates her coursework and her good\n\nbehavior. Moreover, given her old age and marked rehabilitation, Martin argues that she\n\nis no longer a threat to society.\n\n The district court, during Martin’s remand proceedings, failed to address any of\n\nthis new mitigation evidence. In Chavez-Meza, the defendant’s educational classes and\n\n114-month sentence did not warrant a significant explanation of the district court’s\n\nreasoning regarding the motion to reduce. In Martin’s case, her years of being both a\n\nstudent and now a tutor/instructor to other inmates, coupled with a sentence of life\n\nimprisonment, entitle her to a more robust explanation for why her mitigation evidence\n\n 12\n\fholds no weight. The failure to provide an individualized explanation, especially in light\n\nof the significant amount of mitigation evidence, runs afoul of Chavez-Meza and allows\n\nMartin to rebut the Fourth Circuit’s Legree presumption.\n\n The Supreme Court has made it clear that a “sentence modification is not a plenary\n\nresentencing proceeding. We therefore need not turn a blind eye to what the judge said at\n\npetitioner’s initial sentencing.” Chavez-Meza, 138 S. Ct. at 1967 (internal quotations\n\nomitted). However, Martin does not ask this Court to disregard the old evidence of the\n\nrationale from her original sentence. Rather Martin asks this Court to follow our\n\nprecedent which requires a district court to consider evidence of post-sentencing\n\nmitigation that would be relevant to the § 3553(a) factors.\n\n The explanation the district court provided upon remand was merely a recitation of\n\nMartin’s original criminal behavior. That is not the standard that the Supreme Court and\n\nthe Fourth Circuit articulate for sentence-reduction motions. The district court was\n\ncontent to memorialize Martin’s past transgressions without giving any weight to the\n\nmultitude of redemptive measures that Martin has taken since she was initially sentenced\n\nto life in prison. The Government at oral argument even conceded that Martin’s post-\n\nsentencing behavior is among the best that it has seen. Martin’s journey toward\n\nrehabilitation is especially noteworthy because she was given a life sentence and had no\n\nidea that Amendment 782 would eventually arrive to give her a glimmer of hope. Martin\n\nstrove to better herself and those around her without the prospect of any incentive or\n\nreward. The district court must provide an individualized explanation for why Martin’s\n\nsteps toward rehabilitation are meaningless. On remand, the district court should explain\n\n 13\n\fto Martin why her sentence of life imprisonment for a nonviolent drug offense must\n\nremain undisturbed despite overwhelming evidence of rehabilitation.\n\n C.\n\n Mangual is also entitled to relief under the law of this Circuit and the Supreme\n\nCourt. As an initial matter, Mangual, like Martin, has significant evidence of mitigation\n\nthat was not addressed by the district court when it partially granted his motion. In his\n\nten years of incarceration Mangual has been a model inmate. The only infraction on his\n\ndisciplinary record stems from his failure to hear his name during count call. He has used\n\nhis time while incarcerated to create an educational and awareness tool to help his fellow\n\ninmates help each other. Mangual’s behavior has led to his placement in a minimum-\n\nsecurity facility. Prison officials trust Mangual at such a high level that he is allowed to\n\nwork outside of the prison compound. The evidence of his exemplary conduct must\n\nproperly be factored into the decision regarding his liberty interests. In addition,\n\nMangual argues that he is unlikely to recidivate due to his advanced age, deteriorating\n\nhealth, and stable home upon release. Given that there is no reference to Mangual’s new\n\nmitigation evidence, it is clear that the district court did not comply with the standards set\n\nforth in Chavez-Meza, and Mangual has rebutted the Legree presumption.\n\n Moreover, this Court lacks Mangual’s original sentencing transcript, and this\n\nomission provides another basis for remand given that we cannot conduct meaningful\n\nappellate review without such a transcript. See Chavez-Meza, 138 S. Ct. at 1965. In a\n\nprior decision, this Court found that a defendant rebutted the Legree presumption in a\n\nsimilar situation where the record did not contain the original sentencing transcript.\n\n 14\n\fMcKenzie, 318 F. App’x at 203. Here, without the transcript, this Court is left to\n\nspeculate as to the reasons that led to Mangual’s original sentence. At the initial\n\nsentencing hearing, the court explained in the statement of reasons that a sentence at the\n\ntop of the Guidelines range was appropriate because of the significant quantity of drugs\n\ninvolved in the offense and Mangual’s prior drug conviction. This Court cannot look to\n\nlanguage about drug quantities and ascertain how the original sentencing court’s rationale\n\nwould interact with the host of mitigation evidence that arose post-sentencing. The\n\ndistrict court must provide Mangual an individualized explanation as to why his lengthy\n\nsentence for a nonviolent drug offense must remain only partially reduced given the\n\nsignificant amount of mitigation evidence that Mangual has proffered post sentencing.\n\n Chavez-Meza grants appellate courts broad discretion in reviewing section\n\n3582(c)(2) orders. “If the court of appeals considers an explanation inadequate in a\n\nparticular case, it can send the case back to the district court for a more complete\n\nexplanation.” 138 S. Ct. at 1965. Here, given the complex record full of new mitigation\n\nevidence and the lack of the original sentencing transcript, this Court requires more\n\nexplanation. We cannot conduct a proper appellate review and must remand in order to\n\nensure that Mangual’s acts toward rehabilitation are properly examined and addressed\n\nthrough an individualized explanation.\n\n\n\n IV.\n\n There is no right to a sentence reduction under § 3582(c)(2). However, a district\n\ncourt cannot ignore a host of mitigation evidence and summarily deny a motion to reduce\n\n 15\n\fa sentence and leave both the defendant and the appellate court in the dark as to the\n\nreasons for its decision. This Court makes no assessments as to whether the motions to\n\nreduce appellants’ sentences should have been granted or to what extent they should have\n\nbeen granted. However, the district court must provide a rationale as to why two\n\nindividuals who have placed themselves on a positive life trajectory, despite the\n\nchallenges of a lengthy period of incarceration, should receive no relief for their\n\nrehabilitation. The district court needs to explain to Martin and Mangual why their\n\nattempts at rehabilitation are futile. Accordingly, we vacate the district court’s orders and\n\nremand the case for the district court to provide adequate reasoning for its decisions.\n\n\n\n VACATED AND REMANDED\n\n\n\n\n 16\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Paulette MARTIN, A/K/A Paulette Murphy, A/K/A Paulette Akuffo, A/K/A Paula Murphy, A/K/A Auntie, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Luis Felipe Mangual, Sr., Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-6199\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\nPAULETTE MARTIN, a/k/a Paulette Murphy, a/k/a Paulette Akuffo, a/k/a\\nPaula Murphy, a/k/a Auntie,\\n\\n Defendant – Appellant.\\n\\n\\nAppeal from the United States District Court for the District of Maryland, at Greenbelt.\\nRoger W. Titus, Senior District Judge. (8:04-cr-00235-RWT-1)\\n\\n\\n No. 17-6200\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\nLUIS FELIPE MANGUAL, SR.,\\n\\n Defendant – Appellant.\\n\\n\\nAppeal from the United States District Court for the District of Maryland, at Greenbelt.\\nRoger W. Titus, Senior District Judge. (8:04-cr-00235-RWT-25)\\n\\fArgued: December 11, 2018 Decided: February 26, 2019\\n\\n\\nBefore GREGORY, Chief Judge, MOTZ, and FLOYD, Circuit Judges.\\n\\n\\nVacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in\\nwhich Judge Motz and Judge Floyd joined.\\n\\n\\nARGUED: Sapna Mirchandani, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\\nGreenbelt, Maryland, for Appellant. Ellen Elisabeth Cobb, OFFICE OF THE UNITED\\nSTATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda,\\nFederal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\\nBaltimore, Maryland, for Appellant. Robert K. Hur, United States Attorney,\\nStephen M. Schenning, Acting United States Attorney, Baltimore, Maryland,\\nDavid I. Salem, Assistant United States Attorney, OFFICE OF THE UNITED STATES\\nATTORNEY, Greenbelt, Maryland, for Appellee.\\n\\n\\n\\n\\n 2\\n\\fGREGORY, Chief Judge:\\n\\n Defendants-Appellants Paulette Martin and Luis Felipe Mangual Sr. both filed\\n\\nmotions for sentence reductions under 18 U.S.C. § 3582(c)(2) and now appeal adverse\\n\\ndistrict court rulings. Because the district court failed to provide Martin and Mangual\\n\\nwith individualized explanations for its rulings on their respective motions, we vacate and\\n\\nremand.\\n\\n\\n\\n I.\\n\\n A.\\n\\n A jury convicted Martin in 2006 of various drug and drug-related offenses in\\n\\nviolation of 21 U.S.C. § 846, 21 U.S.C. § 843(b), and 21 U.S.C. § 841(a). Martin served\\n\\nas a leader in a drug conspiracy for at least seven years—a conspiracy involving a large\\n\\nquantity of cocaine and heroin—and even though she did not engage in violence, her co-\\n\\nconspirators carried firearms. Given this information, the Presentence Report calculated\\n\\nMartin’s adjusted combined offense level as a 44. Martin had only one prior conviction,\\n\\ndating back to 1986 and therefore had a criminal history category of I. The Sentencing\\n\\nGuidelines’ calculations recommended Martin face life imprisonment for her crimes.\\n\\nThe district court noted the severity of Martin’s criminal activity and sentenced her to life\\n\\nimprisonment, and this Court affirmed Martin’s conviction and sentence. United States\\n\\nv. Martin, 452 F. App’x 239 (4th Cir. 2011).\\n\\n\\n\\n\\n 3\\n\\f In February 2015, Martin filed a pro se motion for a sentence reduction under 18\\n\\nU.S.C. § 3582(c)(2), seeking the benefit of Amendment 782, * which lowered the base\\n\\noffense levels applicable to drug offenses by two offense levels. This could afford\\n\\nMartin sentencing relief if her Guidelines range were recalculated at an adjusted\\n\\ncombined offense level of 42 instead of her original 44. Martin asserted her eligibility for\\n\\nreduction based on Amendment 782, but also emphasized her work tutoring other\\n\\ninmates, the number and variety of courses she completed while incarcerated, and her\\n\\nexemplary prison record. Martin explained how she lacked any connection to organized\\n\\ndrug-based criminal enterprises and that she would not be a threat to society at her age.\\n\\nMartin further contended that she could possibly serve as a mentor to misguided youth\\n\\nupon her release from prison. In addition to Martin’s pro se motion, the Office of the\\n\\nFederal Public Defender filed a motion on her behalf, argued that her revised Guidelines\\n\\nrange after factoring in Amendment 782 would be 360 months to life imprisonment, and\\n\\nrequested the court to provide a sentence on the low end of that range. The probation\\n\\nofficer agreed and recommended a reduction in the sentence from life to 360 months.\\n\\n The Government opposed Martin’s motion and countered both that Martin was\\n\\nineligible for relief and that the § 3553(a) factors did not weigh in favor of granting the\\n\\n\\n * On November 1, 2014, the Sentencing Commission issued Amendment 782 to\\nits Sentencing Guidelines, which lowered the recommended sentences for certain drug\\ncrimes, including the crime of which Martin was convicted. See United States\\nSentencing Commission, Guidelines Manual, supp. App’x. C, amend. 782 (2014). At the\\nsame time, the Commission promulgated another amendment, Amendment 788, which\\namended § 1B1.10 of the Guidelines to authorize district courts to apply Amendment 782\\nretroactively to reduce the length of certain already imposed sentences.\\n\\n 4\\n\\fmotion, emphasizing the court’s comments at sentencing about the seriousness of the\\n\\ncrimes and the need to protect the public from Martin, a leader of an extensive drug-\\n\\ntrafficking operation.\\n\\n Martin’s counsel argued at the hearing that she is eligible for the reduction and\\n\\nthat the Sentencing Guidelines previously offered only one maximum advisory sentence\\n\\nto the court, life imprisonment, and that there was nothing to indicate from the sentencing\\n\\nhearing that a 360-month sentence would not also serve the goals of sentencing. Counsel\\n\\ninformed the court that Martin’s good behavior had earned her a place in a low security\\n\\nfacility and that she had earned her GED and become a respected tutor for other inmates.\\n\\nDespite this productive record, counsel explained, Martin is precluded from earning good\\n\\ntime credits and participating in other programs because of her life sentence. Counsel\\n\\nrejected the suggestion that Martin would be a threat to society if released after 360\\n\\nmonths, considering her history of nonviolence and her age of 84 at the time of her\\n\\nrelease. Finally, counsel argued that it would be costly and promote no legitimate\\n\\ngovernmental aim to incarcerate Martin in her advanced years.\\n\\n In March 2016, the district court denied Martin’s motion for a sentence reduction\\n\\nby checking the “DENIED” box on the form order. We vacated the judgment and\\n\\nremanded because we could not determine “whether the court concluded that Martin was\\n\\nineligible for a sentence reduction or, alternatively, whether the court decided that such a\\n\\nreduction was unwarranted in light of the § 3553(a) factors and Martin’s post-sentencing\\n\\nconduct.” United States v. Martin, 669 F. App’x 132, 133 (4th Cir. 2016). This Court\\n\\nfound that “[b]ecause the parties presented fully developed, nonfrivolous arguments as to\\n\\n 5\\n\\fboth steps of the sentence reduction inquiry, we could only speculate as to the basis for\\n\\nthe district court’s decision.” Id.\\n\\n Upon remand, the district court stated in an order that it had once again reviewed\\n\\nMartin’s motion for a sentence reduction, counsel’s correspondence to the court, and the\\n\\nGovernment’s response in opposition. As an initial matter, the district court found\\n\\nMartin eligible for relief because the bottom of her Guidelines range had been reduced\\n\\nfrom life to 360 months under Amendment 782. However, the court determined that a\\n\\nsentence reduction was not warranted based on its discretion “[a]fter carefully weighing\\n\\nthe § 3553(a) factors.” The court explained that Martin “ran a large, multi-million-dollar,\\n\\nmulti-jurisdiction drug operation, spanning Maryland, Virginia, and the District of\\n\\nColumbia, and operated it for years. The seriousness of her actions and offenses cannot\\n\\neasily be overstated.” For those reasons and the ones “set forth in the Government’s\\n\\nResponse,” the court denied Martin’s motion for a sentence reduction. Martin timely\\n\\nfiled her notice of appeal. This Court has jurisdiction over Martin’s appeal pursuant to 28\\n\\nU.S.C. § 1291 and 18 U.S.C. § 3742.\\n\\n B.\\n\\n In 2006, Mangual entered into a guilty plea agreement for a nonviolent drug\\n\\noffense in violation of 21 U.S.C. § 846. Mangual admitted that for about two years he\\n\\nengaged in a drug-trafficking conspiracy involving over 150 kilograms of cocaine and 20\\n\\nkilograms of heroin. The Presentence Report calculated Mangual’s adjusted combined\\n\\noffense level as a 36. Mangual had a 1994 drug offense and a criminal history category\\n\\nof II. His Sentencing Guidelines range was 210 to 262 months’ imprisonment.\\n\\n 6\\n\\f The district court sentenced Mangual to 262 months’ imprisonment, the top of the\\n\\nguidelines range. Mangual’s sentencing transcript is not in the record, and the only\\n\\nindication this Court has of the district court’s reasoning is a brief note included in the\\n\\nStatement of Reasons in the court’s Judgement. There, the district court stated that a\\n\\n“sentence at the top of the guideline range is appropriate because of the large quantity of\\n\\ndrugs and the defendant’s prior conviction of the same type of offense.”\\n\\n In April 2015, Mangual filed a pro se motion for a sentence reduction under\\n\\n§ 3582(c)(2), seeking the benefit of Amendment 782. Mangual contended that after the\\n\\napplication of Amendment 782, his Sentencing Guidelines range is 168 to 210 months’\\n\\nimprisonment. In a 2015 letter to the court, Mangual, a 75-year-old inmate at that time,\\n\\nasserted that, during his 10 years in prison, his sole disciplinary infraction was for\\n\\nmissing count when he did not hear the count call. He further notified the court that the\\n\\njail placed him on medical furloughs four times, that he has had open heart surgery, and\\n\\nthat he is in “chronic care” and taking multiple medications. Mangual explained that the\\n\\nmother of his children is also sick, and he expressed his desire to spend his last years with\\n\\nher and their children, 15 grandchildren, and 8 great grandchildren. Mangual said he\\n\\nexhausted the educational opportunities he had access to while incarcerated. Moreover,\\n\\nMangual asserted that he has tried to better himself while in jail: he and another inmate\\n\\n“put together a concept called ‘The People/The Solution,’” which is “an educational and\\n\\nawareness tool to motivate the people to help others” and thereby help themselves.\\n\\n On December 14, 2016, the Federal Defender filed a motion on Mangual’s behalf,\\n\\nurging the court to reduce his sentence to 168 months’ imprisonment, the bottom of his\\n\\n 7\\n\\famended Guidelines range. Counsel emphasized that Mangual “was not a leader or\\n\\nmanager of the conspiracy (of the 31 people charged, he was the 25th named defendant);\\n\\nhis conduct was not violent (he served as a middleman in drug sales); and he neither used\\n\\nnor possessed a weapon at any time.” Counsel also observed that Mangual’s post-\\n\\nsentencing conduct was “outstanding”: he “has built a solid employment record” in\\n\\nprison; “has completed his court-ordered financial obligations”; and “has a nearly\\n\\nflawless disciplinary record.” Indeed, due to his exemplary conduct, he has been\\n\\ndesignated to a minimum-security facility and is eligible to work outside the prison\\n\\ncompound. Finally, counsel argued that Mangual was unlikely to recidivate due to his\\n\\n“advanced age, his deteriorating health, and the stable home to which he will be\\n\\nreleased.”\\n\\n The probation officer agreed that Mangual was eligible for a sentence reduction\\n\\nbut recommended a sentence at the top of the amended range—210 months’\\n\\nimprisonment. Similarly, in a response dated December 16, 2016, the Government did\\n\\nnot oppose a sentence reduction but objected to the extent of the relief sought by\\n\\nMangual and urged the court to impose a 210-month sentence. The Government\\n\\nexplained that it “aims to recommend an amended sentence that is consistent with the\\n\\noriginal sentence” and, therefore, Mangual “is eligible for a comparable sentence at the\\n\\ntop of the amended guidelines range.” In a footnote, the Government acknowledged\\n\\nMangual’s “apparently positive post-sentencing conduct, advanced age, and minimal\\n\\ncriminal history” but “recommend[ed] a comparable sentence in the interest of fairness\\n\\nand consistency.”\\n\\n 8\\n\\f On December 21, 2016, the district court granted Mangual’s motion for a sentence\\n\\nreduction but did not reduce the sentence to the extent requested, instead imposing the\\n\\nsentence recommended by the Government—210 months’ imprisonment. The court used\\n\\nthe standard form, which included a statement confirming that the court had taken into\\n\\naccount the policy statement in USSG § 1B1.10 and the sentencing factors in § 3553(a).\\n\\nThe parties filed motions arguing over the propriety of the district court’s partial grant\\n\\nbased on the Government’s desire to have a sentence comparable to Mangual’s original\\n\\nterm of imprisonment. The district court agreed with the Government’s position.\\n\\nAccordingly, the court declined to modify its prior order. The court entered an order\\n\\ngranting in part Mangual’s motion for a reduced sentence on February 3, 2017 and\\n\\nreduced his sentence to 210 months. Mangual timely filed a notice of appeal on February\\n\\n17, 2017. This Court has jurisdiction over Mangual’s appeal pursuant to 28 U.S.C.\\n\\n§ 1291 and 18 U.S.C. § 3742.\\n\\n\\n\\n II.\\n\\n In general, a court “may not modify a term of imprisonment once it has been\\n\\nimposed.” 18 U.S.C. § 3582(c). However, section 3582(c)(2) provides that a district\\n\\ncourt may reduce a sentence “in the case of a defendant who has been sentenced to a term\\n\\nof imprisonment based on a sentencing range that has subsequently been lowered by the\\n\\nSentencing Commission.” The Supreme Court promulgated a two-step process for\\n\\ndetermining where, and to what extent, a reduction is permissible under section\\n\\n3582(c)(2).\\n\\n 9\\n\\f First, the court is required “to follow the Commission’s instructions in § 1B1.10 to\\n\\ndetermine the prisoner’s eligibility for a sentence modification and the extent of the\\n\\nreduction authorized.” Dillon v. United States, 560 U.S. 817, 827 (2010). In particular,\\n\\nsection “1B1.10(b)(1) requires the court to begin by determining the amended guideline\\n\\nrange that would have been applicable to the defendant had the relevant amendment been\\n\\nin effect at the time of the initial sentencing.” Dillon, 560 U.S. 817, 827 (internal\\n\\nquotation marks omitted). Second, the court is required to “consider any applicable\\n\\n§ 3553(a) factors and determine whether, in its discretion, the reduction authorized by\\n\\nreference to the policies relevant at step one is warranted in whole or in part under the\\n\\nparticular circumstances of the case.” Id.\\n\\n This Court “review[s] a district court’s grant or denial of a § 3582(c)(2) motion for\\n\\nabuse of discretion.” United States v. Smalls, 720 F.3d 193, 195 (4th Cir. 2013).\\n\\nNonetheless, whether a court ruling on a motion to reduce under § 3582(c)(2) must\\n\\nprovide an individualized explanation is considered de novo by this Court. Smalls, 720\\n\\nF.3d 193, 195.\\n\\n\\n\\n III.\\n\\n A.\\n\\n The Supreme Court’s recent holding in United States v. Chavez-Meza provides\\n\\nguidance regarding the level of detail a sentencing court must provide when evaluating\\n\\nsection 3582(c)(2) motions to reduce sentences like the ones filed by Martin and\\n\\nMangual. 138 S. Ct. 1959 (2018). It held that “[a]t bottom, the sentencing judge need\\n\\n 10\\n\\fonly set forth enough to satisfy the appellate court that he has considered the parties’\\n\\narguments and has a reasoned basis for exercising his own legal decisionmaking\\n\\nauthority.” Id. at 1964 (internal quotation marks and citations omitted). The Supreme\\n\\nCourt sets forth a fact specific legal standard.\\n\\n Just how much of an explanation this requires, however, depends, as we\\n have said, upon the circumstances of the particular case. In some cases, it\\n may be sufficient for purposes of appellate review that the judge simply\\n relied upon the record, while making clear that he or she has considered the\\n parties’ arguments and taken account of the § 3553(a) factors, among\\n others. But in other cases, more explanation may be necessary (depending,\\n perhaps, upon the legal arguments raised at sentencing).\\n\\nId. at 165. Similarly, in the Fourth Circuit, when evaluating the sufficiency of a\\n\\nsentencing court’s explanation, there is a presumption that the district court sufficiently\\n\\nconsidered relevant factors in deciding a section 3582(c)(2) motion. United States v.\\n\\nLegree, 205 F.3d 724, 729-30 (4th Cir. 2000); Smalls, 720 F.3d at 196. Nonetheless, the\\n\\npresumption is not irrebuttable, and this Court in Legree suggested that a defendant failed\\n\\nto overcome the presumption because “he point[ed] to no mitigating evidence which was\\n\\nnot before the sentencing court.” Legree, 205 F.3d 724, 730. Evidence of mitigating\\n\\nfactors not available at the original sentencing has indeed been used to rebut the Legree\\n\\npresumption. United States v. Hardy, 665 F. App’x 268, 272 (4th Cir. 2016); United\\n\\nStates v. McKenzie, 318 F. App’x 202, 204 (4th Cir. 2009).\\n\\n B.\\n\\n The district court improperly denied Martin’s motion to reduce her sentence by\\n\\nfailing to give her an individualized explanation for why it chose to deny her motion.\\n\\nSmalls, 720 F.3d at 198. The Supreme Court has clarified that the extent of explanation\\n\\n 11\\n\\frequired depends on the facts of each case, and “given the simplicity of [Chavez-Meza],\\n\\nthe judge’s awareness of the arguments, his consideration of the relevant sentencing\\n\\nfactors, and the intuitive reason why he picked a sentence above the very bottom of the\\n\\nnew range,” the Court held that “the judge’s explanation (minimal as it was) fell within\\n\\nthe scope of the lawful professional judgment that the law confers upon the sentencing\\n\\njudge.” 138 S. Ct. at 1967-68.\\n\\n In contrast, the complexity of Martin’s case required the district court to provide a\\n\\nmore robust and detailed explanation for why it denied her motion to reduce. Martin has\\n\\npresented a mountain of new mitigating evidence that the sentencing court never\\n\\nevaluated. For example, Martin not only successfully pursued her GED but also became\\n\\na respected tutor for other inmates and helped incarcerated women follow her footsteps in\\n\\nachieving their educational goals. Martin exhibited such exemplary behavior while\\n\\nincarcerated that correctional staff moved her into a low security facility. Martin also\\n\\nsubmitted documentary evidence that corroborates her coursework and her good\\n\\nbehavior. Moreover, given her old age and marked rehabilitation, Martin argues that she\\n\\nis no longer a threat to society.\\n\\n The district court, during Martin’s remand proceedings, failed to address any of\\n\\nthis new mitigation evidence. In Chavez-Meza, the defendant’s educational classes and\\n\\n114-month sentence did not warrant a significant explanation of the district court’s\\n\\nreasoning regarding the motion to reduce. In Martin’s case, her years of being both a\\n\\nstudent and now a tutor/instructor to other inmates, coupled with a sentence of life\\n\\nimprisonment, entitle her to a more robust explanation for why her mitigation evidence\\n\\n 12\\n\\fholds no weight. The failure to provide an individualized explanation, especially in light\\n\\nof the significant amount of mitigation evidence, runs afoul of Chavez-Meza and allows\\n\\nMartin to rebut the Fourth Circuit’s Legree presumption.\\n\\n The Supreme Court has made it clear that a “sentence modification is not a plenary\\n\\nresentencing proceeding. We therefore need not turn a blind eye to what the judge said at\\n\\npetitioner’s initial sentencing.” Chavez-Meza, 138 S. Ct. at 1967 (internal quotations\\n\\nomitted). However, Martin does not ask this Court to disregard the old evidence of the\\n\\nrationale from her original sentence. Rather Martin asks this Court to follow our\\n\\nprecedent which requires a district court to consider evidence of post-sentencing\\n\\nmitigation that would be relevant to the § 3553(a) factors.\\n\\n The explanation the district court provided upon remand was merely a recitation of\\n\\nMartin’s original criminal behavior. That is not the standard that the Supreme Court and\\n\\nthe Fourth Circuit articulate for sentence-reduction motions. The district court was\\n\\ncontent to memorialize Martin’s past transgressions without giving any weight to the\\n\\nmultitude of redemptive measures that Martin has taken since she was initially sentenced\\n\\nto life in prison. The Government at oral argument even conceded that Martin’s post-\\n\\nsentencing behavior is among the best that it has seen. Martin’s journey toward\\n\\nrehabilitation is especially noteworthy because she was given a life sentence and had no\\n\\nidea that Amendment 782 would eventually arrive to give her a glimmer of hope. Martin\\n\\nstrove to better herself and those around her without the prospect of any incentive or\\n\\nreward. The district court must provide an individualized explanation for why Martin’s\\n\\nsteps toward rehabilitation are meaningless. On remand, the district court should explain\\n\\n 13\\n\\fto Martin why her sentence of life imprisonment for a nonviolent drug offense must\\n\\nremain undisturbed despite overwhelming evidence of rehabilitation.\\n\\n C.\\n\\n Mangual is also entitled to relief under the law of this Circuit and the Supreme\\n\\nCourt. As an initial matter, Mangual, like Martin, has significant evidence of mitigation\\n\\nthat was not addressed by the district court when it partially granted his motion. In his\\n\\nten years of incarceration Mangual has been a model inmate. The only infraction on his\\n\\ndisciplinary record stems from his failure to hear his name during count call. He has used\\n\\nhis time while incarcerated to create an educational and awareness tool to help his fellow\\n\\ninmates help each other. Mangual’s behavior has led to his placement in a minimum-\\n\\nsecurity facility. Prison officials trust Mangual at such a high level that he is allowed to\\n\\nwork outside of the prison compound. The evidence of his exemplary conduct must\\n\\nproperly be factored into the decision regarding his liberty interests. In addition,\\n\\nMangual argues that he is unlikely to recidivate due to his advanced age, deteriorating\\n\\nhealth, and stable home upon release. Given that there is no reference to Mangual’s new\\n\\nmitigation evidence, it is clear that the district court did not comply with the standards set\\n\\nforth in Chavez-Meza, and Mangual has rebutted the Legree presumption.\\n\\n Moreover, this Court lacks Mangual’s original sentencing transcript, and this\\n\\nomission provides another basis for remand given that we cannot conduct meaningful\\n\\nappellate review without such a transcript. See Chavez-Meza, 138 S. Ct. at 1965. In a\\n\\nprior decision, this Court found that a defendant rebutted the Legree presumption in a\\n\\nsimilar situation where the record did not contain the original sentencing transcript.\\n\\n 14\\n\\fMcKenzie, 318 F. App’x at 203. Here, without the transcript, this Court is left to\\n\\nspeculate as to the reasons that led to Mangual’s original sentence. At the initial\\n\\nsentencing hearing, the court explained in the statement of reasons that a sentence at the\\n\\ntop of the Guidelines range was appropriate because of the significant quantity of drugs\\n\\ninvolved in the offense and Mangual’s prior drug conviction. This Court cannot look to\\n\\nlanguage about drug quantities and ascertain how the original sentencing court’s rationale\\n\\nwould interact with the host of mitigation evidence that arose post-sentencing. The\\n\\ndistrict court must provide Mangual an individualized explanation as to why his lengthy\\n\\nsentence for a nonviolent drug offense must remain only partially reduced given the\\n\\nsignificant amount of mitigation evidence that Mangual has proffered post sentencing.\\n\\n Chavez-Meza grants appellate courts broad discretion in reviewing section\\n\\n3582(c)(2) orders. “If the court of appeals considers an explanation inadequate in a\\n\\nparticular case, it can send the case back to the district court for a more complete\\n\\nexplanation.” 138 S. Ct. at 1965. Here, given the complex record full of new mitigation\\n\\nevidence and the lack of the original sentencing transcript, this Court requires more\\n\\nexplanation. We cannot conduct a proper appellate review and must remand in order to\\n\\nensure that Mangual’s acts toward rehabilitation are properly examined and addressed\\n\\nthrough an individualized explanation.\\n\\n\\n\\n IV.\\n\\n There is no right to a sentence reduction under § 3582(c)(2). However, a district\\n\\ncourt cannot ignore a host of mitigation evidence and summarily deny a motion to reduce\\n\\n 15\\n\\fa sentence and leave both the defendant and the appellate court in the dark as to the\\n\\nreasons for its decision. This Court makes no assessments as to whether the motions to\\n\\nreduce appellants’ sentences should have been granted or to what extent they should have\\n\\nbeen granted. However, the district court must provide a rationale as to why two\\n\\nindividuals who have placed themselves on a positive life trajectory, despite the\\n\\nchallenges of a lengthy period of incarceration, should receive no relief for their\\n\\nrehabilitation. The district court needs to explain to Martin and Mangual why their\\n\\nattempts at rehabilitation are futile. Accordingly, we vacate the district court’s orders and\\n\\nremand the case for the district court to provide adequate reasoning for its decisions.\\n\\n\\n\\n VACATED AND REMANDED\\n\\n\\n\\n\\n 16\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":570,"cells":{"id":{"kind":"number","value":4594024,"string":"4,594,024"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Keith Wayne CARVER, Jr., Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Keith Carver, Jr."},"decision_date":{"kind":"string","value":"2019-02-26"},"docket_number":{"kind":"string","value":"18-4153"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Wilkinson, Niemeyer, King\", \"parties\": \"\", \"opinions\": [{\"author\": \"WILKINSON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4153\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\nKEITH WAYNE CARVER, JR.,\\n\\n Defendant – Appellant.\\n\\n\\n\\nAppeal from the United States District Court for the District of South Carolina, at\\nGreenville. Timothy M. Cain, District Judge. (6:16-cr-00281-TMC-1)\\n\\n\\nArgued: January 31, 2019 Decided: February 26, 2019\\n\\n\\nBefore WILKINSON, NIEMEYER, and KING, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge\\nNiemeyer and Judge King joined.\\n\\n\\nARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\\nColumbia, South Carolina, for Appellant. Elizabeth Jeanne Howard, OFFICE OF THE\\nUNITED STATES ATTORNEY, Greenville, North Carolina, for Appellee. ON BRIEF:\\nSherri A. Lydon, United States Attorney, OFFICE OF THE UNITED STATES\\nATTORNEY, Columbia, South Carolina, for Appellee.\\n\\fWILKINSON, Circuit Judge:\\n\\n Keith Carver entered a guilty plea in 2016 on two counts: possession of at least\\n\\nfifteen access devices with intent to defraud and possession of device-making equipment\\n\\nwith intent to defraud. Later, in 2017, he pled guilty to an Information alleging\\n\\naggravated identity theft. In this appeal, Carver challenges the validity of the latter guilty\\n\\nplea. He also challenges various aspects of sentencing for the first two counts, including\\n\\nthe calculated amount of loss, the number of victims, and the district court’s refusal to\\n\\ngrant him an acceptance of responsibility reduction. For the following reasons, we affirm.\\n\\n\\n\\n I.\\n\\n What happens in Vegas may stay in Vegas, but during John Emmert’s visit there\\n\\nin 2015 he learned he was somehow also staying in Greenville, South Carolina—or at\\n\\nleast, his credit card was. Alarmed, he called the hotel, and hotel staff called the police.\\n\\nAfter a little detective work, officers Jeffrey Long and Mike Dean obtained a warrant and\\n\\nsearched the room that Emmert had purportedly used his credit card to pay for. Keith\\n\\nCarver and Haidee Gillespie were inside, as well as an encoder machine (also called an\\n\\n“overwriter”), driver’s licenses in various names, banking paperwork, more than fifty gift\\n\\nand credit cards under various names, drug paraphernalia, and a laptop computer. Later,\\n\\nCarolyn Root, a recent burglary victim, identified the laptop and some cards and\\n\\npaperwork as hers. The officers arrested Carver. A grand jury indicted him on three\\n\\ncounts, and in September 2016, he pled guilty to two counts: possession of at least fifteen\\n\\naccess devices with intent to defraud in violation of 18 U.S.C. § 1029(a)(2) and (3), and\\n\\n 2\\n\\fpossession of device-making equipment with intent to defraud, in violation of 18 U.S.C.\\n\\n§ 1029(a)(2) and (4).\\n\\n Carver initially planned to go to trial on a third count for aggravated identity theft\\n\\nunder 18 U.S.C. § 1028A. Upon reflection, and after learning that going to trial could\\n\\naffect his prospects for an offense level reduction for acceptance of responsibility, Carver\\n\\npled guilty to an Information alleging aggravated identity theft (the only difference\\n\\nbetween the Information and Count 3 of the indictment being the name of the victim).\\n\\n The Presentence Investigation Report calculated a base offense level of six for\\n\\nCounts 1 and 2. Because the offense involved the use of device-making equipment, the\\n\\nPSR added two levels under United States Sentencing Guidelines Manual\\n\\n§ 2B1.1(b)(11)(A)(i). In addition, the PSR recommended a four-level enhancement\\n\\nbecause the amount of loss was between $15,000 and $40,000 under U.S.S.G.\\n\\n§ 2B1.1(b)(1)(C). The amount of loss figure was calculated under U.S.S.G. § 2B1.1 cmt.\\n\\nn.3(F)(i), which instructs that the loss per access device is always at least $500. Relying\\n\\non this, the PSR multiplied the number of cards found during the search of Carver’s room\\n\\n(fifty-three) by $500, then added the amounts which were more than $500 that were\\n\\ncharged on two devices ($540 and $1,342). The total was $28,382. The PSR next\\n\\nconcluded the offense involved twenty-seven victims; because this number exceeds ten,\\n\\nthat conclusion increased Carver’s offense level by two under U.S.S.G.\\n\\n§ 2B1.1(b)(2)(A)(i). However, because the probation officer concluded Carver had\\n\\naccepted responsibility, the PSR gave him a two-level reduction under U.S.S.G.\\n\\n§ 3E1.1(a). The total offense level was therefore twelve in the PSR.\\n\\n 3\\n\\f Carver objected to the enhancements for the amount of loss and number of\\n\\nvictims. The district court held a hearing, at which Detective Mike Dean—one of the\\n\\nofficers who searched the room—testified. He explained that he found sixty-four cards in\\n\\nthe hotel room. Forty-four had numbers written on the back, which in his experience is\\n\\ncommon for fraudulent cards since it helps remind the user that the number on the front\\n\\nno longer matches what is encoded on the magnetic strip. He ran each card through a card\\n\\nreader to discern if the magnetic strip had been overwritten. Fifty-one of them had been.\\n\\nSome of the overwritten cards gave a readout of “E” as part of the code, which he thought\\n\\nmight mean the strip now had nothing on it or was encoded improperly. Detective Dean\\n\\ntestified that he found identification documents for eighteen victims, and he identified all\\n\\neighteen by name. After this hearing, government counsel suggested that each\\n\\noverwritten card was an unauthorized access device, and so the proper number was fifty-\\n\\none (not fifty-three). The government also revised its submission for the number of\\n\\nvictims to eighteen (not twenty-seven). The district court agreed, but this change did not\\n\\naffect the offense level.\\n\\n After conducting this hearing and resolving Carver’s objections, the district court\\n\\nrequested argument on whether to grant an acceptance of responsibility reduction. The\\n\\nplea transcript for the first two counts showed that Carver had agreed that “[t]here were\\n\\nover 50 gift cards and credit cards in various names scattered throughout the room ….”\\n\\nJ.A. 128. The district court concluded, however, that Carver’s remorse was not credible,\\n\\nthat the sentencing objections were “essentially not warranted,” and that the objection to\\n\\nthe number of devices was in tension with facts agreed to in the plea transcript. It denied\\n\\n 4\\n\\fthe acceptance of responsibility reduction. Carver’s offense level was consequently 14,\\n\\nhis criminal history category being IV, and he was sentenced to 33 months’ imprisonment\\n\\non Counts 1 and 2 to run concurrently, at the high end of the Guidelines range. For the\\n\\nidentity theft charge, Carver received 24 months’ imprisonment, to be served consecutive\\n\\nto the first 33 months, as required by statute.\\n\\n\\n\\n II.\\n\\n Carver challenges the validity of his guilty plea to the Information by pointing to\\n\\nvarious putative errors in the Rule 11 proceeding. Carver never objected to these\\n\\npurported errors, however, nor did he seek to withdraw his guilty plea. Notably, appellant\\n\\nhere challenges only his second guilty plea. There is no question respecting Counts 1 and\\n\\n2 of the indictment, only the Information alleging identity theft (which substituted for\\n\\nCount 3). In the relevant colloquy of February 16, 2017, Carver averred that he had\\n\\nreviewed his case with counsel, and he answered various questions under oath. He was\\n\\nforty-five; he attended college for two years; he was taking no medication or drugs.\\n\\nNeither counsel had any reservations in affirming that he was competent.\\n\\n The government then read the Information alleging that he knowingly and\\n\\nunlawfully possessed a means of identification and noting the maximum punishment. The\\n\\ngovernment likewise read the factual allegations, to which Carver agreed. The court then\\n\\nasked question after question assuring that Carver understood the nature and gravity of\\n\\nwhat he gave up by pleading guilty. He was waiving his right to go to trial, to be\\n\\npresumed innocent, to cross examine witnesses, to demand that the government prove all\\n\\n 5\\n\\felements, and to refrain from incriminating himself. J.A. 69-70. He stated that no one had\\n\\npromised him anything, and that knowing all this, he wished to plead guilty. Carver’s\\n\\nchallenges on appeal to this proceeding are insubstantial, and none comes close to\\n\\nmeeting a plain error standard.\\n\\n\\n\\n III.\\n\\n Carver likewise lodges challenges to his sentencing on Counts 1 and 2. He raises\\n\\nthree arguments: first that the amount of loss caused by his criminal actions was\\n\\nmiscalculated, second that the number of victims was overstated, and third that the court\\n\\nerroneously refused to reduce his offense level in light of his acceptance of responsibility.\\n\\nWe deal with each in turn, holding that they are without merit. Questions of law are\\n\\nreviewed de novo, but factual findings will stand unless clearly erroneous. United States\\n\\nv. Horton, 693 F.3d 463, 474 (4th Cir. 2012).\\n\\n\\n\\n A.\\n\\n The first and most substantial objection is that the amount of loss for Counts 1 and\\n\\n2 was calculated improperly because the government failed to prove that each\\n\\nfraudulently altered card would actually work. The Guidelines commentary gives a\\n\\n“Special Rule[]” for “Stolen or Counterfeit Credit Cards and Access Devices.” U.S.S.G.\\n\\n§ 2B1.1 cmt. n.3(F)(i). That rule is: “loss includes any unauthorized charges made with\\n\\nthe … unauthorized access device and shall be not less than $500 per access device.” Id.\\n\\nCarver argues that, because they were not proven to work, not every overwritten card\\n\\n 6\\n\\ffound in the hotel room counts as an “unauthorized access device,” and so the $500\\n\\nminimum should be applied to fewer devices.\\n\\n In United States v. Onyesoh, 674 F.3d 1157, 1159 (9th Cir. 2012) the Ninth Circuit\\n\\nheld that a card is not an access device if it is not functional. The court reasoned as\\n\\nfollows: First, an “access device” is by its statutory definition “any card … account\\n\\nnumber … or other means of account access that can be used … to obtain money … or\\n\\nany other thing of value.” 18 U.S.C. § 1029(e)(1). Any device that cannot “be used … to\\n\\nobtain money” is therefore not an access device at all. Second, an “unauthorized access\\n\\ndevice” is a subset of all access devices. Therefore, any device that cannot “be used” to\\n\\nobtain money is not an unauthorized access device either. By this reasoning, the\\n\\ngovernment would have needed to show which of the fifty-one cards could at that\\n\\nmoment be used to obtain money, which it did not do—indeed, the district court included\\n\\nin the total those cards with an “E” readout.\\n\\n We decline to adopt the Onyesoh usability standard. The full definition of\\n\\n“unauthorized access device” refutes this argument: “the term ‘unauthorized access\\n\\ndevice’ means any access device that is lost, stolen, expired, revoked, canceled, or\\n\\nobtained with intent to defraud.” 18 U.S.C. § 1029(e)(3) (emphasis added). Expired,\\n\\nrevoked, or canceled cards cannot be used to obtain money, and so Onyesoh would have\\n\\nthree words in its statutory definition that mean nothing. A better statutory reading is\\n\\napparent. Congress, mindful of the need to “encompass future technological changes,”\\n\\nH.R. Rep. No. 98-894, at 19 (1984), wrote broadly to include any device of the general\\n\\n\\n\\n 7\\n\\fsort that people use to get money. The general words “can be used” signify an intent to\\n\\nexpand the reach of the definition.\\n\\n This reading is perfectly natural. A salesperson describing the features of a\\n\\nuniversal remote control might say, “This can be used on any model of television we\\n\\nsell.” No one would think the salesperson is representing that the remote control would\\n\\nbe currently functional—it might need batteries, reprogramming, or various other\\n\\nadjustments before it would work. The promise is that it is the kind of thing that, under\\n\\nplausible circumstances, could change channels, adjust volume, and so forth on\\n\\ntelevisions. The same is true of a fraudulently altered card. Even if it could not complete\\n\\na transaction now, it is the type of thing that could do so, and was altered for precisely\\n\\nthat purpose.\\n\\n Reading the phrase “can be used” in this way is consonant with including expired,\\n\\nrevoked, or canceled devices in the definition of “unauthorized access device.” There is\\n\\nno need to add an extra element of current functionality that prosecutors must prove in\\n\\nsentencing, especially when the $500 minimum and capacious definition of “access\\n\\ndevice” shows that Congress sought to make the calculation straightforward. We\\n\\ntherefore join the circuits that have rejected the usability standard from Onyesoh. See\\n\\nUnited States v. Popovski, 872 F.3d 552, 553 (7th Cir. 2017); United States v. Moon, 808\\n\\nF.3d 1085, 1092 (6th Cir. 2015); see also United States v. Thomas, 841 F.3d 760, 764-65\\n\\n(8th Cir. 2016) (noting the circuit split and holding that a district court did not commit\\n\\nplain error by failing to evaluate usability).\\n\\n\\n\\n 8\\n\\f To meet the definition of unauthorized access device under 18 U.S.C.\\n\\n§ 1029(e)(3), therefore, the government did not need to show that each device was\\n\\ncurrently functional, but only that it was in principle the sort of thing that people use to\\n\\nobtain money (like a credit card or bank number). This it did prove. Detective Dean\\n\\nexamined each card and found that fifty-one were fraudulently overwritten. The district\\n\\ncourt did not err in accepting these as unauthorized access devices. And even if there\\n\\nwere some error, any small error would be harmless. The same Guidelines enhancement\\n\\nwould apply to any amount exceeding $15,000, while the district court calculated an\\n\\namount more than $10,000 higher than that.\\n\\n\\n\\n B.\\n\\n Carver’s second sentencing objection presented on appeal is that the number of\\n\\nvictims for Counts 1 and 2 was miscalculated. The argument does not appear to be\\n\\nspecific to any of the eighteen victims Detective Dean identified before the district court.\\n\\nInstead, the argument is simply that seeing their names on cards, bank account numbers,\\n\\nand identification documents is not enough to count them as victims absent corroborating\\n\\nevidence that they suffered pecuniary loss (which was presented for only two victims).\\n\\n This argument is meritless. Moreover, it was conceded below. When asked by the\\n\\ndistrict court whether the number of victims was “under ten or over ten,” J.A. 122,\\n\\ndefense counsel responded:\\n\\n I asked him [Detective Dean] to identify the people and he has come up\\n with the names. So I got nothing more to say about that part. It is just a\\n question of whether you want to accept that testimony as people who they\\n\\n 9\\n\\f identify with this particular incident from 2015…. As far as the number of\\n victims, he has identified I think 18, anyway, victims in connection with\\n this case by name here in the courtroom…. [W]e have clarity, I believe, on\\n the victim issue because the officer testified to that and I have nothing to\\n refute that. J.A. 122-23.\\n\\nThis concession is fatal to Carver’s appeal on this ground.\\n\\n Even on its own terms, Carver’s argument lacks merit. A “victim” is “any person\\n\\nwho sustained any part of the actual loss ….” U.S.S.G. § 2B1.1 cmt. n.1. The actual loss,\\n\\nin turn, is, for cases involving an unauthorized access device, “any unauthorized charges\\n\\nmade with the … device and shall be not less than $500 per access device.” U.S.S.G.\\n\\n§ 2B1.1 cmt. n.3(F)(i). This provision takes note of the costs these types of crimes cause\\n\\nthat can be difficult to measure or prove—the cost of taking protective and corrective\\n\\nmeasures, of harm to one’s credit card rating, and so forth. It makes little sense to say in\\n\\none breath that the harm is never less than $500, then in the next to say the persons\\n\\naffected sustained no loss. The district court did not err in concluding that the eighteen\\n\\npersons identified were victims. The fact that their names were on a card or device here\\n\\nwas more than enough.\\n\\n\\n\\n C.\\n\\n Carver’s final objection to his sentencing on Counts 1 and 2 is that the district\\n\\ncourt erred in denying him an acceptance of responsibility reduction under U.S.S.G.\\n\\n§ 3E1.1(a). The defendant bears the burden of showing “he has clearly recognized and\\n\\naffirmatively accepted personal responsibility for his criminal conduct,” and this “does\\n\\n\\n\\n 10\\n\\fnot flow automatically from a guilty plea.” United States v. May, 359 F.3d 683, 693 (4th\\n\\nCir. 2004). We review only for clear error. Id. at 688. There was no clear error here.\\n\\n The district court properly noted the delay caused by numerous objections and the\\n\\ndefendant’s seeming contradiction of facts he had previously agreed to. More\\n\\nimportantly, the district court, which heard from Carver in-person, concluded he “really\\n\\nis not remorseful for what he has done. I don’t find his testimony that he is sorry for what\\n\\nhe has done to be credible.” J.A. 148-49. Pleading guilty is not enough, by itself, and we\\n\\nmust defer to the district court’s credibility determination.\\n\\n\\n\\n IV.\\n\\n Financial fraud is a modern scourge. It preys especially upon the unsophisticated\\n\\nand vulnerable. As the district court noted, crimes like those in this case harm victims “in\\n\\nalmost irreparable ways by causing them loss of work, mental anguish, monetary loss,\\n\\nand loss of peace of mind.” J.A. 152. It raises costs for businesses, which must invest in\\n\\nsecurity measures. These crimes require time and expertise to investigate and can be\\n\\ndifficult to unravel and prove. This time, the government has done so, and the district\\n\\ncourt imposed a just sentence. The judgment is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 11\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4371277/\", \"author_raw\": \"WILKINSON, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WILKINSON"},"judge2":{"kind":"string","value":"NIEMEYER"},"judge3":{"kind":"string","value":"KING"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4594024/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Keith Wayne CARVER, Jr., Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4153\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n\n v.\n\nKEITH WAYNE CARVER, JR.,\n\n Defendant – Appellant.\n\n\n\nAppeal from the United States District Court for the District of South Carolina, at\nGreenville. Timothy M. Cain, District Judge. (6:16-cr-00281-TMC-1)\n\n\nArgued: January 31, 2019 Decided: February 26, 2019\n\n\nBefore WILKINSON, NIEMEYER, and KING, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge\nNiemeyer and Judge King joined.\n\n\nARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\nColumbia, South Carolina, for Appellant. Elizabeth Jeanne Howard, OFFICE OF THE\nUNITED STATES ATTORNEY, Greenville, North Carolina, for Appellee. ON BRIEF:\nSherri A. Lydon, United States Attorney, OFFICE OF THE UNITED STATES\nATTORNEY, Columbia, South Carolina, for Appellee.\n\fWILKINSON, Circuit Judge:\n\n Keith Carver entered a guilty plea in 2016 on two counts: possession of at least\n\nfifteen access devices with intent to defraud and possession of device-making equipment\n\nwith intent to defraud. Later, in 2017, he pled guilty to an Information alleging\n\naggravated identity theft. In this appeal, Carver challenges the validity of the latter guilty\n\nplea. He also challenges various aspects of sentencing for the first two counts, including\n\nthe calculated amount of loss, the number of victims, and the district court’s refusal to\n\ngrant him an acceptance of responsibility reduction. For the following reasons, we affirm.\n\n\n\n I.\n\n What happens in Vegas may stay in Vegas, but during John Emmert’s visit there\n\nin 2015 he learned he was somehow also staying in Greenville, South Carolina—or at\n\nleast, his credit card was. Alarmed, he called the hotel, and hotel staff called the police.\n\nAfter a little detective work, officers Jeffrey Long and Mike Dean obtained a warrant and\n\nsearched the room that Emmert had purportedly used his credit card to pay for. Keith\n\nCarver and Haidee Gillespie were inside, as well as an encoder machine (also called an\n\n“overwriter”), driver’s licenses in various names, banking paperwork, more than fifty gift\n\nand credit cards under various names, drug paraphernalia, and a laptop computer. Later,\n\nCarolyn Root, a recent burglary victim, identified the laptop and some cards and\n\npaperwork as hers. The officers arrested Carver. A grand jury indicted him on three\n\ncounts, and in September 2016, he pled guilty to two counts: possession of at least fifteen\n\naccess devices with intent to defraud in violation of 18 U.S.C. § 1029(a)(2) and (3), and\n\n 2\n\fpossession of device-making equipment with intent to defraud, in violation of 18 U.S.C.\n\n§ 1029(a)(2) and (4).\n\n Carver initially planned to go to trial on a third count for aggravated identity theft\n\nunder 18 U.S.C. § 1028A. Upon reflection, and after learning that going to trial could\n\naffect his prospects for an offense level reduction for acceptance of responsibility, Carver\n\npled guilty to an Information alleging aggravated identity theft (the only difference\n\nbetween the Information and Count 3 of the indictment being the name of the victim).\n\n The Presentence Investigation Report calculated a base offense level of six for\n\nCounts 1 and 2. Because the offense involved the use of device-making equipment, the\n\nPSR added two levels under United States Sentencing Guidelines Manual\n\n§ 2B1.1(b)(11)(A)(i). In addition, the PSR recommended a four-level enhancement\n\nbecause the amount of loss was between $15,000 and $40,000 under U.S.S.G.\n\n§ 2B1.1(b)(1)(C). The amount of loss figure was calculated under U.S.S.G. § 2B1.1 cmt.\n\nn.3(F)(i), which instructs that the loss per access device is always at least $500. Relying\n\non this, the PSR multiplied the number of cards found during the search of Carver’s room\n\n(fifty-three) by $500, then added the amounts which were more than $500 that were\n\ncharged on two devices ($540 and $1,342). The total was $28,382. The PSR next\n\nconcluded the offense involved twenty-seven victims; because this number exceeds ten,\n\nthat conclusion increased Carver’s offense level by two under U.S.S.G.\n\n§ 2B1.1(b)(2)(A)(i). However, because the probation officer concluded Carver had\n\naccepted responsibility, the PSR gave him a two-level reduction under U.S.S.G.\n\n§ 3E1.1(a). The total offense level was therefore twelve in the PSR.\n\n 3\n\f Carver objected to the enhancements for the amount of loss and number of\n\nvictims. The district court held a hearing, at which Detective Mike Dean—one of the\n\nofficers who searched the room—testified. He explained that he found sixty-four cards in\n\nthe hotel room. Forty-four had numbers written on the back, which in his experience is\n\ncommon for fraudulent cards since it helps remind the user that the number on the front\n\nno longer matches what is encoded on the magnetic strip. He ran each card through a card\n\nreader to discern if the magnetic strip had been overwritten. Fifty-one of them had been.\n\nSome of the overwritten cards gave a readout of “E” as part of the code, which he thought\n\nmight mean the strip now had nothing on it or was encoded improperly. Detective Dean\n\ntestified that he found identification documents for eighteen victims, and he identified all\n\neighteen by name. After this hearing, government counsel suggested that each\n\noverwritten card was an unauthorized access device, and so the proper number was fifty-\n\none (not fifty-three). The government also revised its submission for the number of\n\nvictims to eighteen (not twenty-seven). The district court agreed, but this change did not\n\naffect the offense level.\n\n After conducting this hearing and resolving Carver’s objections, the district court\n\nrequested argument on whether to grant an acceptance of responsibility reduction. The\n\nplea transcript for the first two counts showed that Carver had agreed that “[t]here were\n\nover 50 gift cards and credit cards in various names scattered throughout the room ….”\n\nJ.A. 128. The district court concluded, however, that Carver’s remorse was not credible,\n\nthat the sentencing objections were “essentially not warranted,” and that the objection to\n\nthe number of devices was in tension with facts agreed to in the plea transcript. It denied\n\n 4\n\fthe acceptance of responsibility reduction. Carver’s offense level was consequently 14,\n\nhis criminal history category being IV, and he was sentenced to 33 months’ imprisonment\n\non Counts 1 and 2 to run concurrently, at the high end of the Guidelines range. For the\n\nidentity theft charge, Carver received 24 months’ imprisonment, to be served consecutive\n\nto the first 33 months, as required by statute.\n\n\n\n II.\n\n Carver challenges the validity of his guilty plea to the Information by pointing to\n\nvarious putative errors in the Rule 11 proceeding. Carver never objected to these\n\npurported errors, however, nor did he seek to withdraw his guilty plea. Notably, appellant\n\nhere challenges only his second guilty plea. There is no question respecting Counts 1 and\n\n2 of the indictment, only the Information alleging identity theft (which substituted for\n\nCount 3). In the relevant colloquy of February 16, 2017, Carver averred that he had\n\nreviewed his case with counsel, and he answered various questions under oath. He was\n\nforty-five; he attended college for two years; he was taking no medication or drugs.\n\nNeither counsel had any reservations in affirming that he was competent.\n\n The government then read the Information alleging that he knowingly and\n\nunlawfully possessed a means of identification and noting the maximum punishment. The\n\ngovernment likewise read the factual allegations, to which Carver agreed. The court then\n\nasked question after question assuring that Carver understood the nature and gravity of\n\nwhat he gave up by pleading guilty. He was waiving his right to go to trial, to be\n\npresumed innocent, to cross examine witnesses, to demand that the government prove all\n\n 5\n\felements, and to refrain from incriminating himself. J.A. 69-70. He stated that no one had\n\npromised him anything, and that knowing all this, he wished to plead guilty. Carver’s\n\nchallenges on appeal to this proceeding are insubstantial, and none comes close to\n\nmeeting a plain error standard.\n\n\n\n III.\n\n Carver likewise lodges challenges to his sentencing on Counts 1 and 2. He raises\n\nthree arguments: first that the amount of loss caused by his criminal actions was\n\nmiscalculated, second that the number of victims was overstated, and third that the court\n\nerroneously refused to reduce his offense level in light of his acceptance of responsibility.\n\nWe deal with each in turn, holding that they are without merit. Questions of law are\n\nreviewed de novo, but factual findings will stand unless clearly erroneous. United States\n\nv. Horton, 693 F.3d 463, 474 (4th Cir. 2012).\n\n\n\n A.\n\n The first and most substantial objection is that the amount of loss for Counts 1 and\n\n2 was calculated improperly because the government failed to prove that each\n\nfraudulently altered card would actually work. The Guidelines commentary gives a\n\n“Special Rule[]” for “Stolen or Counterfeit Credit Cards and Access Devices.” U.S.S.G.\n\n§ 2B1.1 cmt. n.3(F)(i). That rule is: “loss includes any unauthorized charges made with\n\nthe … unauthorized access device and shall be not less than $500 per access device.” Id.\n\nCarver argues that, because they were not proven to work, not every overwritten card\n\n 6\n\ffound in the hotel room counts as an “unauthorized access device,” and so the $500\n\nminimum should be applied to fewer devices.\n\n In United States v. Onyesoh, 674 F.3d 1157, 1159 (9th Cir. 2012) the Ninth Circuit\n\nheld that a card is not an access device if it is not functional. The court reasoned as\n\nfollows: First, an “access device” is by its statutory definition “any card … account\n\nnumber … or other means of account access that can be used … to obtain money … or\n\nany other thing of value.” 18 U.S.C. § 1029(e)(1). Any device that cannot “be used … to\n\nobtain money” is therefore not an access device at all. Second, an “unauthorized access\n\ndevice” is a subset of all access devices. Therefore, any device that cannot “be used” to\n\nobtain money is not an unauthorized access device either. By this reasoning, the\n\ngovernment would have needed to show which of the fifty-one cards could at that\n\nmoment be used to obtain money, which it did not do—indeed, the district court included\n\nin the total those cards with an “E” readout.\n\n We decline to adopt the Onyesoh usability standard. The full definition of\n\n“unauthorized access device” refutes this argument: “the term ‘unauthorized access\n\ndevice’ means any access device that is lost, stolen, expired, revoked, canceled, or\n\nobtained with intent to defraud.” 18 U.S.C. § 1029(e)(3) (emphasis added). Expired,\n\nrevoked, or canceled cards cannot be used to obtain money, and so Onyesoh would have\n\nthree words in its statutory definition that mean nothing. A better statutory reading is\n\napparent. Congress, mindful of the need to “encompass future technological changes,”\n\nH.R. Rep. No. 98-894, at 19 (1984), wrote broadly to include any device of the general\n\n\n\n 7\n\fsort that people use to get money. The general words “can be used” signify an intent to\n\nexpand the reach of the definition.\n\n This reading is perfectly natural. A salesperson describing the features of a\n\nuniversal remote control might say, “This can be used on any model of television we\n\nsell.” No one would think the salesperson is representing that the remote control would\n\nbe currently functional—it might need batteries, reprogramming, or various other\n\nadjustments before it would work. The promise is that it is the kind of thing that, under\n\nplausible circumstances, could change channels, adjust volume, and so forth on\n\ntelevisions. The same is true of a fraudulently altered card. Even if it could not complete\n\na transaction now, it is the type of thing that could do so, and was altered for precisely\n\nthat purpose.\n\n Reading the phrase “can be used” in this way is consonant with including expired,\n\nrevoked, or canceled devices in the definition of “unauthorized access device.” There is\n\nno need to add an extra element of current functionality that prosecutors must prove in\n\nsentencing, especially when the $500 minimum and capacious definition of “access\n\ndevice” shows that Congress sought to make the calculation straightforward. We\n\ntherefore join the circuits that have rejected the usability standard from Onyesoh. See\n\nUnited States v. Popovski, 872 F.3d 552, 553 (7th Cir. 2017); United States v. Moon, 808\n\nF.3d 1085, 1092 (6th Cir. 2015); see also United States v. Thomas, 841 F.3d 760, 764-65\n\n(8th Cir. 2016) (noting the circuit split and holding that a district court did not commit\n\nplain error by failing to evaluate usability).\n\n\n\n 8\n\f To meet the definition of unauthorized access device under 18 U.S.C.\n\n§ 1029(e)(3), therefore, the government did not need to show that each device was\n\ncurrently functional, but only that it was in principle the sort of thing that people use to\n\nobtain money (like a credit card or bank number). This it did prove. Detective Dean\n\nexamined each card and found that fifty-one were fraudulently overwritten. The district\n\ncourt did not err in accepting these as unauthorized access devices. And even if there\n\nwere some error, any small error would be harmless. The same Guidelines enhancement\n\nwould apply to any amount exceeding $15,000, while the district court calculated an\n\namount more than $10,000 higher than that.\n\n\n\n B.\n\n Carver’s second sentencing objection presented on appeal is that the number of\n\nvictims for Counts 1 and 2 was miscalculated. The argument does not appear to be\n\nspecific to any of the eighteen victims Detective Dean identified before the district court.\n\nInstead, the argument is simply that seeing their names on cards, bank account numbers,\n\nand identification documents is not enough to count them as victims absent corroborating\n\nevidence that they suffered pecuniary loss (which was presented for only two victims).\n\n This argument is meritless. Moreover, it was conceded below. When asked by the\n\ndistrict court whether the number of victims was “under ten or over ten,” J.A. 122,\n\ndefense counsel responded:\n\n I asked him [Detective Dean] to identify the people and he has come up\n with the names. So I got nothing more to say about that part. It is just a\n question of whether you want to accept that testimony as people who they\n\n 9\n\f identify with this particular incident from 2015…. As far as the number of\n victims, he has identified I think 18, anyway, victims in connection with\n this case by name here in the courtroom…. [W]e have clarity, I believe, on\n the victim issue because the officer testified to that and I have nothing to\n refute that. J.A. 122-23.\n\nThis concession is fatal to Carver’s appeal on this ground.\n\n Even on its own terms, Carver’s argument lacks merit. A “victim” is “any person\n\nwho sustained any part of the actual loss ….” U.S.S.G. § 2B1.1 cmt. n.1. The actual loss,\n\nin turn, is, for cases involving an unauthorized access device, “any unauthorized charges\n\nmade with the … device and shall be not less than $500 per access device.” U.S.S.G.\n\n§ 2B1.1 cmt. n.3(F)(i). This provision takes note of the costs these types of crimes cause\n\nthat can be difficult to measure or prove—the cost of taking protective and corrective\n\nmeasures, of harm to one’s credit card rating, and so forth. It makes little sense to say in\n\none breath that the harm is never less than $500, then in the next to say the persons\n\naffected sustained no loss. The district court did not err in concluding that the eighteen\n\npersons identified were victims. The fact that their names were on a card or device here\n\nwas more than enough.\n\n\n\n C.\n\n Carver’s final objection to his sentencing on Counts 1 and 2 is that the district\n\ncourt erred in denying him an acceptance of responsibility reduction under U.S.S.G.\n\n§ 3E1.1(a). The defendant bears the burden of showing “he has clearly recognized and\n\naffirmatively accepted personal responsibility for his criminal conduct,” and this “does\n\n\n\n 10\n\fnot flow automatically from a guilty plea.” United States v. May, 359 F.3d 683, 693 (4th\n\nCir. 2004). We review only for clear error. Id. at 688. There was no clear error here.\n\n The district court properly noted the delay caused by numerous objections and the\n\ndefendant’s seeming contradiction of facts he had previously agreed to. More\n\nimportantly, the district court, which heard from Carver in-person, concluded he “really\n\nis not remorseful for what he has done. I don’t find his testimony that he is sorry for what\n\nhe has done to be credible.” J.A. 148-49. Pleading guilty is not enough, by itself, and we\n\nmust defer to the district court’s credibility determination.\n\n\n\n IV.\n\n Financial fraud is a modern scourge. It preys especially upon the unsophisticated\n\nand vulnerable. As the district court noted, crimes like those in this case harm victims “in\n\nalmost irreparable ways by causing them loss of work, mental anguish, monetary loss,\n\nand loss of peace of mind.” J.A. 152. It raises costs for businesses, which must invest in\n\nsecurity measures. These crimes require time and expertise to investigate and can be\n\ndifficult to unravel and prove. This time, the government has done so, and the district\n\ncourt imposed a just sentence. The judgment is\n\n AFFIRMED.\n\n\n\n\n 11\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Keith Wayne CARVER, Jr., Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4153\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\nKEITH WAYNE CARVER, JR.,\\n\\n Defendant – Appellant.\\n\\n\\n\\nAppeal from the United States District Court for the District of South Carolina, at\\nGreenville. Timothy M. Cain, District Judge. (6:16-cr-00281-TMC-1)\\n\\n\\nArgued: January 31, 2019 Decided: February 26, 2019\\n\\n\\nBefore WILKINSON, NIEMEYER, and KING, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge\\nNiemeyer and Judge King joined.\\n\\n\\nARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\\nColumbia, South Carolina, for Appellant. Elizabeth Jeanne Howard, OFFICE OF THE\\nUNITED STATES ATTORNEY, Greenville, North Carolina, for Appellee. ON BRIEF:\\nSherri A. Lydon, United States Attorney, OFFICE OF THE UNITED STATES\\nATTORNEY, Columbia, South Carolina, for Appellee.\\n\\fWILKINSON, Circuit Judge:\\n\\n Keith Carver entered a guilty plea in 2016 on two counts: possession of at least\\n\\nfifteen access devices with intent to defraud and possession of device-making equipment\\n\\nwith intent to defraud. Later, in 2017, he pled guilty to an Information alleging\\n\\naggravated identity theft. In this appeal, Carver challenges the validity of the latter guilty\\n\\nplea. He also challenges various aspects of sentencing for the first two counts, including\\n\\nthe calculated amount of loss, the number of victims, and the district court’s refusal to\\n\\ngrant him an acceptance of responsibility reduction. For the following reasons, we affirm.\\n\\n\\n\\n I.\\n\\n What happens in Vegas may stay in Vegas, but during John Emmert’s visit there\\n\\nin 2015 he learned he was somehow also staying in Greenville, South Carolina—or at\\n\\nleast, his credit card was. Alarmed, he called the hotel, and hotel staff called the police.\\n\\nAfter a little detective work, officers Jeffrey Long and Mike Dean obtained a warrant and\\n\\nsearched the room that Emmert had purportedly used his credit card to pay for. Keith\\n\\nCarver and Haidee Gillespie were inside, as well as an encoder machine (also called an\\n\\n“overwriter”), driver’s licenses in various names, banking paperwork, more than fifty gift\\n\\nand credit cards under various names, drug paraphernalia, and a laptop computer. Later,\\n\\nCarolyn Root, a recent burglary victim, identified the laptop and some cards and\\n\\npaperwork as hers. The officers arrested Carver. A grand jury indicted him on three\\n\\ncounts, and in September 2016, he pled guilty to two counts: possession of at least fifteen\\n\\naccess devices with intent to defraud in violation of 18 U.S.C. § 1029(a)(2) and (3), and\\n\\n 2\\n\\fpossession of device-making equipment with intent to defraud, in violation of 18 U.S.C.\\n\\n§ 1029(a)(2) and (4).\\n\\n Carver initially planned to go to trial on a third count for aggravated identity theft\\n\\nunder 18 U.S.C. § 1028A. Upon reflection, and after learning that going to trial could\\n\\naffect his prospects for an offense level reduction for acceptance of responsibility, Carver\\n\\npled guilty to an Information alleging aggravated identity theft (the only difference\\n\\nbetween the Information and Count 3 of the indictment being the name of the victim).\\n\\n The Presentence Investigation Report calculated a base offense level of six for\\n\\nCounts 1 and 2. Because the offense involved the use of device-making equipment, the\\n\\nPSR added two levels under United States Sentencing Guidelines Manual\\n\\n§ 2B1.1(b)(11)(A)(i). In addition, the PSR recommended a four-level enhancement\\n\\nbecause the amount of loss was between $15,000 and $40,000 under U.S.S.G.\\n\\n§ 2B1.1(b)(1)(C). The amount of loss figure was calculated under U.S.S.G. § 2B1.1 cmt.\\n\\nn.3(F)(i), which instructs that the loss per access device is always at least $500. Relying\\n\\non this, the PSR multiplied the number of cards found during the search of Carver’s room\\n\\n(fifty-three) by $500, then added the amounts which were more than $500 that were\\n\\ncharged on two devices ($540 and $1,342). The total was $28,382. The PSR next\\n\\nconcluded the offense involved twenty-seven victims; because this number exceeds ten,\\n\\nthat conclusion increased Carver’s offense level by two under U.S.S.G.\\n\\n§ 2B1.1(b)(2)(A)(i). However, because the probation officer concluded Carver had\\n\\naccepted responsibility, the PSR gave him a two-level reduction under U.S.S.G.\\n\\n§ 3E1.1(a). The total offense level was therefore twelve in the PSR.\\n\\n 3\\n\\f Carver objected to the enhancements for the amount of loss and number of\\n\\nvictims. The district court held a hearing, at which Detective Mike Dean—one of the\\n\\nofficers who searched the room—testified. He explained that he found sixty-four cards in\\n\\nthe hotel room. Forty-four had numbers written on the back, which in his experience is\\n\\ncommon for fraudulent cards since it helps remind the user that the number on the front\\n\\nno longer matches what is encoded on the magnetic strip. He ran each card through a card\\n\\nreader to discern if the magnetic strip had been overwritten. Fifty-one of them had been.\\n\\nSome of the overwritten cards gave a readout of “E” as part of the code, which he thought\\n\\nmight mean the strip now had nothing on it or was encoded improperly. Detective Dean\\n\\ntestified that he found identification documents for eighteen victims, and he identified all\\n\\neighteen by name. After this hearing, government counsel suggested that each\\n\\noverwritten card was an unauthorized access device, and so the proper number was fifty-\\n\\none (not fifty-three). The government also revised its submission for the number of\\n\\nvictims to eighteen (not twenty-seven). The district court agreed, but this change did not\\n\\naffect the offense level.\\n\\n After conducting this hearing and resolving Carver’s objections, the district court\\n\\nrequested argument on whether to grant an acceptance of responsibility reduction. The\\n\\nplea transcript for the first two counts showed that Carver had agreed that “[t]here were\\n\\nover 50 gift cards and credit cards in various names scattered throughout the room ….”\\n\\nJ.A. 128. The district court concluded, however, that Carver’s remorse was not credible,\\n\\nthat the sentencing objections were “essentially not warranted,” and that the objection to\\n\\nthe number of devices was in tension with facts agreed to in the plea transcript. It denied\\n\\n 4\\n\\fthe acceptance of responsibility reduction. Carver’s offense level was consequently 14,\\n\\nhis criminal history category being IV, and he was sentenced to 33 months’ imprisonment\\n\\non Counts 1 and 2 to run concurrently, at the high end of the Guidelines range. For the\\n\\nidentity theft charge, Carver received 24 months’ imprisonment, to be served consecutive\\n\\nto the first 33 months, as required by statute.\\n\\n\\n\\n II.\\n\\n Carver challenges the validity of his guilty plea to the Information by pointing to\\n\\nvarious putative errors in the Rule 11 proceeding. Carver never objected to these\\n\\npurported errors, however, nor did he seek to withdraw his guilty plea. Notably, appellant\\n\\nhere challenges only his second guilty plea. There is no question respecting Counts 1 and\\n\\n2 of the indictment, only the Information alleging identity theft (which substituted for\\n\\nCount 3). In the relevant colloquy of February 16, 2017, Carver averred that he had\\n\\nreviewed his case with counsel, and he answered various questions under oath. He was\\n\\nforty-five; he attended college for two years; he was taking no medication or drugs.\\n\\nNeither counsel had any reservations in affirming that he was competent.\\n\\n The government then read the Information alleging that he knowingly and\\n\\nunlawfully possessed a means of identification and noting the maximum punishment. The\\n\\ngovernment likewise read the factual allegations, to which Carver agreed. The court then\\n\\nasked question after question assuring that Carver understood the nature and gravity of\\n\\nwhat he gave up by pleading guilty. He was waiving his right to go to trial, to be\\n\\npresumed innocent, to cross examine witnesses, to demand that the government prove all\\n\\n 5\\n\\felements, and to refrain from incriminating himself. J.A. 69-70. He stated that no one had\\n\\npromised him anything, and that knowing all this, he wished to plead guilty. Carver’s\\n\\nchallenges on appeal to this proceeding are insubstantial, and none comes close to\\n\\nmeeting a plain error standard.\\n\\n\\n\\n III.\\n\\n Carver likewise lodges challenges to his sentencing on Counts 1 and 2. He raises\\n\\nthree arguments: first that the amount of loss caused by his criminal actions was\\n\\nmiscalculated, second that the number of victims was overstated, and third that the court\\n\\nerroneously refused to reduce his offense level in light of his acceptance of responsibility.\\n\\nWe deal with each in turn, holding that they are without merit. Questions of law are\\n\\nreviewed de novo, but factual findings will stand unless clearly erroneous. United States\\n\\nv. Horton, 693 F.3d 463, 474 (4th Cir. 2012).\\n\\n\\n\\n A.\\n\\n The first and most substantial objection is that the amount of loss for Counts 1 and\\n\\n2 was calculated improperly because the government failed to prove that each\\n\\nfraudulently altered card would actually work. The Guidelines commentary gives a\\n\\n“Special Rule[]” for “Stolen or Counterfeit Credit Cards and Access Devices.” U.S.S.G.\\n\\n§ 2B1.1 cmt. n.3(F)(i). That rule is: “loss includes any unauthorized charges made with\\n\\nthe … unauthorized access device and shall be not less than $500 per access device.” Id.\\n\\nCarver argues that, because they were not proven to work, not every overwritten card\\n\\n 6\\n\\ffound in the hotel room counts as an “unauthorized access device,” and so the $500\\n\\nminimum should be applied to fewer devices.\\n\\n In United States v. Onyesoh, 674 F.3d 1157, 1159 (9th Cir. 2012) the Ninth Circuit\\n\\nheld that a card is not an access device if it is not functional. The court reasoned as\\n\\nfollows: First, an “access device” is by its statutory definition “any card … account\\n\\nnumber … or other means of account access that can be used … to obtain money … or\\n\\nany other thing of value.” 18 U.S.C. § 1029(e)(1). Any device that cannot “be used … to\\n\\nobtain money” is therefore not an access device at all. Second, an “unauthorized access\\n\\ndevice” is a subset of all access devices. Therefore, any device that cannot “be used” to\\n\\nobtain money is not an unauthorized access device either. By this reasoning, the\\n\\ngovernment would have needed to show which of the fifty-one cards could at that\\n\\nmoment be used to obtain money, which it did not do—indeed, the district court included\\n\\nin the total those cards with an “E” readout.\\n\\n We decline to adopt the Onyesoh usability standard. The full definition of\\n\\n“unauthorized access device” refutes this argument: “the term ‘unauthorized access\\n\\ndevice’ means any access device that is lost, stolen, expired, revoked, canceled, or\\n\\nobtained with intent to defraud.” 18 U.S.C. § 1029(e)(3) (emphasis added). Expired,\\n\\nrevoked, or canceled cards cannot be used to obtain money, and so Onyesoh would have\\n\\nthree words in its statutory definition that mean nothing. A better statutory reading is\\n\\napparent. Congress, mindful of the need to “encompass future technological changes,”\\n\\nH.R. Rep. No. 98-894, at 19 (1984), wrote broadly to include any device of the general\\n\\n\\n\\n 7\\n\\fsort that people use to get money. The general words “can be used” signify an intent to\\n\\nexpand the reach of the definition.\\n\\n This reading is perfectly natural. A salesperson describing the features of a\\n\\nuniversal remote control might say, “This can be used on any model of television we\\n\\nsell.” No one would think the salesperson is representing that the remote control would\\n\\nbe currently functional—it might need batteries, reprogramming, or various other\\n\\nadjustments before it would work. The promise is that it is the kind of thing that, under\\n\\nplausible circumstances, could change channels, adjust volume, and so forth on\\n\\ntelevisions. The same is true of a fraudulently altered card. Even if it could not complete\\n\\na transaction now, it is the type of thing that could do so, and was altered for precisely\\n\\nthat purpose.\\n\\n Reading the phrase “can be used” in this way is consonant with including expired,\\n\\nrevoked, or canceled devices in the definition of “unauthorized access device.” There is\\n\\nno need to add an extra element of current functionality that prosecutors must prove in\\n\\nsentencing, especially when the $500 minimum and capacious definition of “access\\n\\ndevice” shows that Congress sought to make the calculation straightforward. We\\n\\ntherefore join the circuits that have rejected the usability standard from Onyesoh. See\\n\\nUnited States v. Popovski, 872 F.3d 552, 553 (7th Cir. 2017); United States v. Moon, 808\\n\\nF.3d 1085, 1092 (6th Cir. 2015); see also United States v. Thomas, 841 F.3d 760, 764-65\\n\\n(8th Cir. 2016) (noting the circuit split and holding that a district court did not commit\\n\\nplain error by failing to evaluate usability).\\n\\n\\n\\n 8\\n\\f To meet the definition of unauthorized access device under 18 U.S.C.\\n\\n§ 1029(e)(3), therefore, the government did not need to show that each device was\\n\\ncurrently functional, but only that it was in principle the sort of thing that people use to\\n\\nobtain money (like a credit card or bank number). This it did prove. Detective Dean\\n\\nexamined each card and found that fifty-one were fraudulently overwritten. The district\\n\\ncourt did not err in accepting these as unauthorized access devices. And even if there\\n\\nwere some error, any small error would be harmless. The same Guidelines enhancement\\n\\nwould apply to any amount exceeding $15,000, while the district court calculated an\\n\\namount more than $10,000 higher than that.\\n\\n\\n\\n B.\\n\\n Carver’s second sentencing objection presented on appeal is that the number of\\n\\nvictims for Counts 1 and 2 was miscalculated. The argument does not appear to be\\n\\nspecific to any of the eighteen victims Detective Dean identified before the district court.\\n\\nInstead, the argument is simply that seeing their names on cards, bank account numbers,\\n\\nand identification documents is not enough to count them as victims absent corroborating\\n\\nevidence that they suffered pecuniary loss (which was presented for only two victims).\\n\\n This argument is meritless. Moreover, it was conceded below. When asked by the\\n\\ndistrict court whether the number of victims was “under ten or over ten,” J.A. 122,\\n\\ndefense counsel responded:\\n\\n I asked him [Detective Dean] to identify the people and he has come up\\n with the names. So I got nothing more to say about that part. It is just a\\n question of whether you want to accept that testimony as people who they\\n\\n 9\\n\\f identify with this particular incident from 2015…. As far as the number of\\n victims, he has identified I think 18, anyway, victims in connection with\\n this case by name here in the courtroom…. [W]e have clarity, I believe, on\\n the victim issue because the officer testified to that and I have nothing to\\n refute that. J.A. 122-23.\\n\\nThis concession is fatal to Carver’s appeal on this ground.\\n\\n Even on its own terms, Carver’s argument lacks merit. A “victim” is “any person\\n\\nwho sustained any part of the actual loss ….” U.S.S.G. § 2B1.1 cmt. n.1. The actual loss,\\n\\nin turn, is, for cases involving an unauthorized access device, “any unauthorized charges\\n\\nmade with the … device and shall be not less than $500 per access device.” U.S.S.G.\\n\\n§ 2B1.1 cmt. n.3(F)(i). This provision takes note of the costs these types of crimes cause\\n\\nthat can be difficult to measure or prove—the cost of taking protective and corrective\\n\\nmeasures, of harm to one’s credit card rating, and so forth. It makes little sense to say in\\n\\none breath that the harm is never less than $500, then in the next to say the persons\\n\\naffected sustained no loss. The district court did not err in concluding that the eighteen\\n\\npersons identified were victims. The fact that their names were on a card or device here\\n\\nwas more than enough.\\n\\n\\n\\n C.\\n\\n Carver’s final objection to his sentencing on Counts 1 and 2 is that the district\\n\\ncourt erred in denying him an acceptance of responsibility reduction under U.S.S.G.\\n\\n§ 3E1.1(a). The defendant bears the burden of showing “he has clearly recognized and\\n\\naffirmatively accepted personal responsibility for his criminal conduct,” and this “does\\n\\n\\n\\n 10\\n\\fnot flow automatically from a guilty plea.” United States v. May, 359 F.3d 683, 693 (4th\\n\\nCir. 2004). We review only for clear error. Id. at 688. There was no clear error here.\\n\\n The district court properly noted the delay caused by numerous objections and the\\n\\ndefendant’s seeming contradiction of facts he had previously agreed to. More\\n\\nimportantly, the district court, which heard from Carver in-person, concluded he “really\\n\\nis not remorseful for what he has done. I don’t find his testimony that he is sorry for what\\n\\nhe has done to be credible.” J.A. 148-49. Pleading guilty is not enough, by itself, and we\\n\\nmust defer to the district court’s credibility determination.\\n\\n\\n\\n IV.\\n\\n Financial fraud is a modern scourge. It preys especially upon the unsophisticated\\n\\nand vulnerable. As the district court noted, crimes like those in this case harm victims “in\\n\\nalmost irreparable ways by causing them loss of work, mental anguish, monetary loss,\\n\\nand loss of peace of mind.” J.A. 152. It raises costs for businesses, which must invest in\\n\\nsecurity measures. These crimes require time and expertise to investigate and can be\\n\\ndifficult to unravel and prove. This time, the government has done so, and the district\\n\\ncourt imposed a just sentence. The judgment is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 11\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":571,"cells":{"id":{"kind":"number","value":4594028,"string":"4,594,028"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Antonio Tillmon"},"decision_date":{"kind":"string","value":"2019-02-26"},"docket_number":{"kind":"string","value":"17-4648"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before NIEMEYER, AGEE and DIAZ, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"AGEE, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-4648\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nANTONIO TILLMON,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the Eastern District of North Carolina, at\\nElizabeth City. Malcolm J. Howard, Senior District Judge. (2:15-cr-00009-H-9)\\n\\n\\nArgued: October 31, 2018 Decided: February 26, 2019\\n\\n\\nBefore NIEMEYER, AGEE and DIAZ, Circuit Judges.\\n\\n\\nAffirmed in part and vacated in part by published opinion. Judge Agee wrote the opinion,\\nin which Judge Niemeyer and Judge Diaz joined.\\n\\n\\nARGUED: Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina, for\\nAppellant. Banumathi Rangarajan, OFFICE OF THE UNITED STATES ATTORNEY,\\nRaleigh, North Carolina, for Appellee. ON BRIEF: Kelly Margolis Dagger, ELLIS &\\nWINTERS LLP, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United\\nStates Attorney, Jennifer P. May-Parker, Acting First Assistant United States Attorney,\\nBarbara D. Kocher, Assistant United States Attorney, OFFICE OF THE UNITED\\nSTATES ATTORNEY, Raleigh, North Carolina, for Appellee.\\n\\fAGEE, Circuit Judge:\\n\\n After being caught in a sting operation aimed at exposing corrupt law enforcement\\n\\nofficers, Antonio Tillmon was convicted by a jury on multiple counts: conspiracy to\\n\\ncommit drug trafficking, conspiracy to use firearms while drug trafficking, attempted\\n\\npossession of heroin with intent to distribute, using or carrying a firearm while drug\\n\\ntrafficking, and three counts of federal programs bribery. On appeal, Tillmon challenges\\n\\nthe district court’s denial of his motion for a judgment of acquittal as to these offenses and\\n\\nits admission of a video-recorded conversation between Tillmon and an undercover agent.\\n\\nFor the reasons discussed below, we affirm the conspiracy, attempted possession and\\n\\nfirearms convictions, but vacate the federal programs bribery convictions.\\n\\n\\n\\n I.\\n\\n Tillmon’s prosecution arose from a multi-year FBI investigation into reports of law\\n\\nenforcement corruption in the counties of Northampton and Halifax, North Carolina. 1 This\\n\\ninvestigation, “Operation Rockfish,” began in 2013 after the FBI received information that\\n\\nLann Clanton, a police officer with the Weldon, North Carolina, Police Department, was\\n\\ninvolved in criminal activity. Operation Rockfish consisted of undercover agents posing as\\n\\nmembers of a transnational drug trafficking organization (“DTO”) that transported\\n\\nkilograms of heroin and cocaine to New York City. Part of the DTO’s strategy was\\n\\n\\n\\n\\n 1\\n We recite the facts established at trial in the light most favorable to the\\nGovernment. United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).\\n 2\\n\\f“specifically tr[ying] to recruit law enforcement officers for their ability to badge their way\\n\\nout of legitimate traffic stops by other law enforcement officers.” J.A. 406.\\n\\n The FBI established a “general template” for the DTO, setting up a warehouse to\\n\\nprepare “cocaine” and “heroin” for shipment by storing those drugs in hidden\\n\\ncompartments of vehicles. J.A. 412. No real drugs were used, but a lookalike substance\\n\\nwas packaged to “look like kilograms of illegal drugs that had been seized in other\\n\\ninvestigations.” J.A. 411. Ten one-kilogram packages were color-coded to identify the type\\n\\nof drug each package purportedly contained. Once the packages were loaded into a vehicle\\n\\nfor transport (“the load vehicle”), team members rode in that vehicle, a scout vehicle that\\n\\ndrove ahead of it, and a rear guard vehicle that drove behind it.\\n\\n Once the ersatz DTO was operational, the FBI used a confidential informant to let\\n\\nClanton know about its existence. Clanton then contacted the DTO, where his first\\n\\nassignment was to recruit law enforcement officers to implement the DTO’s cover strategy.\\n\\nClanton’s first recruit was Ikeisha Jacobs, another member of the Weldon Police\\n\\nDepartment. Clanton and Jacobs then enlisted other current and former law enforcement\\n\\nand correctional officers to join their teams.\\n\\n Jacobs recruited Tillmon, a former coworker, for her team. At the time he was\\n\\nrecruited to the DTO, Tillmon was a police officer with the Windsor, North Carolina,\\n\\nPolice Department. On August 19, 2014, Jacobs invited Tillmon to join her and other team\\n\\nmembers for a preparatory meeting. The gathering included Jacobs, two undercover FBI\\n\\nagents (John and Lisa), and four new recruits (Adrienne Moody, Alaina Sue-Kam-Lang,\\n\\nCrystal Pierce, and Tillmon). During the meeting, the undercover agents and Jacobs\\n\\n 3\\n\\fdescribed the plan for the next day’s transport and explained the DTO’s reason for using\\n\\nlaw enforcement officers. They gave the team members a cover story to use if police\\n\\nstopped them during the transport: they were transporting a vehicle that had been sold out\\n\\nof state. During the meeting, one undercover agent asked whether the recruits carried guns.\\n\\nTillmon indicated that he would carry his gun. Toward the end of the meeting, the agents\\n\\ntold the recruits that they did not have to participate in the operation if they wanted out.\\n\\n The next morning (“the August 2014 transport”), Tillmon picked up Jacobs and Sue-\\n\\nKam-Lang before driving to a prearranged rendezvous point where they met Lisa and other\\n\\nteam members. They all then drove to a warehouse in Rocky Mount, North Carolina. Upon\\n\\narrival, Tillmon helped move a large white cooler from one area of the warehouse to the\\n\\nback of the load vehicle, a white GMC Acadia. One of the undercover agents, Paul, pulled\\n\\nout ten packages from underneath the ice and drinks in the cooler, counted them, and put\\n\\nthem on the ground. Paul handed the packages to John, another agent, who was underneath\\n\\nthe Acadia putting the packages into a hidden compartment. Tillmon never touched the\\n\\npackages, but he watched as they were loaded into the compartment in plain view of him\\n\\nand the other team members. 2 While standing behind the vehicle, Lisa explained to Tillmon\\n\\nthat they were “starting to move H.” J.A. 591–92. Lisa testified at trial that by “H” she\\n\\nmeant “heroin,” though she did not clarify her meaning to the team members at the time.\\n\\n After the packages were stored in the Acadia, it and two other vehicles caravanned\\n\\nto National Harbor in Maryland. Jacobs drove the load vehicle, two team members drove\\n\\n\\n 2\\n The trial evidence shows that Tillmon did not touch, handle, or assist in loading\\nthe staged packages into the vehicles during any of the events described.\\n 4\\n\\fthe scout vehicle, and Tillmon and Sue-Kam-Lang followed as the rear guard. When they\\n\\narrived at National Harbor, the team members met “Tee,” another undercover agent who\\n\\nwas posing as the supervisor of that portion of the route. Tee and the team boarded an\\n\\nenclosed car of a Ferris wheel, where Tee paid each member of the group. Tillmon received\\n\\n$2,000 and then returned to North Carolina.\\n\\n In October 2014 (“the October 2014 transport”), Jacobs and Tillmon rode together\\n\\nto the Rocky Mount warehouse. While waiting for drugs to be loaded into the hidden\\n\\ncompartment of the load vehicle, Tillmon was shown a fake bill of sale that would back\\n\\ntheir cover story. This time, Tillmon drove the load vehicle to the parking lot of an outlet\\n\\nmall in Maryland. He then got into a large van, where Tee paid him and the other team\\n\\nmembers. Tee paid Tillmon $2,000.\\n\\n In March 2015 (“the March 2015 transport”), Jacobs asked Tillmon to join her a\\n\\nthird time. When Tillmon arrived at the Rocky Mount warehouse, the agents had a pickup\\n\\ntruck staged with packages of drugs laid out in plain view on the tailgate. The team\\n\\nmembers, including Tillmon, walked by the back of the truck as they entered the\\n\\nwarehouse’s office. Inside, Lisa asked everyone if they had guns; after Sue-Kam-Lang\\n\\nindicated that she did not have a gun, Tillmon gave her one of his extra guns.\\n\\n The team exited the office and went back into the main part of the warehouse. As\\n\\nthe drugs were being loaded into the hidden compartment of the vehicle, Lisa said, “you\\n\\nguys got to be carrying from now on . . . a million dollars of heroin, you can’t f[***] around\\n\\nwith that.” Supp. J.A. 1625 at 12:47:16–47:24. She was within three feet of Tillmon as she\\n\\nspoke.\\n\\n 5\\n\\f After the drugs were loaded, the team departed, with Tillmon and Jacobs driving the\\n\\nrear guard vehicle. After the team left the load vehicle at a carport in Maryland, they met\\n\\nTee at the same outlet mall parking lot as in October. Each member entered Tee’s vehicle\\n\\nseparately, where they were paid. As Tillmon was paid $2,500, Tee asked him if he was\\n\\ncarrying a gun, and Tillmon confirmed he was. Then Tee indicated he was interested in\\n\\ngetting a small firearm. Tillmon responded, “What [do] you need?” and Tee said he wanted\\n\\n“a thirty-eight (.38), something small, a revolver that don’t need no shells, know what I\\n\\nmean?” J.A. 1402. Tillmon recommended a few firearms that would meet Tee’s need to\\n\\n“just walk right up on ‘em and keep rolling” and “boom-boom and then throw that s[***]\\n\\naway and [not worry] about it no more.” J.A. 1403–04. Tee asked Tillmon to let him know\\n\\nif he heard of anything available, and Tillmon replied, “Okay . . . . We’ll talk.” J.A. 1404.\\n\\nTillmon exited Tee’s vehicle and returned to North Carolina.\\n\\n In April 2015, Jacobs asked Tillmon to join her again. When they arrived at the\\n\\nRocky Mount warehouse, the undercover agents arrested them. At the time of his arrest,\\n\\nTillmon had in his possession his badge, his Windsor police identification, four semi-\\n\\nautomatic pistols, a .223 caliber rifle, and ammunition for each of the guns. 3\\n\\n A grand jury indicted Tillmon and fourteen others, including Clanton and Jacobs,\\n\\nin a fifty-four count indictment. Tillmon was charged in ten of the counts. All other\\n\\ndefendants negotiated guilty pleas, but Tillmon pleaded not guilty and invoked his right to\\n\\na jury trial on all charges: (1) one count of conspiracy to distribute and possess with intent\\n\\n\\n 3\\n These items, all of which belonged to Tillmon, were found on his person, in his\\nbag, and in Moody’s vehicle, in which he had come to the warehouse.\\n 6\\n\\fto distribute controlled substances, namely heroin and cocaine, in violation of 21 U.S.C.\\n\\n§§ 841(a)(1), 846 (Count 1); (2) one count of conspiracy to use firearms during and in\\n\\nrelation to a drug trafficking offense, in violation of 18 U.S.C. § 924(o) (Count 2); (3) three\\n\\ncounts of attempted possession with intent to distribute heroin, in violation of 21 U.S.C.\\n\\n§§ 841(a)(1), 841(b)(1)(A)(i), 846, and 18 U.S.C. § 2, corresponding to the three transports\\n\\n(August 2014, Count 28; October 2014, Count 33; and March 2015, Count 48); (4) two\\n\\ncounts of use and carry of a firearm during and in relation to a drug trafficking crime, in\\n\\nviolation of 18 U.S.C. §§ 2, 924(c)(1)(A), corresponding to two of the transports (October\\n\\n2014, Count 34; and March 2015, Count 49); and (5) three counts of federal programs\\n\\nbribery, in violation of 18 U.S.C. § 666(a)(1)(B), corresponding to each transport (August\\n\\n2014, Count 32; October 2014, Count 36; and March 2015, Count 54).\\n\\n At trial, the Government argued that Tillmon conspired with other law enforcement\\n\\nofficers to use their badges and firearms to assist in transporting a substance they believed\\n\\nto be heroin out of North Carolina. Because the entire DTO was a sting operation that had\\n\\nbeen captured in video and audio recordings, the Government introduced into evidence the\\n\\nrecordings of the preparatory meeting in August 2014 and the interactions at the Rocky\\n\\nMount warehouse on each transport day.\\n\\n At the close of the Government’s evidence, Tillmon moved for a judgment of\\n\\nacquittal on all counts under Federal Rule of Criminal Procedure 29. The district court\\n\\ndenied the motion on all but one count, granting the motion as to the charge of attempted\\n\\npossession with intent to distribute heroin based on the August 2014 transport. The district\\n\\ncourt reasoned that there was insufficient evidence to support the charge because it was\\n\\n 7\\n\\fbased solely on Lisa’s reference to “H,” and while she was “probably” talking about\\n\\nheroin, there was no evidence that anyone specifically identified the substance as heroin.\\n\\nJ.A. 1057.\\n\\n Tillmon’s defense centered on his contention that he did not have the requisite intent\\n\\nor knowledge to commit the crimes. For example, Tillmon testified that he did not recall\\n\\nany discussion of his police badge or identification card at the preparatory meeting and that\\n\\nhe did not realize he had a job during the transports or that he would be paid for that job.\\n\\nHe further testified that he did not hear or misheard Lisa’s statements at the Rocky Mount\\n\\nwarehouse about transporting heroin. Tillmon stated that he did not have any understanding\\n\\nof what was happening, only that others were loading something into a vehicle to be\\n\\ndelivered to Maryland.\\n\\n During Tillmon’s cross-examination, the Government introduced—over Tillmon’s\\n\\nobjection—a video recording of the conversation between Tillmon and Tee from the March\\n\\n2015 transport in which Tee requested Tillmon’s assistance in procuring a small-caliber\\n\\nfirearm. Tillmon argued that the recording was unfairly prejudicial because it implicated\\n\\nhim in uncharged violent crimes. The district court overruled the objection, concluding that\\n\\nany prejudicial effect was overridden by the fact that the video showed there was “a clear\\n\\nrelationship and friendship” between Tee and Tillmon. J.A. 1001.\\n\\n The jury found Tillmon guilty on the remaining nine counts. After the verdict,\\n\\nTillmon renewed his motion for a judgment of acquittal, or, in the alternative, for a new\\n\\ntrial. The district court denied the motions as to all but two counts, granting the motion for\\n\\na judgment of acquittal only with respect to the attempted possession with intent to\\n\\n 8\\n\\fdistribute heroin and corresponding firearm conviction arising from the October 2014\\n\\ntransport (Counts 33 and 34). 4 The district court observed that sufficient evidence\\n\\nsupported the jury’s decision to convict on the conspiracy charges (Counts 1 and 2),\\n\\nattempted possession charge (Count 48), and firearm charge (Count 49), largely based on\\n\\nLisa’s reference to the “million dollars[’] worth of heroin” that Tillmon received payment\\n\\nfor accompanying to Maryland during the March 2015 transport. J.A. 1527. Further, and\\n\\nin relevant part, the district court concluded sufficient evidence supported the three federal\\n\\nprograms bribery convictions (Counts 32, 36, and 54) because the record showed Tillmon\\n\\nand his co-defendants collectively received more than $5,000 for each transport and he was\\n\\ntold he was transporting drugs valued at more than a million dollars.\\n\\n Tillmon’s sentencing was affected by two statutory mandatory minimums. Because\\n\\nthe jury attributed at least 1 kilogram of heroin to Tillmon, the two drug offenses (Counts\\n\\n1 and 32) carried a statutory mandatory minimum of 120 months’ imprisonment. See 21\\n\\nU.S.C. § 841(b)(1)(A)(i). In addition, the firearm conviction carried a mandatory minimum\\n\\nsentence of 60 months’ imprisonment that must be served consecutively to any other\\n\\nsentence. 18 U.S.C. § 924(c)(1)(A) (stating that a term of imprisonment of “not less than 5\\n\\n\\n\\n\\n 4\\n The district court explained that the Government had not introduced evidence of\\nTillmon’s specific intent to transport heroin, as the indictment charged in Count 33.\\nSpecifically, none of the recordings regarding the October 2014 transport referenced the\\ntype of drugs supposedly being transported even though they showed the staged packages\\nbeing loaded into the load vehicle’s fake compartment, and one of the undercover agents\\nhad testified that she thought that substance transported during this transport was supposed\\nto be cocaine. The Government has not cross-appealed the Court’s decision and thus\\nCounts 33 and 34 are not directly at issue on appeal.\\n 9\\n\\fyears” for the possession offense “shall” be imposed “in addition to the punishment\\n\\nprovided for such . . . drug trafficking crime”).\\n\\n Although the district court calculated Tillmon’s Guidelines range to be 188 to 235\\n\\nmonths’ imprisonment for all but the firearm-possession conviction, it granted Tillmon’s\\n\\nrequest for a downward variance to the statutory mandatory minimums. Accordingly, the\\n\\ndistrict court sentenced Tillmon to 180 months’ imprisonment consisting of 120 months’\\n\\nimprisonment for the conspiracy, attempted possession, and federal programs bribery\\n\\noffenses (Counts 1, 2, 32, 36, 48, and 54), to be served concurrently, and 60 months’\\n\\nimprisonment for the firearm offense (Count 49), to be served consecutively to the sentence\\n\\non the other counts.\\n\\n Tillmon noted a timely appeal, and this Court has jurisdiction pursuant to 28 U.S.C.\\n\\n§ 1291.\\n\\n\\n\\n II.\\n\\n Tillmon appeals the denial of his renewed motion for a judgment of acquittal on all\\n\\nseven remaining counts. First, he argues the evidence was insufficient to show his intent to\\n\\nengage in the drug trafficking offenses, and that if those charges are vacated, then the\\n\\nfirearms charges must also be vacated. Second, he contends that even if the convictions\\n\\nstand, the evidence was insufficient to show that the drug crimes involved more than 1\\n\\nkilogram of heroin, so he should not have been subjected to an enhanced sentencing range.\\n\\nThird, Tillmon challenges the district court’s admission of the video evidence from the\\n\\nMarch 2015 transport on the basis that it was cumulative and unfairly prejudicial. Fourth\\n\\n 10\\n\\fand lastly, he contends the evidence was insufficient to support several elements of the\\n\\nfederal programs bribery charges. We address each argument in turn.\\n\\n The Court reviews de novo the district court’s denial of a Rule 29 motion for a\\n\\njudgment of acquittal. United States v. Reed, 780 F.3d 260, 269 (4th Cir. 2015). A\\n\\ndefendant challenging the sufficiency of the evidence “bears a heavy burden.” United\\n\\nStates v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal citation marks omitted).\\n\\nThe Court reviews whether there is “substantial evidence . . . to support the jury verdict,”\\n\\nUnited States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984) (internal quotation marks\\n\\nomitted), meaning that, to reverse, the record must “demonstrate[] a lack of evidence from\\n\\nwhich a jury could find guilt beyond a reasonable doubt,” United States v. Burgos, 94 F.3d\\n\\n849, 862 (4th Cir. 1996). Significantly, the jury—not this Court—“weighs the credibility\\n\\nof the evidence and resolves any conflicts in the evidence presented” when such\\n\\ndeterminations need to be made. Id.\\n\\n The Court reviews the district court’s evidentiary decisions for abuse of discretion.\\n\\nUnited States v. Basham, 561 F.3d 302, 325 (4th Cir. 2009). We “will not vacate a\\n\\nconviction unless we find that the district court judge acted arbitrarily or irrationally in\\n\\nadmitting evidence.” Id. at 326 (internal quotation marks omitted).\\n\\n\\n\\n III.\\n\\n A. Attempted Heroin Possession in March 2015 (Count 48)\\n\\n Because our consideration of the attempted possession offense facilitates review of\\n\\nthe conspiracy and firearms convictions, we begin with it. Tillmon argues that the\\n\\n 11\\n\\fGovernment did not put forward sufficient evidence to establish the necessary mens rea to\\n\\nsupport his conviction.\\n\\n It is a federal crime to “knowingly or intentionally . . . possess with intent to . . .\\n\\ndistribute . . . a controlled substance” like heroin. 21 U.S.C. § 841(a), (b)(1)(A)(i). A\\n\\nconviction for an attempt to commit this offense, see 21 U.S.C. § 846, “punishes conduct\\n\\nthat puts in motion events that would, from the defendant’s point of view, result in the\\n\\ncommission of a crime but for some intervening circumstance.” United States v. Pratt, 351\\n\\nF.3d 131, 135 (4th Cir. 2003). To convict Tillmon of the charged offense, the Government\\n\\nhad to prove\\n\\n that (1) [Tillmon] had the requisite intent to commit a crime; (2) [he]\\n undertook a direct act in a course of conduct planned to culminate in his\\n commission of the crime; (3) the act was substantial, in that it was strongly\\n corroborative of [his] criminal purpose; and (4) the act fell short of the\\n commission of the intended crime due to intervening circumstances.\\n\\nId.\\n\\n In rejecting Tillmon’s renewed motion for a judgment of acquittal, the district court\\n\\nconcluded the evidence was sufficient on each element. Specifically, it observed that Lisa\\n\\npointed to the staged packages being loaded into the vehicle and said that the team was\\n\\ntransporting a million dollars’ worth of heroin. Then, Tillmon followed the load vehicle to\\n\\nMaryland, providing protection during the transport.\\n\\n Tillmon argues that this evidence was insufficient to demonstrate that he attempted,\\n\\nor aided or abetted the attempt, to possess with intent to distribute heroin in March 2015.\\n\\nHe argues that Lisa’s comment about the value of the heroin does not show that he heard\\n\\nher statement or that he believed the group was trafficking heroin. Tillmon also argues that\\n\\n 12\\n\\fthere was no evidence that he exhibited guilty knowledge because he was not shown a\\n\\nsubstance that looked or felt like heroin, nor was there evidence that he directly handled\\n\\nthe packages or saw their contents. Additionally, Tillmon asserts that he did not take a\\n\\nsubstantial step towards completion of the offense that strongly corroborated an intent to\\n\\npossess with the intent to distribute heroin. He argues that neither his presence at the\\n\\nwarehouse nor his driving from Rocky Mount to Maryland with the team proves a specific\\n\\nintent to possess with the intent to distribute heroin. Consequently, Tillmon contends, the\\n\\njury did not have the evidence necessary to convict him.\\n\\n We disagree with Tillmon. To say that he lacked intent and was “a mere passive\\n\\nobserver of these goings-on, would defy reason.” See United States v. McLamb, 985 F.2d\\n\\n1284, 1292 (4th Cir. 1993). At a minimum, the following evidence shows Tillmon’s\\n\\nculpable intent: (1) he had basic law enforcement drug trafficking training; (2) the fake\\n\\nheroin was packaged in a manner commonly used to traffic controlled substances; (3) the\\n\\nstaged packages were in plain view of Tillmon before and while it was secreted into a\\n\\nhidden compartment of the load vehicle; (4) while standing about three feet from Tillmon,\\n\\nLisa pointed to the staged packages and said that the team was moving heroin valued at a\\n\\nmillion dollars; (5) two vehicles accompanied the load vehicle and each team member was\\n\\npaid thousands of dollars for accompanying the shipment; and (6) Tillmon not only\\n\\npossessed a firearm for his own use, but also loaned a team member a second firearm\\n\\nbecause they all had been instructed to carry firearms. From these facts, a jury could\\n\\nreasonably conclude that Tillmon had the requisite intent to attempt to possess heroin with\\n\\nthe intent to distribute it.\\n\\n 13\\n\\f We also reject Tillmon’s contention that the evidence does not show that his conduct\\n\\nconstituted an “attempt” to commit the completed act of possession because he did not take\\n\\nat least one act calculated to culminate in the completed offense. To the contrary, Tillmon\\n\\ncompleted the offense and the only circumstance that prevented the Government from\\n\\ncharging Tillmon with actual possession of heroin was that the substance at issue involved\\n\\nfake heroin instead of real heroin. This was not a case in which some intervening act early\\n\\nin the planning prevented Tillmon and his co-conspirators from completing their intended\\n\\nactivity. Rather, they successfully transported the fake substance from North Carolina to\\n\\nMaryland. And Tillmon willingly participated in doing so—even after Lisa commented in\\n\\nthe warehouse that the staged packages contained heroin and Tillmon watched the team\\n\\nmembers stash the packages in the load vehicle, he took his place in the vehicle caravan,\\n\\nescorted the packages to Maryland, and accepted payment for his part in the scheme.\\n\\n Tillmon’s arguments misapply the relevant appellate standards. Some of his\\n\\ncontentions ask the Court to assume the role of the jury and revisit credibility\\n\\ndeterminations to decide between competing evidence. However, the jury was not required\\n\\nto believe Tillmon’s defense that he did not understand what the packages were and that\\n\\nhe did not hear Lisa’s reference to moving heroin. E.g., Burgos, 94 F.3d at 862 (“[T]he\\n\\njury, not the reviewing court, weighs the credibility of the evidence and resolves any\\n\\nconflicts in the evidence presented, and if the evidence supports different, reasonable\\n\\ninterpretations, the jury decides which interpretation to believe.” (internal quotation marks\\n\\nomitted)).\\n\\n\\n\\n 14\\n\\f Some of Tillmon’s arguments ask us to attach only benign, if not nonsensical,\\n\\nmeaning to his “presence” at the warehouse and in the transport. But we have previously\\n\\nrecognized that presence during obvious criminal activity is relevant to the analysis in a\\n\\npossession offense. E.g., id. at 869 (citing United States v. Figueroa, 720 F.2d 1239, 1246\\n\\n(11th Cir. 1983) for the proposition that “when the circumstances surrounding a person’s\\n\\npresence at the scene of conspiratorial activity are so obvious[, the] knowledge of its\\n\\ncharacter can fairly be attributed to him”). Here, Tillmon participated in the transport after\\n\\nLisa pointed to the packages and stated that they contained a million dollars of heroin. He\\n\\nloaned a team member a firearm for protection during the transport and then accepted\\n\\n$2,500 for his “presence.” Although Tillmon never touched the packages himself, his role\\n\\nin the transport was more than that of “a mere passive observer.” See McLamb, 985 F.2d\\n\\nat 1292. And the jury was entitled to conclude that Tillmon believed the staged packages\\n\\nwere heroin being transported for distribution, and that he possessed those packages\\n\\nthrough his role as a hired guard during the transport of those packages from North Carolina\\n\\nto Maryland. See Pratt, 351 F.3d at 136–37 (recognizing that a person’s criminal role in a\\n\\npossession with intent to distribute offense can take various forms).\\n\\n Lastly, to the extent that Tillmon argues that the district court’s dismissal of the\\n\\nother attempted possession counts supports dismissal of this count, he ignores the specific\\n\\ncircumstances surrounding the district court’s decisions. The dismissals of the other counts\\n\\nwere not based on a broad assessment of lack of evidence of his intent, but rather on narrow\\n\\nevidentiary gaps in the Government’s case. All three attempted possession with intent to\\n\\ndistribute counts alleged not just the baseline offense set out in 18 U.S.C. § 841(a)(1), but\\n\\n 15\\n\\falso the aggravated possession with intent to distribute offense for a violation involving\\n\\nmore than one kilogram of heroin, see § 841(b)(1)(A)(i). See also United States v. Collins,\\n\\n415 F.3d 304, 312–14 (4th Cir. 2005) (discussing the difference between the baseline\\n\\noffense and aggravated offense); United States v. Promise, 255 F.3d 150, 152 (4th Cir.\\n\\n2001) (en banc) (holding that, in light of Apprendi, § 841(b)(1)(A) sets out elements of an\\n\\naggravated drug trafficking offense that must be found by a jury rather than constituting\\n\\nmere sentencing factors). The baseline offense does not require proof of the drug type and\\n\\nweight; in relevant part, it requires only that the defendant knowingly possessed a\\n\\ncontrolled substance of some kind. United States v. Ali, 735 F.3d 176, 186–88 (4th Cir.\\n\\n2013) (holding that while 21 U.S.C. § 841(a)(1) “requires specific intent to distribute a\\n\\ncontrolled substance or to possess with intent to distribute a controlled substance, it does\\n\\nnot require that the defendant have, within that intent, specific knowledge of the controlled\\n\\nsubstance[.]”). To convict Tillmon of the aggravated offense, however, the Government\\n\\nhad to introduce proof that Tillmon’s § 841(a)(1) violation involved at least one kilogram\\n\\nof heroin. See § 841(b)(1)(A) (stating that the enhanced penalties apply if “any person . . .\\n\\nviolates subsection (a)” and that violation “involv[ed]” the type and quantity of drugs\\n\\nlisted). At trial, the Government urged the district court not to dismiss the attempted\\n\\npossession counts relating to the August and October 2014 transports because there was\\n\\nsufficient evidence to convict Tillmon of the aggravated charges involving heroin. For\\n\\nreasons not readily apparent in the record, it did not rely on the fallback position that even\\n\\nif the evidence did not prove the aggravated offense elements, it was nonetheless sufficient\\n\\nto convict Tillmon of the attempted § 841(a)(1) baseline offense. The district court in turn\\n\\n 16\\n\\fdismissed the counts based on the August 2014 and December 2014 transports because of\\n\\ninsufficient evidence to conclude that Tillmon believed the staged packages were heroin,\\n\\nas opposed to some other controlled substance. By contrast, no such gap exists with respect\\n\\nto the March 2015 evidence. In the warehouse just prior to that transport, Lisa specifically\\n\\nreferred to the packages as heroin while in Tillmon’s immediate presence.\\n\\n For these reasons, the district court did not err in denying Tillmon’s renewed motion\\n\\nfor a judgment of acquittal on Tillmon’s conviction for attempted possession with intent to\\n\\ndistribute heroin in March 2015.\\n\\n B. Drug Trafficking Conspiracy (Count 1)\\n\\n Tillmon also appeals the district court’s denial of his renewed motion for a judgment\\n\\nof acquittal with respect to his conviction for conspiracy to distribute and possess with\\n\\nintent to distribute controlled substances, namely heroin and cocaine, in violation of 21\\n\\nU.S.C. §§ 841(a)(1), 846 (Count 1). He contends the record contains insufficient evidence\\n\\nof his intent.\\n\\n To prove conspiracy to possess drugs with an intent to distribute, the Government\\n\\nmust establish that: “(1) an agreement to possess cocaine [and heroin] with intent to\\n\\ndistribute existed between two or more persons; (2) the defendant knew of the conspiracy;\\n\\nand (3) the defendant knowingly and voluntarily became a part of this conspiracy.” Burgos,\\n\\n94 F.3d at 857. Due to the clandestine nature of a conspiracy, the offense is often proved\\n\\nby circumstantial evidence and the context in which the circumstantial evidence is adduced.\\n\\nId. A conspiracy “may be inferred from a development and collocation of circumstances.”\\n\\nId. at 858 (internal quotation marks omitted). “Circumstantial evidence sufficient to\\n\\n 17\\n\\fsupport a conspiracy conviction need not exclude every reasonable hypothesis of\\n\\ninnocence, provided the summation of the evidence permits a conclusion of guilt beyond a\\n\\nreasonable doubt.” Id.\\n\\n The Government must establish proof of each element beyond a reasonable doubt.\\n\\nId. And although the Government must satisfy its burden of proving a connection between\\n\\nthe defendant and the conspiracy, it need not prove the defendant “knew the particulars of\\n\\nthe conspiracy.” Id. Instead, it is sufficient to show that the defendant joined “with an\\n\\nunderstanding of the unlawful nature thereof and willfully join[ed] in the plan on one\\n\\noccasion [even if] he played only a minor part.” Id. (internal quotation marks omitted).\\n\\n Tillmon’s arguments challenging his conviction on Count 1 mirror the arguments\\n\\nhe made regarding the attempted possession conviction. For example, he contends there\\n\\nwas no evidence to support that he knew about an agreement to possess with the intent to\\n\\ndistribute heroin, or that he agreed to join that endeavor. He asserts no one mentioned drug\\n\\ntrafficking at the preparatory meeting. Further, Tillmon asserts no evidence contradicts his\\n\\ntestimony that he did not hear Lisa’s reference to heroin during the March 2015 transport.\\n\\nHe points to the fact that he never saw a substance identified as heroin (because it was all\\n\\nin packages) and that he never touched the packages. And he points to his taking\\n\\nphotographs on one of the transports as proof that he lacked a criminal mindset.\\n\\n We disagree with Tillmon and do not need to add much to our preceding analysis\\n\\nrejecting his arguments regarding the attempted possession conviction. His arguments are\\n\\ngrounded primarily in reweighing the credibility of witnesses and choosing between\\n\\ndifferent interpretations of conflicting evidence, all of which is squarely in the province of\\n\\n 18\\n\\fthe jury and not reviewable on appeal. The rest of his arguments challenge minor details\\n\\nthat do not affect the substantial evidence recounted above showing that he knowingly and\\n\\nvoluntarily participated in an agreement to possess heroin and cocaine with the intent to\\n\\ndistribute. In sum, Tillmon met with both undercover agents and co-conspirators at the\\n\\npreparatory meeting; observed the Rocky Mount warehouse operations on three occasions\\n\\nin which staged packages of heroin or cocaine were loaded into the hidden compartment\\n\\nof a vehicle; was trained in drug trafficking techniques; participated in the August 2014,\\n\\nOctober 2014, and March 2015 transports along with other co-conspirators; heard Lisa\\n\\nrefer to the packages used during the March transport as “heroin”; and received $2,000\\n\\n(twice) and $2,500 (once) for his services related to these transports.\\n\\n To accept Tillmon’s arguments, the jury would have had to believe that he—a\\n\\ntrained law enforcement officer—did not know what was happening right in front of him.\\n\\nEven in cases involving defendants without Tillmon’s background and training, we have\\n\\nrecognized that jurors can find that defendants have the requisite knowledge and intent for\\n\\nparticipating in a drug trafficking offense based on their knowledge of circumstances that\\n\\nare “surreptitious and totally distinguishable from open and normal channels of business,”\\n\\nsuch as drugs packaged for transport and stashed in a hidden compartment of a vehicle. See\\n\\nAli, 735 F.3d at 188–89. The jury had all the more reason to find Tillmon responsible for\\n\\nsuch knowledge given his background and training. Further, the jury would have had to\\n\\nbelieve that Tillmon thought he was paid a total of $6,500 to accompany his friend Jacobs\\n\\non three innocent drives to Maryland so that he could, on one occasion, take photographs\\n\\nof the harbor. This conclusion, too, defies common sense. The substantial evidence in the\\n\\n 19\\n\\frecord, including audio and video recordings of the events the witnesses described,\\n\\nsupported the jury’s determination of guilt.\\n\\n For these reasons, the district court did not err in denying Tillmon’s motion for a\\n\\njudgment of acquittal with respect to the drug trafficking conspiracy (Count 1).\\n\\n C. Aggravated Offense Drug Weights (Counts 1 and 48)\\n\\n Tillmon argues that even if the evidence is sufficient to affirm his convictions for\\n\\nthe drug conspiracy and attempted possession offenses, he is at least entitled to\\n\\nresentencing because the evidence does not support the jury’s finding that his offenses\\n\\ninvolved at least one kilogram of heroin. Again, we disagree.\\n\\n As noted, while the baseline 21 U.S.C. § 841 offense does not require the\\n\\nGovernment to prove the quantity of the controlled substance at issue, it does provide for\\n\\nincreased penalties when certain threshold amounts are established. The “specific threshold\\n\\ndrug quantities [are] treated as elements of aggravated drug trafficking offenses, rather than\\n\\nas mere sentencing factors” and thus must be either admitted by the defendant or found by\\n\\na jury to be “reasonably foreseeable to the individual defendant.” United States v. Brooks,\\n\\n524 F.3d 549, 557–58 (4th Cir. 2008) (internal quotation marks omitted). Here, the\\n\\nGovernment had to prove beyond a reasonable doubt that Tillmon was responsible for “one\\n\\n(1) kilogram or more of heroin,” J.A. 118, the enhanced drug quantity charged in the\\n\\nindictment. See Promise, 255 F.3d at 156–57. Only then could Tillmon be properly\\n\\nsubjected to a mandatory minimum sentence of 10 years’ imprisonment and a statutory\\n\\nmaximum of life. 21 U.S.C. § 841(b)(1)(A)(i).\\n\\n\\n\\n 20\\n\\f Tillmon argues that the evidence did not allow the jury to find him responsible for\\n\\nan offense involving at least 1 kilogram of heroin. Specifically, he asserts the record lacked\\n\\nevidence that agents ever told him how many kilograms they expected him to transport,\\n\\nthat they ever mentioned the word “kilogram” or its variants, or that Tillmon knew how\\n\\nmuch heroin was in each package.\\n\\n Tillmon’s argument lacks merit. Trial evidence demonstrated the packages each\\n\\ncontained roughly one kilogram of fake drugs, consistent with the way drugs are commonly\\n\\npackaged for distribution. E.g., J.A. 544 (“Anybody who looks at one of those knows that’s\\n\\na brick or a kilo.”). In addition, testimony established that Tillmon had been trained in drug\\n\\ninterdiction as part of his law enforcement duties. Further, the record contained evidence\\n\\nthat ten staged packages were positioned in plain view of Tillmon as they were loaded into\\n\\nthe load vehicle, and each package weighed one kilogram. All told, this evidence is a\\n\\nsufficient basis for the jury to have found that Tillmon’s drug offenses involved at least\\n\\none kilogram of heroin. Therefore, the sentencing enhancement was proper and Tillmon\\n\\nwas properly subjected to a mandatory minimum sentence of 120 months’ imprisonment\\n\\nand a maximum term of life for his attempted possession (Count 48) and drug trafficking\\n\\nconspiracy (Count 1) convictions.\\n\\n D. Firearms Counts (Counts 2 and 49)\\n\\n Tillmon also appeals the district court’s denial of his motion for a judgment of\\n\\nacquittal with respect to his charges for conspiracy to use firearms during and in relation\\n\\nto a drug trafficking offense, in violation of 18 U.S.C. § 924(o) (Count 2), and use and\\n\\ncarry of a firearm during and in relation to a drug trafficking crime (attempted possession\\n\\n 21\\n\\fon March 2015), in violation of 18 U.S.C. §§ 2, 924(c)(1)(A) (Count 49). But Tillmon’s\\n\\nsole argument here is that because the evidence was insufficient to support the underlying\\n\\ndrug trafficking conspiracy (Count 1) and attempted possession with the intent to distribute\\n\\nheroin (Count 48) convictions, he is also entitled to a judgment of acquittal on the\\n\\ncorresponding firearms convictions. Put another way, Tillmon does not challenge that he\\n\\nconspired to use or carry a firearm as part of the drug trafficking conspiracy, or that he used\\n\\nor carried firearms during the March 2015 transport, only that he did not commit the\\n\\nunderlying drug offenses and so could not have committed the firearms offenses that\\n\\nrequired those predicates.\\n\\n Because the evidence is sufficient to affirm Tillmon’s convictions for the underlying\\n\\ndrug trafficking offenses, Tillmon’s argument fails. We therefore affirm his convictions\\n\\nfor the firearms conspiracy (Count 2) and using or carrying a firearm (Count 49).\\n\\n E. Admission of Video Recording\\n\\n Tillmon next contends that the district court committed reversible error in admitting\\n\\na video recording of his conversation with Tee while he was being paid for the March 2015\\n\\ntransport. Specifically, Tillmon asserts that the video improperly suggested that he was\\n\\ncomplicit in plotting a murder because Tee said he wanted a firearm to kill someone. 5 On\\n\\n\\n 5\\n Tillmon also argues the evidence was needlessly cumulative and suggests the\\ndistrict court’s decision is suspect because it had initially ruled the video inadmissible\\nduring the Government’s case-in-chief. Even if the evidence was cumulative of other\\nevidence in the record, that would not constitute reversible error on its own in this case.\\nRule 403 lists cumulativeness as a reason that a district court may decide to rule evidence\\ninadmissible; it does not bar evidence merely because it overlaps with prior evidence. See\\nFed. R. Evid. 403.\\n(Continued)\\n 22\\n\\fthat basis, Tillmon argues the recording was unfairly prejudicial and inadmissible under\\n\\nFederal Rule of Evidence 403.\\n\\n Rule 403 states that a district “court may exclude relevant evidence if its probative\\n\\nvalue is substantially outweighed by a danger of . . . unfair prejudice . . . or needlessly\\n\\npresenting cumulative evidence.” Fed. R. Evid. 403. “Rule 403 is a rule of inclusion,\\n\\ngenerally favoring admissibility.” United States v. Udeozor, 515 F.3d 260, 264–65 (4th\\n\\nCir. 2008) (internal quotation marks omitted). Specifically, we have said that when\\n\\nconsidering whether evidence is unfairly prejudicial, “damage to a defendant’s case is not\\n\\na basis for excluding probative evidence because evidence that is highly probative\\n\\ninvariably will be prejudicial to the defense.” Basham, 561 F.3d at 326 (internal quotation\\n\\nmarks omitted). Instead, “[u]nfair prejudice speaks to the capacity of some concededly\\n\\nrelevant evidence to lure the factfinder into declaring guilt on a ground different from proof\\n\\nspecific to the offense charged.” Id. at 327 (internal quotation marks omitted) (emphasis\\n\\nadded).\\n\\n The video evidence was highly probative of Tillmon’s role in the charged conduct\\n\\nand it specifically rebutted Tillmon’s defense that he did not understand the criminal nature\\n\\n\\n In addition, the record readily explains the district court’s changed admissibility\\nrulings. When the Government sought to introduce the exhibit in its case-in-chief, the court\\nsustained Tillmon’s challenge to the ability of that witness to authenticate the recording.\\nThe court’s decision to sustain Tillmon’s objection related solely to the foundation for its\\nintroduction, not whether the recording was admissible on other grounds. By the time the\\nGovernment later attempted to introduce the recording to rebut Tillmon’s defense, the\\nfoundation for its accuracy had been resolved by intervening testimony. This time,\\nTillmon’s objection to the recording’s admissibility was based on Rule 403, giving the\\ndistrict court its first opportunity to rule on the admissibility of the recording on that\\nground.\\n 23\\n\\fof the underlying events and that he lacked the requisite intent to engage in criminal\\n\\nconduct. For instance, the recording demonstrated Tillmon’s admission to possessing a\\n\\nfirearm during the March 2015 transport; his receiving $2,500 for his participation in that\\n\\ntransport; and his familiarity and rapport with Tee, whom Tillmon believed to be part of\\n\\nthe DTO. All of these actions are specific to the charged offenses and directly relevant to\\n\\nthe jury’s determination of Tillmon’s culpability.\\n\\n Nor was the video unfairly prejudicial. Tillmon and Tee’s recorded conversation\\n\\nshowed the interactions between Tillmon and another purported member of the DTO in a\\n\\nway that the other evidence did not. Its probative value—particularly in light of Tillmon’s\\n\\ndefense that he lacked a culpable intent to engage in drug trafficking offenses—outweighed\\n\\nany minimal prejudice that arose from the subject matter of their conversation. Moreover,\\n\\nbecause the jurors also knew that Tee was actually an undercover agent, they knew that his\\n\\nside of the conversation was role-playing rather than implicating Tillmon in any actual\\n\\nviolent crime.\\n\\n For these reasons, the district court did not abuse its discretion in admitting the video\\n\\nevidence.\\n\\n F. Federal Programs Bribery (Counts 32, 36, and 54)\\n\\n Lastly, Tillmon appeals the district court’s denial of his motion for a judgment of\\n\\nacquittal with respect to the three charges of federal programs bribery, in violation of 18\\n\\nU.S.C. § 666(a)(1)(B) (Counts 32, 36, and 54).\\n\\n In relevant part, this statute prohibits individuals who are agents of a local\\n\\ngovernment agency from “accept[ing] . . . anything of value from any person, intending to\\n\\n 24\\n\\fbe influenced or rewarded in connection with any business, transaction, or series of\\n\\ntransactions of such . . . [government agency] . . . involving any thing of value of $5,000\\n\\nor more.” Id. § 666(a)(1)(B). As a threshold to liability under this statute, the Government\\n\\nmust demonstrate that the local government at issue “receive[d], in any one year period,\\n\\nbenefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy,\\n\\nloan, guarantee, insurance, or other form of Federal assistance.” § 666(b); see also id.\\n\\n§ 666(d)(5) (defining “in any one-year period”).\\n\\n Pointing to the amount he was paid for each individual transport, Tillmon asserts\\n\\nthe Government failed to proffer sufficient evidence to establish that his services to the\\n\\nfake DTO were worth at least $5,000. 6\\n\\n We have not previously considered § 666(a)(1)(B)’s requirement that charged\\n\\nconduct involve “any thing of value of $5,000 or more.” But the statutory language reveals\\n\\nthat this element requires proof of the value of whatever was exchanged for the bribe. See\\n\\n§ 666(a)(1)(B) (requiring that the business, transaction, or series of transactions of the\\n\\ngovernment agency “involve[d] any thing of value of $5,000 or more”). This has led our\\n\\nsister circuits to describe the requisite proof as identifying the value of the “subject matter”\\n\\nof the bribe. United States v. Robinson, 663 F.3d 265, 271–76 (7th Cir. 2011).\\n\\n The indictment charged Tillmon with accepting cash from the undercover agents\\n\\nposing as members of the DTO on each of the three transports, with each count\\n\\ncorresponding to one of the transports, and it identified the subject matter of each of the\\n\\n\\n 6\\n Tillmon challenges the sufficiency of the evidence on two other elements of the\\noffenses as well, but for the reasons discussed, we need not address those arguments.\\n 25\\n\\fthree bribes as “protecting shipments of purported narcotics.” J.A. 149, 153, 171. As we\\n\\nhave already recounted, the record depicted what that protection entailed: Tillmon was to\\n\\naccompany the drugs on a journey up the East Coast, drive or ride in one of the vehicles\\n\\ncontaining or accompanying the narcotics, and recite a cover story if the caravan was\\n\\nstopped. And once the drugs were delivered to another member of the DTO in Maryland,\\n\\nhe was paid—$2,000 in October 2014; $2,000 in December 2014; and $2,500 in March\\n\\n2015.\\n\\n Our sister circuits have recognized that one valid method of valuing an intangible,\\n\\nsuch as a service provided, is the amount of the bribe. E.g., United States v. Hardin, 874\\n\\nF.3d 672, 676 (10th Cir. 2017); United States v. Fernandez, 722 F.3d 1, 12–13 (1st Cir.\\n\\n2013) (rejecting the value of the bribe test in favor of the value of the “transaction” test but\\n\\nacknowledging that the bribe amount “may be relevant [evidence] in determining the value\\n\\nof the bribe’s objective” when “the subject matter of the bribe is a ‘thing of value’ without\\n\\na fixed price”); Robinson, 663 F.3d at 271, 275 (“Without excluding other possible\\n\\nmethods of valuation, we agree that the amount of the bribe may suffice as a proxy for\\n\\nvalue; at least it provides a floor for the valuation question.”). This approach is akin to\\n\\n“appraising” the service as an appraiser values a tangible asset—“by looking at how much\\n\\na person in the market would be willing to pay for” it. United States v. Marmolejo, 89 F.3d\\n\\n1185, 1194 (5th Cir. 1996).\\n\\n The Government properly recognizes that using the straightforward bribe-as-proxy\\n\\nmethod does not satisfy its burden in this case. The Government chose to charge Tillmon\\n\\nseparately for each of the three transports, meaning that the Government had the burden to\\n\\n 26\\n\\fprove that the value of his services on each of the individual transports was $5,000 or more.\\n\\nUnder the bribe-as-proxy method, the Government’s evidence is insufficient because\\n\\nTillmon’s aid on each transport was valued at less than $5,000 each time.\\n\\n Instead, the Government advances three arguments for what other evidence could\\n\\nhave been used to satisfy its burden: (1) that the amount of the bribes paid to the team as a\\n\\nwhole on each transport exceeded $5,000 (the “aggregation theory”); (2) that the market\\n\\nvalue of the drugs being trafficked on each transport exceeded $5,000 (the “market value\\n\\ntheory”); and (3) that the amount the Town of Windsor paid for public safety in each year\\n\\nat issue exceeded $5,000 (the “public safety theory”).\\n\\n Although the Government claims its aggregation theory is merely a variation on the\\n\\napproved bribes-as-proxy method, it is not the equivalent and we cannot use it here. The\\n\\nGovernment contends that the jury was permitted to aggregate the bribes paid to all of the\\n\\nteam members on a particular transport to arrive at the requisite $5,000. To be sure,\\n\\nemploying that method brings the dollar amount expended on each transport to more than\\n\\n$5,000. Fatally for the Government, however, the aggregation method does not arrive at an\\n\\namount that reflects the statutory obligation to produce evidence of the value of the subject\\n\\nmatter of the bribe charged in the indictment—that is, Tillmon’s “protecting shipments of\\n\\npurported narcotics.” J.A. 149, 153, 171. The aggregation method conflates the value of\\n\\nTillmon’s services to the DTO with the value of the team’s services to the DTO. The record\\n\\ndoes not permit the conclusion that Tillmon single-handedly provided services equal to the\\n\\namount paid to the team as a whole. And without such evidence demonstrating that\\n\\nTillmon’s services were worth that amount, the aggregation method is not an acceptable\\n\\n 27\\n\\fvaluation method. For these reasons, we reject the aggregation method as an appropriate\\n\\nvaluation method in this case.\\n\\n The Government’s proposed market value theory fares no better. As our sister\\n\\ncircuits have recognized, in some instances, it may be appropriate to look at the market\\n\\nvalue of the bribe from the perspective of the briber or an interested third party as a means\\n\\nof valuing the subject matter of the bribe. E.g., Fernandez, 722 F.3d at 15 (approving\\n\\nvaluation method for votes related to pending legislation by looking to the briber’s\\n\\nexpected financial gain flowing from the passage of that legislation); United States v.\\n\\nCurescu, 674 F.3d 735, 738, 741 (7th Cir. 2012) (approving valuation of a bribe given to\\n\\nfalsely certify that plumbing had been completed by a licensed plumber based on the\\n\\namount of money the briber did not have to pay a licensed plumber to perform the work);\\n\\nUnited States v. Hines, 541 F.3d 833, 837 (8th Cir. 2008) (using market value theory to\\n\\nvalue expedited eviction orders based on the savings to the property owners in avoiding\\n\\nthe costs typically incurred in eviction). But even then, in addition to evidence of something\\n\\nhaving value to the briber or a third party, the Government also must come forward with\\n\\nevidence “linking” that valued item to the services the defendant provided. See United\\n\\nStates v. Owens, 697 F.3d 657, 661 (7th Cir. 2012). To reiterate, the Government’s\\n\\nevidence must bear on the value of the subject matter of the bribe, and that obligation is\\n\\nnot satisfied with evidence of something “to which the subject matter of the bribe is\\n\\ntangentially related.” Id.\\n\\n In this case, the Government pointed to something of purported value to the briber—\\n\\nthe market value of the narcotics—but it failed to put forward any evidence linking that\\n\\n 28\\n\\fvalue to Tillmon’s protection of the caravan, the subject matter of the bribe. Specifically,\\n\\nthe Government relies on Lisa’s statement during the March 2015 transport that the team\\n\\nwas shipping a million dollars of heroin and argues that because Tillmon was hired to\\n\\nprotect a million-dollar transport on that occasion and to protect similar package quantities\\n\\nduring the other two transports, his services on each transport were worth a million dollars.\\n\\nThe Government then contends that the Court can infer from the evidence that the other\\n\\ntransports involved similar drug packages and that they also thereby satisfied the $5,000\\n\\nrequirement. That reasoning is flawed because no evidence in the record links the purported\\n\\nvalue of the drugs to the value of Tillmon’s protection services. As the record stands, the\\n\\ntwo are merely tangentially related. The Government could have attempted to provide\\n\\nevidence sufficient to create the necessary linkage in several ways. For example, it could\\n\\nhave offered evidence that trafficking organizations typically provide protection with a cut\\n\\nof the profits from eventual sales. Or it could have offered evidence that the cost of\\n\\nlegitimate protection for drug transports involving that amount of drugs costs real DTOs\\n\\n$5,000 or more. But the Government offered no such evidence. In fact, it failed to introduce\\n\\nany evidence allowing the inference that the value of Tillmon’s services was connected to\\n\\nthe value of the drugs. Thus, the Government’s market value theory lacks any evidentiary\\n\\nbasis.\\n\\n The Government’s third argument, the public safety theory of valuation, can be\\n\\ndisposed of quickly. For the first and only time in this appeal, the Government mentions in\\n\\na single sentence of its Response Brief that the $5,000 value of Tillmon’s services could\\n\\nbe measured based on the Town of Windsor’s annual public safety budget. Setting aside\\n\\n 29\\n\\fany concerns regarding the timeliness and adequacy of the Government’s argument, we\\n\\nobserve that Windsor’s entire public safety budget is unrelated to and would vastly\\n\\noverstate the value of Tillmon’s services to the DTO. As such, it would be an improper\\n\\nmeasure of the subject matter of the bribe.\\n\\n In sum, the Government failed to produce evidence from which a jury could find\\n\\nthat Tillmon’s services to the DTO had a value of $5,000 or more. Though the Government\\n\\nmight have satisfied this requirement in several ways, it failed to introduce any evidence\\n\\nother than the amount Tillmon was paid as a bribe to establish that the value of his\\n\\nprotection services were worth at least $5,000. And in the absence of evidence to support\\n\\nthat element of the offense, Tillmon’s convictions for federal programs bribery, Counts 32,\\n\\n36, and 54, cannot stand and we vacate each of these convictions.\\n\\n\\n\\n IV. Conclusion\\n\\n For the reasons explained above, we affirm Tillmon’s convictions on the drug\\n\\ntrafficking and firearms offenses (Counts 1, 2, 48, and 49), but we vacate Tillmon’s\\n\\nconvictions for federal programs bribery (Counts 32, 36, and 54).\\n\\n As the parties agree, the record shows that Tillmon’s sentence cannot be affected by\\n\\nthe vacation of his federal programs bribery convictions. After calculating Tillmon’s\\n\\nGuidelines range, the district court imposed a downward variant sentence of 180 months’\\n\\nimprisonment—120 months to run concurrently on Counts 1, 2, 48, 32, 36, and 54; and 60\\n\\nmonths to run consecutively on Count 49. Vacating Tillmon’s federal programs bribery\\n\\nconvictions does not change his sentence, which is still 120 months’ imprisonment for\\n\\n 30\\n\\fCounts 1, 2, and 48, to run concurrently with each other, and 60 months’ mandatory\\n\\nminimum imprisonment for Count 49, to run consecutively to the others. Because 120\\n\\nmonths is the statutory mandatory minimum sentence for the drug trafficking conspiracy\\n\\n(Count 1) and attempted possession (Count 48) convictions, Tillmon cannot be sentenced\\n\\nto a lower term of imprisonment on the part of the sentence that was running concurrently\\n\\nwith his sentence for the now-vacated federal programs bribery convictions. Similarly,\\n\\nTillmon’s consecutive sentence for Count 49 must continue to run consecutively to the\\n\\nother term of imprisonment. As such, we need not remand for resentencing.\\n\\n AFFIRMED IN PART\\n AND VACATED IN PART\\n\\n\\n\\n\\n 31\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4371281/\", \"author_raw\": \"AGEE, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"NIEMEYER"},"judge2":{"kind":"string","value":"AGEE"},"judge3":{"kind":"string","value":"DIAZ"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"NIEMEYER\": \", Circuit\", \"AGEE\": \", Circuit\", \"DIAZ\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4594028/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Antonio Tillmon\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-4648\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nANTONIO TILLMON,\n\n Defendant - Appellant.\n\n\nAppeal from the United States District Court for the Eastern District of North Carolina, at\nElizabeth City. Malcolm J. Howard, Senior District Judge. (2:15-cr-00009-H-9)\n\n\nArgued: October 31, 2018 Decided: February 26, 2019\n\n\nBefore NIEMEYER, AGEE and DIAZ, Circuit Judges.\n\n\nAffirmed in part and vacated in part by published opinion. Judge Agee wrote the opinion,\nin which Judge Niemeyer and Judge Diaz joined.\n\n\nARGUED: Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina, for\nAppellant. Banumathi Rangarajan, OFFICE OF THE UNITED STATES ATTORNEY,\nRaleigh, North Carolina, for Appellee. ON BRIEF: Kelly Margolis Dagger, ELLIS &\nWINTERS LLP, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United\nStates Attorney, Jennifer P. May-Parker, Acting First Assistant United States Attorney,\nBarbara D. Kocher, Assistant United States Attorney, OFFICE OF THE UNITED\nSTATES ATTORNEY, Raleigh, North Carolina, for Appellee.\n\fAGEE, Circuit Judge:\n\n After being caught in a sting operation aimed at exposing corrupt law enforcement\n\nofficers, Antonio Tillmon was convicted by a jury on multiple counts: conspiracy to\n\ncommit drug trafficking, conspiracy to use firearms while drug trafficking, attempted\n\npossession of heroin with intent to distribute, using or carrying a firearm while drug\n\ntrafficking, and three counts of federal programs bribery. On appeal, Tillmon challenges\n\nthe district court’s denial of his motion for a judgment of acquittal as to these offenses and\n\nits admission of a video-recorded conversation between Tillmon and an undercover agent.\n\nFor the reasons discussed below, we affirm the conspiracy, attempted possession and\n\nfirearms convictions, but vacate the federal programs bribery convictions.\n\n\n\n I.\n\n Tillmon’s prosecution arose from a multi-year FBI investigation into reports of law\n\nenforcement corruption in the counties of Northampton and Halifax, North Carolina. 1 This\n\ninvestigation, “Operation Rockfish,” began in 2013 after the FBI received information that\n\nLann Clanton, a police officer with the Weldon, North Carolina, Police Department, was\n\ninvolved in criminal activity. Operation Rockfish consisted of undercover agents posing as\n\nmembers of a transnational drug trafficking organization (“DTO”) that transported\n\nkilograms of heroin and cocaine to New York City. Part of the DTO’s strategy was\n\n\n\n\n 1\n We recite the facts established at trial in the light most favorable to the\nGovernment. United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).\n 2\n\f“specifically tr[ying] to recruit law enforcement officers for their ability to badge their way\n\nout of legitimate traffic stops by other law enforcement officers.” J.A. 406.\n\n The FBI established a “general template” for the DTO, setting up a warehouse to\n\nprepare “cocaine” and “heroin” for shipment by storing those drugs in hidden\n\ncompartments of vehicles. J.A. 412. No real drugs were used, but a lookalike substance\n\nwas packaged to “look like kilograms of illegal drugs that had been seized in other\n\ninvestigations.” J.A. 411. Ten one-kilogram packages were color-coded to identify the type\n\nof drug each package purportedly contained. Once the packages were loaded into a vehicle\n\nfor transport (“the load vehicle”), team members rode in that vehicle, a scout vehicle that\n\ndrove ahead of it, and a rear guard vehicle that drove behind it.\n\n Once the ersatz DTO was operational, the FBI used a confidential informant to let\n\nClanton know about its existence. Clanton then contacted the DTO, where his first\n\nassignment was to recruit law enforcement officers to implement the DTO’s cover strategy.\n\nClanton’s first recruit was Ikeisha Jacobs, another member of the Weldon Police\n\nDepartment. Clanton and Jacobs then enlisted other current and former law enforcement\n\nand correctional officers to join their teams.\n\n Jacobs recruited Tillmon, a former coworker, for her team. At the time he was\n\nrecruited to the DTO, Tillmon was a police officer with the Windsor, North Carolina,\n\nPolice Department. On August 19, 2014, Jacobs invited Tillmon to join her and other team\n\nmembers for a preparatory meeting. The gathering included Jacobs, two undercover FBI\n\nagents (John and Lisa), and four new recruits (Adrienne Moody, Alaina Sue-Kam-Lang,\n\nCrystal Pierce, and Tillmon). During the meeting, the undercover agents and Jacobs\n\n 3\n\fdescribed the plan for the next day’s transport and explained the DTO’s reason for using\n\nlaw enforcement officers. They gave the team members a cover story to use if police\n\nstopped them during the transport: they were transporting a vehicle that had been sold out\n\nof state. During the meeting, one undercover agent asked whether the recruits carried guns.\n\nTillmon indicated that he would carry his gun. Toward the end of the meeting, the agents\n\ntold the recruits that they did not have to participate in the operation if they wanted out.\n\n The next morning (“the August 2014 transport”), Tillmon picked up Jacobs and Sue-\n\nKam-Lang before driving to a prearranged rendezvous point where they met Lisa and other\n\nteam members. They all then drove to a warehouse in Rocky Mount, North Carolina. Upon\n\narrival, Tillmon helped move a large white cooler from one area of the warehouse to the\n\nback of the load vehicle, a white GMC Acadia. One of the undercover agents, Paul, pulled\n\nout ten packages from underneath the ice and drinks in the cooler, counted them, and put\n\nthem on the ground. Paul handed the packages to John, another agent, who was underneath\n\nthe Acadia putting the packages into a hidden compartment. Tillmon never touched the\n\npackages, but he watched as they were loaded into the compartment in plain view of him\n\nand the other team members. 2 While standing behind the vehicle, Lisa explained to Tillmon\n\nthat they were “starting to move H.” J.A. 591–92. Lisa testified at trial that by “H” she\n\nmeant “heroin,” though she did not clarify her meaning to the team members at the time.\n\n After the packages were stored in the Acadia, it and two other vehicles caravanned\n\nto National Harbor in Maryland. Jacobs drove the load vehicle, two team members drove\n\n\n 2\n The trial evidence shows that Tillmon did not touch, handle, or assist in loading\nthe staged packages into the vehicles during any of the events described.\n 4\n\fthe scout vehicle, and Tillmon and Sue-Kam-Lang followed as the rear guard. When they\n\narrived at National Harbor, the team members met “Tee,” another undercover agent who\n\nwas posing as the supervisor of that portion of the route. Tee and the team boarded an\n\nenclosed car of a Ferris wheel, where Tee paid each member of the group. Tillmon received\n\n$2,000 and then returned to North Carolina.\n\n In October 2014 (“the October 2014 transport”), Jacobs and Tillmon rode together\n\nto the Rocky Mount warehouse. While waiting for drugs to be loaded into the hidden\n\ncompartment of the load vehicle, Tillmon was shown a fake bill of sale that would back\n\ntheir cover story. This time, Tillmon drove the load vehicle to the parking lot of an outlet\n\nmall in Maryland. He then got into a large van, where Tee paid him and the other team\n\nmembers. Tee paid Tillmon $2,000.\n\n In March 2015 (“the March 2015 transport”), Jacobs asked Tillmon to join her a\n\nthird time. When Tillmon arrived at the Rocky Mount warehouse, the agents had a pickup\n\ntruck staged with packages of drugs laid out in plain view on the tailgate. The team\n\nmembers, including Tillmon, walked by the back of the truck as they entered the\n\nwarehouse’s office. Inside, Lisa asked everyone if they had guns; after Sue-Kam-Lang\n\nindicated that she did not have a gun, Tillmon gave her one of his extra guns.\n\n The team exited the office and went back into the main part of the warehouse. As\n\nthe drugs were being loaded into the hidden compartment of the vehicle, Lisa said, “you\n\nguys got to be carrying from now on . . . a million dollars of heroin, you can’t f[***] around\n\nwith that.” Supp. J.A. 1625 at 12:47:16–47:24. She was within three feet of Tillmon as she\n\nspoke.\n\n 5\n\f After the drugs were loaded, the team departed, with Tillmon and Jacobs driving the\n\nrear guard vehicle. After the team left the load vehicle at a carport in Maryland, they met\n\nTee at the same outlet mall parking lot as in October. Each member entered Tee’s vehicle\n\nseparately, where they were paid. As Tillmon was paid $2,500, Tee asked him if he was\n\ncarrying a gun, and Tillmon confirmed he was. Then Tee indicated he was interested in\n\ngetting a small firearm. Tillmon responded, “What [do] you need?” and Tee said he wanted\n\n“a thirty-eight (.38), something small, a revolver that don’t need no shells, know what I\n\nmean?” J.A. 1402. Tillmon recommended a few firearms that would meet Tee’s need to\n\n“just walk right up on ‘em and keep rolling” and “boom-boom and then throw that s[***]\n\naway and [not worry] about it no more.” J.A. 1403–04. Tee asked Tillmon to let him know\n\nif he heard of anything available, and Tillmon replied, “Okay . . . . We’ll talk.” J.A. 1404.\n\nTillmon exited Tee’s vehicle and returned to North Carolina.\n\n In April 2015, Jacobs asked Tillmon to join her again. When they arrived at the\n\nRocky Mount warehouse, the undercover agents arrested them. At the time of his arrest,\n\nTillmon had in his possession his badge, his Windsor police identification, four semi-\n\nautomatic pistols, a .223 caliber rifle, and ammunition for each of the guns. 3\n\n A grand jury indicted Tillmon and fourteen others, including Clanton and Jacobs,\n\nin a fifty-four count indictment. Tillmon was charged in ten of the counts. All other\n\ndefendants negotiated guilty pleas, but Tillmon pleaded not guilty and invoked his right to\n\na jury trial on all charges: (1) one count of conspiracy to distribute and possess with intent\n\n\n 3\n These items, all of which belonged to Tillmon, were found on his person, in his\nbag, and in Moody’s vehicle, in which he had come to the warehouse.\n 6\n\fto distribute controlled substances, namely heroin and cocaine, in violation of 21 U.S.C.\n\n§§ 841(a)(1), 846 (Count 1); (2) one count of conspiracy to use firearms during and in\n\nrelation to a drug trafficking offense, in violation of 18 U.S.C. § 924(o) (Count 2); (3) three\n\ncounts of attempted possession with intent to distribute heroin, in violation of 21 U.S.C.\n\n§§ 841(a)(1), 841(b)(1)(A)(i), 846, and 18 U.S.C. § 2, corresponding to the three transports\n\n(August 2014, Count 28; October 2014, Count 33; and March 2015, Count 48); (4) two\n\ncounts of use and carry of a firearm during and in relation to a drug trafficking crime, in\n\nviolation of 18 U.S.C. §§ 2, 924(c)(1)(A), corresponding to two of the transports (October\n\n2014, Count 34; and March 2015, Count 49); and (5) three counts of federal programs\n\nbribery, in violation of 18 U.S.C. § 666(a)(1)(B), corresponding to each transport (August\n\n2014, Count 32; October 2014, Count 36; and March 2015, Count 54).\n\n At trial, the Government argued that Tillmon conspired with other law enforcement\n\nofficers to use their badges and firearms to assist in transporting a substance they believed\n\nto be heroin out of North Carolina. Because the entire DTO was a sting operation that had\n\nbeen captured in video and audio recordings, the Government introduced into evidence the\n\nrecordings of the preparatory meeting in August 2014 and the interactions at the Rocky\n\nMount warehouse on each transport day.\n\n At the close of the Government’s evidence, Tillmon moved for a judgment of\n\nacquittal on all counts under Federal Rule of Criminal Procedure 29. The district court\n\ndenied the motion on all but one count, granting the motion as to the charge of attempted\n\npossession with intent to distribute heroin based on the August 2014 transport. The district\n\ncourt reasoned that there was insufficient evidence to support the charge because it was\n\n 7\n\fbased solely on Lisa’s reference to “H,” and while she was “probably” talking about\n\nheroin, there was no evidence that anyone specifically identified the substance as heroin.\n\nJ.A. 1057.\n\n Tillmon’s defense centered on his contention that he did not have the requisite intent\n\nor knowledge to commit the crimes. For example, Tillmon testified that he did not recall\n\nany discussion of his police badge or identification card at the preparatory meeting and that\n\nhe did not realize he had a job during the transports or that he would be paid for that job.\n\nHe further testified that he did not hear or misheard Lisa’s statements at the Rocky Mount\n\nwarehouse about transporting heroin. Tillmon stated that he did not have any understanding\n\nof what was happening, only that others were loading something into a vehicle to be\n\ndelivered to Maryland.\n\n During Tillmon’s cross-examination, the Government introduced—over Tillmon’s\n\nobjection—a video recording of the conversation between Tillmon and Tee from the March\n\n2015 transport in which Tee requested Tillmon’s assistance in procuring a small-caliber\n\nfirearm. Tillmon argued that the recording was unfairly prejudicial because it implicated\n\nhim in uncharged violent crimes. The district court overruled the objection, concluding that\n\nany prejudicial effect was overridden by the fact that the video showed there was “a clear\n\nrelationship and friendship” between Tee and Tillmon. J.A. 1001.\n\n The jury found Tillmon guilty on the remaining nine counts. After the verdict,\n\nTillmon renewed his motion for a judgment of acquittal, or, in the alternative, for a new\n\ntrial. The district court denied the motions as to all but two counts, granting the motion for\n\na judgment of acquittal only with respect to the attempted possession with intent to\n\n 8\n\fdistribute heroin and corresponding firearm conviction arising from the October 2014\n\ntransport (Counts 33 and 34). 4 The district court observed that sufficient evidence\n\nsupported the jury’s decision to convict on the conspiracy charges (Counts 1 and 2),\n\nattempted possession charge (Count 48), and firearm charge (Count 49), largely based on\n\nLisa’s reference to the “million dollars[’] worth of heroin” that Tillmon received payment\n\nfor accompanying to Maryland during the March 2015 transport. J.A. 1527. Further, and\n\nin relevant part, the district court concluded sufficient evidence supported the three federal\n\nprograms bribery convictions (Counts 32, 36, and 54) because the record showed Tillmon\n\nand his co-defendants collectively received more than $5,000 for each transport and he was\n\ntold he was transporting drugs valued at more than a million dollars.\n\n Tillmon’s sentencing was affected by two statutory mandatory minimums. Because\n\nthe jury attributed at least 1 kilogram of heroin to Tillmon, the two drug offenses (Counts\n\n1 and 32) carried a statutory mandatory minimum of 120 months’ imprisonment. See 21\n\nU.S.C. § 841(b)(1)(A)(i). In addition, the firearm conviction carried a mandatory minimum\n\nsentence of 60 months’ imprisonment that must be served consecutively to any other\n\nsentence. 18 U.S.C. § 924(c)(1)(A) (stating that a term of imprisonment of “not less than 5\n\n\n\n\n 4\n The district court explained that the Government had not introduced evidence of\nTillmon’s specific intent to transport heroin, as the indictment charged in Count 33.\nSpecifically, none of the recordings regarding the October 2014 transport referenced the\ntype of drugs supposedly being transported even though they showed the staged packages\nbeing loaded into the load vehicle’s fake compartment, and one of the undercover agents\nhad testified that she thought that substance transported during this transport was supposed\nto be cocaine. The Government has not cross-appealed the Court’s decision and thus\nCounts 33 and 34 are not directly at issue on appeal.\n 9\n\fyears” for the possession offense “shall” be imposed “in addition to the punishment\n\nprovided for such . . . drug trafficking crime”).\n\n Although the district court calculated Tillmon’s Guidelines range to be 188 to 235\n\nmonths’ imprisonment for all but the firearm-possession conviction, it granted Tillmon’s\n\nrequest for a downward variance to the statutory mandatory minimums. Accordingly, the\n\ndistrict court sentenced Tillmon to 180 months’ imprisonment consisting of 120 months’\n\nimprisonment for the conspiracy, attempted possession, and federal programs bribery\n\noffenses (Counts 1, 2, 32, 36, 48, and 54), to be served concurrently, and 60 months’\n\nimprisonment for the firearm offense (Count 49), to be served consecutively to the sentence\n\non the other counts.\n\n Tillmon noted a timely appeal, and this Court has jurisdiction pursuant to 28 U.S.C.\n\n§ 1291.\n\n\n\n II.\n\n Tillmon appeals the denial of his renewed motion for a judgment of acquittal on all\n\nseven remaining counts. First, he argues the evidence was insufficient to show his intent to\n\nengage in the drug trafficking offenses, and that if those charges are vacated, then the\n\nfirearms charges must also be vacated. Second, he contends that even if the convictions\n\nstand, the evidence was insufficient to show that the drug crimes involved more than 1\n\nkilogram of heroin, so he should not have been subjected to an enhanced sentencing range.\n\nThird, Tillmon challenges the district court’s admission of the video evidence from the\n\nMarch 2015 transport on the basis that it was cumulative and unfairly prejudicial. Fourth\n\n 10\n\fand lastly, he contends the evidence was insufficient to support several elements of the\n\nfederal programs bribery charges. We address each argument in turn.\n\n The Court reviews de novo the district court’s denial of a Rule 29 motion for a\n\njudgment of acquittal. United States v. Reed, 780 F.3d 260, 269 (4th Cir. 2015). A\n\ndefendant challenging the sufficiency of the evidence “bears a heavy burden.” United\n\nStates v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal citation marks omitted).\n\nThe Court reviews whether there is “substantial evidence . . . to support the jury verdict,”\n\nUnited States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984) (internal quotation marks\n\nomitted), meaning that, to reverse, the record must “demonstrate[] a lack of evidence from\n\nwhich a jury could find guilt beyond a reasonable doubt,” United States v. Burgos, 94 F.3d\n\n849, 862 (4th Cir. 1996). Significantly, the jury—not this Court—“weighs the credibility\n\nof the evidence and resolves any conflicts in the evidence presented” when such\n\ndeterminations need to be made. Id.\n\n The Court reviews the district court’s evidentiary decisions for abuse of discretion.\n\nUnited States v. Basham, 561 F.3d 302, 325 (4th Cir. 2009). We “will not vacate a\n\nconviction unless we find that the district court judge acted arbitrarily or irrationally in\n\nadmitting evidence.” Id. at 326 (internal quotation marks omitted).\n\n\n\n III.\n\n A. Attempted Heroin Possession in March 2015 (Count 48)\n\n Because our consideration of the attempted possession offense facilitates review of\n\nthe conspiracy and firearms convictions, we begin with it. Tillmon argues that the\n\n 11\n\fGovernment did not put forward sufficient evidence to establish the necessary mens rea to\n\nsupport his conviction.\n\n It is a federal crime to “knowingly or intentionally . . . possess with intent to . . .\n\ndistribute . . . a controlled substance” like heroin. 21 U.S.C. § 841(a), (b)(1)(A)(i). A\n\nconviction for an attempt to commit this offense, see 21 U.S.C. § 846, “punishes conduct\n\nthat puts in motion events that would, from the defendant’s point of view, result in the\n\ncommission of a crime but for some intervening circumstance.” United States v. Pratt, 351\n\nF.3d 131, 135 (4th Cir. 2003). To convict Tillmon of the charged offense, the Government\n\nhad to prove\n\n that (1) [Tillmon] had the requisite intent to commit a crime; (2) [he]\n undertook a direct act in a course of conduct planned to culminate in his\n commission of the crime; (3) the act was substantial, in that it was strongly\n corroborative of [his] criminal purpose; and (4) the act fell short of the\n commission of the intended crime due to intervening circumstances.\n\nId.\n\n In rejecting Tillmon’s renewed motion for a judgment of acquittal, the district court\n\nconcluded the evidence was sufficient on each element. Specifically, it observed that Lisa\n\npointed to the staged packages being loaded into the vehicle and said that the team was\n\ntransporting a million dollars’ worth of heroin. Then, Tillmon followed the load vehicle to\n\nMaryland, providing protection during the transport.\n\n Tillmon argues that this evidence was insufficient to demonstrate that he attempted,\n\nor aided or abetted the attempt, to possess with intent to distribute heroin in March 2015.\n\nHe argues that Lisa’s comment about the value of the heroin does not show that he heard\n\nher statement or that he believed the group was trafficking heroin. Tillmon also argues that\n\n 12\n\fthere was no evidence that he exhibited guilty knowledge because he was not shown a\n\nsubstance that looked or felt like heroin, nor was there evidence that he directly handled\n\nthe packages or saw their contents. Additionally, Tillmon asserts that he did not take a\n\nsubstantial step towards completion of the offense that strongly corroborated an intent to\n\npossess with the intent to distribute heroin. He argues that neither his presence at the\n\nwarehouse nor his driving from Rocky Mount to Maryland with the team proves a specific\n\nintent to possess with the intent to distribute heroin. Consequently, Tillmon contends, the\n\njury did not have the evidence necessary to convict him.\n\n We disagree with Tillmon. To say that he lacked intent and was “a mere passive\n\nobserver of these goings-on, would defy reason.” See United States v. McLamb, 985 F.2d\n\n1284, 1292 (4th Cir. 1993). At a minimum, the following evidence shows Tillmon’s\n\nculpable intent: (1) he had basic law enforcement drug trafficking training; (2) the fake\n\nheroin was packaged in a manner commonly used to traffic controlled substances; (3) the\n\nstaged packages were in plain view of Tillmon before and while it was secreted into a\n\nhidden compartment of the load vehicle; (4) while standing about three feet from Tillmon,\n\nLisa pointed to the staged packages and said that the team was moving heroin valued at a\n\nmillion dollars; (5) two vehicles accompanied the load vehicle and each team member was\n\npaid thousands of dollars for accompanying the shipment; and (6) Tillmon not only\n\npossessed a firearm for his own use, but also loaned a team member a second firearm\n\nbecause they all had been instructed to carry firearms. From these facts, a jury could\n\nreasonably conclude that Tillmon had the requisite intent to attempt to possess heroin with\n\nthe intent to distribute it.\n\n 13\n\f We also reject Tillmon’s contention that the evidence does not show that his conduct\n\nconstituted an “attempt” to commit the completed act of possession because he did not take\n\nat least one act calculated to culminate in the completed offense. To the contrary, Tillmon\n\ncompleted the offense and the only circumstance that prevented the Government from\n\ncharging Tillmon with actual possession of heroin was that the substance at issue involved\n\nfake heroin instead of real heroin. This was not a case in which some intervening act early\n\nin the planning prevented Tillmon and his co-conspirators from completing their intended\n\nactivity. Rather, they successfully transported the fake substance from North Carolina to\n\nMaryland. And Tillmon willingly participated in doing so—even after Lisa commented in\n\nthe warehouse that the staged packages contained heroin and Tillmon watched the team\n\nmembers stash the packages in the load vehicle, he took his place in the vehicle caravan,\n\nescorted the packages to Maryland, and accepted payment for his part in the scheme.\n\n Tillmon’s arguments misapply the relevant appellate standards. Some of his\n\ncontentions ask the Court to assume the role of the jury and revisit credibility\n\ndeterminations to decide between competing evidence. However, the jury was not required\n\nto believe Tillmon’s defense that he did not understand what the packages were and that\n\nhe did not hear Lisa’s reference to moving heroin. E.g., Burgos, 94 F.3d at 862 (“[T]he\n\njury, not the reviewing court, weighs the credibility of the evidence and resolves any\n\nconflicts in the evidence presented, and if the evidence supports different, reasonable\n\ninterpretations, the jury decides which interpretation to believe.” (internal quotation marks\n\nomitted)).\n\n\n\n 14\n\f Some of Tillmon’s arguments ask us to attach only benign, if not nonsensical,\n\nmeaning to his “presence” at the warehouse and in the transport. But we have previously\n\nrecognized that presence during obvious criminal activity is relevant to the analysis in a\n\npossession offense. E.g., id. at 869 (citing United States v. Figueroa, 720 F.2d 1239, 1246\n\n(11th Cir. 1983) for the proposition that “when the circumstances surrounding a person’s\n\npresence at the scene of conspiratorial activity are so obvious[, the] knowledge of its\n\ncharacter can fairly be attributed to him”). Here, Tillmon participated in the transport after\n\nLisa pointed to the packages and stated that they contained a million dollars of heroin. He\n\nloaned a team member a firearm for protection during the transport and then accepted\n\n$2,500 for his “presence.” Although Tillmon never touched the packages himself, his role\n\nin the transport was more than that of “a mere passive observer.” See McLamb, 985 F.2d\n\nat 1292. And the jury was entitled to conclude that Tillmon believed the staged packages\n\nwere heroin being transported for distribution, and that he possessed those packages\n\nthrough his role as a hired guard during the transport of those packages from North Carolina\n\nto Maryland. See Pratt, 351 F.3d at 136–37 (recognizing that a person’s criminal role in a\n\npossession with intent to distribute offense can take various forms).\n\n Lastly, to the extent that Tillmon argues that the district court’s dismissal of the\n\nother attempted possession counts supports dismissal of this count, he ignores the specific\n\ncircumstances surrounding the district court’s decisions. The dismissals of the other counts\n\nwere not based on a broad assessment of lack of evidence of his intent, but rather on narrow\n\nevidentiary gaps in the Government’s case. All three attempted possession with intent to\n\ndistribute counts alleged not just the baseline offense set out in 18 U.S.C. § 841(a)(1), but\n\n 15\n\falso the aggravated possession with intent to distribute offense for a violation involving\n\nmore than one kilogram of heroin, see § 841(b)(1)(A)(i). See also United States v. Collins,\n\n415 F.3d 304, 312–14 (4th Cir. 2005) (discussing the difference between the baseline\n\noffense and aggravated offense); United States v. Promise, 255 F.3d 150, 152 (4th Cir.\n\n2001) (en banc) (holding that, in light of Apprendi, § 841(b)(1)(A) sets out elements of an\n\naggravated drug trafficking offense that must be found by a jury rather than constituting\n\nmere sentencing factors). The baseline offense does not require proof of the drug type and\n\nweight; in relevant part, it requires only that the defendant knowingly possessed a\n\ncontrolled substance of some kind. United States v. Ali, 735 F.3d 176, 186–88 (4th Cir.\n\n2013) (holding that while 21 U.S.C. § 841(a)(1) “requires specific intent to distribute a\n\ncontrolled substance or to possess with intent to distribute a controlled substance, it does\n\nnot require that the defendant have, within that intent, specific knowledge of the controlled\n\nsubstance[.]”). To convict Tillmon of the aggravated offense, however, the Government\n\nhad to introduce proof that Tillmon’s § 841(a)(1) violation involved at least one kilogram\n\nof heroin. See § 841(b)(1)(A) (stating that the enhanced penalties apply if “any person . . .\n\nviolates subsection (a)” and that violation “involv[ed]” the type and quantity of drugs\n\nlisted). At trial, the Government urged the district court not to dismiss the attempted\n\npossession counts relating to the August and October 2014 transports because there was\n\nsufficient evidence to convict Tillmon of the aggravated charges involving heroin. For\n\nreasons not readily apparent in the record, it did not rely on the fallback position that even\n\nif the evidence did not prove the aggravated offense elements, it was nonetheless sufficient\n\nto convict Tillmon of the attempted § 841(a)(1) baseline offense. The district court in turn\n\n 16\n\fdismissed the counts based on the August 2014 and December 2014 transports because of\n\ninsufficient evidence to conclude that Tillmon believed the staged packages were heroin,\n\nas opposed to some other controlled substance. By contrast, no such gap exists with respect\n\nto the March 2015 evidence. In the warehouse just prior to that transport, Lisa specifically\n\nreferred to the packages as heroin while in Tillmon’s immediate presence.\n\n For these reasons, the district court did not err in denying Tillmon’s renewed motion\n\nfor a judgment of acquittal on Tillmon’s conviction for attempted possession with intent to\n\ndistribute heroin in March 2015.\n\n B. Drug Trafficking Conspiracy (Count 1)\n\n Tillmon also appeals the district court’s denial of his renewed motion for a judgment\n\nof acquittal with respect to his conviction for conspiracy to distribute and possess with\n\nintent to distribute controlled substances, namely heroin and cocaine, in violation of 21\n\nU.S.C. §§ 841(a)(1), 846 (Count 1). He contends the record contains insufficient evidence\n\nof his intent.\n\n To prove conspiracy to possess drugs with an intent to distribute, the Government\n\nmust establish that: “(1) an agreement to possess cocaine [and heroin] with intent to\n\ndistribute existed between two or more persons; (2) the defendant knew of the conspiracy;\n\nand (3) the defendant knowingly and voluntarily became a part of this conspiracy.” Burgos,\n\n94 F.3d at 857. Due to the clandestine nature of a conspiracy, the offense is often proved\n\nby circumstantial evidence and the context in which the circumstantial evidence is adduced.\n\nId. A conspiracy “may be inferred from a development and collocation of circumstances.”\n\nId. at 858 (internal quotation marks omitted). “Circumstantial evidence sufficient to\n\n 17\n\fsupport a conspiracy conviction need not exclude every reasonable hypothesis of\n\ninnocence, provided the summation of the evidence permits a conclusion of guilt beyond a\n\nreasonable doubt.” Id.\n\n The Government must establish proof of each element beyond a reasonable doubt.\n\nId. And although the Government must satisfy its burden of proving a connection between\n\nthe defendant and the conspiracy, it need not prove the defendant “knew the particulars of\n\nthe conspiracy.” Id. Instead, it is sufficient to show that the defendant joined “with an\n\nunderstanding of the unlawful nature thereof and willfully join[ed] in the plan on one\n\noccasion [even if] he played only a minor part.” Id. (internal quotation marks omitted).\n\n Tillmon’s arguments challenging his conviction on Count 1 mirror the arguments\n\nhe made regarding the attempted possession conviction. For example, he contends there\n\nwas no evidence to support that he knew about an agreement to possess with the intent to\n\ndistribute heroin, or that he agreed to join that endeavor. He asserts no one mentioned drug\n\ntrafficking at the preparatory meeting. Further, Tillmon asserts no evidence contradicts his\n\ntestimony that he did not hear Lisa’s reference to heroin during the March 2015 transport.\n\nHe points to the fact that he never saw a substance identified as heroin (because it was all\n\nin packages) and that he never touched the packages. And he points to his taking\n\nphotographs on one of the transports as proof that he lacked a criminal mindset.\n\n We disagree with Tillmon and do not need to add much to our preceding analysis\n\nrejecting his arguments regarding the attempted possession conviction. His arguments are\n\ngrounded primarily in reweighing the credibility of witnesses and choosing between\n\ndifferent interpretations of conflicting evidence, all of which is squarely in the province of\n\n 18\n\fthe jury and not reviewable on appeal. The rest of his arguments challenge minor details\n\nthat do not affect the substantial evidence recounted above showing that he knowingly and\n\nvoluntarily participated in an agreement to possess heroin and cocaine with the intent to\n\ndistribute. In sum, Tillmon met with both undercover agents and co-conspirators at the\n\npreparatory meeting; observed the Rocky Mount warehouse operations on three occasions\n\nin which staged packages of heroin or cocaine were loaded into the hidden compartment\n\nof a vehicle; was trained in drug trafficking techniques; participated in the August 2014,\n\nOctober 2014, and March 2015 transports along with other co-conspirators; heard Lisa\n\nrefer to the packages used during the March transport as “heroin”; and received $2,000\n\n(twice) and $2,500 (once) for his services related to these transports.\n\n To accept Tillmon’s arguments, the jury would have had to believe that he—a\n\ntrained law enforcement officer—did not know what was happening right in front of him.\n\nEven in cases involving defendants without Tillmon’s background and training, we have\n\nrecognized that jurors can find that defendants have the requisite knowledge and intent for\n\nparticipating in a drug trafficking offense based on their knowledge of circumstances that\n\nare “surreptitious and totally distinguishable from open and normal channels of business,”\n\nsuch as drugs packaged for transport and stashed in a hidden compartment of a vehicle. See\n\nAli, 735 F.3d at 188–89. The jury had all the more reason to find Tillmon responsible for\n\nsuch knowledge given his background and training. Further, the jury would have had to\n\nbelieve that Tillmon thought he was paid a total of $6,500 to accompany his friend Jacobs\n\non three innocent drives to Maryland so that he could, on one occasion, take photographs\n\nof the harbor. This conclusion, too, defies common sense. The substantial evidence in the\n\n 19\n\frecord, including audio and video recordings of the events the witnesses described,\n\nsupported the jury’s determination of guilt.\n\n For these reasons, the district court did not err in denying Tillmon’s motion for a\n\njudgment of acquittal with respect to the drug trafficking conspiracy (Count 1).\n\n C. Aggravated Offense Drug Weights (Counts 1 and 48)\n\n Tillmon argues that even if the evidence is sufficient to affirm his convictions for\n\nthe drug conspiracy and attempted possession offenses, he is at least entitled to\n\nresentencing because the evidence does not support the jury’s finding that his offenses\n\ninvolved at least one kilogram of heroin. Again, we disagree.\n\n As noted, while the baseline 21 U.S.C. § 841 offense does not require the\n\nGovernment to prove the quantity of the controlled substance at issue, it does provide for\n\nincreased penalties when certain threshold amounts are established. The “specific threshold\n\ndrug quantities [are] treated as elements of aggravated drug trafficking offenses, rather than\n\nas mere sentencing factors” and thus must be either admitted by the defendant or found by\n\na jury to be “reasonably foreseeable to the individual defendant.” United States v. Brooks,\n\n524 F.3d 549, 557–58 (4th Cir. 2008) (internal quotation marks omitted). Here, the\n\nGovernment had to prove beyond a reasonable doubt that Tillmon was responsible for “one\n\n(1) kilogram or more of heroin,” J.A. 118, the enhanced drug quantity charged in the\n\nindictment. See Promise, 255 F.3d at 156–57. Only then could Tillmon be properly\n\nsubjected to a mandatory minimum sentence of 10 years’ imprisonment and a statutory\n\nmaximum of life. 21 U.S.C. § 841(b)(1)(A)(i).\n\n\n\n 20\n\f Tillmon argues that the evidence did not allow the jury to find him responsible for\n\nan offense involving at least 1 kilogram of heroin. Specifically, he asserts the record lacked\n\nevidence that agents ever told him how many kilograms they expected him to transport,\n\nthat they ever mentioned the word “kilogram” or its variants, or that Tillmon knew how\n\nmuch heroin was in each package.\n\n Tillmon’s argument lacks merit. Trial evidence demonstrated the packages each\n\ncontained roughly one kilogram of fake drugs, consistent with the way drugs are commonly\n\npackaged for distribution. E.g., J.A. 544 (“Anybody who looks at one of those knows that’s\n\na brick or a kilo.”). In addition, testimony established that Tillmon had been trained in drug\n\ninterdiction as part of his law enforcement duties. Further, the record contained evidence\n\nthat ten staged packages were positioned in plain view of Tillmon as they were loaded into\n\nthe load vehicle, and each package weighed one kilogram. All told, this evidence is a\n\nsufficient basis for the jury to have found that Tillmon’s drug offenses involved at least\n\none kilogram of heroin. Therefore, the sentencing enhancement was proper and Tillmon\n\nwas properly subjected to a mandatory minimum sentence of 120 months’ imprisonment\n\nand a maximum term of life for his attempted possession (Count 48) and drug trafficking\n\nconspiracy (Count 1) convictions.\n\n D. Firearms Counts (Counts 2 and 49)\n\n Tillmon also appeals the district court’s denial of his motion for a judgment of\n\nacquittal with respect to his charges for conspiracy to use firearms during and in relation\n\nto a drug trafficking offense, in violation of 18 U.S.C. § 924(o) (Count 2), and use and\n\ncarry of a firearm during and in relation to a drug trafficking crime (attempted possession\n\n 21\n\fon March 2015), in violation of 18 U.S.C. §§ 2, 924(c)(1)(A) (Count 49). But Tillmon’s\n\nsole argument here is that because the evidence was insufficient to support the underlying\n\ndrug trafficking conspiracy (Count 1) and attempted possession with the intent to distribute\n\nheroin (Count 48) convictions, he is also entitled to a judgment of acquittal on the\n\ncorresponding firearms convictions. Put another way, Tillmon does not challenge that he\n\nconspired to use or carry a firearm as part of the drug trafficking conspiracy, or that he used\n\nor carried firearms during the March 2015 transport, only that he did not commit the\n\nunderlying drug offenses and so could not have committed the firearms offenses that\n\nrequired those predicates.\n\n Because the evidence is sufficient to affirm Tillmon’s convictions for the underlying\n\ndrug trafficking offenses, Tillmon’s argument fails. We therefore affirm his convictions\n\nfor the firearms conspiracy (Count 2) and using or carrying a firearm (Count 49).\n\n E. Admission of Video Recording\n\n Tillmon next contends that the district court committed reversible error in admitting\n\na video recording of his conversation with Tee while he was being paid for the March 2015\n\ntransport. Specifically, Tillmon asserts that the video improperly suggested that he was\n\ncomplicit in plotting a murder because Tee said he wanted a firearm to kill someone. 5 On\n\n\n 5\n Tillmon also argues the evidence was needlessly cumulative and suggests the\ndistrict court’s decision is suspect because it had initially ruled the video inadmissible\nduring the Government’s case-in-chief. Even if the evidence was cumulative of other\nevidence in the record, that would not constitute reversible error on its own in this case.\nRule 403 lists cumulativeness as a reason that a district court may decide to rule evidence\ninadmissible; it does not bar evidence merely because it overlaps with prior evidence. See\nFed. R. Evid. 403.\n(Continued)\n 22\n\fthat basis, Tillmon argues the recording was unfairly prejudicial and inadmissible under\n\nFederal Rule of Evidence 403.\n\n Rule 403 states that a district “court may exclude relevant evidence if its probative\n\nvalue is substantially outweighed by a danger of . . . unfair prejudice . . . or needlessly\n\npresenting cumulative evidence.” Fed. R. Evid. 403. “Rule 403 is a rule of inclusion,\n\ngenerally favoring admissibility.” United States v. Udeozor, 515 F.3d 260, 264–65 (4th\n\nCir. 2008) (internal quotation marks omitted). Specifically, we have said that when\n\nconsidering whether evidence is unfairly prejudicial, “damage to a defendant’s case is not\n\na basis for excluding probative evidence because evidence that is highly probative\n\ninvariably will be prejudicial to the defense.” Basham, 561 F.3d at 326 (internal quotation\n\nmarks omitted). Instead, “[u]nfair prejudice speaks to the capacity of some concededly\n\nrelevant evidence to lure the factfinder into declaring guilt on a ground different from proof\n\nspecific to the offense charged.” Id. at 327 (internal quotation marks omitted) (emphasis\n\nadded).\n\n The video evidence was highly probative of Tillmon’s role in the charged conduct\n\nand it specifically rebutted Tillmon’s defense that he did not understand the criminal nature\n\n\n In addition, the record readily explains the district court’s changed admissibility\nrulings. When the Government sought to introduce the exhibit in its case-in-chief, the court\nsustained Tillmon’s challenge to the ability of that witness to authenticate the recording.\nThe court’s decision to sustain Tillmon’s objection related solely to the foundation for its\nintroduction, not whether the recording was admissible on other grounds. By the time the\nGovernment later attempted to introduce the recording to rebut Tillmon’s defense, the\nfoundation for its accuracy had been resolved by intervening testimony. This time,\nTillmon’s objection to the recording’s admissibility was based on Rule 403, giving the\ndistrict court its first opportunity to rule on the admissibility of the recording on that\nground.\n 23\n\fof the underlying events and that he lacked the requisite intent to engage in criminal\n\nconduct. For instance, the recording demonstrated Tillmon’s admission to possessing a\n\nfirearm during the March 2015 transport; his receiving $2,500 for his participation in that\n\ntransport; and his familiarity and rapport with Tee, whom Tillmon believed to be part of\n\nthe DTO. All of these actions are specific to the charged offenses and directly relevant to\n\nthe jury’s determination of Tillmon’s culpability.\n\n Nor was the video unfairly prejudicial. Tillmon and Tee’s recorded conversation\n\nshowed the interactions between Tillmon and another purported member of the DTO in a\n\nway that the other evidence did not. Its probative value—particularly in light of Tillmon’s\n\ndefense that he lacked a culpable intent to engage in drug trafficking offenses—outweighed\n\nany minimal prejudice that arose from the subject matter of their conversation. Moreover,\n\nbecause the jurors also knew that Tee was actually an undercover agent, they knew that his\n\nside of the conversation was role-playing rather than implicating Tillmon in any actual\n\nviolent crime.\n\n For these reasons, the district court did not abuse its discretion in admitting the video\n\nevidence.\n\n F. Federal Programs Bribery (Counts 32, 36, and 54)\n\n Lastly, Tillmon appeals the district court’s denial of his motion for a judgment of\n\nacquittal with respect to the three charges of federal programs bribery, in violation of 18\n\nU.S.C. § 666(a)(1)(B) (Counts 32, 36, and 54).\n\n In relevant part, this statute prohibits individuals who are agents of a local\n\ngovernment agency from “accept[ing] . . . anything of value from any person, intending to\n\n 24\n\fbe influenced or rewarded in connection with any business, transaction, or series of\n\ntransactions of such . . . [government agency] . . . involving any thing of value of $5,000\n\nor more.” Id. § 666(a)(1)(B). As a threshold to liability under this statute, the Government\n\nmust demonstrate that the local government at issue “receive[d], in any one year period,\n\nbenefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy,\n\nloan, guarantee, insurance, or other form of Federal assistance.” § 666(b); see also id.\n\n§ 666(d)(5) (defining “in any one-year period”).\n\n Pointing to the amount he was paid for each individual transport, Tillmon asserts\n\nthe Government failed to proffer sufficient evidence to establish that his services to the\n\nfake DTO were worth at least $5,000. 6\n\n We have not previously considered § 666(a)(1)(B)’s requirement that charged\n\nconduct involve “any thing of value of $5,000 or more.” But the statutory language reveals\n\nthat this element requires proof of the value of whatever was exchanged for the bribe. See\n\n§ 666(a)(1)(B) (requiring that the business, transaction, or series of transactions of the\n\ngovernment agency “involve[d] any thing of value of $5,000 or more”). This has led our\n\nsister circuits to describe the requisite proof as identifying the value of the “subject matter”\n\nof the bribe. United States v. Robinson, 663 F.3d 265, 271–76 (7th Cir. 2011).\n\n The indictment charged Tillmon with accepting cash from the undercover agents\n\nposing as members of the DTO on each of the three transports, with each count\n\ncorresponding to one of the transports, and it identified the subject matter of each of the\n\n\n 6\n Tillmon challenges the sufficiency of the evidence on two other elements of the\noffenses as well, but for the reasons discussed, we need not address those arguments.\n 25\n\fthree bribes as “protecting shipments of purported narcotics.” J.A. 149, 153, 171. As we\n\nhave already recounted, the record depicted what that protection entailed: Tillmon was to\n\naccompany the drugs on a journey up the East Coast, drive or ride in one of the vehicles\n\ncontaining or accompanying the narcotics, and recite a cover story if the caravan was\n\nstopped. And once the drugs were delivered to another member of the DTO in Maryland,\n\nhe was paid—$2,000 in October 2014; $2,000 in December 2014; and $2,500 in March\n\n2015.\n\n Our sister circuits have recognized that one valid method of valuing an intangible,\n\nsuch as a service provided, is the amount of the bribe. E.g., United States v. Hardin, 874\n\nF.3d 672, 676 (10th Cir. 2017); United States v. Fernandez, 722 F.3d 1, 12–13 (1st Cir.\n\n2013) (rejecting the value of the bribe test in favor of the value of the “transaction” test but\n\nacknowledging that the bribe amount “may be relevant [evidence] in determining the value\n\nof the bribe’s objective” when “the subject matter of the bribe is a ‘thing of value’ without\n\na fixed price”); Robinson, 663 F.3d at 271, 275 (“Without excluding other possible\n\nmethods of valuation, we agree that the amount of the bribe may suffice as a proxy for\n\nvalue; at least it provides a floor for the valuation question.”). This approach is akin to\n\n“appraising” the service as an appraiser values a tangible asset—“by looking at how much\n\na person in the market would be willing to pay for” it. United States v. Marmolejo, 89 F.3d\n\n1185, 1194 (5th Cir. 1996).\n\n The Government properly recognizes that using the straightforward bribe-as-proxy\n\nmethod does not satisfy its burden in this case. The Government chose to charge Tillmon\n\nseparately for each of the three transports, meaning that the Government had the burden to\n\n 26\n\fprove that the value of his services on each of the individual transports was $5,000 or more.\n\nUnder the bribe-as-proxy method, the Government’s evidence is insufficient because\n\nTillmon’s aid on each transport was valued at less than $5,000 each time.\n\n Instead, the Government advances three arguments for what other evidence could\n\nhave been used to satisfy its burden: (1) that the amount of the bribes paid to the team as a\n\nwhole on each transport exceeded $5,000 (the “aggregation theory”); (2) that the market\n\nvalue of the drugs being trafficked on each transport exceeded $5,000 (the “market value\n\ntheory”); and (3) that the amount the Town of Windsor paid for public safety in each year\n\nat issue exceeded $5,000 (the “public safety theory”).\n\n Although the Government claims its aggregation theory is merely a variation on the\n\napproved bribes-as-proxy method, it is not the equivalent and we cannot use it here. The\n\nGovernment contends that the jury was permitted to aggregate the bribes paid to all of the\n\nteam members on a particular transport to arrive at the requisite $5,000. To be sure,\n\nemploying that method brings the dollar amount expended on each transport to more than\n\n$5,000. Fatally for the Government, however, the aggregation method does not arrive at an\n\namount that reflects the statutory obligation to produce evidence of the value of the subject\n\nmatter of the bribe charged in the indictment—that is, Tillmon’s “protecting shipments of\n\npurported narcotics.” J.A. 149, 153, 171. The aggregation method conflates the value of\n\nTillmon’s services to the DTO with the value of the team’s services to the DTO. The record\n\ndoes not permit the conclusion that Tillmon single-handedly provided services equal to the\n\namount paid to the team as a whole. And without such evidence demonstrating that\n\nTillmon’s services were worth that amount, the aggregation method is not an acceptable\n\n 27\n\fvaluation method. For these reasons, we reject the aggregation method as an appropriate\n\nvaluation method in this case.\n\n The Government’s proposed market value theory fares no better. As our sister\n\ncircuits have recognized, in some instances, it may be appropriate to look at the market\n\nvalue of the bribe from the perspective of the briber or an interested third party as a means\n\nof valuing the subject matter of the bribe. E.g., Fernandez, 722 F.3d at 15 (approving\n\nvaluation method for votes related to pending legislation by looking to the briber’s\n\nexpected financial gain flowing from the passage of that legislation); United States v.\n\nCurescu, 674 F.3d 735, 738, 741 (7th Cir. 2012) (approving valuation of a bribe given to\n\nfalsely certify that plumbing had been completed by a licensed plumber based on the\n\namount of money the briber did not have to pay a licensed plumber to perform the work);\n\nUnited States v. Hines, 541 F.3d 833, 837 (8th Cir. 2008) (using market value theory to\n\nvalue expedited eviction orders based on the savings to the property owners in avoiding\n\nthe costs typically incurred in eviction). But even then, in addition to evidence of something\n\nhaving value to the briber or a third party, the Government also must come forward with\n\nevidence “linking” that valued item to the services the defendant provided. See United\n\nStates v. Owens, 697 F.3d 657, 661 (7th Cir. 2012). To reiterate, the Government’s\n\nevidence must bear on the value of the subject matter of the bribe, and that obligation is\n\nnot satisfied with evidence of something “to which the subject matter of the bribe is\n\ntangentially related.” Id.\n\n In this case, the Government pointed to something of purported value to the briber—\n\nthe market value of the narcotics—but it failed to put forward any evidence linking that\n\n 28\n\fvalue to Tillmon’s protection of the caravan, the subject matter of the bribe. Specifically,\n\nthe Government relies on Lisa’s statement during the March 2015 transport that the team\n\nwas shipping a million dollars of heroin and argues that because Tillmon was hired to\n\nprotect a million-dollar transport on that occasion and to protect similar package quantities\n\nduring the other two transports, his services on each transport were worth a million dollars.\n\nThe Government then contends that the Court can infer from the evidence that the other\n\ntransports involved similar drug packages and that they also thereby satisfied the $5,000\n\nrequirement. That reasoning is flawed because no evidence in the record links the purported\n\nvalue of the drugs to the value of Tillmon’s protection services. As the record stands, the\n\ntwo are merely tangentially related. The Government could have attempted to provide\n\nevidence sufficient to create the necessary linkage in several ways. For example, it could\n\nhave offered evidence that trafficking organizations typically provide protection with a cut\n\nof the profits from eventual sales. Or it could have offered evidence that the cost of\n\nlegitimate protection for drug transports involving that amount of drugs costs real DTOs\n\n$5,000 or more. But the Government offered no such evidence. In fact, it failed to introduce\n\nany evidence allowing the inference that the value of Tillmon’s services was connected to\n\nthe value of the drugs. Thus, the Government’s market value theory lacks any evidentiary\n\nbasis.\n\n The Government’s third argument, the public safety theory of valuation, can be\n\ndisposed of quickly. For the first and only time in this appeal, the Government mentions in\n\na single sentence of its Response Brief that the $5,000 value of Tillmon’s services could\n\nbe measured based on the Town of Windsor’s annual public safety budget. Setting aside\n\n 29\n\fany concerns regarding the timeliness and adequacy of the Government’s argument, we\n\nobserve that Windsor’s entire public safety budget is unrelated to and would vastly\n\noverstate the value of Tillmon’s services to the DTO. As such, it would be an improper\n\nmeasure of the subject matter of the bribe.\n\n In sum, the Government failed to produce evidence from which a jury could find\n\nthat Tillmon’s services to the DTO had a value of $5,000 or more. Though the Government\n\nmight have satisfied this requirement in several ways, it failed to introduce any evidence\n\nother than the amount Tillmon was paid as a bribe to establish that the value of his\n\nprotection services were worth at least $5,000. And in the absence of evidence to support\n\nthat element of the offense, Tillmon’s convictions for federal programs bribery, Counts 32,\n\n36, and 54, cannot stand and we vacate each of these convictions.\n\n\n\n IV. Conclusion\n\n For the reasons explained above, we affirm Tillmon’s convictions on the drug\n\ntrafficking and firearms offenses (Counts 1, 2, 48, and 49), but we vacate Tillmon’s\n\nconvictions for federal programs bribery (Counts 32, 36, and 54).\n\n As the parties agree, the record shows that Tillmon’s sentence cannot be affected by\n\nthe vacation of his federal programs bribery convictions. After calculating Tillmon’s\n\nGuidelines range, the district court imposed a downward variant sentence of 180 months’\n\nimprisonment—120 months to run concurrently on Counts 1, 2, 48, 32, 36, and 54; and 60\n\nmonths to run consecutively on Count 49. Vacating Tillmon’s federal programs bribery\n\nconvictions does not change his sentence, which is still 120 months’ imprisonment for\n\n 30\n\fCounts 1, 2, and 48, to run concurrently with each other, and 60 months’ mandatory\n\nminimum imprisonment for Count 49, to run consecutively to the others. Because 120\n\nmonths is the statutory mandatory minimum sentence for the drug trafficking conspiracy\n\n(Count 1) and attempted possession (Count 48) convictions, Tillmon cannot be sentenced\n\nto a lower term of imprisonment on the part of the sentence that was running concurrently\n\nwith his sentence for the now-vacated federal programs bribery convictions. Similarly,\n\nTillmon’s consecutive sentence for Count 49 must continue to run consecutively to the\n\nother term of imprisonment. As such, we need not remand for resentencing.\n\n AFFIRMED IN PART\n AND VACATED IN PART\n\n\n\n\n 31\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Antonio Tillmon\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-4648\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nANTONIO TILLMON,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the Eastern District of North Carolina, at\\nElizabeth City. Malcolm J. Howard, Senior District Judge. (2:15-cr-00009-H-9)\\n\\n\\nArgued: October 31, 2018 Decided: February 26, 2019\\n\\n\\nBefore NIEMEYER, AGEE and DIAZ, Circuit Judges.\\n\\n\\nAffirmed in part and vacated in part by published opinion. Judge Agee wrote the opinion,\\nin which Judge Niemeyer and Judge Diaz joined.\\n\\n\\nARGUED: Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina, for\\nAppellant. Banumathi Rangarajan, OFFICE OF THE UNITED STATES ATTORNEY,\\nRaleigh, North Carolina, for Appellee. ON BRIEF: Kelly Margolis Dagger, ELLIS &\\nWINTERS LLP, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United\\nStates Attorney, Jennifer P. May-Parker, Acting First Assistant United States Attorney,\\nBarbara D. Kocher, Assistant United States Attorney, OFFICE OF THE UNITED\\nSTATES ATTORNEY, Raleigh, North Carolina, for Appellee.\\n\\fAGEE, Circuit Judge:\\n\\n After being caught in a sting operation aimed at exposing corrupt law enforcement\\n\\nofficers, Antonio Tillmon was convicted by a jury on multiple counts: conspiracy to\\n\\ncommit drug trafficking, conspiracy to use firearms while drug trafficking, attempted\\n\\npossession of heroin with intent to distribute, using or carrying a firearm while drug\\n\\ntrafficking, and three counts of federal programs bribery. On appeal, Tillmon challenges\\n\\nthe district court’s denial of his motion for a judgment of acquittal as to these offenses and\\n\\nits admission of a video-recorded conversation between Tillmon and an undercover agent.\\n\\nFor the reasons discussed below, we affirm the conspiracy, attempted possession and\\n\\nfirearms convictions, but vacate the federal programs bribery convictions.\\n\\n\\n\\n I.\\n\\n Tillmon’s prosecution arose from a multi-year FBI investigation into reports of law\\n\\nenforcement corruption in the counties of Northampton and Halifax, North Carolina. 1 This\\n\\ninvestigation, “Operation Rockfish,” began in 2013 after the FBI received information that\\n\\nLann Clanton, a police officer with the Weldon, North Carolina, Police Department, was\\n\\ninvolved in criminal activity. Operation Rockfish consisted of undercover agents posing as\\n\\nmembers of a transnational drug trafficking organization (“DTO”) that transported\\n\\nkilograms of heroin and cocaine to New York City. Part of the DTO’s strategy was\\n\\n\\n\\n\\n 1\\n We recite the facts established at trial in the light most favorable to the\\nGovernment. United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).\\n 2\\n\\f“specifically tr[ying] to recruit law enforcement officers for their ability to badge their way\\n\\nout of legitimate traffic stops by other law enforcement officers.” J.A. 406.\\n\\n The FBI established a “general template” for the DTO, setting up a warehouse to\\n\\nprepare “cocaine” and “heroin” for shipment by storing those drugs in hidden\\n\\ncompartments of vehicles. J.A. 412. No real drugs were used, but a lookalike substance\\n\\nwas packaged to “look like kilograms of illegal drugs that had been seized in other\\n\\ninvestigations.” J.A. 411. Ten one-kilogram packages were color-coded to identify the type\\n\\nof drug each package purportedly contained. Once the packages were loaded into a vehicle\\n\\nfor transport (“the load vehicle”), team members rode in that vehicle, a scout vehicle that\\n\\ndrove ahead of it, and a rear guard vehicle that drove behind it.\\n\\n Once the ersatz DTO was operational, the FBI used a confidential informant to let\\n\\nClanton know about its existence. Clanton then contacted the DTO, where his first\\n\\nassignment was to recruit law enforcement officers to implement the DTO’s cover strategy.\\n\\nClanton’s first recruit was Ikeisha Jacobs, another member of the Weldon Police\\n\\nDepartment. Clanton and Jacobs then enlisted other current and former law enforcement\\n\\nand correctional officers to join their teams.\\n\\n Jacobs recruited Tillmon, a former coworker, for her team. At the time he was\\n\\nrecruited to the DTO, Tillmon was a police officer with the Windsor, North Carolina,\\n\\nPolice Department. On August 19, 2014, Jacobs invited Tillmon to join her and other team\\n\\nmembers for a preparatory meeting. The gathering included Jacobs, two undercover FBI\\n\\nagents (John and Lisa), and four new recruits (Adrienne Moody, Alaina Sue-Kam-Lang,\\n\\nCrystal Pierce, and Tillmon). During the meeting, the undercover agents and Jacobs\\n\\n 3\\n\\fdescribed the plan for the next day’s transport and explained the DTO’s reason for using\\n\\nlaw enforcement officers. They gave the team members a cover story to use if police\\n\\nstopped them during the transport: they were transporting a vehicle that had been sold out\\n\\nof state. During the meeting, one undercover agent asked whether the recruits carried guns.\\n\\nTillmon indicated that he would carry his gun. Toward the end of the meeting, the agents\\n\\ntold the recruits that they did not have to participate in the operation if they wanted out.\\n\\n The next morning (“the August 2014 transport”), Tillmon picked up Jacobs and Sue-\\n\\nKam-Lang before driving to a prearranged rendezvous point where they met Lisa and other\\n\\nteam members. They all then drove to a warehouse in Rocky Mount, North Carolina. Upon\\n\\narrival, Tillmon helped move a large white cooler from one area of the warehouse to the\\n\\nback of the load vehicle, a white GMC Acadia. One of the undercover agents, Paul, pulled\\n\\nout ten packages from underneath the ice and drinks in the cooler, counted them, and put\\n\\nthem on the ground. Paul handed the packages to John, another agent, who was underneath\\n\\nthe Acadia putting the packages into a hidden compartment. Tillmon never touched the\\n\\npackages, but he watched as they were loaded into the compartment in plain view of him\\n\\nand the other team members. 2 While standing behind the vehicle, Lisa explained to Tillmon\\n\\nthat they were “starting to move H.” J.A. 591–92. Lisa testified at trial that by “H” she\\n\\nmeant “heroin,” though she did not clarify her meaning to the team members at the time.\\n\\n After the packages were stored in the Acadia, it and two other vehicles caravanned\\n\\nto National Harbor in Maryland. Jacobs drove the load vehicle, two team members drove\\n\\n\\n 2\\n The trial evidence shows that Tillmon did not touch, handle, or assist in loading\\nthe staged packages into the vehicles during any of the events described.\\n 4\\n\\fthe scout vehicle, and Tillmon and Sue-Kam-Lang followed as the rear guard. When they\\n\\narrived at National Harbor, the team members met “Tee,” another undercover agent who\\n\\nwas posing as the supervisor of that portion of the route. Tee and the team boarded an\\n\\nenclosed car of a Ferris wheel, where Tee paid each member of the group. Tillmon received\\n\\n$2,000 and then returned to North Carolina.\\n\\n In October 2014 (“the October 2014 transport”), Jacobs and Tillmon rode together\\n\\nto the Rocky Mount warehouse. While waiting for drugs to be loaded into the hidden\\n\\ncompartment of the load vehicle, Tillmon was shown a fake bill of sale that would back\\n\\ntheir cover story. This time, Tillmon drove the load vehicle to the parking lot of an outlet\\n\\nmall in Maryland. He then got into a large van, where Tee paid him and the other team\\n\\nmembers. Tee paid Tillmon $2,000.\\n\\n In March 2015 (“the March 2015 transport”), Jacobs asked Tillmon to join her a\\n\\nthird time. When Tillmon arrived at the Rocky Mount warehouse, the agents had a pickup\\n\\ntruck staged with packages of drugs laid out in plain view on the tailgate. The team\\n\\nmembers, including Tillmon, walked by the back of the truck as they entered the\\n\\nwarehouse’s office. Inside, Lisa asked everyone if they had guns; after Sue-Kam-Lang\\n\\nindicated that she did not have a gun, Tillmon gave her one of his extra guns.\\n\\n The team exited the office and went back into the main part of the warehouse. As\\n\\nthe drugs were being loaded into the hidden compartment of the vehicle, Lisa said, “you\\n\\nguys got to be carrying from now on . . . a million dollars of heroin, you can’t f[***] around\\n\\nwith that.” Supp. J.A. 1625 at 12:47:16–47:24. She was within three feet of Tillmon as she\\n\\nspoke.\\n\\n 5\\n\\f After the drugs were loaded, the team departed, with Tillmon and Jacobs driving the\\n\\nrear guard vehicle. After the team left the load vehicle at a carport in Maryland, they met\\n\\nTee at the same outlet mall parking lot as in October. Each member entered Tee’s vehicle\\n\\nseparately, where they were paid. As Tillmon was paid $2,500, Tee asked him if he was\\n\\ncarrying a gun, and Tillmon confirmed he was. Then Tee indicated he was interested in\\n\\ngetting a small firearm. Tillmon responded, “What [do] you need?” and Tee said he wanted\\n\\n“a thirty-eight (.38), something small, a revolver that don’t need no shells, know what I\\n\\nmean?” J.A. 1402. Tillmon recommended a few firearms that would meet Tee’s need to\\n\\n“just walk right up on ‘em and keep rolling” and “boom-boom and then throw that s[***]\\n\\naway and [not worry] about it no more.” J.A. 1403–04. Tee asked Tillmon to let him know\\n\\nif he heard of anything available, and Tillmon replied, “Okay . . . . We’ll talk.” J.A. 1404.\\n\\nTillmon exited Tee’s vehicle and returned to North Carolina.\\n\\n In April 2015, Jacobs asked Tillmon to join her again. When they arrived at the\\n\\nRocky Mount warehouse, the undercover agents arrested them. At the time of his arrest,\\n\\nTillmon had in his possession his badge, his Windsor police identification, four semi-\\n\\nautomatic pistols, a .223 caliber rifle, and ammunition for each of the guns. 3\\n\\n A grand jury indicted Tillmon and fourteen others, including Clanton and Jacobs,\\n\\nin a fifty-four count indictment. Tillmon was charged in ten of the counts. All other\\n\\ndefendants negotiated guilty pleas, but Tillmon pleaded not guilty and invoked his right to\\n\\na jury trial on all charges: (1) one count of conspiracy to distribute and possess with intent\\n\\n\\n 3\\n These items, all of which belonged to Tillmon, were found on his person, in his\\nbag, and in Moody’s vehicle, in which he had come to the warehouse.\\n 6\\n\\fto distribute controlled substances, namely heroin and cocaine, in violation of 21 U.S.C.\\n\\n§§ 841(a)(1), 846 (Count 1); (2) one count of conspiracy to use firearms during and in\\n\\nrelation to a drug trafficking offense, in violation of 18 U.S.C. § 924(o) (Count 2); (3) three\\n\\ncounts of attempted possession with intent to distribute heroin, in violation of 21 U.S.C.\\n\\n§§ 841(a)(1), 841(b)(1)(A)(i), 846, and 18 U.S.C. § 2, corresponding to the three transports\\n\\n(August 2014, Count 28; October 2014, Count 33; and March 2015, Count 48); (4) two\\n\\ncounts of use and carry of a firearm during and in relation to a drug trafficking crime, in\\n\\nviolation of 18 U.S.C. §§ 2, 924(c)(1)(A), corresponding to two of the transports (October\\n\\n2014, Count 34; and March 2015, Count 49); and (5) three counts of federal programs\\n\\nbribery, in violation of 18 U.S.C. § 666(a)(1)(B), corresponding to each transport (August\\n\\n2014, Count 32; October 2014, Count 36; and March 2015, Count 54).\\n\\n At trial, the Government argued that Tillmon conspired with other law enforcement\\n\\nofficers to use their badges and firearms to assist in transporting a substance they believed\\n\\nto be heroin out of North Carolina. Because the entire DTO was a sting operation that had\\n\\nbeen captured in video and audio recordings, the Government introduced into evidence the\\n\\nrecordings of the preparatory meeting in August 2014 and the interactions at the Rocky\\n\\nMount warehouse on each transport day.\\n\\n At the close of the Government’s evidence, Tillmon moved for a judgment of\\n\\nacquittal on all counts under Federal Rule of Criminal Procedure 29. The district court\\n\\ndenied the motion on all but one count, granting the motion as to the charge of attempted\\n\\npossession with intent to distribute heroin based on the August 2014 transport. The district\\n\\ncourt reasoned that there was insufficient evidence to support the charge because it was\\n\\n 7\\n\\fbased solely on Lisa’s reference to “H,” and while she was “probably” talking about\\n\\nheroin, there was no evidence that anyone specifically identified the substance as heroin.\\n\\nJ.A. 1057.\\n\\n Tillmon’s defense centered on his contention that he did not have the requisite intent\\n\\nor knowledge to commit the crimes. For example, Tillmon testified that he did not recall\\n\\nany discussion of his police badge or identification card at the preparatory meeting and that\\n\\nhe did not realize he had a job during the transports or that he would be paid for that job.\\n\\nHe further testified that he did not hear or misheard Lisa’s statements at the Rocky Mount\\n\\nwarehouse about transporting heroin. Tillmon stated that he did not have any understanding\\n\\nof what was happening, only that others were loading something into a vehicle to be\\n\\ndelivered to Maryland.\\n\\n During Tillmon’s cross-examination, the Government introduced—over Tillmon’s\\n\\nobjection—a video recording of the conversation between Tillmon and Tee from the March\\n\\n2015 transport in which Tee requested Tillmon’s assistance in procuring a small-caliber\\n\\nfirearm. Tillmon argued that the recording was unfairly prejudicial because it implicated\\n\\nhim in uncharged violent crimes. The district court overruled the objection, concluding that\\n\\nany prejudicial effect was overridden by the fact that the video showed there was “a clear\\n\\nrelationship and friendship” between Tee and Tillmon. J.A. 1001.\\n\\n The jury found Tillmon guilty on the remaining nine counts. After the verdict,\\n\\nTillmon renewed his motion for a judgment of acquittal, or, in the alternative, for a new\\n\\ntrial. The district court denied the motions as to all but two counts, granting the motion for\\n\\na judgment of acquittal only with respect to the attempted possession with intent to\\n\\n 8\\n\\fdistribute heroin and corresponding firearm conviction arising from the October 2014\\n\\ntransport (Counts 33 and 34). 4 The district court observed that sufficient evidence\\n\\nsupported the jury’s decision to convict on the conspiracy charges (Counts 1 and 2),\\n\\nattempted possession charge (Count 48), and firearm charge (Count 49), largely based on\\n\\nLisa’s reference to the “million dollars[’] worth of heroin” that Tillmon received payment\\n\\nfor accompanying to Maryland during the March 2015 transport. J.A. 1527. Further, and\\n\\nin relevant part, the district court concluded sufficient evidence supported the three federal\\n\\nprograms bribery convictions (Counts 32, 36, and 54) because the record showed Tillmon\\n\\nand his co-defendants collectively received more than $5,000 for each transport and he was\\n\\ntold he was transporting drugs valued at more than a million dollars.\\n\\n Tillmon’s sentencing was affected by two statutory mandatory minimums. Because\\n\\nthe jury attributed at least 1 kilogram of heroin to Tillmon, the two drug offenses (Counts\\n\\n1 and 32) carried a statutory mandatory minimum of 120 months’ imprisonment. See 21\\n\\nU.S.C. § 841(b)(1)(A)(i). In addition, the firearm conviction carried a mandatory minimum\\n\\nsentence of 60 months’ imprisonment that must be served consecutively to any other\\n\\nsentence. 18 U.S.C. § 924(c)(1)(A) (stating that a term of imprisonment of “not less than 5\\n\\n\\n\\n\\n 4\\n The district court explained that the Government had not introduced evidence of\\nTillmon’s specific intent to transport heroin, as the indictment charged in Count 33.\\nSpecifically, none of the recordings regarding the October 2014 transport referenced the\\ntype of drugs supposedly being transported even though they showed the staged packages\\nbeing loaded into the load vehicle’s fake compartment, and one of the undercover agents\\nhad testified that she thought that substance transported during this transport was supposed\\nto be cocaine. The Government has not cross-appealed the Court’s decision and thus\\nCounts 33 and 34 are not directly at issue on appeal.\\n 9\\n\\fyears” for the possession offense “shall” be imposed “in addition to the punishment\\n\\nprovided for such . . . drug trafficking crime”).\\n\\n Although the district court calculated Tillmon’s Guidelines range to be 188 to 235\\n\\nmonths’ imprisonment for all but the firearm-possession conviction, it granted Tillmon’s\\n\\nrequest for a downward variance to the statutory mandatory minimums. Accordingly, the\\n\\ndistrict court sentenced Tillmon to 180 months’ imprisonment consisting of 120 months’\\n\\nimprisonment for the conspiracy, attempted possession, and federal programs bribery\\n\\noffenses (Counts 1, 2, 32, 36, 48, and 54), to be served concurrently, and 60 months’\\n\\nimprisonment for the firearm offense (Count 49), to be served consecutively to the sentence\\n\\non the other counts.\\n\\n Tillmon noted a timely appeal, and this Court has jurisdiction pursuant to 28 U.S.C.\\n\\n§ 1291.\\n\\n\\n\\n II.\\n\\n Tillmon appeals the denial of his renewed motion for a judgment of acquittal on all\\n\\nseven remaining counts. First, he argues the evidence was insufficient to show his intent to\\n\\nengage in the drug trafficking offenses, and that if those charges are vacated, then the\\n\\nfirearms charges must also be vacated. Second, he contends that even if the convictions\\n\\nstand, the evidence was insufficient to show that the drug crimes involved more than 1\\n\\nkilogram of heroin, so he should not have been subjected to an enhanced sentencing range.\\n\\nThird, Tillmon challenges the district court’s admission of the video evidence from the\\n\\nMarch 2015 transport on the basis that it was cumulative and unfairly prejudicial. Fourth\\n\\n 10\\n\\fand lastly, he contends the evidence was insufficient to support several elements of the\\n\\nfederal programs bribery charges. We address each argument in turn.\\n\\n The Court reviews de novo the district court’s denial of a Rule 29 motion for a\\n\\njudgment of acquittal. United States v. Reed, 780 F.3d 260, 269 (4th Cir. 2015). A\\n\\ndefendant challenging the sufficiency of the evidence “bears a heavy burden.” United\\n\\nStates v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal citation marks omitted).\\n\\nThe Court reviews whether there is “substantial evidence . . . to support the jury verdict,”\\n\\nUnited States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984) (internal quotation marks\\n\\nomitted), meaning that, to reverse, the record must “demonstrate[] a lack of evidence from\\n\\nwhich a jury could find guilt beyond a reasonable doubt,” United States v. Burgos, 94 F.3d\\n\\n849, 862 (4th Cir. 1996). Significantly, the jury—not this Court—“weighs the credibility\\n\\nof the evidence and resolves any conflicts in the evidence presented” when such\\n\\ndeterminations need to be made. Id.\\n\\n The Court reviews the district court’s evidentiary decisions for abuse of discretion.\\n\\nUnited States v. Basham, 561 F.3d 302, 325 (4th Cir. 2009). We “will not vacate a\\n\\nconviction unless we find that the district court judge acted arbitrarily or irrationally in\\n\\nadmitting evidence.” Id. at 326 (internal quotation marks omitted).\\n\\n\\n\\n III.\\n\\n A. Attempted Heroin Possession in March 2015 (Count 48)\\n\\n Because our consideration of the attempted possession offense facilitates review of\\n\\nthe conspiracy and firearms convictions, we begin with it. Tillmon argues that the\\n\\n 11\\n\\fGovernment did not put forward sufficient evidence to establish the necessary mens rea to\\n\\nsupport his conviction.\\n\\n It is a federal crime to “knowingly or intentionally . . . possess with intent to . . .\\n\\ndistribute . . . a controlled substance” like heroin. 21 U.S.C. § 841(a), (b)(1)(A)(i). A\\n\\nconviction for an attempt to commit this offense, see 21 U.S.C. § 846, “punishes conduct\\n\\nthat puts in motion events that would, from the defendant’s point of view, result in the\\n\\ncommission of a crime but for some intervening circumstance.” United States v. Pratt, 351\\n\\nF.3d 131, 135 (4th Cir. 2003). To convict Tillmon of the charged offense, the Government\\n\\nhad to prove\\n\\n that (1) [Tillmon] had the requisite intent to commit a crime; (2) [he]\\n undertook a direct act in a course of conduct planned to culminate in his\\n commission of the crime; (3) the act was substantial, in that it was strongly\\n corroborative of [his] criminal purpose; and (4) the act fell short of the\\n commission of the intended crime due to intervening circumstances.\\n\\nId.\\n\\n In rejecting Tillmon’s renewed motion for a judgment of acquittal, the district court\\n\\nconcluded the evidence was sufficient on each element. Specifically, it observed that Lisa\\n\\npointed to the staged packages being loaded into the vehicle and said that the team was\\n\\ntransporting a million dollars’ worth of heroin. Then, Tillmon followed the load vehicle to\\n\\nMaryland, providing protection during the transport.\\n\\n Tillmon argues that this evidence was insufficient to demonstrate that he attempted,\\n\\nor aided or abetted the attempt, to possess with intent to distribute heroin in March 2015.\\n\\nHe argues that Lisa’s comment about the value of the heroin does not show that he heard\\n\\nher statement or that he believed the group was trafficking heroin. Tillmon also argues that\\n\\n 12\\n\\fthere was no evidence that he exhibited guilty knowledge because he was not shown a\\n\\nsubstance that looked or felt like heroin, nor was there evidence that he directly handled\\n\\nthe packages or saw their contents. Additionally, Tillmon asserts that he did not take a\\n\\nsubstantial step towards completion of the offense that strongly corroborated an intent to\\n\\npossess with the intent to distribute heroin. He argues that neither his presence at the\\n\\nwarehouse nor his driving from Rocky Mount to Maryland with the team proves a specific\\n\\nintent to possess with the intent to distribute heroin. Consequently, Tillmon contends, the\\n\\njury did not have the evidence necessary to convict him.\\n\\n We disagree with Tillmon. To say that he lacked intent and was “a mere passive\\n\\nobserver of these goings-on, would defy reason.” See United States v. McLamb, 985 F.2d\\n\\n1284, 1292 (4th Cir. 1993). At a minimum, the following evidence shows Tillmon’s\\n\\nculpable intent: (1) he had basic law enforcement drug trafficking training; (2) the fake\\n\\nheroin was packaged in a manner commonly used to traffic controlled substances; (3) the\\n\\nstaged packages were in plain view of Tillmon before and while it was secreted into a\\n\\nhidden compartment of the load vehicle; (4) while standing about three feet from Tillmon,\\n\\nLisa pointed to the staged packages and said that the team was moving heroin valued at a\\n\\nmillion dollars; (5) two vehicles accompanied the load vehicle and each team member was\\n\\npaid thousands of dollars for accompanying the shipment; and (6) Tillmon not only\\n\\npossessed a firearm for his own use, but also loaned a team member a second firearm\\n\\nbecause they all had been instructed to carry firearms. From these facts, a jury could\\n\\nreasonably conclude that Tillmon had the requisite intent to attempt to possess heroin with\\n\\nthe intent to distribute it.\\n\\n 13\\n\\f We also reject Tillmon’s contention that the evidence does not show that his conduct\\n\\nconstituted an “attempt” to commit the completed act of possession because he did not take\\n\\nat least one act calculated to culminate in the completed offense. To the contrary, Tillmon\\n\\ncompleted the offense and the only circumstance that prevented the Government from\\n\\ncharging Tillmon with actual possession of heroin was that the substance at issue involved\\n\\nfake heroin instead of real heroin. This was not a case in which some intervening act early\\n\\nin the planning prevented Tillmon and his co-conspirators from completing their intended\\n\\nactivity. Rather, they successfully transported the fake substance from North Carolina to\\n\\nMaryland. And Tillmon willingly participated in doing so—even after Lisa commented in\\n\\nthe warehouse that the staged packages contained heroin and Tillmon watched the team\\n\\nmembers stash the packages in the load vehicle, he took his place in the vehicle caravan,\\n\\nescorted the packages to Maryland, and accepted payment for his part in the scheme.\\n\\n Tillmon’s arguments misapply the relevant appellate standards. Some of his\\n\\ncontentions ask the Court to assume the role of the jury and revisit credibility\\n\\ndeterminations to decide between competing evidence. However, the jury was not required\\n\\nto believe Tillmon’s defense that he did not understand what the packages were and that\\n\\nhe did not hear Lisa’s reference to moving heroin. E.g., Burgos, 94 F.3d at 862 (“[T]he\\n\\njury, not the reviewing court, weighs the credibility of the evidence and resolves any\\n\\nconflicts in the evidence presented, and if the evidence supports different, reasonable\\n\\ninterpretations, the jury decides which interpretation to believe.” (internal quotation marks\\n\\nomitted)).\\n\\n\\n\\n 14\\n\\f Some of Tillmon’s arguments ask us to attach only benign, if not nonsensical,\\n\\nmeaning to his “presence” at the warehouse and in the transport. But we have previously\\n\\nrecognized that presence during obvious criminal activity is relevant to the analysis in a\\n\\npossession offense. E.g., id. at 869 (citing United States v. Figueroa, 720 F.2d 1239, 1246\\n\\n(11th Cir. 1983) for the proposition that “when the circumstances surrounding a person’s\\n\\npresence at the scene of conspiratorial activity are so obvious[, the] knowledge of its\\n\\ncharacter can fairly be attributed to him”). Here, Tillmon participated in the transport after\\n\\nLisa pointed to the packages and stated that they contained a million dollars of heroin. He\\n\\nloaned a team member a firearm for protection during the transport and then accepted\\n\\n$2,500 for his “presence.” Although Tillmon never touched the packages himself, his role\\n\\nin the transport was more than that of “a mere passive observer.” See McLamb, 985 F.2d\\n\\nat 1292. And the jury was entitled to conclude that Tillmon believed the staged packages\\n\\nwere heroin being transported for distribution, and that he possessed those packages\\n\\nthrough his role as a hired guard during the transport of those packages from North Carolina\\n\\nto Maryland. See Pratt, 351 F.3d at 136–37 (recognizing that a person’s criminal role in a\\n\\npossession with intent to distribute offense can take various forms).\\n\\n Lastly, to the extent that Tillmon argues that the district court’s dismissal of the\\n\\nother attempted possession counts supports dismissal of this count, he ignores the specific\\n\\ncircumstances surrounding the district court’s decisions. The dismissals of the other counts\\n\\nwere not based on a broad assessment of lack of evidence of his intent, but rather on narrow\\n\\nevidentiary gaps in the Government’s case. All three attempted possession with intent to\\n\\ndistribute counts alleged not just the baseline offense set out in 18 U.S.C. § 841(a)(1), but\\n\\n 15\\n\\falso the aggravated possession with intent to distribute offense for a violation involving\\n\\nmore than one kilogram of heroin, see § 841(b)(1)(A)(i). See also United States v. Collins,\\n\\n415 F.3d 304, 312–14 (4th Cir. 2005) (discussing the difference between the baseline\\n\\noffense and aggravated offense); United States v. Promise, 255 F.3d 150, 152 (4th Cir.\\n\\n2001) (en banc) (holding that, in light of Apprendi, § 841(b)(1)(A) sets out elements of an\\n\\naggravated drug trafficking offense that must be found by a jury rather than constituting\\n\\nmere sentencing factors). The baseline offense does not require proof of the drug type and\\n\\nweight; in relevant part, it requires only that the defendant knowingly possessed a\\n\\ncontrolled substance of some kind. United States v. Ali, 735 F.3d 176, 186–88 (4th Cir.\\n\\n2013) (holding that while 21 U.S.C. § 841(a)(1) “requires specific intent to distribute a\\n\\ncontrolled substance or to possess with intent to distribute a controlled substance, it does\\n\\nnot require that the defendant have, within that intent, specific knowledge of the controlled\\n\\nsubstance[.]”). To convict Tillmon of the aggravated offense, however, the Government\\n\\nhad to introduce proof that Tillmon’s § 841(a)(1) violation involved at least one kilogram\\n\\nof heroin. See § 841(b)(1)(A) (stating that the enhanced penalties apply if “any person . . .\\n\\nviolates subsection (a)” and that violation “involv[ed]” the type and quantity of drugs\\n\\nlisted). At trial, the Government urged the district court not to dismiss the attempted\\n\\npossession counts relating to the August and October 2014 transports because there was\\n\\nsufficient evidence to convict Tillmon of the aggravated charges involving heroin. For\\n\\nreasons not readily apparent in the record, it did not rely on the fallback position that even\\n\\nif the evidence did not prove the aggravated offense elements, it was nonetheless sufficient\\n\\nto convict Tillmon of the attempted § 841(a)(1) baseline offense. The district court in turn\\n\\n 16\\n\\fdismissed the counts based on the August 2014 and December 2014 transports because of\\n\\ninsufficient evidence to conclude that Tillmon believed the staged packages were heroin,\\n\\nas opposed to some other controlled substance. By contrast, no such gap exists with respect\\n\\nto the March 2015 evidence. In the warehouse just prior to that transport, Lisa specifically\\n\\nreferred to the packages as heroin while in Tillmon’s immediate presence.\\n\\n For these reasons, the district court did not err in denying Tillmon’s renewed motion\\n\\nfor a judgment of acquittal on Tillmon’s conviction for attempted possession with intent to\\n\\ndistribute heroin in March 2015.\\n\\n B. Drug Trafficking Conspiracy (Count 1)\\n\\n Tillmon also appeals the district court’s denial of his renewed motion for a judgment\\n\\nof acquittal with respect to his conviction for conspiracy to distribute and possess with\\n\\nintent to distribute controlled substances, namely heroin and cocaine, in violation of 21\\n\\nU.S.C. §§ 841(a)(1), 846 (Count 1). He contends the record contains insufficient evidence\\n\\nof his intent.\\n\\n To prove conspiracy to possess drugs with an intent to distribute, the Government\\n\\nmust establish that: “(1) an agreement to possess cocaine [and heroin] with intent to\\n\\ndistribute existed between two or more persons; (2) the defendant knew of the conspiracy;\\n\\nand (3) the defendant knowingly and voluntarily became a part of this conspiracy.” Burgos,\\n\\n94 F.3d at 857. Due to the clandestine nature of a conspiracy, the offense is often proved\\n\\nby circumstantial evidence and the context in which the circumstantial evidence is adduced.\\n\\nId. A conspiracy “may be inferred from a development and collocation of circumstances.”\\n\\nId. at 858 (internal quotation marks omitted). “Circumstantial evidence sufficient to\\n\\n 17\\n\\fsupport a conspiracy conviction need not exclude every reasonable hypothesis of\\n\\ninnocence, provided the summation of the evidence permits a conclusion of guilt beyond a\\n\\nreasonable doubt.” Id.\\n\\n The Government must establish proof of each element beyond a reasonable doubt.\\n\\nId. And although the Government must satisfy its burden of proving a connection between\\n\\nthe defendant and the conspiracy, it need not prove the defendant “knew the particulars of\\n\\nthe conspiracy.” Id. Instead, it is sufficient to show that the defendant joined “with an\\n\\nunderstanding of the unlawful nature thereof and willfully join[ed] in the plan on one\\n\\noccasion [even if] he played only a minor part.” Id. (internal quotation marks omitted).\\n\\n Tillmon’s arguments challenging his conviction on Count 1 mirror the arguments\\n\\nhe made regarding the attempted possession conviction. For example, he contends there\\n\\nwas no evidence to support that he knew about an agreement to possess with the intent to\\n\\ndistribute heroin, or that he agreed to join that endeavor. He asserts no one mentioned drug\\n\\ntrafficking at the preparatory meeting. Further, Tillmon asserts no evidence contradicts his\\n\\ntestimony that he did not hear Lisa’s reference to heroin during the March 2015 transport.\\n\\nHe points to the fact that he never saw a substance identified as heroin (because it was all\\n\\nin packages) and that he never touched the packages. And he points to his taking\\n\\nphotographs on one of the transports as proof that he lacked a criminal mindset.\\n\\n We disagree with Tillmon and do not need to add much to our preceding analysis\\n\\nrejecting his arguments regarding the attempted possession conviction. His arguments are\\n\\ngrounded primarily in reweighing the credibility of witnesses and choosing between\\n\\ndifferent interpretations of conflicting evidence, all of which is squarely in the province of\\n\\n 18\\n\\fthe jury and not reviewable on appeal. The rest of his arguments challenge minor details\\n\\nthat do not affect the substantial evidence recounted above showing that he knowingly and\\n\\nvoluntarily participated in an agreement to possess heroin and cocaine with the intent to\\n\\ndistribute. In sum, Tillmon met with both undercover agents and co-conspirators at the\\n\\npreparatory meeting; observed the Rocky Mount warehouse operations on three occasions\\n\\nin which staged packages of heroin or cocaine were loaded into the hidden compartment\\n\\nof a vehicle; was trained in drug trafficking techniques; participated in the August 2014,\\n\\nOctober 2014, and March 2015 transports along with other co-conspirators; heard Lisa\\n\\nrefer to the packages used during the March transport as “heroin”; and received $2,000\\n\\n(twice) and $2,500 (once) for his services related to these transports.\\n\\n To accept Tillmon’s arguments, the jury would have had to believe that he—a\\n\\ntrained law enforcement officer—did not know what was happening right in front of him.\\n\\nEven in cases involving defendants without Tillmon’s background and training, we have\\n\\nrecognized that jurors can find that defendants have the requisite knowledge and intent for\\n\\nparticipating in a drug trafficking offense based on their knowledge of circumstances that\\n\\nare “surreptitious and totally distinguishable from open and normal channels of business,”\\n\\nsuch as drugs packaged for transport and stashed in a hidden compartment of a vehicle. See\\n\\nAli, 735 F.3d at 188–89. The jury had all the more reason to find Tillmon responsible for\\n\\nsuch knowledge given his background and training. Further, the jury would have had to\\n\\nbelieve that Tillmon thought he was paid a total of $6,500 to accompany his friend Jacobs\\n\\non three innocent drives to Maryland so that he could, on one occasion, take photographs\\n\\nof the harbor. This conclusion, too, defies common sense. The substantial evidence in the\\n\\n 19\\n\\frecord, including audio and video recordings of the events the witnesses described,\\n\\nsupported the jury’s determination of guilt.\\n\\n For these reasons, the district court did not err in denying Tillmon’s motion for a\\n\\njudgment of acquittal with respect to the drug trafficking conspiracy (Count 1).\\n\\n C. Aggravated Offense Drug Weights (Counts 1 and 48)\\n\\n Tillmon argues that even if the evidence is sufficient to affirm his convictions for\\n\\nthe drug conspiracy and attempted possession offenses, he is at least entitled to\\n\\nresentencing because the evidence does not support the jury’s finding that his offenses\\n\\ninvolved at least one kilogram of heroin. Again, we disagree.\\n\\n As noted, while the baseline 21 U.S.C. § 841 offense does not require the\\n\\nGovernment to prove the quantity of the controlled substance at issue, it does provide for\\n\\nincreased penalties when certain threshold amounts are established. The “specific threshold\\n\\ndrug quantities [are] treated as elements of aggravated drug trafficking offenses, rather than\\n\\nas mere sentencing factors” and thus must be either admitted by the defendant or found by\\n\\na jury to be “reasonably foreseeable to the individual defendant.” United States v. Brooks,\\n\\n524 F.3d 549, 557–58 (4th Cir. 2008) (internal quotation marks omitted). Here, the\\n\\nGovernment had to prove beyond a reasonable doubt that Tillmon was responsible for “one\\n\\n(1) kilogram or more of heroin,” J.A. 118, the enhanced drug quantity charged in the\\n\\nindictment. See Promise, 255 F.3d at 156–57. Only then could Tillmon be properly\\n\\nsubjected to a mandatory minimum sentence of 10 years’ imprisonment and a statutory\\n\\nmaximum of life. 21 U.S.C. § 841(b)(1)(A)(i).\\n\\n\\n\\n 20\\n\\f Tillmon argues that the evidence did not allow the jury to find him responsible for\\n\\nan offense involving at least 1 kilogram of heroin. Specifically, he asserts the record lacked\\n\\nevidence that agents ever told him how many kilograms they expected him to transport,\\n\\nthat they ever mentioned the word “kilogram” or its variants, or that Tillmon knew how\\n\\nmuch heroin was in each package.\\n\\n Tillmon’s argument lacks merit. Trial evidence demonstrated the packages each\\n\\ncontained roughly one kilogram of fake drugs, consistent with the way drugs are commonly\\n\\npackaged for distribution. E.g., J.A. 544 (“Anybody who looks at one of those knows that’s\\n\\na brick or a kilo.”). In addition, testimony established that Tillmon had been trained in drug\\n\\ninterdiction as part of his law enforcement duties. Further, the record contained evidence\\n\\nthat ten staged packages were positioned in plain view of Tillmon as they were loaded into\\n\\nthe load vehicle, and each package weighed one kilogram. All told, this evidence is a\\n\\nsufficient basis for the jury to have found that Tillmon’s drug offenses involved at least\\n\\none kilogram of heroin. Therefore, the sentencing enhancement was proper and Tillmon\\n\\nwas properly subjected to a mandatory minimum sentence of 120 months’ imprisonment\\n\\nand a maximum term of life for his attempted possession (Count 48) and drug trafficking\\n\\nconspiracy (Count 1) convictions.\\n\\n D. Firearms Counts (Counts 2 and 49)\\n\\n Tillmon also appeals the district court’s denial of his motion for a judgment of\\n\\nacquittal with respect to his charges for conspiracy to use firearms during and in relation\\n\\nto a drug trafficking offense, in violation of 18 U.S.C. § 924(o) (Count 2), and use and\\n\\ncarry of a firearm during and in relation to a drug trafficking crime (attempted possession\\n\\n 21\\n\\fon March 2015), in violation of 18 U.S.C. §§ 2, 924(c)(1)(A) (Count 49). But Tillmon’s\\n\\nsole argument here is that because the evidence was insufficient to support the underlying\\n\\ndrug trafficking conspiracy (Count 1) and attempted possession with the intent to distribute\\n\\nheroin (Count 48) convictions, he is also entitled to a judgment of acquittal on the\\n\\ncorresponding firearms convictions. Put another way, Tillmon does not challenge that he\\n\\nconspired to use or carry a firearm as part of the drug trafficking conspiracy, or that he used\\n\\nor carried firearms during the March 2015 transport, only that he did not commit the\\n\\nunderlying drug offenses and so could not have committed the firearms offenses that\\n\\nrequired those predicates.\\n\\n Because the evidence is sufficient to affirm Tillmon’s convictions for the underlying\\n\\ndrug trafficking offenses, Tillmon’s argument fails. We therefore affirm his convictions\\n\\nfor the firearms conspiracy (Count 2) and using or carrying a firearm (Count 49).\\n\\n E. Admission of Video Recording\\n\\n Tillmon next contends that the district court committed reversible error in admitting\\n\\na video recording of his conversation with Tee while he was being paid for the March 2015\\n\\ntransport. Specifically, Tillmon asserts that the video improperly suggested that he was\\n\\ncomplicit in plotting a murder because Tee said he wanted a firearm to kill someone. 5 On\\n\\n\\n 5\\n Tillmon also argues the evidence was needlessly cumulative and suggests the\\ndistrict court’s decision is suspect because it had initially ruled the video inadmissible\\nduring the Government’s case-in-chief. Even if the evidence was cumulative of other\\nevidence in the record, that would not constitute reversible error on its own in this case.\\nRule 403 lists cumulativeness as a reason that a district court may decide to rule evidence\\ninadmissible; it does not bar evidence merely because it overlaps with prior evidence. See\\nFed. R. Evid. 403.\\n(Continued)\\n 22\\n\\fthat basis, Tillmon argues the recording was unfairly prejudicial and inadmissible under\\n\\nFederal Rule of Evidence 403.\\n\\n Rule 403 states that a district “court may exclude relevant evidence if its probative\\n\\nvalue is substantially outweighed by a danger of . . . unfair prejudice . . . or needlessly\\n\\npresenting cumulative evidence.” Fed. R. Evid. 403. “Rule 403 is a rule of inclusion,\\n\\ngenerally favoring admissibility.” United States v. Udeozor, 515 F.3d 260, 264–65 (4th\\n\\nCir. 2008) (internal quotation marks omitted). Specifically, we have said that when\\n\\nconsidering whether evidence is unfairly prejudicial, “damage to a defendant’s case is not\\n\\na basis for excluding probative evidence because evidence that is highly probative\\n\\ninvariably will be prejudicial to the defense.” Basham, 561 F.3d at 326 (internal quotation\\n\\nmarks omitted). Instead, “[u]nfair prejudice speaks to the capacity of some concededly\\n\\nrelevant evidence to lure the factfinder into declaring guilt on a ground different from proof\\n\\nspecific to the offense charged.” Id. at 327 (internal quotation marks omitted) (emphasis\\n\\nadded).\\n\\n The video evidence was highly probative of Tillmon’s role in the charged conduct\\n\\nand it specifically rebutted Tillmon’s defense that he did not understand the criminal nature\\n\\n\\n In addition, the record readily explains the district court’s changed admissibility\\nrulings. When the Government sought to introduce the exhibit in its case-in-chief, the court\\nsustained Tillmon’s challenge to the ability of that witness to authenticate the recording.\\nThe court’s decision to sustain Tillmon’s objection related solely to the foundation for its\\nintroduction, not whether the recording was admissible on other grounds. By the time the\\nGovernment later attempted to introduce the recording to rebut Tillmon’s defense, the\\nfoundation for its accuracy had been resolved by intervening testimony. This time,\\nTillmon’s objection to the recording’s admissibility was based on Rule 403, giving the\\ndistrict court its first opportunity to rule on the admissibility of the recording on that\\nground.\\n 23\\n\\fof the underlying events and that he lacked the requisite intent to engage in criminal\\n\\nconduct. For instance, the recording demonstrated Tillmon’s admission to possessing a\\n\\nfirearm during the March 2015 transport; his receiving $2,500 for his participation in that\\n\\ntransport; and his familiarity and rapport with Tee, whom Tillmon believed to be part of\\n\\nthe DTO. All of these actions are specific to the charged offenses and directly relevant to\\n\\nthe jury’s determination of Tillmon’s culpability.\\n\\n Nor was the video unfairly prejudicial. Tillmon and Tee’s recorded conversation\\n\\nshowed the interactions between Tillmon and another purported member of the DTO in a\\n\\nway that the other evidence did not. Its probative value—particularly in light of Tillmon’s\\n\\ndefense that he lacked a culpable intent to engage in drug trafficking offenses—outweighed\\n\\nany minimal prejudice that arose from the subject matter of their conversation. Moreover,\\n\\nbecause the jurors also knew that Tee was actually an undercover agent, they knew that his\\n\\nside of the conversation was role-playing rather than implicating Tillmon in any actual\\n\\nviolent crime.\\n\\n For these reasons, the district court did not abuse its discretion in admitting the video\\n\\nevidence.\\n\\n F. Federal Programs Bribery (Counts 32, 36, and 54)\\n\\n Lastly, Tillmon appeals the district court’s denial of his motion for a judgment of\\n\\nacquittal with respect to the three charges of federal programs bribery, in violation of 18\\n\\nU.S.C. § 666(a)(1)(B) (Counts 32, 36, and 54).\\n\\n In relevant part, this statute prohibits individuals who are agents of a local\\n\\ngovernment agency from “accept[ing] . . . anything of value from any person, intending to\\n\\n 24\\n\\fbe influenced or rewarded in connection with any business, transaction, or series of\\n\\ntransactions of such . . . [government agency] . . . involving any thing of value of $5,000\\n\\nor more.” Id. § 666(a)(1)(B). As a threshold to liability under this statute, the Government\\n\\nmust demonstrate that the local government at issue “receive[d], in any one year period,\\n\\nbenefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy,\\n\\nloan, guarantee, insurance, or other form of Federal assistance.” § 666(b); see also id.\\n\\n§ 666(d)(5) (defining “in any one-year period”).\\n\\n Pointing to the amount he was paid for each individual transport, Tillmon asserts\\n\\nthe Government failed to proffer sufficient evidence to establish that his services to the\\n\\nfake DTO were worth at least $5,000. 6\\n\\n We have not previously considered § 666(a)(1)(B)’s requirement that charged\\n\\nconduct involve “any thing of value of $5,000 or more.” But the statutory language reveals\\n\\nthat this element requires proof of the value of whatever was exchanged for the bribe. See\\n\\n§ 666(a)(1)(B) (requiring that the business, transaction, or series of transactions of the\\n\\ngovernment agency “involve[d] any thing of value of $5,000 or more”). This has led our\\n\\nsister circuits to describe the requisite proof as identifying the value of the “subject matter”\\n\\nof the bribe. United States v. Robinson, 663 F.3d 265, 271–76 (7th Cir. 2011).\\n\\n The indictment charged Tillmon with accepting cash from the undercover agents\\n\\nposing as members of the DTO on each of the three transports, with each count\\n\\ncorresponding to one of the transports, and it identified the subject matter of each of the\\n\\n\\n 6\\n Tillmon challenges the sufficiency of the evidence on two other elements of the\\noffenses as well, but for the reasons discussed, we need not address those arguments.\\n 25\\n\\fthree bribes as “protecting shipments of purported narcotics.” J.A. 149, 153, 171. As we\\n\\nhave already recounted, the record depicted what that protection entailed: Tillmon was to\\n\\naccompany the drugs on a journey up the East Coast, drive or ride in one of the vehicles\\n\\ncontaining or accompanying the narcotics, and recite a cover story if the caravan was\\n\\nstopped. And once the drugs were delivered to another member of the DTO in Maryland,\\n\\nhe was paid—$2,000 in October 2014; $2,000 in December 2014; and $2,500 in March\\n\\n2015.\\n\\n Our sister circuits have recognized that one valid method of valuing an intangible,\\n\\nsuch as a service provided, is the amount of the bribe. E.g., United States v. Hardin, 874\\n\\nF.3d 672, 676 (10th Cir. 2017); United States v. Fernandez, 722 F.3d 1, 12–13 (1st Cir.\\n\\n2013) (rejecting the value of the bribe test in favor of the value of the “transaction” test but\\n\\nacknowledging that the bribe amount “may be relevant [evidence] in determining the value\\n\\nof the bribe’s objective” when “the subject matter of the bribe is a ‘thing of value’ without\\n\\na fixed price”); Robinson, 663 F.3d at 271, 275 (“Without excluding other possible\\n\\nmethods of valuation, we agree that the amount of the bribe may suffice as a proxy for\\n\\nvalue; at least it provides a floor for the valuation question.”). This approach is akin to\\n\\n“appraising” the service as an appraiser values a tangible asset—“by looking at how much\\n\\na person in the market would be willing to pay for” it. United States v. Marmolejo, 89 F.3d\\n\\n1185, 1194 (5th Cir. 1996).\\n\\n The Government properly recognizes that using the straightforward bribe-as-proxy\\n\\nmethod does not satisfy its burden in this case. The Government chose to charge Tillmon\\n\\nseparately for each of the three transports, meaning that the Government had the burden to\\n\\n 26\\n\\fprove that the value of his services on each of the individual transports was $5,000 or more.\\n\\nUnder the bribe-as-proxy method, the Government’s evidence is insufficient because\\n\\nTillmon’s aid on each transport was valued at less than $5,000 each time.\\n\\n Instead, the Government advances three arguments for what other evidence could\\n\\nhave been used to satisfy its burden: (1) that the amount of the bribes paid to the team as a\\n\\nwhole on each transport exceeded $5,000 (the “aggregation theory”); (2) that the market\\n\\nvalue of the drugs being trafficked on each transport exceeded $5,000 (the “market value\\n\\ntheory”); and (3) that the amount the Town of Windsor paid for public safety in each year\\n\\nat issue exceeded $5,000 (the “public safety theory”).\\n\\n Although the Government claims its aggregation theory is merely a variation on the\\n\\napproved bribes-as-proxy method, it is not the equivalent and we cannot use it here. The\\n\\nGovernment contends that the jury was permitted to aggregate the bribes paid to all of the\\n\\nteam members on a particular transport to arrive at the requisite $5,000. To be sure,\\n\\nemploying that method brings the dollar amount expended on each transport to more than\\n\\n$5,000. Fatally for the Government, however, the aggregation method does not arrive at an\\n\\namount that reflects the statutory obligation to produce evidence of the value of the subject\\n\\nmatter of the bribe charged in the indictment—that is, Tillmon’s “protecting shipments of\\n\\npurported narcotics.” J.A. 149, 153, 171. The aggregation method conflates the value of\\n\\nTillmon’s services to the DTO with the value of the team’s services to the DTO. The record\\n\\ndoes not permit the conclusion that Tillmon single-handedly provided services equal to the\\n\\namount paid to the team as a whole. And without such evidence demonstrating that\\n\\nTillmon’s services were worth that amount, the aggregation method is not an acceptable\\n\\n 27\\n\\fvaluation method. For these reasons, we reject the aggregation method as an appropriate\\n\\nvaluation method in this case.\\n\\n The Government’s proposed market value theory fares no better. As our sister\\n\\ncircuits have recognized, in some instances, it may be appropriate to look at the market\\n\\nvalue of the bribe from the perspective of the briber or an interested third party as a means\\n\\nof valuing the subject matter of the bribe. E.g., Fernandez, 722 F.3d at 15 (approving\\n\\nvaluation method for votes related to pending legislation by looking to the briber’s\\n\\nexpected financial gain flowing from the passage of that legislation); United States v.\\n\\nCurescu, 674 F.3d 735, 738, 741 (7th Cir. 2012) (approving valuation of a bribe given to\\n\\nfalsely certify that plumbing had been completed by a licensed plumber based on the\\n\\namount of money the briber did not have to pay a licensed plumber to perform the work);\\n\\nUnited States v. Hines, 541 F.3d 833, 837 (8th Cir. 2008) (using market value theory to\\n\\nvalue expedited eviction orders based on the savings to the property owners in avoiding\\n\\nthe costs typically incurred in eviction). But even then, in addition to evidence of something\\n\\nhaving value to the briber or a third party, the Government also must come forward with\\n\\nevidence “linking” that valued item to the services the defendant provided. See United\\n\\nStates v. Owens, 697 F.3d 657, 661 (7th Cir. 2012). To reiterate, the Government’s\\n\\nevidence must bear on the value of the subject matter of the bribe, and that obligation is\\n\\nnot satisfied with evidence of something “to which the subject matter of the bribe is\\n\\ntangentially related.” Id.\\n\\n In this case, the Government pointed to something of purported value to the briber—\\n\\nthe market value of the narcotics—but it failed to put forward any evidence linking that\\n\\n 28\\n\\fvalue to Tillmon’s protection of the caravan, the subject matter of the bribe. Specifically,\\n\\nthe Government relies on Lisa’s statement during the March 2015 transport that the team\\n\\nwas shipping a million dollars of heroin and argues that because Tillmon was hired to\\n\\nprotect a million-dollar transport on that occasion and to protect similar package quantities\\n\\nduring the other two transports, his services on each transport were worth a million dollars.\\n\\nThe Government then contends that the Court can infer from the evidence that the other\\n\\ntransports involved similar drug packages and that they also thereby satisfied the $5,000\\n\\nrequirement. That reasoning is flawed because no evidence in the record links the purported\\n\\nvalue of the drugs to the value of Tillmon’s protection services. As the record stands, the\\n\\ntwo are merely tangentially related. The Government could have attempted to provide\\n\\nevidence sufficient to create the necessary linkage in several ways. For example, it could\\n\\nhave offered evidence that trafficking organizations typically provide protection with a cut\\n\\nof the profits from eventual sales. Or it could have offered evidence that the cost of\\n\\nlegitimate protection for drug transports involving that amount of drugs costs real DTOs\\n\\n$5,000 or more. But the Government offered no such evidence. In fact, it failed to introduce\\n\\nany evidence allowing the inference that the value of Tillmon’s services was connected to\\n\\nthe value of the drugs. Thus, the Government’s market value theory lacks any evidentiary\\n\\nbasis.\\n\\n The Government’s third argument, the public safety theory of valuation, can be\\n\\ndisposed of quickly. For the first and only time in this appeal, the Government mentions in\\n\\na single sentence of its Response Brief that the $5,000 value of Tillmon’s services could\\n\\nbe measured based on the Town of Windsor’s annual public safety budget. Setting aside\\n\\n 29\\n\\fany concerns regarding the timeliness and adequacy of the Government’s argument, we\\n\\nobserve that Windsor’s entire public safety budget is unrelated to and would vastly\\n\\noverstate the value of Tillmon’s services to the DTO. As such, it would be an improper\\n\\nmeasure of the subject matter of the bribe.\\n\\n In sum, the Government failed to produce evidence from which a jury could find\\n\\nthat Tillmon’s services to the DTO had a value of $5,000 or more. Though the Government\\n\\nmight have satisfied this requirement in several ways, it failed to introduce any evidence\\n\\nother than the amount Tillmon was paid as a bribe to establish that the value of his\\n\\nprotection services were worth at least $5,000. And in the absence of evidence to support\\n\\nthat element of the offense, Tillmon’s convictions for federal programs bribery, Counts 32,\\n\\n36, and 54, cannot stand and we vacate each of these convictions.\\n\\n\\n\\n IV. Conclusion\\n\\n For the reasons explained above, we affirm Tillmon’s convictions on the drug\\n\\ntrafficking and firearms offenses (Counts 1, 2, 48, and 49), but we vacate Tillmon’s\\n\\nconvictions for federal programs bribery (Counts 32, 36, and 54).\\n\\n As the parties agree, the record shows that Tillmon’s sentence cannot be affected by\\n\\nthe vacation of his federal programs bribery convictions. After calculating Tillmon’s\\n\\nGuidelines range, the district court imposed a downward variant sentence of 180 months’\\n\\nimprisonment—120 months to run concurrently on Counts 1, 2, 48, 32, 36, and 54; and 60\\n\\nmonths to run consecutively on Count 49. Vacating Tillmon’s federal programs bribery\\n\\nconvictions does not change his sentence, which is still 120 months’ imprisonment for\\n\\n 30\\n\\fCounts 1, 2, and 48, to run concurrently with each other, and 60 months’ mandatory\\n\\nminimum imprisonment for Count 49, to run consecutively to the others. Because 120\\n\\nmonths is the statutory mandatory minimum sentence for the drug trafficking conspiracy\\n\\n(Count 1) and attempted possession (Count 48) convictions, Tillmon cannot be sentenced\\n\\nto a lower term of imprisonment on the part of the sentence that was running concurrently\\n\\nwith his sentence for the now-vacated federal programs bribery convictions. Similarly,\\n\\nTillmon’s consecutive sentence for Count 49 must continue to run consecutively to the\\n\\nother term of imprisonment. As such, we need not remand for resentencing.\\n\\n AFFIRMED IN PART\\n AND VACATED IN PART\\n\\n\\n\\n\\n 31\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":572,"cells":{"id":{"kind":"number","value":4594567,"string":"4,594,567"},"name":{"kind":"string","value":"WILLIAMSON FARM, Plaintiff - Appellant, v. DIVERSIFIED CROP INSURANCE SERVICES, A/K/A CGB Diversified Services, Inc., Defendant - Appellee."},"name_abbreviation":{"kind":"string","value":"Williamson Farm v. Diversified Crop Ins. Servs."},"decision_date":{"kind":"string","value":"2019-02-27"},"docket_number":{"kind":"string","value":"18-1463"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Keenan, Floyd, Thacker\", \"parties\": \"\", \"opinions\": [{\"author\": \"THACKER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1463\\n\\n\\nWILLIAMSON FARM,\\n\\n Plaintiff - Appellant,\\n\\n v.\\n\\nDIVERSIFIED CROP INSURANCE SERVICES, a/k/a CGB Diversified\\nServices, Inc.,\\n\\n Defendant - Appellee.\\n\\n\\n\\nAppeal from the United States District Court for the Eastern District of North Carolina, at\\nRaleigh. James C. Dever III, District Judge. (5:17-cv-00513-D; 5:16-mc-00018-D)\\n\\n\\nArgued: December 13, 2018 Decided: February 27, 2019\\n\\n\\nBefore KEENAN, FLOYD, and THACKER, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Thacker wrote the opinion, in which Judge\\nKeenan and Judge Floyd joined.\\n\\n\\nARGUED: Matthew William Buckmiller, STUBBS & PERDUE, P.A., Raleigh, North\\nCarolina, for Appellant. Roy Jefferson Allen, HUNT ROSS & ALLEN, Clarksdale,\\nMississippi, for Appellee. ON BRIEF: Derek M. Crump, BROWN, CRUMP,\\nVANORE & TIERNEY, L.L.P., Raleigh, North Carolina, for Appellee.\\n\\fTHACKER, Circuit Judge:\\n\\n In this case, Williamson Farm (“Appellant”) challenges the district court’s\\n\\ndecision to vacate an arbitration award that Appellant won against Diversified Crop\\n\\nInsurance (“Appellee”), a private insurance company that sold federal crop insurance\\n\\npolicies to Appellant. Appellant asserts that the district court erred in denying its motion\\n\\nto confirm the arbitration award and granting Appellee’s motion to vacate on the basis\\n\\nthat the arbitrator exceeded her powers.\\n\\n Despite the strong presumption in favor of confirming arbitration awards pursuant\\n\\nto the Federal Arbitration Act (“FAA”), we hold that Appellee met its heavy burden to\\n\\nprove that the arbitrator exceeded her powers by awarding extra-contractual damages,\\n\\ncontrary to both the policy and binding authority from the Federal Crop Insurance\\n\\nCorporation (“FCIC”). Therefore, we affirm.\\n\\n I.\\n\\n A.\\n\\n Background on the Federal Crop Insurance Program\\n\\n The policies at issue in this case are federal crop insurance policies, which\\n\\nAppellee sold pursuant to the Federal Crop Insurance Act (“FCIA”), 7 U.S.C. §§ 1501–\\n\\n1524, 1531, and accompanying regulations issued by the FCIC. These policies are not\\n\\ntypical private insurance agreements, so a brief discussion of the federal government’s\\n\\nrole in crop insurance agreements is necessary.\\n\\n The federal crop insurance program provides farmers and agricultural entities in\\n\\nthe United States with crop insurance protection, a venture that was considered too risky\\n\\n 2\\n\\ffor traditional private insurers when the FCIA was enacted in 1938. As the Supreme\\n\\nCourt explained, “the Government engaged in crop insurance as a pioneer. Private\\n\\ninsurance companies apparently deemed all-risk crop insurance too great a commercial\\n\\nhazard.” Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 383 n.1 (1947).\\n\\n To provide this protection to farmers, the FCIA established the FCIC, a\\n\\ngovernment corporation within the United States Department of Agriculture’s Risk\\n\\nManagement Agency that administers the federal crop insurance program. 7 U.S.C.\\n\\n§ 1503. The FCIC does not directly issue crop insurance policies to farmers. Instead, it\\n\\nrelies on “approved insurance providers” 1 -- private insurers such as Appellee -- to issue\\n\\nfederal crop insurance policies to farmers like Appellant. 7 U.S.C. § 1502(b)(2). Then,\\n\\nwhen certain eligibility conditions are met, the FCIC reinsures the approved insurance\\n\\nproviders’ losses and reimburses their administrative and operating costs.\\n\\n In order to qualify for reinsurance through the FCIC, approved insurance providers\\n\\nmust comply with the FCIA and the accompanying regulations issued by the FCIC\\n\\ngoverning the sale, issuance, and servicing of federal crop insurance policies. 7 C.F.R.\\n\\n§ 400.168; see also Felder v. Fed. Crop Ins. Corp., 146 F.2d 638, 640 (4th Cir. 1944);\\n\\nDavis v. Producers Agric. Ins. Co., 762 F.3d 1276, 1284 (11th Cir. 2014). Accordingly,\\n\\n“even though the crop insurance policy is between the farmer and an approved insurance\\n\\n\\n 1\\n Pursuant to the FCIA, “[t]he term ‘approved insurance provider’ means a private\\ninsurance provider that has been approved by the [FCIC] to provide insurance coverage\\nto producers participating in the Federal crop insurance program established under this\\nsubchapter.” 7 U.S.C. § 1502(b)(2).\\n\\n\\n 3\\n\\fprovider,” the FCIA “establishes the terms and conditions of insurance.” Davis, 762 F.3d\\n\\nat 1284 (citation omitted).\\n\\n Indeed, all approved insurance providers issue a uniform policy drafted by the\\n\\nFCIC known as the “Common Crop Insurance Policy,” the text for which is provided at 7\\n\\nC.F.R. § 457.8. Both policies at issue in this case mirrored the Common Crop Insurance\\n\\nPolicy. Additionally, the FCIC sets premium rates for each county and crop insured,\\n\\nsubsidizes and receives premiums, and pays claims. In short, the FCIC is extensively\\n\\ninvolved in and exerts control over all aspects of the federal crop insurance program.\\n\\n The Farm Service Agency (“FSA”), another agency within the Department of\\n\\nAgriculture, works with the Risk Management Agency and the FCIC to implement the\\n\\nfederal crop insurance program through FSA’s network of state and county field offices.\\n\\nAs relevant to this case, insureds and approved insurance providers are required to submit\\n\\nprogram eligibility, acreage reporting, and other necessary forms to their local FSA office\\n\\nin order to receive federal crop insurance coverage through the FCIC.\\n\\n B.\\n\\n Appellant’s Underlying Policy Claims\\n\\n This case centers on two policies issued by Appellee to insure Appellant’s 2013\\n\\ncrops: (1) the Richmond County Policy; and (2) the Montgomery County Policy. Under\\n\\n\\n\\n\\n 4\\n\\fthe Richmond County Policy, Appellee listed Farm Number 2172. 2 Under the\\n\\nMontgomery County Policy, Appellee listed Farm Numbers 1870 and 4168.\\n\\n For many years, Appellant purchased its crop insurance through insurance agent\\n\\nLynn Saintsing, until Saintsing sold his agency to Appellee in 2012. 3 During his time as\\n\\nAppellant’s insurance agent, Saintsing’s regular practice was to help Appellant complete\\n\\nthe necessary forms and submit them to the proper FSA office to insure Appellant’s\\n\\nfarms.\\n\\n It was not unusual for a farm located in one county to be administered by an FSA\\n\\noffice in another county, based on the owner’s preferences or if the farm’s county did not\\n\\nhave an FSA office. Such was the case with Appellant’s Farm 2172, which was located\\n\\nin Montgomery County. In 1996, the Montgomery County FSA office closed, and\\n\\nadministration of Farm 2172 shifted to Richmond County. Accordingly, since 1996,\\n\\nFarm 2172 had been listed on forms filed with the FSA office in Richmond County even\\n\\nthough it was located in Montgomery County. Saintsing was aware of this, since he\\n\\nhelped Appellant fill out the forms and prepare maps of the farms.\\n\\n\\n\\n\\n 2\\n Farm numbers, which are assigned by the FSA, identify an insured’s farms and\\nare used in connection with federal crop insurance policies and FSA forms.\\n 3\\n It is not clear from the record how many years Appellant purchased its crop\\ninsurance through Saintsing, but Appellant’s brief notes that it has farmed on this\\nproperty “for decades” and purchased its crop insurance through Saintsing “[d]uring\\nmuch of this time.” Appellant’s Br. 3.\\n\\n\\n 5\\n\\f Prior to Appellee’s acquisition of Saintsing’s insurance agency, Saintsing issued\\n\\nAppellant a single policy that covered all of Appellant’s crops regardless of the county in\\n\\nwhich the farm was located.\\n\\n 1.\\n\\n Crop Loss Claim: Farm 2172\\n\\n The trouble began for Appellant after Saintsing sold his business to Appellee in\\n\\n2012. Unlike the single policy previously issued by Saintsing, Appellee issued Appellant\\n\\nseparate policies for each county in which a farm was geographically located, regardless\\n\\nof where the farm was administered. Saintsing -- then an agent for Appellee -- helped\\n\\nAppellant prepare the necessary forms to be submitted to the FSA. But on those forms,\\n\\nSaintsing listed Farm 2172 on the Richmond County Policy (where it was administered),\\n\\nrather than the Montgomery County Policy (where it was geographically located).\\n\\n In 2013, Appellant experienced crop loss due to deer on Farm 2172 and expected\\n\\nthis loss to be covered under its crop insurance policy. Therefore, Appellant filed a claim\\n\\nfor the loss with Appellee. However, Appellee denied the claim “on the technicality that\\n\\nFarm 2172, located in Montgomery County, was listed on [forms] filed with the FSA in\\n\\nRichmond County and was therefore listed on the wrong policy.” J.A. 13. 4 As noted,\\n\\nSaintsing had assisted Appellant in completing these forms and facilitated their filing\\n\\nwith the FSA.\\n\\n\\n 4\\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this\\nappeal.\\n\\n\\n 6\\n\\f 2.\\n\\n Prevented Planting Claim: Farms 1870 and 4168\\n\\n Appellant also seeks recovery for a prevented planting claim 5 under the\\n\\nMontgomery County Policy. The summer of 2013 was excessively rainy. As a result,\\n\\nAppellant was unable to plant on Farms 1870 and 4168.\\n\\n During the period that Appellant was unable to plant, another of Appellee’s\\n\\nagents, Jason Nifong, visited Appellant’s farmland to aid Appellant in preparing its FSA\\n\\nforms. During this visit, Nifong advised Appellant that it could file a prevented planting\\n\\nclaim as a result of the rainy weather. Following Nifong’s visit, Appellant chose to file a\\n\\nprevented planting claim and did not attempt to plant on these farms.\\n\\n However, in preparing the FSA forms, Nifong failed to note the prevented planting\\n\\nacres on the correct form, and he did not explain to Appellant that failure to report the\\n\\nacres on that specific form would bar the prevented planting claim. Ultimately, Appellee\\n\\ndenied Appellant’s claim based on this failure to report.\\n\\n C.\\n\\n Arbitration\\n\\n Appellant sought arbitration pursuant to Section 20(a) of the policy based on\\n\\nAppellee’s denials of its crop loss and prevented planting claims. See J.A. 207, § 20(a)\\n\\n\\n 5\\n When certain requirements are met, a prevented planting claim allows a\\npolicyholder to recover when an insured cause of loss that is general to the surrounding\\narea, such as excessive rain, prevents the policyholder (as well as other producers in the\\narea) from planting crops on eligible acres.\\n\\n\\n 7\\n\\f(“If you and we fail to agree on any determination made by us . . . the disagreement must\\n\\nbe resolved through arbitration . . . .”).\\n\\n 1.\\n\\n Crop Loss Claim: Farm 2172\\n\\n As to Appellant’s crop loss claim for Farm 2172, the arbitrator determined, “[t]he\\n\\nlack of coverage for Farm 2172 indisputably arose from [Appellee’s] decision to issue\\n\\ncounty by county policies and its failure, and that of its agents who knew where these\\n\\nfarms were actually located . . . , to correctly list the farms for crop insurance purposes.”\\n\\nJ.A. 14. The arbitrator continued, “I conclude that [Appellee] failed to comply with the\\n\\nterms of [the policy] and that failure resulted in the loss to [Appellant]. [Appellee] left\\n\\n[Appellant] effectively uninsured for crop year 2013 as to Farm 2172.” Id. The\\n\\narbitrator further concluded that Appellee engaged in negligence, breach of fiduciary\\n\\nduty, and constructive fraud. As a result, she awarded Appellant $97,692.39 for\\n\\nAppellee’s “breach of [the policy] and the failure to pay the claim,” damages which she\\n\\ntrebled because she concluded that Appellee violated the North Carolina Unfair and\\n\\nDeceptive Trade Practices Act. Id. Lastly, finding that Appellee failed to attempt to\\n\\nreasonably settle the claim, the arbitrator awarded Appellant $54,368.87 in attorneys’\\n\\nfees pursuant to North Carolina law.\\n\\n 2.\\n\\n Prevented Planting Claim: Farms 1870 and 4168\\n\\n As for Appellant’s prevented planting claim for Farms 1870 and 4168, the\\n\\narbitrator similarly determined that Appellee’s agent was at fault for failing to report the\\n\\n 8\\n\\facres on the correct FSA form, and that Appellee’s “actions or lack of action left\\n\\n[Appellant] effectively uninsured for crop year 2013 as to Farms [1870] 6 and 4168.” J.A.\\n\\n15. Accordingly, the arbitrator concluded, “I award the amount of $77,668.59 to\\n\\n[Appellant] for the breach of [the policy] and the failure to pay the claim. I also conclude\\n\\nthat [Appellee] engaged in negligence, breach of fiduciary duty and constructive fraud.”\\n\\nId. As with the crop loss claim for Farm 2172, the arbitrator trebled damages pursuant to\\n\\nthe North Carolina Unfair and Deceptive Trade Practices Act and awarded Appellant\\n\\n$44,483.63 in attorneys’ fees pursuant to North Carolina law.\\n\\n 3.\\n\\n Arbitration Award\\n\\n After all was said and done, the total arbitration award to Appellant was\\n\\n$97,692.39 for the crop loss claim for Farm 2172 and $77,668.59 for the prevented\\n\\nplanting claim for Farms 1870 and 4168 (both of which were to be trebled), $98,852.50\\n\\nin attorneys’ fees, and $14,994 in reimbursement for arbitration costs and fees.\\n\\nAccording to Appellant, this amounted to a total arbitration award of $639,929.44.\\n\\n D.\\n\\n District Court’s Decision\\n\\n On May 12, 2016, Appellant filed a motion to confirm the arbitration award in the\\n\\nUnited States District Court for the Eastern District of North Carolina. And, on June 29,\\n\\n\\n 6\\n The arbitrator’s decision occasionally refers to Farm 1870 as Farm 1872 or 1879.\\nBased on the record, these references appear to be in error.\\n\\n\\n 9\\n\\f2016, Appellee filed a competing motion to vacate the arbitration award, asserting that\\n\\nthe arbitrator exceeded her authority. Additionally, Appellee argued that Appellant failed\\n\\nto obtain a determination from the FCIC that Appellee failed to comply with the\\n\\ninsurance policies or FCIC procedures, which it asserted was a prerequisite for the district\\n\\ncourt to confirm the award.\\n\\n On July 12, 2016, the district court requested an amicus brief from the FCIC\\n\\naddressing whether the arbitrator exceeded her authority and whether Appellant was\\n\\nrequired to obtain an FCIC determination before the district court could confirm the\\n\\narbitration award. The FCIC filed its amicus brief on August 24, 2016, taking the\\n\\nposition that the arbitrator exceeded her authority by (1) awarding contractual damages\\n\\nnot covered by any policy; (2) awarding extra-contractual damages and attorneys’ fees;\\n\\n(3) failing to obtain and follow binding FCIC interpretations, issued in the form of Final\\n\\nAgency Determinations (“FADs”); and (4) failing to obtain an FCIC determination prior\\n\\nto any extra-contractual damages or attorneys’ fees being awarded during judicial review.\\n\\n On March 26, 2018, the district court granted Appellee’s motion to vacate and\\n\\ndenied Appellant’s motion to confirm the arbitration award, concluding that the arbitrator\\n\\nexceeded her powers by (1) impermissibly interpreting the policy rather than obtaining an\\n\\ninterpretation from the FCIC; and (2) awarding extra-contractual damages. Appellant\\n\\ntimely appealed on April 25, 2018.\\n\\n\\n\\n\\n 10\\n\\f II.\\n\\n We review the district court’s legal rulings regarding confirmation or vacation of\\n\\nan arbitration award de novo and the district court’s factual findings, if any, for clear\\n\\nerror. Norfolk S. Ry. Co. v. Sprint Commc’ns Co., 883 F.3d 417, 422 (4th Cir. 2018).\\n\\n Pursuant to the FAA, “any judicial review of an arbitration award must be an\\n\\nextremely narrow exercise.” Long John Silver’s Restaurants, Inc. v. Cole, 514 F.3d 345,\\n\\n351 (4th Cir. 2008). There is a strong presumption in favor of confirming arbitration\\n\\nawards under the FAA, and any party seeking to overturn an arbitration award faces a\\n\\n“heavy burden.” Three S Del., Inc. v. DataQuick Info. Sys., Inc., 492 F.3d 520, 527 (4th\\n\\nCir. 2007). As we have stated, “in reviewing such an award, ‘a district or appellate court\\n\\nis limited to determin[ing] whether the arbitrators did the job they were told to do -- not\\n\\nwhether they did it well, or correctly, or reasonably, but simply whether they did it.’” Id.\\n\\n(quoting Remmey v. PaineWebber, Inc., 32 F.3d 143, 146 (4th Cir. 1994)). Indeed, “an\\n\\narbitration award is enforceable even if the award resulted from a misinterpretation of\\n\\nlaw, faulty legal reasoning or erroneous legal conclusion.” Richmond, Fredericksburg &\\n\\nPotomac R.R. Co. v. Transp. Commc’ns Int’l Union, 973 F.2d 276, 281 (4th Cir. 1992)\\n\\n(internal quotation marks omitted).\\n\\n The FAA provides that a court may only vacate an arbitration award on one of the\\n\\nfollowing grounds:\\n\\n (1) where the award was procured by corruption, fraud, or\\n undue means;\\n\\n (2) where there was evident partiality or corruption in the\\n arbitrators, or either of them;\\n\\n 11\\n\\f (3) where the arbitrators were guilty of misconduct in\\n refusing to postpone the hearing, upon sufficient cause\\n shown, or in refusing to hear evidence pertinent and material\\n to the controversy; or of any other misbehavior by which the\\n rights of any party have been prejudiced; or\\n\\n (4) where the arbitrators exceeded their powers, or so\\n imperfectly executed them that a mutual, final, and definite\\n award upon the subject matter submitted was not made.\\n\\nThree S Del., 492 F.3d at 527 (citing 9 U.S.C. § 10(a)). “The permissible common law\\n\\ngrounds for vacating such an award ‘include those circumstances where an award fails to\\n\\ndraw its essence from the contract, or the award evidences a manifest disregard of the\\n\\nlaw.’” Id. (quoting Patten v. Signator Ins. Agency, Inc., 441 F.3d 230, 234 (4th Cir.\\n\\n2006)).\\n\\n III.\\n\\n Appellant asserts that the district court erred in this case by vacating the arbitration\\n\\naward. Appellant argues that the arbitrator did not exceed her powers by awarding extra-\\n\\ncontractual damages and attorneys’ fees. In the alternative, Appellant argues that even if\\n\\nthe arbitrator exceeded her powers in part, we should nevertheless confirm the arbitration\\n\\naward of contract damages, which were within the arbitrator’s authority to award\\n\\npursuant to the policy. We address each argument in turn.\\n\\n A.\\n\\n Extra-Contractual Damages\\n\\n The district court vacated the arbitration award after determining that the arbitrator\\n\\nexceeded her powers by awarding prohibited extra-contractual damages and attorneys’\\n\\n\\n 12\\n\\ffees. Appellant asserts that the arbitrator acted within her authority in rendering the\\n\\naward because the arbitrator concluded that Appellee breached the policy, and it was\\n\\nwithin her power to award extra-contractual damages.\\n\\n 1.\\n\\n Policy Interpretation\\n\\n We turn first to whether the policy unambiguously prohibits the arbitrator from\\n\\nawarding extra-contractual damages. In arguing that it does, Appellee relies primarily on\\n\\nSections 20(h) and 20(i) of the policy. These provisions state as follows:\\n\\n (h) Except as provided in section 20(i), no award or\\n settlement in mediation, arbitration, appeal, administrative\\n review or reconsideration process or judicial review can\\n exceed the amount of liability established or which should\\n have been established under the policy, except for interest\\n awarded in accordance with section 26.\\n\\n (i) In a judicial review only, you may recover attorneys fees\\n or other expenses, or any punitive, compensatory or any other\\n damages from us only if you obtain a determination from\\n FCIC that we, our agent or loss adjuster failed to comply with\\n the terms of this policy or procedures issued by FCIC and\\n such failure resulted in you receiving a payment in an amount\\n that is less than the amount to which you were entitled.\\n\\nJ.A. 209, § 20(h)–(i) (emphases supplied).\\n\\n Appellee argues that these provisions unambiguously state that the arbitrator\\n\\ncannot award extra-contractual damages, and such damages may only be awarded by a\\n\\ncourt upon judicial review and after obtaining an FCIC determination that the agent or\\n\\nloss adjuster failed to comply with the terms of the policy. Making the same argument in\\n\\nits amicus brief submitted before the district court, the FCIC explained:\\n\\n\\n 13\\n\\f According to the clear language of the policy, any extra-\\n contractual damages, including damages arising from state\\n claims, were only available after this Court was asked to\\n review the arbitrator’s award. See 7 C.F.R. § 457.8, ¶ 20(i).\\n As noted by FCIC, any extra-contractual claims (i.e.\\n negligence, breach of fiduciary duty, constructive fraud,\\n unfair and deceptive practices) and attorneys’ fees are limited\\n solely to instances where FCIC has determined the insurance\\n provider violated its policies and procedures and such\\n violation had a monetary impact on the payment of the claim.\\n See FCIC Response to Comments, 69 Fed. Reg. 48652-01,\\n 48717 (Aug. 10, 2004). Thus, the plain and unambiguous\\n terms of section 20(i) of the policy (7 C.F.R. § 457.8, ¶ 20(i)),\\n together with the plain and unambiguous language of 7\\n C.F.R. § 400.176(b) and 7 C.F.R. § 400.352(b)(4),\\n unequivocally dictate that a party can only be awarded extra-\\n contractual damages and attorneys’ fees upon petitioning this\\n Court for review of the arbitrator’s award and then only after\\n obtaining a determination from FCIC.\\n\\nJ.A. 232–33.\\n\\n In rendering the award, however, the arbitrator interpreted these provisions\\n\\ndifferently. The arbitrator concluded:\\n\\n Section 20(i) does not in fact state that the arbitrator may\\n not award attorneys’ fees or punitive, compensatory or other\\n damages. Instead it appears to impose a type of condition\\n precedent to the ultimate enforceability of such an award by a\\n court. Moreover, if the provision has the effect [Appellee]\\n claimed, the arbitrator would have little jurisdiction to decide\\n anything. That plainly cannot be the case. Notably, the\\n Policies are silent on timing, such that the condition precedent\\n of FCIC determination could be satisfied post-award but prior\\n to enforcement in court.\\n\\n In addition, Section 20(h) does not expressly exclude any\\n theories of liability (such as fraud) or types of damages;\\n instead it says that no award can exceed the amount of\\n liability established under the policy. It does not expressly\\n exculpate insurers from their improper conduct such as fraud\\n\\n\\n 14\\n\\f or breach of fiduciary duty, conduct that can trigger liability\\n beyond liability for breach of contract.\\n\\nJ.A. 10.\\n\\n But it does not matter if these policy provisions are as unambiguous as Appellee\\n\\n(and the FCIC) claims or if the arbitrator’s alternative interpretation is reasonable. This\\n\\nis because even under the arbitrator’s explanation, these provisions are ambiguous at best.\\n\\nAs the policy makes clear, the arbitrator was required to obtain and apply the FCIC’s\\n\\ninterpretation of any ambiguous policy provision, and the arbitrator could not substitute\\n\\nher own interpretation for that of the FCIC.\\n\\n As the district court correctly pointed out, “[i]n cases involving federally reinsured\\n\\ncrop insurance, the insurance contract forms only one part of the agreement between the\\n\\nparties. The statutes and regulations associated with the federal crop insurance scheme\\n\\nalso limit the arbitrator’s authority.” J.A. 271 (citing Davis v. Producers Agric. Ins. Co.,\\n\\n762 F.3d 1276, 1284–85 (11th Cir. 2014)). Significantly, Section 20(a)(1) of the policy -\\n\\n- the very same section that provides for arbitration -- states that if there is a dispute that\\n\\n“in any way involves a policy or procedure interpretation,” the parties “must obtain an\\n\\ninterpretation from FCIC.” J.A. 208, § 20(a)(1) (emphasis supplied). The FCIC’s FADs\\n\\nare “binding on all participants in the Federal crop insurance program,” including\\n\\narbitrators. 7 C.F.R. § 400.765(c); see also J.A. 208, § 20(a)(1)(i) (“Any interpretation\\n\\nby FCIC will be binding in any mediation or arbitration.”). Therefore, the failure to\\n\\nobtain a required FCIC interpretation “will result in the nullification of any agreement or\\n\\n\\n\\n\\n 15\\n\\faward.” J.A. 208, § 20(a)(1)(ii). In short, both the policy and FCIC regulations provide\\n\\nthat only the FCIC -- and not the arbitrator -- may interpret the policy.\\n\\n In rendering the award here, the arbitrator pushed back against this restriction by\\n\\nnoting that if the arbitrator could not interpret the meaning of policy provisions, “the\\n\\narbitrator would have little jurisdiction to decide anything.” J.A. 10. Indeed, the unusual\\n\\nworld of federal crop insurance does, in fact, appear to leave very little decision making\\n\\nauthority to the arbitrator. But as counsel for Appellee stated during oral argument in this\\n\\ncase, crop insurance “takes everything you know about insurance and turns it on its\\n\\nhead.” Oral Argument at 19:40–49, Williamson Farm v. Diversified Crop Ins. Servs.,\\n\\nInc., No. 18-1463 (4th Cir. Dec. 13, 2018), http://www.ca4.uscourts.gov/oral-\\n\\nargument/listen-to-oral-arguments (hereinafter “Oral Argument”).\\n\\n 2.\\n\\n The Distinction Between FCIC Interpretations and FCIC Determinations\\n\\n In response to Appellee’s argument that the arbitrator was required to obtain an\\n\\nFCIC interpretation of disputed policy provisions, Appellant asserts, “if an FCIC\\n\\ndetermination is required before an arbitrator can award monies then the arbitration\\n\\nprocess is a complete waste of time with no meaning.” Appellant’s Br. 24. Appellant\\n\\nfurther asserts that, in any event, it did, in fact, seek an FCIC determination and was told\\n\\nthat the FCIC would not render an opinion until after arbitration.\\n\\n In both arguments, Appellant conflates the obligation to obtain an FCIC\\n\\ninterpretation of disputed provisions of the policy pursuant to Section 20(a)(1) -- a\\n\\nrequirement in any arbitration where the meaning or application of policy provisions are\\n\\n 16\\n\\fat issue -- with the requirement to obtain an FCIC determination that there was a failure\\n\\nto comply with the terms of the policy prior to obtaining attorneys’ fees or extra-\\n\\ncontractual damages during judicial review pursuant to Section 20(i). FCIC\\n\\ninterpretations and FCIC determinations, as these terms are described in the policy, are\\n\\nnot the same thing.\\n\\n a.\\n\\n When an FCIC Determination is Required\\n\\n As to Appellant’s first argument, an FCIC determination that there was a failure to\\n\\ncomply with the terms of the policy is not required “before an arbitrator can award\\n\\nmonies.” Appellant’s Br. 24. Pursuant to Section 20(i) of the policy, such\\n\\ndeterminations are only required (1) during judicial review (after arbitration is\\n\\ncompleted); and (2) only when an insured is seeking extra-contractual damages. As\\n\\ndiscussed below, binding FCIC FADs make clear that arbitrators cannot award extra-\\n\\ncontractual damages; accordingly, arbitrators do not require such an FCIC determination\\n\\nin order to render their award. 7 Arbitrators do, however, require an FCIC interpretation\\n\\nbefore rendering an award based on disputed policy language.\\n\\n\\n 7\\n In its reply brief, Appellant offers a similar argument that Appellee’s\\ninterpretation of 7 C.F.R. § 400.352 -- which preempts state and local laws and\\nregulations except where the FCIC makes a determination that the agent or loss adjuster\\nfailed to comply with the policy -- “would bar recovery of any damages without an FCIC\\ndetermination,” including compensatory damages. Appellant’s Reply Br. 2. Because the\\nFCIC has established that arbitrators cannot award damages based on state law claims\\nand FCIC determinations are only required during judicial review involving extra-\\ncontractual damages, this argument is irrelevant as to the arbitration award.\\n\\n\\n 17\\n\\f b.\\n\\n Appellant Requested an FCIC Determination, Not an FCIC Interpretation\\n\\n As to Appellant’s second argument, Appellant did not request an FCIC\\n\\ninterpretation -- it requested an FCIC determination. Again, an FCIC interpretation of\\n\\nthe meaning of disputed policy provisions is a different request -- one which arises at a\\n\\ndifferent time and in a different proceeding -- than an FCIC determination that an agent\\n\\nfailed to comply with the terms of the policy. To comply with Section 20(a)(1) of the\\n\\npolicy, what Appellant (or the arbitrator) needed to request during the arbitration, but did\\n\\nnot, was an FCIC interpretation of the meaning of the disputed policy provisions.\\n\\nAppellant’s premature request for an FCIC determination that there was a failure to\\n\\ncomply with the terms of the policy, pursuant to Section 20(i), is of no consequence to\\n\\nthe arbitration award. 8\\n\\n The arbitrator’s explanation as to what specific policy provisions mean\\n\\n(particularly to the extent they were disputed issues in the arbitration) can only be viewed\\n\\nas her interpretation of the policy. See, e.g., J.A. 10 (“Section 20(i) does not in fact state\\n\\nthat the arbitrator may not award attorneys’ fees or punitive, compensatory or other\\n\\ndamages. Instead it appears to impose a type of condition precedent to the ultimate\\n\\n\\n 8\\n We note that our decision in this case does not address whether a claimant could\\nrecover purely tort damages against a private insurance company without such an FCIC\\ndetermination where misrepresentations or negligence on the part of the insurance agent\\nbefore the policy was issued left the claimant effectively uninsured under the federal crop\\ninsurance program. Here, Appellant sought contractual damages and participated in\\narbitration pursuant to the insurance policy.\\n\\n\\n 18\\n\\fenforceability of such an award by a court. Moreover, if the provision has the effect\\n\\n[Appellee] claimed, the arbitrator would have little jurisdiction to decide anything. That\\n\\nplainly cannot be the case.”). By not obtaining an FCIC interpretation to resolve the\\n\\nissue but instead interpreting the provisions herself, which was not in her authority to do,\\n\\nthe arbitrator exceeded her powers.\\n\\n 3.\\n\\n Binding FCIC Authority\\n\\n The arbitrator was obligated to follow any FADs previously issued by the FCIC.\\n\\nSee J.A. 208, § 20(a)(1)(i), (iii) (“Any interpretation by FCIC will be binding in any\\n\\nmediation or arbitration . . . . An interpretation by FCIC of a policy provision is\\n\\nconsidered a determination that is a matter of general applicability.” (emphasis\\n\\nsupplied)). And the FCIC has addressed whether arbitrators may award extra-contractual\\n\\ndamages more than once already. Each time, the FCIC has made clear that arbitrators do\\n\\nnot have the authority to award such damages. Rather, extra-contractual damages and\\n\\nattorneys’ fees may only be awarded by the court reviewing an arbitrator’s decision. For\\n\\ninstance, Appellant does not dispute that FAD-193, issued on October 21, 2013, states in\\n\\nrelevant part:\\n\\n [T]he reference to “judicial review only” [in Section 20(i)] is\\n to clarify that such [extra-contractual] damages can only be\\n sought during an appeal to the Courts, after an FCIC\\n determination has been obtained, and cannot be awarded in\\n arbitration. To obtain a determination that will enable the\\n insured to recoup attorney[s’] fees, expenses, or damages\\n from the [approved insurance provider], the insured must\\n send a request for determination to the [Risk Management\\n\\n\\n 19\\n\\f Agency] Deputy Administrator of Compliance after the\\n insured has filed an appeal for judicial review.\\n\\nJ.A. 240 (emphasis supplied); Appellee’s Br. 12.\\n\\n Prior to this, the FCIC also addressed the issue of extra-contractual damages in\\n\\nFAD-99, issued on May 4, 2009, which states, in relevant part, “it is only in a judicial\\n\\nreview that producers can recover attorneys’ fees or other expenses, or any punitive,\\n\\ncompensatory or any other damages from insurance providers.” J.A. 241.\\n\\n Pursuant to Section 20(a)(1)(i) of the policy, these previously issued FADs -- and\\n\\nthe conclusion that arbitrators cannot award extra-contractual damages pursuant to\\n\\nSection 20(i) -- were binding upon the arbitrator in this case.\\n\\n 4.\\n\\n The Arbitrator Exceeded Her Powers\\n\\n Accordingly, the arbitrator exceeded her powers by both (1) interpreting the policy\\n\\nherself without obtaining an FCIC interpretation for the disputed policy provisions; and\\n\\n(2) awarding extra-contractual damages, which the FCIC has conclusively stated in\\n\\nmultiple FADs cannot be awarded in arbitration and can only be sought through judicial\\n\\nreview. Thus, Appellee met “the heavy burden” to vacate an arbitration award pursuant\\n\\nto the FAA. MCI Constructors, LLC v. City of Greensboro, 610 F.3d 849, 857 (4th Cir.\\n\\n2010); see also 9 U.S.C. § 10(a)(4).\\n\\n\\n\\n\\n 20\\n\\f B.\\n\\n Contractual Damages\\n\\n In the alternative, Appellant argues that even if the arbitrator exceeded her powers\\n\\nby awarding extra-contractual damages and attorneys’ fees, we should nevertheless\\n\\nconfirm the arbitration award in part based on contract damages, which were within the\\n\\narbitrator’s authority to award pursuant to Section 20 of the policy.\\n\\n Assuming that the arbitrator also awarded contractual damages, 9 it is impossible to\\n\\ntell from the arbitration award what amount may have stemmed from contractual\\n\\ndamages and what amount was extra-contractual. For example, in the award as to\\n\\nAppellant’s crop loss claim for Farm 2172, the arbitrator stated:\\n\\n The lack of coverage for Farm 2172 indisputably arose\\n from [Appellee’s conduct] . . . . The failure of [Appellee] to\\n properly handle this and advise [Appellant] breached\\n [Appellee’s] fiduciary duty to [Appellant.]\\n\\n I conclude that [Appellee] failed to comply with the terms\\n of [the policy] and that failure resulted in the loss to\\n [Appellant.] [Appellee] left [Appellant] effectively uninsured\\n for crop year 2013 as to Farm 2172. Accordingly, I award the\\n amount of $97,692.39 to [Appellant] for the breach of [the\\n policy] and the failure to pay the claim. I conclude that\\n [Appellee] engaged in negligence, breach of fiduciary duty\\n and constructive fraud.\\n\\n In addition, [Appellant] has established that [Appellee]\\n owed duties distinct and separate from the duties it owed\\n under the parties’ contracts; further, [Appellant] has\\n\\n 9\\n Notably, the arbitrator concluded that Appellee “left [Appellant] effectively\\nuninsured for crop year 2013,” J.A. 14, 15, which calls into question how Appellee could\\nbreach a contract that did not exist.\\n\\n\\n 21\\n\\f established that [Appellee’s] breach of those duties was\\n aggravated by several factors. Accordingly, I conclude that\\n [Appellee] engaged in unfair and deceptive practices in or\\n affecting commerce . . . . The facts show recklessness and\\n wanton disregard by [Appellee], i.e., more than a mere breach\\n of contract, warranting an award of treble damages under\\n [North Carolina state law.]\\n\\nJ.A. 14.\\n\\n Although the arbitrator concluded that Appellee breached the contract, the\\n\\narbitrator also found Appellee liable for extra-contractual damages, including negligence\\n\\nand breach of fiduciary duty. Since the arbitrator only provided a single amount of\\n\\ndamages rather than a breakdown of the award by contract and noncontract claims, we\\n\\nhave no way to distinguish what amount the arbitrator may have awarded for contractual\\n\\ndamages (which were within the arbitrator’s authority to award) and what amount the\\n\\narbitrator awarded for extra-contractual damages (which, for the reasons explained above,\\n\\nthe arbitrator exceeded her authority in awarding).\\n\\n Of note, there is no support in the record for Appellant’s assertion at oral argument\\n\\nthat the arbitrator awarded $97,692.39 in contract damages for the crop loss claim while\\n\\nextra-contractual damages were awarded in the form of trebled damages and attorneys’\\n\\nfees. See Oral Argument at 14:51–16:04. To the contrary, the structure of the arbitration\\n\\naward suggests that the arbitrator intended the award of trebled damages based on\\n\\nAppellee’s “recklessness and wanton disregard” to be in addition to the contractual and\\n\\nextra-contractual damages awarded for breach of contract, negligence, breach of fiduciary\\n\\nduty, and constructive fraud. J.A. 14 (“I conclude that [Appellee] engaged in negligence,\\n\\nbreach of fiduciary duty and constructive fraud. In addition, . . . [t]he facts show\\n\\n 22\\n\\frecklessness and wanton disregard by [Appellee.]” (emphasis supplied)). The same is true\\n\\nregarding the arbitration award for Appellant’s prevented planting claim for Farms 1870\\n\\nand 4168. See J.A. 15 (“I also conclude that [Appellant] has engaged in negligence,\\n\\nbreach of fiduciary duty and constructive fraud. In addition, as to Farms [1870] and\\n\\n4168, . . . [t]he facts show recklessness and wanton disregard by [Appellant.]” (emphasis\\n\\nsupplied)).\\n\\n Accordingly, even to the extent the arbitrator awarded damages for breach of\\n\\ncontract on either policy (as opposed to extra-contractual damages), the entire award\\n\\nmust be vacated.\\n\\n IV.\\n\\n For these reasons, the judgment of the district court is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 23\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4371820/\", \"author_raw\": \"THACKER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"KEENAN"},"judge2":{"kind":"string","value":"FLOYD"},"judge3":{"kind":"string","value":"THACKER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4594567/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: WILLIAMSON FARM, Plaintiff - Appellant, v. DIVERSIFIED CROP INSURANCE SERVICES, A/K/A CGB Diversified Services, Inc., Defendant - Appellee.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-27\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1463\n\n\nWILLIAMSON FARM,\n\n Plaintiff - Appellant,\n\n v.\n\nDIVERSIFIED CROP INSURANCE SERVICES, a/k/a CGB Diversified\nServices, Inc.,\n\n Defendant - Appellee.\n\n\n\nAppeal from the United States District Court for the Eastern District of North Carolina, at\nRaleigh. James C. Dever III, District Judge. (5:17-cv-00513-D; 5:16-mc-00018-D)\n\n\nArgued: December 13, 2018 Decided: February 27, 2019\n\n\nBefore KEENAN, FLOYD, and THACKER, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Thacker wrote the opinion, in which Judge\nKeenan and Judge Floyd joined.\n\n\nARGUED: Matthew William Buckmiller, STUBBS & PERDUE, P.A., Raleigh, North\nCarolina, for Appellant. Roy Jefferson Allen, HUNT ROSS & ALLEN, Clarksdale,\nMississippi, for Appellee. ON BRIEF: Derek M. Crump, BROWN, CRUMP,\nVANORE & TIERNEY, L.L.P., Raleigh, North Carolina, for Appellee.\n\fTHACKER, Circuit Judge:\n\n In this case, Williamson Farm (“Appellant”) challenges the district court’s\n\ndecision to vacate an arbitration award that Appellant won against Diversified Crop\n\nInsurance (“Appellee”), a private insurance company that sold federal crop insurance\n\npolicies to Appellant. Appellant asserts that the district court erred in denying its motion\n\nto confirm the arbitration award and granting Appellee’s motion to vacate on the basis\n\nthat the arbitrator exceeded her powers.\n\n Despite the strong presumption in favor of confirming arbitration awards pursuant\n\nto the Federal Arbitration Act (“FAA”), we hold that Appellee met its heavy burden to\n\nprove that the arbitrator exceeded her powers by awarding extra-contractual damages,\n\ncontrary to both the policy and binding authority from the Federal Crop Insurance\n\nCorporation (“FCIC”). Therefore, we affirm.\n\n I.\n\n A.\n\n Background on the Federal Crop Insurance Program\n\n The policies at issue in this case are federal crop insurance policies, which\n\nAppellee sold pursuant to the Federal Crop Insurance Act (“FCIA”), 7 U.S.C. §§ 1501–\n\n1524, 1531, and accompanying regulations issued by the FCIC. These policies are not\n\ntypical private insurance agreements, so a brief discussion of the federal government’s\n\nrole in crop insurance agreements is necessary.\n\n The federal crop insurance program provides farmers and agricultural entities in\n\nthe United States with crop insurance protection, a venture that was considered too risky\n\n 2\n\ffor traditional private insurers when the FCIA was enacted in 1938. As the Supreme\n\nCourt explained, “the Government engaged in crop insurance as a pioneer. Private\n\ninsurance companies apparently deemed all-risk crop insurance too great a commercial\n\nhazard.” Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 383 n.1 (1947).\n\n To provide this protection to farmers, the FCIA established the FCIC, a\n\ngovernment corporation within the United States Department of Agriculture’s Risk\n\nManagement Agency that administers the federal crop insurance program. 7 U.S.C.\n\n§ 1503. The FCIC does not directly issue crop insurance policies to farmers. Instead, it\n\nrelies on “approved insurance providers” 1 -- private insurers such as Appellee -- to issue\n\nfederal crop insurance policies to farmers like Appellant. 7 U.S.C. § 1502(b)(2). Then,\n\nwhen certain eligibility conditions are met, the FCIC reinsures the approved insurance\n\nproviders’ losses and reimburses their administrative and operating costs.\n\n In order to qualify for reinsurance through the FCIC, approved insurance providers\n\nmust comply with the FCIA and the accompanying regulations issued by the FCIC\n\ngoverning the sale, issuance, and servicing of federal crop insurance policies. 7 C.F.R.\n\n§ 400.168; see also Felder v. Fed. Crop Ins. Corp., 146 F.2d 638, 640 (4th Cir. 1944);\n\nDavis v. Producers Agric. Ins. Co., 762 F.3d 1276, 1284 (11th Cir. 2014). Accordingly,\n\n“even though the crop insurance policy is between the farmer and an approved insurance\n\n\n 1\n Pursuant to the FCIA, “[t]he term ‘approved insurance provider’ means a private\ninsurance provider that has been approved by the [FCIC] to provide insurance coverage\nto producers participating in the Federal crop insurance program established under this\nsubchapter.” 7 U.S.C. § 1502(b)(2).\n\n\n 3\n\fprovider,” the FCIA “establishes the terms and conditions of insurance.” Davis, 762 F.3d\n\nat 1284 (citation omitted).\n\n Indeed, all approved insurance providers issue a uniform policy drafted by the\n\nFCIC known as the “Common Crop Insurance Policy,” the text for which is provided at 7\n\nC.F.R. § 457.8. Both policies at issue in this case mirrored the Common Crop Insurance\n\nPolicy. Additionally, the FCIC sets premium rates for each county and crop insured,\n\nsubsidizes and receives premiums, and pays claims. In short, the FCIC is extensively\n\ninvolved in and exerts control over all aspects of the federal crop insurance program.\n\n The Farm Service Agency (“FSA”), another agency within the Department of\n\nAgriculture, works with the Risk Management Agency and the FCIC to implement the\n\nfederal crop insurance program through FSA’s network of state and county field offices.\n\nAs relevant to this case, insureds and approved insurance providers are required to submit\n\nprogram eligibility, acreage reporting, and other necessary forms to their local FSA office\n\nin order to receive federal crop insurance coverage through the FCIC.\n\n B.\n\n Appellant’s Underlying Policy Claims\n\n This case centers on two policies issued by Appellee to insure Appellant’s 2013\n\ncrops: (1) the Richmond County Policy; and (2) the Montgomery County Policy. Under\n\n\n\n\n 4\n\fthe Richmond County Policy, Appellee listed Farm Number 2172. 2 Under the\n\nMontgomery County Policy, Appellee listed Farm Numbers 1870 and 4168.\n\n For many years, Appellant purchased its crop insurance through insurance agent\n\nLynn Saintsing, until Saintsing sold his agency to Appellee in 2012. 3 During his time as\n\nAppellant’s insurance agent, Saintsing’s regular practice was to help Appellant complete\n\nthe necessary forms and submit them to the proper FSA office to insure Appellant’s\n\nfarms.\n\n It was not unusual for a farm located in one county to be administered by an FSA\n\noffice in another county, based on the owner’s preferences or if the farm’s county did not\n\nhave an FSA office. Such was the case with Appellant’s Farm 2172, which was located\n\nin Montgomery County. In 1996, the Montgomery County FSA office closed, and\n\nadministration of Farm 2172 shifted to Richmond County. Accordingly, since 1996,\n\nFarm 2172 had been listed on forms filed with the FSA office in Richmond County even\n\nthough it was located in Montgomery County. Saintsing was aware of this, since he\n\nhelped Appellant fill out the forms and prepare maps of the farms.\n\n\n\n\n 2\n Farm numbers, which are assigned by the FSA, identify an insured’s farms and\nare used in connection with federal crop insurance policies and FSA forms.\n 3\n It is not clear from the record how many years Appellant purchased its crop\ninsurance through Saintsing, but Appellant’s brief notes that it has farmed on this\nproperty “for decades” and purchased its crop insurance through Saintsing “[d]uring\nmuch of this time.” Appellant’s Br. 3.\n\n\n 5\n\f Prior to Appellee’s acquisition of Saintsing’s insurance agency, Saintsing issued\n\nAppellant a single policy that covered all of Appellant’s crops regardless of the county in\n\nwhich the farm was located.\n\n 1.\n\n Crop Loss Claim: Farm 2172\n\n The trouble began for Appellant after Saintsing sold his business to Appellee in\n\n2012. Unlike the single policy previously issued by Saintsing, Appellee issued Appellant\n\nseparate policies for each county in which a farm was geographically located, regardless\n\nof where the farm was administered. Saintsing -- then an agent for Appellee -- helped\n\nAppellant prepare the necessary forms to be submitted to the FSA. But on those forms,\n\nSaintsing listed Farm 2172 on the Richmond County Policy (where it was administered),\n\nrather than the Montgomery County Policy (where it was geographically located).\n\n In 2013, Appellant experienced crop loss due to deer on Farm 2172 and expected\n\nthis loss to be covered under its crop insurance policy. Therefore, Appellant filed a claim\n\nfor the loss with Appellee. However, Appellee denied the claim “on the technicality that\n\nFarm 2172, located in Montgomery County, was listed on [forms] filed with the FSA in\n\nRichmond County and was therefore listed on the wrong policy.” J.A. 13. 4 As noted,\n\nSaintsing had assisted Appellant in completing these forms and facilitated their filing\n\nwith the FSA.\n\n\n 4\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this\nappeal.\n\n\n 6\n\f 2.\n\n Prevented Planting Claim: Farms 1870 and 4168\n\n Appellant also seeks recovery for a prevented planting claim 5 under the\n\nMontgomery County Policy. The summer of 2013 was excessively rainy. As a result,\n\nAppellant was unable to plant on Farms 1870 and 4168.\n\n During the period that Appellant was unable to plant, another of Appellee’s\n\nagents, Jason Nifong, visited Appellant’s farmland to aid Appellant in preparing its FSA\n\nforms. During this visit, Nifong advised Appellant that it could file a prevented planting\n\nclaim as a result of the rainy weather. Following Nifong’s visit, Appellant chose to file a\n\nprevented planting claim and did not attempt to plant on these farms.\n\n However, in preparing the FSA forms, Nifong failed to note the prevented planting\n\nacres on the correct form, and he did not explain to Appellant that failure to report the\n\nacres on that specific form would bar the prevented planting claim. Ultimately, Appellee\n\ndenied Appellant’s claim based on this failure to report.\n\n C.\n\n Arbitration\n\n Appellant sought arbitration pursuant to Section 20(a) of the policy based on\n\nAppellee’s denials of its crop loss and prevented planting claims. See J.A. 207, § 20(a)\n\n\n 5\n When certain requirements are met, a prevented planting claim allows a\npolicyholder to recover when an insured cause of loss that is general to the surrounding\narea, such as excessive rain, prevents the policyholder (as well as other producers in the\narea) from planting crops on eligible acres.\n\n\n 7\n\f(“If you and we fail to agree on any determination made by us . . . the disagreement must\n\nbe resolved through arbitration . . . .”).\n\n 1.\n\n Crop Loss Claim: Farm 2172\n\n As to Appellant’s crop loss claim for Farm 2172, the arbitrator determined, “[t]he\n\nlack of coverage for Farm 2172 indisputably arose from [Appellee’s] decision to issue\n\ncounty by county policies and its failure, and that of its agents who knew where these\n\nfarms were actually located . . . , to correctly list the farms for crop insurance purposes.”\n\nJ.A. 14. The arbitrator continued, “I conclude that [Appellee] failed to comply with the\n\nterms of [the policy] and that failure resulted in the loss to [Appellant]. [Appellee] left\n\n[Appellant] effectively uninsured for crop year 2013 as to Farm 2172.” Id. The\n\narbitrator further concluded that Appellee engaged in negligence, breach of fiduciary\n\nduty, and constructive fraud. As a result, she awarded Appellant $97,692.39 for\n\nAppellee’s “breach of [the policy] and the failure to pay the claim,” damages which she\n\ntrebled because she concluded that Appellee violated the North Carolina Unfair and\n\nDeceptive Trade Practices Act. Id. Lastly, finding that Appellee failed to attempt to\n\nreasonably settle the claim, the arbitrator awarded Appellant $54,368.87 in attorneys’\n\nfees pursuant to North Carolina law.\n\n 2.\n\n Prevented Planting Claim: Farms 1870 and 4168\n\n As for Appellant’s prevented planting claim for Farms 1870 and 4168, the\n\narbitrator similarly determined that Appellee’s agent was at fault for failing to report the\n\n 8\n\facres on the correct FSA form, and that Appellee’s “actions or lack of action left\n\n[Appellant] effectively uninsured for crop year 2013 as to Farms [1870] 6 and 4168.” J.A.\n\n15. Accordingly, the arbitrator concluded, “I award the amount of $77,668.59 to\n\n[Appellant] for the breach of [the policy] and the failure to pay the claim. I also conclude\n\nthat [Appellee] engaged in negligence, breach of fiduciary duty and constructive fraud.”\n\nId. As with the crop loss claim for Farm 2172, the arbitrator trebled damages pursuant to\n\nthe North Carolina Unfair and Deceptive Trade Practices Act and awarded Appellant\n\n$44,483.63 in attorneys’ fees pursuant to North Carolina law.\n\n 3.\n\n Arbitration Award\n\n After all was said and done, the total arbitration award to Appellant was\n\n$97,692.39 for the crop loss claim for Farm 2172 and $77,668.59 for the prevented\n\nplanting claim for Farms 1870 and 4168 (both of which were to be trebled), $98,852.50\n\nin attorneys’ fees, and $14,994 in reimbursement for arbitration costs and fees.\n\nAccording to Appellant, this amounted to a total arbitration award of $639,929.44.\n\n D.\n\n District Court’s Decision\n\n On May 12, 2016, Appellant filed a motion to confirm the arbitration award in the\n\nUnited States District Court for the Eastern District of North Carolina. And, on June 29,\n\n\n 6\n The arbitrator’s decision occasionally refers to Farm 1870 as Farm 1872 or 1879.\nBased on the record, these references appear to be in error.\n\n\n 9\n\f2016, Appellee filed a competing motion to vacate the arbitration award, asserting that\n\nthe arbitrator exceeded her authority. Additionally, Appellee argued that Appellant failed\n\nto obtain a determination from the FCIC that Appellee failed to comply with the\n\ninsurance policies or FCIC procedures, which it asserted was a prerequisite for the district\n\ncourt to confirm the award.\n\n On July 12, 2016, the district court requested an amicus brief from the FCIC\n\naddressing whether the arbitrator exceeded her authority and whether Appellant was\n\nrequired to obtain an FCIC determination before the district court could confirm the\n\narbitration award. The FCIC filed its amicus brief on August 24, 2016, taking the\n\nposition that the arbitrator exceeded her authority by (1) awarding contractual damages\n\nnot covered by any policy; (2) awarding extra-contractual damages and attorneys’ fees;\n\n(3) failing to obtain and follow binding FCIC interpretations, issued in the form of Final\n\nAgency Determinations (“FADs”); and (4) failing to obtain an FCIC determination prior\n\nto any extra-contractual damages or attorneys’ fees being awarded during judicial review.\n\n On March 26, 2018, the district court granted Appellee’s motion to vacate and\n\ndenied Appellant’s motion to confirm the arbitration award, concluding that the arbitrator\n\nexceeded her powers by (1) impermissibly interpreting the policy rather than obtaining an\n\ninterpretation from the FCIC; and (2) awarding extra-contractual damages. Appellant\n\ntimely appealed on April 25, 2018.\n\n\n\n\n 10\n\f II.\n\n We review the district court’s legal rulings regarding confirmation or vacation of\n\nan arbitration award de novo and the district court’s factual findings, if any, for clear\n\nerror. Norfolk S. Ry. Co. v. Sprint Commc’ns Co., 883 F.3d 417, 422 (4th Cir. 2018).\n\n Pursuant to the FAA, “any judicial review of an arbitration award must be an\n\nextremely narrow exercise.” Long John Silver’s Restaurants, Inc. v. Cole, 514 F.3d 345,\n\n351 (4th Cir. 2008). There is a strong presumption in favor of confirming arbitration\n\nawards under the FAA, and any party seeking to overturn an arbitration award faces a\n\n“heavy burden.” Three S Del., Inc. v. DataQuick Info. Sys., Inc., 492 F.3d 520, 527 (4th\n\nCir. 2007). As we have stated, “in reviewing such an award, ‘a district or appellate court\n\nis limited to determin[ing] whether the arbitrators did the job they were told to do -- not\n\nwhether they did it well, or correctly, or reasonably, but simply whether they did it.’” Id.\n\n(quoting Remmey v. PaineWebber, Inc., 32 F.3d 143, 146 (4th Cir. 1994)). Indeed, “an\n\narbitration award is enforceable even if the award resulted from a misinterpretation of\n\nlaw, faulty legal reasoning or erroneous legal conclusion.” Richmond, Fredericksburg &\n\nPotomac R.R. Co. v. Transp. Commc’ns Int’l Union, 973 F.2d 276, 281 (4th Cir. 1992)\n\n(internal quotation marks omitted).\n\n The FAA provides that a court may only vacate an arbitration award on one of the\n\nfollowing grounds:\n\n (1) where the award was procured by corruption, fraud, or\n undue means;\n\n (2) where there was evident partiality or corruption in the\n arbitrators, or either of them;\n\n 11\n\f (3) where the arbitrators were guilty of misconduct in\n refusing to postpone the hearing, upon sufficient cause\n shown, or in refusing to hear evidence pertinent and material\n to the controversy; or of any other misbehavior by which the\n rights of any party have been prejudiced; or\n\n (4) where the arbitrators exceeded their powers, or so\n imperfectly executed them that a mutual, final, and definite\n award upon the subject matter submitted was not made.\n\nThree S Del., 492 F.3d at 527 (citing 9 U.S.C. § 10(a)). “The permissible common law\n\ngrounds for vacating such an award ‘include those circumstances where an award fails to\n\ndraw its essence from the contract, or the award evidences a manifest disregard of the\n\nlaw.’” Id. (quoting Patten v. Signator Ins. Agency, Inc., 441 F.3d 230, 234 (4th Cir.\n\n2006)).\n\n III.\n\n Appellant asserts that the district court erred in this case by vacating the arbitration\n\naward. Appellant argues that the arbitrator did not exceed her powers by awarding extra-\n\ncontractual damages and attorneys’ fees. In the alternative, Appellant argues that even if\n\nthe arbitrator exceeded her powers in part, we should nevertheless confirm the arbitration\n\naward of contract damages, which were within the arbitrator’s authority to award\n\npursuant to the policy. We address each argument in turn.\n\n A.\n\n Extra-Contractual Damages\n\n The district court vacated the arbitration award after determining that the arbitrator\n\nexceeded her powers by awarding prohibited extra-contractual damages and attorneys’\n\n\n 12\n\ffees. Appellant asserts that the arbitrator acted within her authority in rendering the\n\naward because the arbitrator concluded that Appellee breached the policy, and it was\n\nwithin her power to award extra-contractual damages.\n\n 1.\n\n Policy Interpretation\n\n We turn first to whether the policy unambiguously prohibits the arbitrator from\n\nawarding extra-contractual damages. In arguing that it does, Appellee relies primarily on\n\nSections 20(h) and 20(i) of the policy. These provisions state as follows:\n\n (h) Except as provided in section 20(i), no award or\n settlement in mediation, arbitration, appeal, administrative\n review or reconsideration process or judicial review can\n exceed the amount of liability established or which should\n have been established under the policy, except for interest\n awarded in accordance with section 26.\n\n (i) In a judicial review only, you may recover attorneys fees\n or other expenses, or any punitive, compensatory or any other\n damages from us only if you obtain a determination from\n FCIC that we, our agent or loss adjuster failed to comply with\n the terms of this policy or procedures issued by FCIC and\n such failure resulted in you receiving a payment in an amount\n that is less than the amount to which you were entitled.\n\nJ.A. 209, § 20(h)–(i) (emphases supplied).\n\n Appellee argues that these provisions unambiguously state that the arbitrator\n\ncannot award extra-contractual damages, and such damages may only be awarded by a\n\ncourt upon judicial review and after obtaining an FCIC determination that the agent or\n\nloss adjuster failed to comply with the terms of the policy. Making the same argument in\n\nits amicus brief submitted before the district court, the FCIC explained:\n\n\n 13\n\f According to the clear language of the policy, any extra-\n contractual damages, including damages arising from state\n claims, were only available after this Court was asked to\n review the arbitrator’s award. See 7 C.F.R. § 457.8, ¶ 20(i).\n As noted by FCIC, any extra-contractual claims (i.e.\n negligence, breach of fiduciary duty, constructive fraud,\n unfair and deceptive practices) and attorneys’ fees are limited\n solely to instances where FCIC has determined the insurance\n provider violated its policies and procedures and such\n violation had a monetary impact on the payment of the claim.\n See FCIC Response to Comments, 69 Fed. Reg. 48652-01,\n 48717 (Aug. 10, 2004). Thus, the plain and unambiguous\n terms of section 20(i) of the policy (7 C.F.R. § 457.8, ¶ 20(i)),\n together with the plain and unambiguous language of 7\n C.F.R. § 400.176(b) and 7 C.F.R. § 400.352(b)(4),\n unequivocally dictate that a party can only be awarded extra-\n contractual damages and attorneys’ fees upon petitioning this\n Court for review of the arbitrator’s award and then only after\n obtaining a determination from FCIC.\n\nJ.A. 232–33.\n\n In rendering the award, however, the arbitrator interpreted these provisions\n\ndifferently. The arbitrator concluded:\n\n Section 20(i) does not in fact state that the arbitrator may\n not award attorneys’ fees or punitive, compensatory or other\n damages. Instead it appears to impose a type of condition\n precedent to the ultimate enforceability of such an award by a\n court. Moreover, if the provision has the effect [Appellee]\n claimed, the arbitrator would have little jurisdiction to decide\n anything. That plainly cannot be the case. Notably, the\n Policies are silent on timing, such that the condition precedent\n of FCIC determination could be satisfied post-award but prior\n to enforcement in court.\n\n In addition, Section 20(h) does not expressly exclude any\n theories of liability (such as fraud) or types of damages;\n instead it says that no award can exceed the amount of\n liability established under the policy. It does not expressly\n exculpate insurers from their improper conduct such as fraud\n\n\n 14\n\f or breach of fiduciary duty, conduct that can trigger liability\n beyond liability for breach of contract.\n\nJ.A. 10.\n\n But it does not matter if these policy provisions are as unambiguous as Appellee\n\n(and the FCIC) claims or if the arbitrator’s alternative interpretation is reasonable. This\n\nis because even under the arbitrator’s explanation, these provisions are ambiguous at best.\n\nAs the policy makes clear, the arbitrator was required to obtain and apply the FCIC’s\n\ninterpretation of any ambiguous policy provision, and the arbitrator could not substitute\n\nher own interpretation for that of the FCIC.\n\n As the district court correctly pointed out, “[i]n cases involving federally reinsured\n\ncrop insurance, the insurance contract forms only one part of the agreement between the\n\nparties. The statutes and regulations associated with the federal crop insurance scheme\n\nalso limit the arbitrator’s authority.” J.A. 271 (citing Davis v. Producers Agric. Ins. Co.,\n\n762 F.3d 1276, 1284–85 (11th Cir. 2014)). Significantly, Section 20(a)(1) of the policy -\n\n- the very same section that provides for arbitration -- states that if there is a dispute that\n\n“in any way involves a policy or procedure interpretation,” the parties “must obtain an\n\ninterpretation from FCIC.” J.A. 208, § 20(a)(1) (emphasis supplied). The FCIC’s FADs\n\nare “binding on all participants in the Federal crop insurance program,” including\n\narbitrators. 7 C.F.R. § 400.765(c); see also J.A. 208, § 20(a)(1)(i) (“Any interpretation\n\nby FCIC will be binding in any mediation or arbitration.”). Therefore, the failure to\n\nobtain a required FCIC interpretation “will result in the nullification of any agreement or\n\n\n\n\n 15\n\faward.” J.A. 208, § 20(a)(1)(ii). In short, both the policy and FCIC regulations provide\n\nthat only the FCIC -- and not the arbitrator -- may interpret the policy.\n\n In rendering the award here, the arbitrator pushed back against this restriction by\n\nnoting that if the arbitrator could not interpret the meaning of policy provisions, “the\n\narbitrator would have little jurisdiction to decide anything.” J.A. 10. Indeed, the unusual\n\nworld of federal crop insurance does, in fact, appear to leave very little decision making\n\nauthority to the arbitrator. But as counsel for Appellee stated during oral argument in this\n\ncase, crop insurance “takes everything you know about insurance and turns it on its\n\nhead.” Oral Argument at 19:40–49, Williamson Farm v. Diversified Crop Ins. Servs.,\n\nInc., No. 18-1463 (4th Cir. Dec. 13, 2018), http://www.ca4.uscourts.gov/oral-\n\nargument/listen-to-oral-arguments (hereinafter “Oral Argument”).\n\n 2.\n\n The Distinction Between FCIC Interpretations and FCIC Determinations\n\n In response to Appellee’s argument that the arbitrator was required to obtain an\n\nFCIC interpretation of disputed policy provisions, Appellant asserts, “if an FCIC\n\ndetermination is required before an arbitrator can award monies then the arbitration\n\nprocess is a complete waste of time with no meaning.” Appellant’s Br. 24. Appellant\n\nfurther asserts that, in any event, it did, in fact, seek an FCIC determination and was told\n\nthat the FCIC would not render an opinion until after arbitration.\n\n In both arguments, Appellant conflates the obligation to obtain an FCIC\n\ninterpretation of disputed provisions of the policy pursuant to Section 20(a)(1) -- a\n\nrequirement in any arbitration where the meaning or application of policy provisions are\n\n 16\n\fat issue -- with the requirement to obtain an FCIC determination that there was a failure\n\nto comply with the terms of the policy prior to obtaining attorneys’ fees or extra-\n\ncontractual damages during judicial review pursuant to Section 20(i). FCIC\n\ninterpretations and FCIC determinations, as these terms are described in the policy, are\n\nnot the same thing.\n\n a.\n\n When an FCIC Determination is Required\n\n As to Appellant’s first argument, an FCIC determination that there was a failure to\n\ncomply with the terms of the policy is not required “before an arbitrator can award\n\nmonies.” Appellant’s Br. 24. Pursuant to Section 20(i) of the policy, such\n\ndeterminations are only required (1) during judicial review (after arbitration is\n\ncompleted); and (2) only when an insured is seeking extra-contractual damages. As\n\ndiscussed below, binding FCIC FADs make clear that arbitrators cannot award extra-\n\ncontractual damages; accordingly, arbitrators do not require such an FCIC determination\n\nin order to render their award. 7 Arbitrators do, however, require an FCIC interpretation\n\nbefore rendering an award based on disputed policy language.\n\n\n 7\n In its reply brief, Appellant offers a similar argument that Appellee’s\ninterpretation of 7 C.F.R. § 400.352 -- which preempts state and local laws and\nregulations except where the FCIC makes a determination that the agent or loss adjuster\nfailed to comply with the policy -- “would bar recovery of any damages without an FCIC\ndetermination,” including compensatory damages. Appellant’s Reply Br. 2. Because the\nFCIC has established that arbitrators cannot award damages based on state law claims\nand FCIC determinations are only required during judicial review involving extra-\ncontractual damages, this argument is irrelevant as to the arbitration award.\n\n\n 17\n\f b.\n\n Appellant Requested an FCIC Determination, Not an FCIC Interpretation\n\n As to Appellant’s second argument, Appellant did not request an FCIC\n\ninterpretation -- it requested an FCIC determination. Again, an FCIC interpretation of\n\nthe meaning of disputed policy provisions is a different request -- one which arises at a\n\ndifferent time and in a different proceeding -- than an FCIC determination that an agent\n\nfailed to comply with the terms of the policy. To comply with Section 20(a)(1) of the\n\npolicy, what Appellant (or the arbitrator) needed to request during the arbitration, but did\n\nnot, was an FCIC interpretation of the meaning of the disputed policy provisions.\n\nAppellant’s premature request for an FCIC determination that there was a failure to\n\ncomply with the terms of the policy, pursuant to Section 20(i), is of no consequence to\n\nthe arbitration award. 8\n\n The arbitrator’s explanation as to what specific policy provisions mean\n\n(particularly to the extent they were disputed issues in the arbitration) can only be viewed\n\nas her interpretation of the policy. See, e.g., J.A. 10 (“Section 20(i) does not in fact state\n\nthat the arbitrator may not award attorneys’ fees or punitive, compensatory or other\n\ndamages. Instead it appears to impose a type of condition precedent to the ultimate\n\n\n 8\n We note that our decision in this case does not address whether a claimant could\nrecover purely tort damages against a private insurance company without such an FCIC\ndetermination where misrepresentations or negligence on the part of the insurance agent\nbefore the policy was issued left the claimant effectively uninsured under the federal crop\ninsurance program. Here, Appellant sought contractual damages and participated in\narbitration pursuant to the insurance policy.\n\n\n 18\n\fenforceability of such an award by a court. Moreover, if the provision has the effect\n\n[Appellee] claimed, the arbitrator would have little jurisdiction to decide anything. That\n\nplainly cannot be the case.”). By not obtaining an FCIC interpretation to resolve the\n\nissue but instead interpreting the provisions herself, which was not in her authority to do,\n\nthe arbitrator exceeded her powers.\n\n 3.\n\n Binding FCIC Authority\n\n The arbitrator was obligated to follow any FADs previously issued by the FCIC.\n\nSee J.A. 208, § 20(a)(1)(i), (iii) (“Any interpretation by FCIC will be binding in any\n\nmediation or arbitration . . . . An interpretation by FCIC of a policy provision is\n\nconsidered a determination that is a matter of general applicability.” (emphasis\n\nsupplied)). And the FCIC has addressed whether arbitrators may award extra-contractual\n\ndamages more than once already. Each time, the FCIC has made clear that arbitrators do\n\nnot have the authority to award such damages. Rather, extra-contractual damages and\n\nattorneys’ fees may only be awarded by the court reviewing an arbitrator’s decision. For\n\ninstance, Appellant does not dispute that FAD-193, issued on October 21, 2013, states in\n\nrelevant part:\n\n [T]he reference to “judicial review only” [in Section 20(i)] is\n to clarify that such [extra-contractual] damages can only be\n sought during an appeal to the Courts, after an FCIC\n determination has been obtained, and cannot be awarded in\n arbitration. To obtain a determination that will enable the\n insured to recoup attorney[s’] fees, expenses, or damages\n from the [approved insurance provider], the insured must\n send a request for determination to the [Risk Management\n\n\n 19\n\f Agency] Deputy Administrator of Compliance after the\n insured has filed an appeal for judicial review.\n\nJ.A. 240 (emphasis supplied); Appellee’s Br. 12.\n\n Prior to this, the FCIC also addressed the issue of extra-contractual damages in\n\nFAD-99, issued on May 4, 2009, which states, in relevant part, “it is only in a judicial\n\nreview that producers can recover attorneys’ fees or other expenses, or any punitive,\n\ncompensatory or any other damages from insurance providers.” J.A. 241.\n\n Pursuant to Section 20(a)(1)(i) of the policy, these previously issued FADs -- and\n\nthe conclusion that arbitrators cannot award extra-contractual damages pursuant to\n\nSection 20(i) -- were binding upon the arbitrator in this case.\n\n 4.\n\n The Arbitrator Exceeded Her Powers\n\n Accordingly, the arbitrator exceeded her powers by both (1) interpreting the policy\n\nherself without obtaining an FCIC interpretation for the disputed policy provisions; and\n\n(2) awarding extra-contractual damages, which the FCIC has conclusively stated in\n\nmultiple FADs cannot be awarded in arbitration and can only be sought through judicial\n\nreview. Thus, Appellee met “the heavy burden” to vacate an arbitration award pursuant\n\nto the FAA. MCI Constructors, LLC v. City of Greensboro, 610 F.3d 849, 857 (4th Cir.\n\n2010); see also 9 U.S.C. § 10(a)(4).\n\n\n\n\n 20\n\f B.\n\n Contractual Damages\n\n In the alternative, Appellant argues that even if the arbitrator exceeded her powers\n\nby awarding extra-contractual damages and attorneys’ fees, we should nevertheless\n\nconfirm the arbitration award in part based on contract damages, which were within the\n\narbitrator’s authority to award pursuant to Section 20 of the policy.\n\n Assuming that the arbitrator also awarded contractual damages, 9 it is impossible to\n\ntell from the arbitration award what amount may have stemmed from contractual\n\ndamages and what amount was extra-contractual. For example, in the award as to\n\nAppellant’s crop loss claim for Farm 2172, the arbitrator stated:\n\n The lack of coverage for Farm 2172 indisputably arose\n from [Appellee’s conduct] . . . . The failure of [Appellee] to\n properly handle this and advise [Appellant] breached\n [Appellee’s] fiduciary duty to [Appellant.]\n\n I conclude that [Appellee] failed to comply with the terms\n of [the policy] and that failure resulted in the loss to\n [Appellant.] [Appellee] left [Appellant] effectively uninsured\n for crop year 2013 as to Farm 2172. Accordingly, I award the\n amount of $97,692.39 to [Appellant] for the breach of [the\n policy] and the failure to pay the claim. I conclude that\n [Appellee] engaged in negligence, breach of fiduciary duty\n and constructive fraud.\n\n In addition, [Appellant] has established that [Appellee]\n owed duties distinct and separate from the duties it owed\n under the parties’ contracts; further, [Appellant] has\n\n 9\n Notably, the arbitrator concluded that Appellee “left [Appellant] effectively\nuninsured for crop year 2013,” J.A. 14, 15, which calls into question how Appellee could\nbreach a contract that did not exist.\n\n\n 21\n\f established that [Appellee’s] breach of those duties was\n aggravated by several factors. Accordingly, I conclude that\n [Appellee] engaged in unfair and deceptive practices in or\n affecting commerce . . . . The facts show recklessness and\n wanton disregard by [Appellee], i.e., more than a mere breach\n of contract, warranting an award of treble damages under\n [North Carolina state law.]\n\nJ.A. 14.\n\n Although the arbitrator concluded that Appellee breached the contract, the\n\narbitrator also found Appellee liable for extra-contractual damages, including negligence\n\nand breach of fiduciary duty. Since the arbitrator only provided a single amount of\n\ndamages rather than a breakdown of the award by contract and noncontract claims, we\n\nhave no way to distinguish what amount the arbitrator may have awarded for contractual\n\ndamages (which were within the arbitrator’s authority to award) and what amount the\n\narbitrator awarded for extra-contractual damages (which, for the reasons explained above,\n\nthe arbitrator exceeded her authority in awarding).\n\n Of note, there is no support in the record for Appellant’s assertion at oral argument\n\nthat the arbitrator awarded $97,692.39 in contract damages for the crop loss claim while\n\nextra-contractual damages were awarded in the form of trebled damages and attorneys’\n\nfees. See Oral Argument at 14:51–16:04. To the contrary, the structure of the arbitration\n\naward suggests that the arbitrator intended the award of trebled damages based on\n\nAppellee’s “recklessness and wanton disregard” to be in addition to the contractual and\n\nextra-contractual damages awarded for breach of contract, negligence, breach of fiduciary\n\nduty, and constructive fraud. J.A. 14 (“I conclude that [Appellee] engaged in negligence,\n\nbreach of fiduciary duty and constructive fraud. In addition, . . . [t]he facts show\n\n 22\n\frecklessness and wanton disregard by [Appellee.]” (emphasis supplied)). The same is true\n\nregarding the arbitration award for Appellant’s prevented planting claim for Farms 1870\n\nand 4168. See J.A. 15 (“I also conclude that [Appellant] has engaged in negligence,\n\nbreach of fiduciary duty and constructive fraud. In addition, as to Farms [1870] and\n\n4168, . . . [t]he facts show recklessness and wanton disregard by [Appellant.]” (emphasis\n\nsupplied)).\n\n Accordingly, even to the extent the arbitrator awarded damages for breach of\n\ncontract on either policy (as opposed to extra-contractual damages), the entire award\n\nmust be vacated.\n\n IV.\n\n For these reasons, the judgment of the district court is\n\n AFFIRMED.\n\n\n\n\n 23\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: WILLIAMSON FARM, Plaintiff - Appellant, v. DIVERSIFIED CROP INSURANCE SERVICES, A/K/A CGB Diversified Services, Inc., Defendant - Appellee.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-27\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1463\\n\\n\\nWILLIAMSON FARM,\\n\\n Plaintiff - Appellant,\\n\\n v.\\n\\nDIVERSIFIED CROP INSURANCE SERVICES, a/k/a CGB Diversified\\nServices, Inc.,\\n\\n Defendant - Appellee.\\n\\n\\n\\nAppeal from the United States District Court for the Eastern District of North Carolina, at\\nRaleigh. James C. Dever III, District Judge. (5:17-cv-00513-D; 5:16-mc-00018-D)\\n\\n\\nArgued: December 13, 2018 Decided: February 27, 2019\\n\\n\\nBefore KEENAN, FLOYD, and THACKER, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Thacker wrote the opinion, in which Judge\\nKeenan and Judge Floyd joined.\\n\\n\\nARGUED: Matthew William Buckmiller, STUBBS & PERDUE, P.A., Raleigh, North\\nCarolina, for Appellant. Roy Jefferson Allen, HUNT ROSS & ALLEN, Clarksdale,\\nMississippi, for Appellee. ON BRIEF: Derek M. Crump, BROWN, CRUMP,\\nVANORE & TIERNEY, L.L.P., Raleigh, North Carolina, for Appellee.\\n\\fTHACKER, Circuit Judge:\\n\\n In this case, Williamson Farm (“Appellant”) challenges the district court’s\\n\\ndecision to vacate an arbitration award that Appellant won against Diversified Crop\\n\\nInsurance (“Appellee”), a private insurance company that sold federal crop insurance\\n\\npolicies to Appellant. Appellant asserts that the district court erred in denying its motion\\n\\nto confirm the arbitration award and granting Appellee’s motion to vacate on the basis\\n\\nthat the arbitrator exceeded her powers.\\n\\n Despite the strong presumption in favor of confirming arbitration awards pursuant\\n\\nto the Federal Arbitration Act (“FAA”), we hold that Appellee met its heavy burden to\\n\\nprove that the arbitrator exceeded her powers by awarding extra-contractual damages,\\n\\ncontrary to both the policy and binding authority from the Federal Crop Insurance\\n\\nCorporation (“FCIC”). Therefore, we affirm.\\n\\n I.\\n\\n A.\\n\\n Background on the Federal Crop Insurance Program\\n\\n The policies at issue in this case are federal crop insurance policies, which\\n\\nAppellee sold pursuant to the Federal Crop Insurance Act (“FCIA”), 7 U.S.C. §§ 1501–\\n\\n1524, 1531, and accompanying regulations issued by the FCIC. These policies are not\\n\\ntypical private insurance agreements, so a brief discussion of the federal government’s\\n\\nrole in crop insurance agreements is necessary.\\n\\n The federal crop insurance program provides farmers and agricultural entities in\\n\\nthe United States with crop insurance protection, a venture that was considered too risky\\n\\n 2\\n\\ffor traditional private insurers when the FCIA was enacted in 1938. As the Supreme\\n\\nCourt explained, “the Government engaged in crop insurance as a pioneer. Private\\n\\ninsurance companies apparently deemed all-risk crop insurance too great a commercial\\n\\nhazard.” Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 383 n.1 (1947).\\n\\n To provide this protection to farmers, the FCIA established the FCIC, a\\n\\ngovernment corporation within the United States Department of Agriculture’s Risk\\n\\nManagement Agency that administers the federal crop insurance program. 7 U.S.C.\\n\\n§ 1503. The FCIC does not directly issue crop insurance policies to farmers. Instead, it\\n\\nrelies on “approved insurance providers” 1 -- private insurers such as Appellee -- to issue\\n\\nfederal crop insurance policies to farmers like Appellant. 7 U.S.C. § 1502(b)(2). Then,\\n\\nwhen certain eligibility conditions are met, the FCIC reinsures the approved insurance\\n\\nproviders’ losses and reimburses their administrative and operating costs.\\n\\n In order to qualify for reinsurance through the FCIC, approved insurance providers\\n\\nmust comply with the FCIA and the accompanying regulations issued by the FCIC\\n\\ngoverning the sale, issuance, and servicing of federal crop insurance policies. 7 C.F.R.\\n\\n§ 400.168; see also Felder v. Fed. Crop Ins. Corp., 146 F.2d 638, 640 (4th Cir. 1944);\\n\\nDavis v. Producers Agric. Ins. Co., 762 F.3d 1276, 1284 (11th Cir. 2014). Accordingly,\\n\\n“even though the crop insurance policy is between the farmer and an approved insurance\\n\\n\\n 1\\n Pursuant to the FCIA, “[t]he term ‘approved insurance provider’ means a private\\ninsurance provider that has been approved by the [FCIC] to provide insurance coverage\\nto producers participating in the Federal crop insurance program established under this\\nsubchapter.” 7 U.S.C. § 1502(b)(2).\\n\\n\\n 3\\n\\fprovider,” the FCIA “establishes the terms and conditions of insurance.” Davis, 762 F.3d\\n\\nat 1284 (citation omitted).\\n\\n Indeed, all approved insurance providers issue a uniform policy drafted by the\\n\\nFCIC known as the “Common Crop Insurance Policy,” the text for which is provided at 7\\n\\nC.F.R. § 457.8. Both policies at issue in this case mirrored the Common Crop Insurance\\n\\nPolicy. Additionally, the FCIC sets premium rates for each county and crop insured,\\n\\nsubsidizes and receives premiums, and pays claims. In short, the FCIC is extensively\\n\\ninvolved in and exerts control over all aspects of the federal crop insurance program.\\n\\n The Farm Service Agency (“FSA”), another agency within the Department of\\n\\nAgriculture, works with the Risk Management Agency and the FCIC to implement the\\n\\nfederal crop insurance program through FSA’s network of state and county field offices.\\n\\nAs relevant to this case, insureds and approved insurance providers are required to submit\\n\\nprogram eligibility, acreage reporting, and other necessary forms to their local FSA office\\n\\nin order to receive federal crop insurance coverage through the FCIC.\\n\\n B.\\n\\n Appellant’s Underlying Policy Claims\\n\\n This case centers on two policies issued by Appellee to insure Appellant’s 2013\\n\\ncrops: (1) the Richmond County Policy; and (2) the Montgomery County Policy. Under\\n\\n\\n\\n\\n 4\\n\\fthe Richmond County Policy, Appellee listed Farm Number 2172. 2 Under the\\n\\nMontgomery County Policy, Appellee listed Farm Numbers 1870 and 4168.\\n\\n For many years, Appellant purchased its crop insurance through insurance agent\\n\\nLynn Saintsing, until Saintsing sold his agency to Appellee in 2012. 3 During his time as\\n\\nAppellant’s insurance agent, Saintsing’s regular practice was to help Appellant complete\\n\\nthe necessary forms and submit them to the proper FSA office to insure Appellant’s\\n\\nfarms.\\n\\n It was not unusual for a farm located in one county to be administered by an FSA\\n\\noffice in another county, based on the owner’s preferences or if the farm’s county did not\\n\\nhave an FSA office. Such was the case with Appellant’s Farm 2172, which was located\\n\\nin Montgomery County. In 1996, the Montgomery County FSA office closed, and\\n\\nadministration of Farm 2172 shifted to Richmond County. Accordingly, since 1996,\\n\\nFarm 2172 had been listed on forms filed with the FSA office in Richmond County even\\n\\nthough it was located in Montgomery County. Saintsing was aware of this, since he\\n\\nhelped Appellant fill out the forms and prepare maps of the farms.\\n\\n\\n\\n\\n 2\\n Farm numbers, which are assigned by the FSA, identify an insured’s farms and\\nare used in connection with federal crop insurance policies and FSA forms.\\n 3\\n It is not clear from the record how many years Appellant purchased its crop\\ninsurance through Saintsing, but Appellant’s brief notes that it has farmed on this\\nproperty “for decades” and purchased its crop insurance through Saintsing “[d]uring\\nmuch of this time.” Appellant’s Br. 3.\\n\\n\\n 5\\n\\f Prior to Appellee’s acquisition of Saintsing’s insurance agency, Saintsing issued\\n\\nAppellant a single policy that covered all of Appellant’s crops regardless of the county in\\n\\nwhich the farm was located.\\n\\n 1.\\n\\n Crop Loss Claim: Farm 2172\\n\\n The trouble began for Appellant after Saintsing sold his business to Appellee in\\n\\n2012. Unlike the single policy previously issued by Saintsing, Appellee issued Appellant\\n\\nseparate policies for each county in which a farm was geographically located, regardless\\n\\nof where the farm was administered. Saintsing -- then an agent for Appellee -- helped\\n\\nAppellant prepare the necessary forms to be submitted to the FSA. But on those forms,\\n\\nSaintsing listed Farm 2172 on the Richmond County Policy (where it was administered),\\n\\nrather than the Montgomery County Policy (where it was geographically located).\\n\\n In 2013, Appellant experienced crop loss due to deer on Farm 2172 and expected\\n\\nthis loss to be covered under its crop insurance policy. Therefore, Appellant filed a claim\\n\\nfor the loss with Appellee. However, Appellee denied the claim “on the technicality that\\n\\nFarm 2172, located in Montgomery County, was listed on [forms] filed with the FSA in\\n\\nRichmond County and was therefore listed on the wrong policy.” J.A. 13. 4 As noted,\\n\\nSaintsing had assisted Appellant in completing these forms and facilitated their filing\\n\\nwith the FSA.\\n\\n\\n 4\\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this\\nappeal.\\n\\n\\n 6\\n\\f 2.\\n\\n Prevented Planting Claim: Farms 1870 and 4168\\n\\n Appellant also seeks recovery for a prevented planting claim 5 under the\\n\\nMontgomery County Policy. The summer of 2013 was excessively rainy. As a result,\\n\\nAppellant was unable to plant on Farms 1870 and 4168.\\n\\n During the period that Appellant was unable to plant, another of Appellee’s\\n\\nagents, Jason Nifong, visited Appellant’s farmland to aid Appellant in preparing its FSA\\n\\nforms. During this visit, Nifong advised Appellant that it could file a prevented planting\\n\\nclaim as a result of the rainy weather. Following Nifong’s visit, Appellant chose to file a\\n\\nprevented planting claim and did not attempt to plant on these farms.\\n\\n However, in preparing the FSA forms, Nifong failed to note the prevented planting\\n\\nacres on the correct form, and he did not explain to Appellant that failure to report the\\n\\nacres on that specific form would bar the prevented planting claim. Ultimately, Appellee\\n\\ndenied Appellant’s claim based on this failure to report.\\n\\n C.\\n\\n Arbitration\\n\\n Appellant sought arbitration pursuant to Section 20(a) of the policy based on\\n\\nAppellee’s denials of its crop loss and prevented planting claims. See J.A. 207, § 20(a)\\n\\n\\n 5\\n When certain requirements are met, a prevented planting claim allows a\\npolicyholder to recover when an insured cause of loss that is general to the surrounding\\narea, such as excessive rain, prevents the policyholder (as well as other producers in the\\narea) from planting crops on eligible acres.\\n\\n\\n 7\\n\\f(“If you and we fail to agree on any determination made by us . . . the disagreement must\\n\\nbe resolved through arbitration . . . .”).\\n\\n 1.\\n\\n Crop Loss Claim: Farm 2172\\n\\n As to Appellant’s crop loss claim for Farm 2172, the arbitrator determined, “[t]he\\n\\nlack of coverage for Farm 2172 indisputably arose from [Appellee’s] decision to issue\\n\\ncounty by county policies and its failure, and that of its agents who knew where these\\n\\nfarms were actually located . . . , to correctly list the farms for crop insurance purposes.”\\n\\nJ.A. 14. The arbitrator continued, “I conclude that [Appellee] failed to comply with the\\n\\nterms of [the policy] and that failure resulted in the loss to [Appellant]. [Appellee] left\\n\\n[Appellant] effectively uninsured for crop year 2013 as to Farm 2172.” Id. The\\n\\narbitrator further concluded that Appellee engaged in negligence, breach of fiduciary\\n\\nduty, and constructive fraud. As a result, she awarded Appellant $97,692.39 for\\n\\nAppellee’s “breach of [the policy] and the failure to pay the claim,” damages which she\\n\\ntrebled because she concluded that Appellee violated the North Carolina Unfair and\\n\\nDeceptive Trade Practices Act. Id. Lastly, finding that Appellee failed to attempt to\\n\\nreasonably settle the claim, the arbitrator awarded Appellant $54,368.87 in attorneys’\\n\\nfees pursuant to North Carolina law.\\n\\n 2.\\n\\n Prevented Planting Claim: Farms 1870 and 4168\\n\\n As for Appellant’s prevented planting claim for Farms 1870 and 4168, the\\n\\narbitrator similarly determined that Appellee’s agent was at fault for failing to report the\\n\\n 8\\n\\facres on the correct FSA form, and that Appellee’s “actions or lack of action left\\n\\n[Appellant] effectively uninsured for crop year 2013 as to Farms [1870] 6 and 4168.” J.A.\\n\\n15. Accordingly, the arbitrator concluded, “I award the amount of $77,668.59 to\\n\\n[Appellant] for the breach of [the policy] and the failure to pay the claim. I also conclude\\n\\nthat [Appellee] engaged in negligence, breach of fiduciary duty and constructive fraud.”\\n\\nId. As with the crop loss claim for Farm 2172, the arbitrator trebled damages pursuant to\\n\\nthe North Carolina Unfair and Deceptive Trade Practices Act and awarded Appellant\\n\\n$44,483.63 in attorneys’ fees pursuant to North Carolina law.\\n\\n 3.\\n\\n Arbitration Award\\n\\n After all was said and done, the total arbitration award to Appellant was\\n\\n$97,692.39 for the crop loss claim for Farm 2172 and $77,668.59 for the prevented\\n\\nplanting claim for Farms 1870 and 4168 (both of which were to be trebled), $98,852.50\\n\\nin attorneys’ fees, and $14,994 in reimbursement for arbitration costs and fees.\\n\\nAccording to Appellant, this amounted to a total arbitration award of $639,929.44.\\n\\n D.\\n\\n District Court’s Decision\\n\\n On May 12, 2016, Appellant filed a motion to confirm the arbitration award in the\\n\\nUnited States District Court for the Eastern District of North Carolina. And, on June 29,\\n\\n\\n 6\\n The arbitrator’s decision occasionally refers to Farm 1870 as Farm 1872 or 1879.\\nBased on the record, these references appear to be in error.\\n\\n\\n 9\\n\\f2016, Appellee filed a competing motion to vacate the arbitration award, asserting that\\n\\nthe arbitrator exceeded her authority. Additionally, Appellee argued that Appellant failed\\n\\nto obtain a determination from the FCIC that Appellee failed to comply with the\\n\\ninsurance policies or FCIC procedures, which it asserted was a prerequisite for the district\\n\\ncourt to confirm the award.\\n\\n On July 12, 2016, the district court requested an amicus brief from the FCIC\\n\\naddressing whether the arbitrator exceeded her authority and whether Appellant was\\n\\nrequired to obtain an FCIC determination before the district court could confirm the\\n\\narbitration award. The FCIC filed its amicus brief on August 24, 2016, taking the\\n\\nposition that the arbitrator exceeded her authority by (1) awarding contractual damages\\n\\nnot covered by any policy; (2) awarding extra-contractual damages and attorneys’ fees;\\n\\n(3) failing to obtain and follow binding FCIC interpretations, issued in the form of Final\\n\\nAgency Determinations (“FADs”); and (4) failing to obtain an FCIC determination prior\\n\\nto any extra-contractual damages or attorneys’ fees being awarded during judicial review.\\n\\n On March 26, 2018, the district court granted Appellee’s motion to vacate and\\n\\ndenied Appellant’s motion to confirm the arbitration award, concluding that the arbitrator\\n\\nexceeded her powers by (1) impermissibly interpreting the policy rather than obtaining an\\n\\ninterpretation from the FCIC; and (2) awarding extra-contractual damages. Appellant\\n\\ntimely appealed on April 25, 2018.\\n\\n\\n\\n\\n 10\\n\\f II.\\n\\n We review the district court’s legal rulings regarding confirmation or vacation of\\n\\nan arbitration award de novo and the district court’s factual findings, if any, for clear\\n\\nerror. Norfolk S. Ry. Co. v. Sprint Commc’ns Co., 883 F.3d 417, 422 (4th Cir. 2018).\\n\\n Pursuant to the FAA, “any judicial review of an arbitration award must be an\\n\\nextremely narrow exercise.” Long John Silver’s Restaurants, Inc. v. Cole, 514 F.3d 345,\\n\\n351 (4th Cir. 2008). There is a strong presumption in favor of confirming arbitration\\n\\nawards under the FAA, and any party seeking to overturn an arbitration award faces a\\n\\n“heavy burden.” Three S Del., Inc. v. DataQuick Info. Sys., Inc., 492 F.3d 520, 527 (4th\\n\\nCir. 2007). As we have stated, “in reviewing such an award, ‘a district or appellate court\\n\\nis limited to determin[ing] whether the arbitrators did the job they were told to do -- not\\n\\nwhether they did it well, or correctly, or reasonably, but simply whether they did it.’” Id.\\n\\n(quoting Remmey v. PaineWebber, Inc., 32 F.3d 143, 146 (4th Cir. 1994)). Indeed, “an\\n\\narbitration award is enforceable even if the award resulted from a misinterpretation of\\n\\nlaw, faulty legal reasoning or erroneous legal conclusion.” Richmond, Fredericksburg &\\n\\nPotomac R.R. Co. v. Transp. Commc’ns Int’l Union, 973 F.2d 276, 281 (4th Cir. 1992)\\n\\n(internal quotation marks omitted).\\n\\n The FAA provides that a court may only vacate an arbitration award on one of the\\n\\nfollowing grounds:\\n\\n (1) where the award was procured by corruption, fraud, or\\n undue means;\\n\\n (2) where there was evident partiality or corruption in the\\n arbitrators, or either of them;\\n\\n 11\\n\\f (3) where the arbitrators were guilty of misconduct in\\n refusing to postpone the hearing, upon sufficient cause\\n shown, or in refusing to hear evidence pertinent and material\\n to the controversy; or of any other misbehavior by which the\\n rights of any party have been prejudiced; or\\n\\n (4) where the arbitrators exceeded their powers, or so\\n imperfectly executed them that a mutual, final, and definite\\n award upon the subject matter submitted was not made.\\n\\nThree S Del., 492 F.3d at 527 (citing 9 U.S.C. § 10(a)). “The permissible common law\\n\\ngrounds for vacating such an award ‘include those circumstances where an award fails to\\n\\ndraw its essence from the contract, or the award evidences a manifest disregard of the\\n\\nlaw.’” Id. (quoting Patten v. Signator Ins. Agency, Inc., 441 F.3d 230, 234 (4th Cir.\\n\\n2006)).\\n\\n III.\\n\\n Appellant asserts that the district court erred in this case by vacating the arbitration\\n\\naward. Appellant argues that the arbitrator did not exceed her powers by awarding extra-\\n\\ncontractual damages and attorneys’ fees. In the alternative, Appellant argues that even if\\n\\nthe arbitrator exceeded her powers in part, we should nevertheless confirm the arbitration\\n\\naward of contract damages, which were within the arbitrator’s authority to award\\n\\npursuant to the policy. We address each argument in turn.\\n\\n A.\\n\\n Extra-Contractual Damages\\n\\n The district court vacated the arbitration award after determining that the arbitrator\\n\\nexceeded her powers by awarding prohibited extra-contractual damages and attorneys’\\n\\n\\n 12\\n\\ffees. Appellant asserts that the arbitrator acted within her authority in rendering the\\n\\naward because the arbitrator concluded that Appellee breached the policy, and it was\\n\\nwithin her power to award extra-contractual damages.\\n\\n 1.\\n\\n Policy Interpretation\\n\\n We turn first to whether the policy unambiguously prohibits the arbitrator from\\n\\nawarding extra-contractual damages. In arguing that it does, Appellee relies primarily on\\n\\nSections 20(h) and 20(i) of the policy. These provisions state as follows:\\n\\n (h) Except as provided in section 20(i), no award or\\n settlement in mediation, arbitration, appeal, administrative\\n review or reconsideration process or judicial review can\\n exceed the amount of liability established or which should\\n have been established under the policy, except for interest\\n awarded in accordance with section 26.\\n\\n (i) In a judicial review only, you may recover attorneys fees\\n or other expenses, or any punitive, compensatory or any other\\n damages from us only if you obtain a determination from\\n FCIC that we, our agent or loss adjuster failed to comply with\\n the terms of this policy or procedures issued by FCIC and\\n such failure resulted in you receiving a payment in an amount\\n that is less than the amount to which you were entitled.\\n\\nJ.A. 209, § 20(h)–(i) (emphases supplied).\\n\\n Appellee argues that these provisions unambiguously state that the arbitrator\\n\\ncannot award extra-contractual damages, and such damages may only be awarded by a\\n\\ncourt upon judicial review and after obtaining an FCIC determination that the agent or\\n\\nloss adjuster failed to comply with the terms of the policy. Making the same argument in\\n\\nits amicus brief submitted before the district court, the FCIC explained:\\n\\n\\n 13\\n\\f According to the clear language of the policy, any extra-\\n contractual damages, including damages arising from state\\n claims, were only available after this Court was asked to\\n review the arbitrator’s award. See 7 C.F.R. § 457.8, ¶ 20(i).\\n As noted by FCIC, any extra-contractual claims (i.e.\\n negligence, breach of fiduciary duty, constructive fraud,\\n unfair and deceptive practices) and attorneys’ fees are limited\\n solely to instances where FCIC has determined the insurance\\n provider violated its policies and procedures and such\\n violation had a monetary impact on the payment of the claim.\\n See FCIC Response to Comments, 69 Fed. Reg. 48652-01,\\n 48717 (Aug. 10, 2004). Thus, the plain and unambiguous\\n terms of section 20(i) of the policy (7 C.F.R. § 457.8, ¶ 20(i)),\\n together with the plain and unambiguous language of 7\\n C.F.R. § 400.176(b) and 7 C.F.R. § 400.352(b)(4),\\n unequivocally dictate that a party can only be awarded extra-\\n contractual damages and attorneys’ fees upon petitioning this\\n Court for review of the arbitrator’s award and then only after\\n obtaining a determination from FCIC.\\n\\nJ.A. 232–33.\\n\\n In rendering the award, however, the arbitrator interpreted these provisions\\n\\ndifferently. The arbitrator concluded:\\n\\n Section 20(i) does not in fact state that the arbitrator may\\n not award attorneys’ fees or punitive, compensatory or other\\n damages. Instead it appears to impose a type of condition\\n precedent to the ultimate enforceability of such an award by a\\n court. Moreover, if the provision has the effect [Appellee]\\n claimed, the arbitrator would have little jurisdiction to decide\\n anything. That plainly cannot be the case. Notably, the\\n Policies are silent on timing, such that the condition precedent\\n of FCIC determination could be satisfied post-award but prior\\n to enforcement in court.\\n\\n In addition, Section 20(h) does not expressly exclude any\\n theories of liability (such as fraud) or types of damages;\\n instead it says that no award can exceed the amount of\\n liability established under the policy. It does not expressly\\n exculpate insurers from their improper conduct such as fraud\\n\\n\\n 14\\n\\f or breach of fiduciary duty, conduct that can trigger liability\\n beyond liability for breach of contract.\\n\\nJ.A. 10.\\n\\n But it does not matter if these policy provisions are as unambiguous as Appellee\\n\\n(and the FCIC) claims or if the arbitrator’s alternative interpretation is reasonable. This\\n\\nis because even under the arbitrator’s explanation, these provisions are ambiguous at best.\\n\\nAs the policy makes clear, the arbitrator was required to obtain and apply the FCIC’s\\n\\ninterpretation of any ambiguous policy provision, and the arbitrator could not substitute\\n\\nher own interpretation for that of the FCIC.\\n\\n As the district court correctly pointed out, “[i]n cases involving federally reinsured\\n\\ncrop insurance, the insurance contract forms only one part of the agreement between the\\n\\nparties. The statutes and regulations associated with the federal crop insurance scheme\\n\\nalso limit the arbitrator’s authority.” J.A. 271 (citing Davis v. Producers Agric. Ins. Co.,\\n\\n762 F.3d 1276, 1284–85 (11th Cir. 2014)). Significantly, Section 20(a)(1) of the policy -\\n\\n- the very same section that provides for arbitration -- states that if there is a dispute that\\n\\n“in any way involves a policy or procedure interpretation,” the parties “must obtain an\\n\\ninterpretation from FCIC.” J.A. 208, § 20(a)(1) (emphasis supplied). The FCIC’s FADs\\n\\nare “binding on all participants in the Federal crop insurance program,” including\\n\\narbitrators. 7 C.F.R. § 400.765(c); see also J.A. 208, § 20(a)(1)(i) (“Any interpretation\\n\\nby FCIC will be binding in any mediation or arbitration.”). Therefore, the failure to\\n\\nobtain a required FCIC interpretation “will result in the nullification of any agreement or\\n\\n\\n\\n\\n 15\\n\\faward.” J.A. 208, § 20(a)(1)(ii). In short, both the policy and FCIC regulations provide\\n\\nthat only the FCIC -- and not the arbitrator -- may interpret the policy.\\n\\n In rendering the award here, the arbitrator pushed back against this restriction by\\n\\nnoting that if the arbitrator could not interpret the meaning of policy provisions, “the\\n\\narbitrator would have little jurisdiction to decide anything.” J.A. 10. Indeed, the unusual\\n\\nworld of federal crop insurance does, in fact, appear to leave very little decision making\\n\\nauthority to the arbitrator. But as counsel for Appellee stated during oral argument in this\\n\\ncase, crop insurance “takes everything you know about insurance and turns it on its\\n\\nhead.” Oral Argument at 19:40–49, Williamson Farm v. Diversified Crop Ins. Servs.,\\n\\nInc., No. 18-1463 (4th Cir. Dec. 13, 2018), http://www.ca4.uscourts.gov/oral-\\n\\nargument/listen-to-oral-arguments (hereinafter “Oral Argument”).\\n\\n 2.\\n\\n The Distinction Between FCIC Interpretations and FCIC Determinations\\n\\n In response to Appellee’s argument that the arbitrator was required to obtain an\\n\\nFCIC interpretation of disputed policy provisions, Appellant asserts, “if an FCIC\\n\\ndetermination is required before an arbitrator can award monies then the arbitration\\n\\nprocess is a complete waste of time with no meaning.” Appellant’s Br. 24. Appellant\\n\\nfurther asserts that, in any event, it did, in fact, seek an FCIC determination and was told\\n\\nthat the FCIC would not render an opinion until after arbitration.\\n\\n In both arguments, Appellant conflates the obligation to obtain an FCIC\\n\\ninterpretation of disputed provisions of the policy pursuant to Section 20(a)(1) -- a\\n\\nrequirement in any arbitration where the meaning or application of policy provisions are\\n\\n 16\\n\\fat issue -- with the requirement to obtain an FCIC determination that there was a failure\\n\\nto comply with the terms of the policy prior to obtaining attorneys’ fees or extra-\\n\\ncontractual damages during judicial review pursuant to Section 20(i). FCIC\\n\\ninterpretations and FCIC determinations, as these terms are described in the policy, are\\n\\nnot the same thing.\\n\\n a.\\n\\n When an FCIC Determination is Required\\n\\n As to Appellant’s first argument, an FCIC determination that there was a failure to\\n\\ncomply with the terms of the policy is not required “before an arbitrator can award\\n\\nmonies.” Appellant’s Br. 24. Pursuant to Section 20(i) of the policy, such\\n\\ndeterminations are only required (1) during judicial review (after arbitration is\\n\\ncompleted); and (2) only when an insured is seeking extra-contractual damages. As\\n\\ndiscussed below, binding FCIC FADs make clear that arbitrators cannot award extra-\\n\\ncontractual damages; accordingly, arbitrators do not require such an FCIC determination\\n\\nin order to render their award. 7 Arbitrators do, however, require an FCIC interpretation\\n\\nbefore rendering an award based on disputed policy language.\\n\\n\\n 7\\n In its reply brief, Appellant offers a similar argument that Appellee’s\\ninterpretation of 7 C.F.R. § 400.352 -- which preempts state and local laws and\\nregulations except where the FCIC makes a determination that the agent or loss adjuster\\nfailed to comply with the policy -- “would bar recovery of any damages without an FCIC\\ndetermination,” including compensatory damages. Appellant’s Reply Br. 2. Because the\\nFCIC has established that arbitrators cannot award damages based on state law claims\\nand FCIC determinations are only required during judicial review involving extra-\\ncontractual damages, this argument is irrelevant as to the arbitration award.\\n\\n\\n 17\\n\\f b.\\n\\n Appellant Requested an FCIC Determination, Not an FCIC Interpretation\\n\\n As to Appellant’s second argument, Appellant did not request an FCIC\\n\\ninterpretation -- it requested an FCIC determination. Again, an FCIC interpretation of\\n\\nthe meaning of disputed policy provisions is a different request -- one which arises at a\\n\\ndifferent time and in a different proceeding -- than an FCIC determination that an agent\\n\\nfailed to comply with the terms of the policy. To comply with Section 20(a)(1) of the\\n\\npolicy, what Appellant (or the arbitrator) needed to request during the arbitration, but did\\n\\nnot, was an FCIC interpretation of the meaning of the disputed policy provisions.\\n\\nAppellant’s premature request for an FCIC determination that there was a failure to\\n\\ncomply with the terms of the policy, pursuant to Section 20(i), is of no consequence to\\n\\nthe arbitration award. 8\\n\\n The arbitrator’s explanation as to what specific policy provisions mean\\n\\n(particularly to the extent they were disputed issues in the arbitration) can only be viewed\\n\\nas her interpretation of the policy. See, e.g., J.A. 10 (“Section 20(i) does not in fact state\\n\\nthat the arbitrator may not award attorneys’ fees or punitive, compensatory or other\\n\\ndamages. Instead it appears to impose a type of condition precedent to the ultimate\\n\\n\\n 8\\n We note that our decision in this case does not address whether a claimant could\\nrecover purely tort damages against a private insurance company without such an FCIC\\ndetermination where misrepresentations or negligence on the part of the insurance agent\\nbefore the policy was issued left the claimant effectively uninsured under the federal crop\\ninsurance program. Here, Appellant sought contractual damages and participated in\\narbitration pursuant to the insurance policy.\\n\\n\\n 18\\n\\fenforceability of such an award by a court. Moreover, if the provision has the effect\\n\\n[Appellee] claimed, the arbitrator would have little jurisdiction to decide anything. That\\n\\nplainly cannot be the case.”). By not obtaining an FCIC interpretation to resolve the\\n\\nissue but instead interpreting the provisions herself, which was not in her authority to do,\\n\\nthe arbitrator exceeded her powers.\\n\\n 3.\\n\\n Binding FCIC Authority\\n\\n The arbitrator was obligated to follow any FADs previously issued by the FCIC.\\n\\nSee J.A. 208, § 20(a)(1)(i), (iii) (“Any interpretation by FCIC will be binding in any\\n\\nmediation or arbitration . . . . An interpretation by FCIC of a policy provision is\\n\\nconsidered a determination that is a matter of general applicability.” (emphasis\\n\\nsupplied)). And the FCIC has addressed whether arbitrators may award extra-contractual\\n\\ndamages more than once already. Each time, the FCIC has made clear that arbitrators do\\n\\nnot have the authority to award such damages. Rather, extra-contractual damages and\\n\\nattorneys’ fees may only be awarded by the court reviewing an arbitrator’s decision. For\\n\\ninstance, Appellant does not dispute that FAD-193, issued on October 21, 2013, states in\\n\\nrelevant part:\\n\\n [T]he reference to “judicial review only” [in Section 20(i)] is\\n to clarify that such [extra-contractual] damages can only be\\n sought during an appeal to the Courts, after an FCIC\\n determination has been obtained, and cannot be awarded in\\n arbitration. To obtain a determination that will enable the\\n insured to recoup attorney[s’] fees, expenses, or damages\\n from the [approved insurance provider], the insured must\\n send a request for determination to the [Risk Management\\n\\n\\n 19\\n\\f Agency] Deputy Administrator of Compliance after the\\n insured has filed an appeal for judicial review.\\n\\nJ.A. 240 (emphasis supplied); Appellee’s Br. 12.\\n\\n Prior to this, the FCIC also addressed the issue of extra-contractual damages in\\n\\nFAD-99, issued on May 4, 2009, which states, in relevant part, “it is only in a judicial\\n\\nreview that producers can recover attorneys’ fees or other expenses, or any punitive,\\n\\ncompensatory or any other damages from insurance providers.” J.A. 241.\\n\\n Pursuant to Section 20(a)(1)(i) of the policy, these previously issued FADs -- and\\n\\nthe conclusion that arbitrators cannot award extra-contractual damages pursuant to\\n\\nSection 20(i) -- were binding upon the arbitrator in this case.\\n\\n 4.\\n\\n The Arbitrator Exceeded Her Powers\\n\\n Accordingly, the arbitrator exceeded her powers by both (1) interpreting the policy\\n\\nherself without obtaining an FCIC interpretation for the disputed policy provisions; and\\n\\n(2) awarding extra-contractual damages, which the FCIC has conclusively stated in\\n\\nmultiple FADs cannot be awarded in arbitration and can only be sought through judicial\\n\\nreview. Thus, Appellee met “the heavy burden” to vacate an arbitration award pursuant\\n\\nto the FAA. MCI Constructors, LLC v. City of Greensboro, 610 F.3d 849, 857 (4th Cir.\\n\\n2010); see also 9 U.S.C. § 10(a)(4).\\n\\n\\n\\n\\n 20\\n\\f B.\\n\\n Contractual Damages\\n\\n In the alternative, Appellant argues that even if the arbitrator exceeded her powers\\n\\nby awarding extra-contractual damages and attorneys’ fees, we should nevertheless\\n\\nconfirm the arbitration award in part based on contract damages, which were within the\\n\\narbitrator’s authority to award pursuant to Section 20 of the policy.\\n\\n Assuming that the arbitrator also awarded contractual damages, 9 it is impossible to\\n\\ntell from the arbitration award what amount may have stemmed from contractual\\n\\ndamages and what amount was extra-contractual. For example, in the award as to\\n\\nAppellant’s crop loss claim for Farm 2172, the arbitrator stated:\\n\\n The lack of coverage for Farm 2172 indisputably arose\\n from [Appellee’s conduct] . . . . The failure of [Appellee] to\\n properly handle this and advise [Appellant] breached\\n [Appellee’s] fiduciary duty to [Appellant.]\\n\\n I conclude that [Appellee] failed to comply with the terms\\n of [the policy] and that failure resulted in the loss to\\n [Appellant.] [Appellee] left [Appellant] effectively uninsured\\n for crop year 2013 as to Farm 2172. Accordingly, I award the\\n amount of $97,692.39 to [Appellant] for the breach of [the\\n policy] and the failure to pay the claim. I conclude that\\n [Appellee] engaged in negligence, breach of fiduciary duty\\n and constructive fraud.\\n\\n In addition, [Appellant] has established that [Appellee]\\n owed duties distinct and separate from the duties it owed\\n under the parties’ contracts; further, [Appellant] has\\n\\n 9\\n Notably, the arbitrator concluded that Appellee “left [Appellant] effectively\\nuninsured for crop year 2013,” J.A. 14, 15, which calls into question how Appellee could\\nbreach a contract that did not exist.\\n\\n\\n 21\\n\\f established that [Appellee’s] breach of those duties was\\n aggravated by several factors. Accordingly, I conclude that\\n [Appellee] engaged in unfair and deceptive practices in or\\n affecting commerce . . . . The facts show recklessness and\\n wanton disregard by [Appellee], i.e., more than a mere breach\\n of contract, warranting an award of treble damages under\\n [North Carolina state law.]\\n\\nJ.A. 14.\\n\\n Although the arbitrator concluded that Appellee breached the contract, the\\n\\narbitrator also found Appellee liable for extra-contractual damages, including negligence\\n\\nand breach of fiduciary duty. Since the arbitrator only provided a single amount of\\n\\ndamages rather than a breakdown of the award by contract and noncontract claims, we\\n\\nhave no way to distinguish what amount the arbitrator may have awarded for contractual\\n\\ndamages (which were within the arbitrator’s authority to award) and what amount the\\n\\narbitrator awarded for extra-contractual damages (which, for the reasons explained above,\\n\\nthe arbitrator exceeded her authority in awarding).\\n\\n Of note, there is no support in the record for Appellant’s assertion at oral argument\\n\\nthat the arbitrator awarded $97,692.39 in contract damages for the crop loss claim while\\n\\nextra-contractual damages were awarded in the form of trebled damages and attorneys’\\n\\nfees. See Oral Argument at 14:51–16:04. To the contrary, the structure of the arbitration\\n\\naward suggests that the arbitrator intended the award of trebled damages based on\\n\\nAppellee’s “recklessness and wanton disregard” to be in addition to the contractual and\\n\\nextra-contractual damages awarded for breach of contract, negligence, breach of fiduciary\\n\\nduty, and constructive fraud. J.A. 14 (“I conclude that [Appellee] engaged in negligence,\\n\\nbreach of fiduciary duty and constructive fraud. In addition, . . . [t]he facts show\\n\\n 22\\n\\frecklessness and wanton disregard by [Appellee.]” (emphasis supplied)). The same is true\\n\\nregarding the arbitration award for Appellant’s prevented planting claim for Farms 1870\\n\\nand 4168. See J.A. 15 (“I also conclude that [Appellant] has engaged in negligence,\\n\\nbreach of fiduciary duty and constructive fraud. In addition, as to Farms [1870] and\\n\\n4168, . . . [t]he facts show recklessness and wanton disregard by [Appellant.]” (emphasis\\n\\nsupplied)).\\n\\n Accordingly, even to the extent the arbitrator awarded damages for breach of\\n\\ncontract on either policy (as opposed to extra-contractual damages), the entire award\\n\\nmust be vacated.\\n\\n IV.\\n\\n For these reasons, the judgment of the district court is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 23\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":573,"cells":{"id":{"kind":"number","value":4594571,"string":"4,594,571"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Jesmene LOCKHART, A/K/A Jesmene Laquin-Montre Lockhart, A/K/A Jasmene Lockhart, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Jesmene Lockhart"},"decision_date":{"kind":"string","value":"2019-02-27"},"docket_number":{"kind":"string","value":"16-4441"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Gregory, Keenan, Floyd\", \"parties\": \"\", \"opinions\": [{\"author\": \"BARBARA MILANO KEENAN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 16-4441\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nJESMENE LOCKHART, a/k/a Jesmene Laquin-Montre Lockhart, a/k/a Jasmene\\nLockhart,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the Western District of North Carolina,\\nat Charlotte. Robert J. Conrad, Jr., District Judge. (3:15-cr-00034-RJC-1)\\n\\n\\nArgued: November 15, 2018 Decided: February 27, 2019\\n\\n\\nBefore GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Keenan wrote the opinion stating the judgment of\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4371824/\", \"author_raw\": \"BARBARA MILANO KEENAN, Circuit Judge:\"}, {\"author\": \"the Court. Chief Judge Gregory wrote a separate opinion, concurring\", \"type\": \"concurrence\", \"text\": \"the Court. Chief Judge Gregory wrote a separate opinion, concurring in the judgment.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4371824/\", \"author_raw\": \"the Court. Chief Judge Gregory wrote a separate opinion, concurring\"}, {\"author\": \"Judge Floyd wrote a separate opinion, concurring\", \"type\": \"concurrence\", \"text\": \"Judge Floyd wrote a separate opinion, concurring in the judgment.\\n\\n\\nARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH\\nCAROLINA, INC., Asheville, North Carolina, for Appellant. Amy Elizabeth Ray,\\nOFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for\\nAppellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL\\nDEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina,\\nfor Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED\\n\\nSTATES ATTORNEY, Charlotte, North Carolina, for Appellee.\\n\\n\\n\\n\\n 2\\n\\nBARBARA MILANO KEENAN, Circuit Judge:\\n\\n Jesmene Lockhart appeals his conviction for possession of a firearm by a\\n\\nconvicted felon, in violation of 18 U.S.C. § 922(g)(1), and his mandatory minimum 15-\\n\\nyear sentence of imprisonment imposed under the Armed Career Criminal Act, 18 U.S.C.\\n\\n§ 924(e) (ACCA). Lockhart contends that the magistrate judge plainly erred by failing to\\n\\nadvise him during the Rule 11 plea colloquy of his potential exposure to the 15-year\\n\\nmandatory minimum. Lockhart asserts that if he had been properly informed of his\\n\\nsentencing exposure, there is a “reasonable probability” that he would not have pleaded\\n\\nguilty.\\n\\n Our holding today is restricted by this Court’s decision in United States v.\\n\\nMassenburg, 564 F.3d 337 (4th Cir. 2009), which imposes an extreme burden on a\\n\\ndefendant seeking plain error review of a court’s failure to provide correct sentencing\\n\\ninformation before accepting a guilty plea. Under Massenburg, irrespective of the extent\\n\\nof the court’s error, a defendant on plain error review affirmatively must show a\\n\\nreasonable probability that he would not have pleaded guilty if he had been correctly\\n\\nadvised of his sentencing exposure. See id. at 343-46. The defendant is held to this\\n\\nstandard even though the Rule 11 error committed by the district court left him in the\\n\\ndark regarding one of the most critical considerations in the guilty plea calculus, namely,\\n\\nhis sentencing exposure. But because we are bound by the holding in Massenburg, we\\n\\nconclude that Lockhart has failed to satisfy his evidentiary burden and we affirm the\\n\\ndistrict court’s judgment.\\n\\n\\n\\n 3\\n\\n I.\\n\\n In September 2014, officers with the Charlotte-Mecklenburg Police Department in\\n\\nNorth Carolina responded to a report of suspicious activity involving individuals in a\\n\\nparked car. When they arrived at the scene, an officer saw Lockhart sitting in the driver’s\\n\\nseat of the vehicle. The officer observed Lockhart use his right hand to provide his\\n\\nidentification, “while reaching down by his left leg with his left hand, where the officer\\n\\nsaw the butt of [a] gun with a magazine clip.” The officers recovered the loaded handgun\\n\\nand an additional magazine from the driver’s side of the car, and the authorities later\\n\\ndetermined that the firearm was stolen.\\n\\n Lockhart pleaded guilty without a written plea agreement to a single count of\\n\\npossession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).\\n\\nDuring the Rule 11 plea colloquy, the magistrate judge asked the government to\\n\\n“summarize the charge and the penalty.” The government responded that the “maximum\\n\\npenalty” Lockhart faced was 10 years’ imprisonment. At no time during the plea\\n\\ncolloquy did the court or the government clarify that Lockhart’s criminal history could\\n\\nresult in a 15-year mandatory minimum sentence under the ACCA.\\n\\n The probation officer prepared a presentence report (PSR), and recommended\\n\\nsentencing Lockhart as an armed career criminal under the ACCA based on three prior\\n\\nconvictions for North Carolina robbery with a dangerous weapon. In the PSR, the\\n\\nprobation officer explicitly highlighted the error in the plea colloquy, noting that\\n\\nLockhart “was informed that his statutory penalties . . . were not more than ten years[’]\\n\\n\\n\\n 4\\n\\nimprisonment,” but that “based on [Lockhart’s] three prior convictions for violent\\n\\nfelonies, [his] statutory penalties . . . are not less than fifteen years[’] imprisonment.”\\n\\n Lockhart’s counsel objected to the proposed ACCA designation on the grounds\\n\\nthat (1) his North Carolina convictions, which were consolidated for judgment, should\\n\\ncount as a single ACCA predicate, and (2) an ACCA sentence would violate the Eighth\\n\\nAmendment. Notably, Lockhart did not assert that he previously had been unaware of his\\n\\npotential ACCA designation, nor did he seek to withdraw his guilty plea.\\n\\n After overruling the objections of Lockhart’s counsel, the district court concluded\\n\\nthat Lockhart qualified as an armed career criminal under the ACCA and imposed the\\n\\nmandatory minimum term of 15 years’ imprisonment. Following the court’s imposition\\n\\nof sentence, Lockhart’s counsel conferred with the government and informed the court:\\n\\n I’m going back to his plea colloquy. He didn’t plead to 924(e) [ACCA] it\\n was not on the Bill of Indictment. But I went over it beforehand. So I just\\n want to put it on the record that he was fully aware of that. I just thought\\n about it.\\n\\nThe government added, “We just wanted to make a record of that.” The district court did\\n\\nnot ask counsel to elaborate on the issue, and did not confirm with Lockhart whether he\\n\\nwas aware of his potential ACCA exposure before pleading guilty. Lockhart now\\n\\nappeals, represented by new appellate counsel.\\n\\n\\n\\n II.\\n\\n Because Lockhart did not seek to withdraw his guilty plea in the district court, we\\n\\nreview his challenge to his plea for plain error. United States v. McCoy, 895 F.3d 358,\\n\\n\\n 5\\n\\n364 (4th Cir. 2018). To succeed under plain error review, a defendant bears the burden to\\n\\nshow that: (1) an error occurred; (2) the error was plain; and (3) the error affected his\\n\\nsubstantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). This Court retains\\n\\nthe discretion to correct such an error but will do so “only if the error seriously affects the\\n\\nfairness, integrity or public reputation of judicial proceedings.” Massenburg, 564 F.3d at\\n\\n343 (quoting Olano, 507 U.S. at 732) (internal quotation marks omitted).\\n\\n Lockhart argues that if he had known he would be facing a 15-year minimum\\n\\nsentence under the ACCA, rather than the 10-year maximum stated at the plea hearing, he\\n\\nlikely would not have pleaded guilty. Lockhart asserts that the benefit he gained from\\n\\npleading guilty was “so small as to be virtually non-existent” and, thus, that he would\\n\\nhave had a strong incentive to request a trial to try to avoid the 15-year ACCA sentence. 1\\n\\n In response, the government concedes that the magistrate judge committed plain\\n\\nerror in failing to advise Lockhart of his correct sentencing exposure. Nevertheless, the\\n\\ngovernment contends that Lockhart has failed to show a “reasonable probability” that he\\n\\nwould not have pleaded guilty if the court had advised him of his correct sentencing\\n\\nrange. See United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004). Applying\\n\\nMassenburg, we agree with the government.\\n\\n 1\\n In support of this argument, Lockhart maintains that: (1) the three-level reduction\\nin his Guidelines calculation for acceptance of responsibility reduced the bottom of his\\nGuidelines range by only eight months; (2) mitigating factors in his background,\\nincluding his youth at the time of the predicate offenses, would have supported a\\ndownward variance irrespective whether he pleaded guilty; and (3) if he had not pleaded\\nguilty to the felon in possession charge, the government might have offered him a more\\nfavorable plea deal for possession of a stolen firearm, in violation of 18 U.S.C. § 922(j),\\nwhich charge would not have triggered the ACCA enhancement.\\n\\n 6\\n\\n Initially, we agree with the parties that the first two prongs of plain error review\\n\\nare satisfied here. Under Federal Rule of Criminal Procedure 11, a district court must\\n\\nadvise a defendant of “any maximum possible penalty” as well as “any mandatory\\n\\nminimum penalty” before accepting a guilty plea. Fed. R. Crim. P. 11(b)(1)(H), (I). And\\n\\neven if a district court is not certain whether a defendant will qualify for an enhanced\\n\\nsentence under the ACCA, the court nevertheless must “anticipate the possibility and\\n\\nexplain to [the defendant] the sentence that would be applicable if he had prior qualifying\\n\\nconvictions.” United States v. Hairston, 522 F.3d 336, 340 (4th Cir. 2008); see also\\n\\nMassenburg, 564 F.3d at 343 (plain error when defendant not advised of potential ACCA\\n\\nsentence before pleading guilty). As the Supreme Court has explained:\\n\\n If the judge told the defendant that the maximum possible sentence was 10\\n years and then imposed a sentence of 15 years based on ACCA, the\\n defendant would have been sorely misled and would have a ground for\\n moving to withdraw the plea.\\n\\nUnited States v. Rodriquez, 553 U.S. 377, 384 (2008). Accordingly, we conclude that by\\n\\nfailing to inform Lockhart of his potential eligibility for a mandatory minimum 15-year\\n\\nsentence under the ACCA, the magistrate judge committed error that was plain.\\n\\n To establish that a Rule 11 error affected his substantial rights, a defendant bears\\n\\nthe burden to show “a reasonable probability that, but for the error, he would not have\\n\\nentered the plea.” Dominguez Benitez, 542 U.S. at 83. This standard is a demanding one,\\n\\nrequiring a defendant to “satisfy the judgment of the reviewing court, informed by the\\n\\nentire record, that the probability of a different result is ‘sufficient to undermine\\n\\nconfidence in the outcome’ of the proceeding.” Id. (citations omitted).\\n\\n\\n 7\\n\\n In Massenburg, 564 F.3d 337, we directly addressed this “reasonable probability”\\n\\nstandard in the context of incorrect sentencing information provided at a Rule 11 plea\\n\\ncolloquy. There, in circumstances nearly identical to the case now before us, a district\\n\\ncourt failed to inform the defendant during his plea colloquy that he might receive an\\n\\nenhanced ACCA sentence, contrary to later information in the PSR that the defendant’s\\n\\nrecord qualified him to receive such a sentence. Id. at 340. We declined to impose a\\n\\npresumption of prejudice for that error, despite the significant increase in sentencing\\n\\nexposure caused by the ACCA designation. Id. at 341, 344-46. In adopting this\\n\\napproach, we emphasized that the confines of plain error review reflect the importance of\\n\\ntimely raising objections in the district court. Id. at 345-46.\\n\\n In considering whether Massenburg had shown an effect on his substantial rights\\n\\nfor purposes of plain error review, we reviewed the record in accordance with Supreme\\n\\nCourt precedent and emphasized three main considerations: (1) whether there were any\\n\\n“statements on the record . . . suggesting that [the defendant] would not have pleaded\\n\\nguilty if the district court had properly informed him of the sentencing exposure that he\\n\\nfaced”; (2) whether the defendant moved to withdraw his guilty plea after learning from\\n\\nthe PSR that he could be sentenced under the ACCA; and (3) the strength of the\\n\\ngovernment’s case against him. Id. at 343-44. Applying those factors, we observed that\\n\\nthere was an “absence of any evidence in the record suggesting that [Massenburg] would\\n\\nnot have entered his plea in the absence of the error,” and that the government’s evidence\\n\\nwas strong. Id. at 344. We therefore concluded that Massenburg had not satisfied the\\n\\n“reasonable probability” standard. Id. at 339, 343-46.\\n\\n 8\\n\\n To obtain relief on plain error review, a defendant who has been given materially\\n\\nincorrect sentencing information at his plea colloquy must show that there is a reasonable\\n\\nprobability he would not have pleaded guilty if he had been correctly advised. Id. at 343\\n\\n(citing Dominguez Benitez, 542 U.S. at 83). Under Massenburg, this showing must\\n\\nappear affirmatively on the record, notwithstanding that the essence of plain error review\\n\\nis the defendant’s failure to object to such error in the trial court. See id. at 343-44; Fed.\\n\\nR. Crim. P. 52(b) (“A plain error that affects substantial rights may be considered even\\n\\nthough it was not brought to the court’s attention.” (emphasis added)); see generally\\n\\nOlano, 507 U.S. at 733-34. Thus, a defendant who has been misled by the court’s\\n\\nmisinformation regarding his sentencing exposure effectively is penalized on plain error\\n\\nreview by the very nature of the court’s plain error.\\n\\n As a matter of simple logic, the problem created by such an error, namely, the\\n\\nentry of a guilty plea that is not knowing and voluntary, cannot be cured by contrary\\n\\ninformation later provided in a PSR. United States v. Goins, 51 F.3d 400, 404 (4th Cir.\\n\\n1995). A defendant has a right to rely on the accuracy of the information provided by the\\n\\ncourt on which his plea is based. A plea that is predicated on a defendant’s ignorance of\\n\\nhis sentencing exposure strikes at the very heart of our criminal justice system. And,\\n\\nwhile plain error review reflects the defendant’s failure to preserve his objection to the\\n\\ntrial court’s error, Massenburg strongly suggests that to succeed on plain error review,\\n\\nthe defendant must have stated on the record in the trial court that the error affected his\\n\\nplea decision, and that he must have moved to withdraw his plea after learning of his\\n\\nactual sentencing exposure.\\n\\n 9\\n\\n Under Dominguez Benitez, a defendant is not required to make such an affirmative\\n\\nstatement on the trial record or to move to withdraw his plea after learning of his true\\n\\nsentencing exposure. Instead, under the Supreme Court’s holding, a defendant who has\\n\\nbeen advised incorrectly by the court at his Rule 11 hearing can demonstrate an effect on\\n\\nhis substantial rights by showing based on the totality of the circumstances in the record,\\n\\nthat there is a reasonable likelihood he would have gone to trial if the court had advised\\n\\nhim correctly. See 542 U.S. at 83 (holding that a defendant must “satisfy the judgment of\\n\\nthe reviewing court, informed by the entire record, that the probability of a different\\n\\nresult is ‘sufficient to undermine confidence in the outcome’ of the proceeding” (citations\\n\\nomitted)). But this Court in Massenburg has required more. 2\\n\\n Under Massenburg, we are constrained to conclude that Lockhart has not shown\\n\\nthat his substantial rights were affected by the district court’s error. As in Massenburg,\\n\\nLockhart did not make any statement on the record indicating that he would have\\n\\nproceeded to trial if he had been given the correct sentencing information. See 564 F.3d\\n\\nat 343-44. Nor did Lockhart express surprise at the statement in the PSR of a potential\\n\\n\\n 2\\n Absent the holding in Massenburg, we would further consider whether the\\nmagnitude of the present error created a reasonable probability of a different result by\\nimpairing Lockhart’s ability to evaluate the relative risks and benefits of pleading guilty\\nversus proceeding to trial. See United States v. Rivera-Maldonado, 560 F.3d 16, 17, 20-\\n21 (1st Cir. 2009) (vacating guilty plea on plain error review when court informed the\\ndefendant that he faced a three-year maximum term of supervised release, when he\\nactually faced a maximum term of life, because “the erroneous information dramatically\\naltered the sentencing stakes for the defendant”); United States v. Monie, 858 F.3d 1029,\\n1032-34 (6th Cir. 2017) (citing Rivera-Maldonado, 560 F.3d at 21) (vacating guilty plea\\non plain error review when defendant was not informed of ACCA exposure).\\n\\n\\n 10\\n\\nACCA designation or seek to withdraw his plea on that basis. And the government\\n\\nproffered strong evidence supporting the felon in possession charge, based on recovery of\\n\\na firearm and ammunition from the driver’s side of a vehicle while Lockhart was sitting\\n\\nin the driver’s seat. Accordingly, bound by the holding of Massenburg, we conclude that\\n\\nLockhart has failed to demonstrate plain error affecting his substantial rights.\\n\\n\\n\\n III.\\n\\n We affirm the district court’s judgment.\\n\\n\\n\\n AFFIRMED\\n\\n\\n\\n\\n 11\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4371824/\", \"author_raw\": \"Judge Floyd wrote a separate opinion, concurring\"}, {\"author\": \"GREGORY, Chief Judge, concurring\", \"type\": \"concurrence\", \"text\": \"GREGORY, Chief Judge, concurring in the judgment:\\n\\n According to the record evidence, Jesmene Lockhart entered into a guilty plea\\n\\nwithout the district court properly informing him of his true sentencing exposure. In\\n\\ncontract cases involving a property interest, this Court would likely grant a party in\\n\\nLockhart’s position rescission based on unilateral mistake. Unfortunately, this is a\\n\\ncriminal case, and the liberty interests of defendants such as Lockhart are not afforded the\\n\\nsame level of relief. The majority operates under the mistaken belief that the scales of\\n\\njustice are constrained by United States v. Massenburg, 564 F.3d 337 (4th Cir. 2009) and\\n\\nthe circular logic it employs. Consequently, despite the majority’s trepidation about the\\n\\ninjustice Massenburg represents, it still acquiesces to an analysis that reflexively\\n\\nprohibits defendants from obtaining a second chance to make an informed choice after\\n\\nbeing misinformed by the district court.\\n\\n Massenburg relies on the Supreme Court’s holding in United States v. Dominguez\\n\\nBenitez, 542 U.S. 74 (2004). There, the Supreme Court held “that a defendant who seeks\\n\\nreversal of his conviction after a guilty plea, on the ground that the district court\\n\\ncommitted plain error under Rule 11, must show a reasonable probability that, but for the\\n\\nerror, he would not have entered the plea. A defendant must thus satisfy the judgment of\\n\\nthe reviewing court, informed by the entire record, that the probability of a different\\n\\nresult is sufficient to undermine confidence in the outcome of the proceeding.” 542 U.S.\\n\\nat 83 (internal quotation marks and citations omitted).\\n\\n Applying Dominguez Benitez, this Court in Massenburg conducted a plain error\\n\\nreview of the entire record, examining (1) whether there were any “statements on the\\n\\n 12\\n\\nrecord . . . suggesting that [the defendant] would not have pleaded guilty if the district\\n\\ncourt had properly informed him of the sentencing exposure that he faced”; (2) whether\\n\\nthe defendant moved to withdraw his guilty plea after learning from the PSR that he\\n\\ncould be sentenced under the ACCA; and (3) the strength of the government’s case\\n\\nagainst him. 564 F.3d at 343-44.\\n\\n Upon a closer examination, the considerations used by this Circuit in Massenburg\\n\\ncreate a circular logic that prevents defendants from successfully pursuing appellate\\n\\nrelief. On the one hand, the defendant’s silence at the time of the Rule 11 proceedings\\n\\ncompels us to use the plain error standard. On the other hand, we use the defendant’s\\n\\nsilence, as evidenced by lack of statements in the record and a lack of an attempt to\\n\\nwithdraw the guilty plea, to also deny the defendant relief. It is unjust that the same\\n\\nsilence that compels this Court to use plain error review also compels us to deny relief\\n\\nunder that same standard of review. The Massenburg Court also looks at the strength of\\n\\nthe Government’s case against the defendant. However, Rule 11 cases always occur in\\n\\nthe context of a defendant taking a guilty plea, and defendants generally do not plead\\n\\nguilty when the case against them is weak. This is yet another example of how the\\n\\nMassenburg Court employs a nonsensical rubric against a defendant. As the majority\\n\\npoints out, defendants seeking relief under plain error review should face a higher\\n\\nburden, but Massenburg makes this burden impossible to meet.\\n\\n A proper review of the entire record in this case materially affects the outcome in\\n\\nLockhart. See Dominguez Benitez, 542 U.S. at 80 (explaining that in assessing the effect\\n\\nof Rule 11 error, a reviewing court must look to the entire record, not to the plea\\n\\n\\n 13\\n\\nproceedings alone). The majority notes that at the end of the sentencing hearing\\n\\nLockhart’s lawyer and the United States Attorney conferred in order to make the court\\n\\naware that Lockhart was allegedly informed of the ACCA enhancement even though the\\n\\ncourt had not informed him of it, and the Bill of Indictment did not list it. Though\\n\\nLockhart’s attorney represented to the court that he had informed Lockhart of his\\n\\nsentencing exposure, a pro se notice of appeal filed by Lockhart a mere five days later\\n\\nindicates otherwise. In that notice, Lockhart requested that the court appoint a new\\n\\nlawyer “because my last lawyer did not____me right.” *\\n\\n This portion of the record viewed in context indicates Lockhart’s dissatisfaction\\n\\nwith the advice of his counsel. Indeed, the attorney’s eleventh-hour attempt to address\\n\\nthe omission of the ACCA enhancement in the Bill of Indictment strongly supports the\\n\\ninference that Lockhart was not fully or properly advised by the court or his attorney of\\n\\nthe criminal consequences of his plea. Moreover, the grievance against Lockhart’s\\n\\nattorney communicated in his pro se notice of appeal can only be related to advice and\\n\\ncommunication surrounding his guilty plea given that this case never went to trial.\\n\\n The deficiencies in communication to Lockhart, both by the court and his attorney,\\n\\nundermine the confidence this Court should have in the integrity of the sentencing court’s\\n\\nproceedings and strongly suggests that misinformation materially impacted Lockhart’s\\n\\nsubstantial rights. This is especially true because the ACCA enhancement meant that\\n\\nLockhart faced a maximum of life imprisonment even with the guilty plea. Given that\\n\\n *\\n The electronic record obfuscates the missing word and the original record was\\ndestroyed.\\n\\n\\n 14\\n\\nLockhart actually faced life imprisonment, rather than the ten years the district court\\n\\ncommunicated to him, there is a reasonable probability that but for being misinformed, he\\n\\nwould not have entered into the plea. This satisfies the contested third prong of the plain\\n\\nerror analysis and demonstrates that the error “affect[ed] the substantial rights” of\\n\\nLockhart. United States v. Olano, 507 U.S. 725, 732 (1993).\\n\\n Lockhart entered a guilty plea based on misinformation. It resulted in five\\n\\nadditional years of jail time but could have resulted in life imprisonment. This Court\\n\\nchooses to uphold the circular logic of Massenburg and further buttress a system that tells\\n\\ndefendants that our failure to inform you about your criminal liability does not impact\\n\\nyour ability to choose to enter a guilty plea or stand trial. The Massenburg Court and\\n\\nnow the Lockhart Court tells defendants that even if we misinform you, you are still\\n\\nbetter off taking a plea, a proposition that flies in the face of a criminal justice system\\n\\nwhere willful, voluntary, and informed choices are the bedrock of a system where\\n\\ntransparency and accountability are of paramount importance. Nonetheless, given our\\n\\nflawed precedent, I am constrained to concur in the judgment and deny Lockhart the\\n\\nopportunity to make a properly informed decision about whether to exercise his\\n\\nconstitutional right to stand trial. Now may be the time for this Court to remove the\\n\\ncloud of Massenburg that obscures a better understanding of the Supreme Court’s\\n\\nholding in Dominguez Benitez so that defendants receive the protections that our\\n\\nConstitution promises them.\\n\\n\\n\\n\\n 15\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4371824/\", \"author_raw\": \"GREGORY, Chief Judge, concurring\"}, {\"author\": \"FLOYD, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"FLOYD, Circuit Judge, concurring in the judgment:\\n\\n Like my colleagues, I believe that the outcome of Lockhart’s appeal is constrained by\\n\\nour decision in United States v. Massenburg, 564 F. 3d 337 (4th Cir. 2009). I also\\n\\nbelieve that there are sound reasons for this Court to revisit Massenburg and limit its\\n\\nprecedential scope.\\n\\n In Massenburg, we correctly stated that in order to prevail on plain-error review, an\\n\\nappellant like Lockhart must show a “reasonable probability” that he would not have\\n\\npleaded guilty if he had been correctly informed of his sentencing exposure. 564 F.3d at\\n\\n343 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)). Personally, I\\n\\nfind that rule-statement somewhat difficult to reconcile with Massenburg’s analysis.\\n\\nIndeed, if we were to go through Massenburg and replace each instance of “reasonable\\n\\nprobability” with “virtual certainty,” it seems to me that the opinion would read quite\\n\\nwell. Therein lies the problem. Although our opinion in Massenburg correctly recites\\n\\nthe rule of Dominguez Benitez, its three-factor analysis has the regrettable effect of\\n\\nsetting the bar too high for appellants in Lockhart’s position.\\n\\n Were we to apply Dominguez Benitez to this case directly, rather than filtering it\\n\\nthrough the prism of Massenburg, I cannot help but think that we would have ample\\n\\nreason to vacate Lockhart’s conviction. After all, unlike in Dominguez Benitez, it is quite\\n\\neasy to see here how the court’s error during Lockhart’s Rule 11 hearing “could have had\\n\\nan effect on [Lockhart’s] assessment of his strategic position.” 542 U.S. at 85. Lockhart\\n\\ntells us that from the start, he expected a sentence at the low end of the recommended\\n\\nrange. His expectation was not unreasonable, considering the relatively innocuous\\n\\n\\n 16\\n\\ncircumstances of his offense. Since it was reasonable for him to expect a sentence at the\\n\\nlow end of the recommended range, it was also reasonable for him to try to shave as\\n\\nmany years off the low end of the recommended range as possible. A guilty plea would\\n\\nhave been a rational way to accomplish that goal before he knew that he would be\\n\\nsentenced as an armed career criminal, but not after.\\n\\n Consider the percentages. Taking Lockhart’s PSR and the 2016 Sentencing\\n\\nGuidelines as our benchmark, it appears likely that if Lockhart had not been sentenced as\\n\\nan armed career criminal, his guilty plea would have dropped the low end of the\\n\\nrecommended sentencing range from 5.25 years to 3.83 years—a 26.9% reduction. But\\n\\nbecause Lockhart was sentenced as an armed career criminal, his guilty plea had a much\\n\\nsmaller effect and made much less sense, given his goal: his plea dropped the low end of\\n\\nhis sentencing exposure from 15.67 years to 15 years—a mere 4.2% reduction. In\\n\\nessence, the initial rationale underlying Lockhart’s guilty plea was rendered all-but\\n\\nnonsensical by his later designation as an armed career criminal. 1\\n\\n Added to this numerical analysis is the starkly odd behavior of Lockhart’s counsel,\\n\\nand Lockhart’s apparent displeasure with same (which my colleagues have aptly\\n\\nhighlighted). These factors convince me that if we were not constrained by Massenburg,\\n\\nwe would grant relief to Lockhart. This is particularly so given that, as I understand it,\\n\\n“reasonably probable” does not mean “more likely than not.” See Dominguez Benitez,\\n\\n 1\\n These numbers are necessarily estimates, and I do not mean to suggest that we\\nshould use this sort of quantitative analysis to decide all cases like the one at bar. The\\npercentages referenced here are useful only insofar as they help to illustrate the logic of\\nan argument that Lockhart makes on appeal.\\n\\n\\n 17\\n\\n542 U.S. at 86–87 (Scalia, J., concurring); Strickland v. Washington, 466 U.S. 668, 693-\\n\\n94 (1984) (distinguishing between “reasonable probability” and “more likely than not,”\\n\\nand clarifying that the former is less demanding than the latter).\\n\\n Finally, I agree with my colleagues that holding a defendant’s silence against him in\\n\\nthese circumstances is improper. When a defendant, by his apparent silence, fails to\\n\\npreserve his objection to a mistake made during a Rule 11 hearing, the consequence is\\n\\nthat we review for plain error. Once we have entered the realm of plain-error review, it\\n\\nmakes no sense to continue to hold the defendant’s silence against him. Yet Massenburg\\n\\nurges us to do exactly that. “The defendant failed to register any surprise or dismay on\\n\\nthe record,” we say. “Therefore, we review for plain error. In reviewing for plain error,\\n\\nwe note that the defendant expressed neither surprise nor dismay when informed of his\\n\\nactual sentencing exposure, which weighs against him now.” This is quicksand; we\\n\\nshould distance ourselves from it.\\n\\n I believe that our decision in Massenburg has had the unintended effect of chipping\\n\\naway at our ability to safeguard the legitimacy of criminal-justice proceedings. This case\\n\\npresents an excellent opportunity for us to do some mild course-correction.\\n\\n\\n\\n\\n 18\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4371824/\", \"author_raw\": \"FLOYD, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"GREGORY"},"judge2":{"kind":"string","value":"KEENAN"},"judge3":{"kind":"string","value":"FLOYD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":5,"string":"5"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":4,"string":"4"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4594571/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Jesmene LOCKHART, A/K/A Jesmene Laquin-Montre Lockhart, A/K/A Jasmene Lockhart, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-27\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 16-4441\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nJESMENE LOCKHART, a/k/a Jesmene Laquin-Montre Lockhart, a/k/a Jasmene\nLockhart,\n\n Defendant - Appellant.\n\n\nAppeal from the United States District Court for the Western District of North Carolina,\nat Charlotte. Robert J. Conrad, Jr., District Judge. (3:15-cr-00034-RJC-1)\n\n\nArgued: November 15, 2018 Decided: February 27, 2019\n\n\nBefore GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Keenan wrote the opinion stating the judgment of\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Jesmene LOCKHART, A/K/A Jesmene Laquin-Montre Lockhart, A/K/A Jasmene Lockhart, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-27\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 16-4441\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nJESMENE LOCKHART, a/k/a Jesmene Laquin-Montre Lockhart, a/k/a Jasmene\\nLockhart,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the Western District of North Carolina,\\nat Charlotte. Robert J. Conrad, Jr., District Judge. (3:15-cr-00034-RJC-1)\\n\\n\\nArgued: November 15, 2018 Decided: February 27, 2019\\n\\n\\nBefore GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Keenan wrote the opinion stating the judgment of\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":574,"cells":{"id":{"kind":"number","value":4595199,"string":"4,595,199"},"name":{"kind":"string","value":"SHARP FARMS; Robert W. May ; Tucker Farms Inc.; Worthington Farms, Inc., Objectors-Appellants, v. Teresa M. SPEAKS; Toby Speaks ; Stan Smith; Eddie Brown; Robert Poindexter ; Mike Mitchell; Roy L. Cook; Alex Shugart ; H. Randle Wood; Robin Rogers; Daniel Lee Nelson, Plaintiffs-Appellees, and U. S. Tobacco Cooperative Inc., F/K/A Flue-Cured Tobacco Cooperative Stabilization Corporation, Defendant-Appellee. Dan Lewis, Potential Intervenor-Appellant, v. Teresa M. Speaks; Toby Speaks ; Stan Smith; Eddie Brown; Robert Poindexter ; Mike Mitchell; Roy L. Cook; Alex Shugart ; H. Randle Wood; Robin Rogers; Daniel Lee Nelson, Plaintiffs-Appellees, and U. S. Tobacco Cooperative Inc., F/K/A Flue-Cured Tobacco Cooperative Stabilization Corporation, Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Teresa Speaks v. U. S. Tobacco Cooperative Inc."},"decision_date":{"kind":"string","value":"2019-02-28"},"docket_number":{"kind":"string","value":"18-1316; 18-1325"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Gregory, Thacker, Quattlebaum\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888078/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"030concurrence\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888079/\", \"author_raw\": \"\"}, {\"author\": \"Raleigh. James C. Dever, III, District Judge\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1316\\n\\n\\nSHARP FARMS; ROBERT W. MAY; TUCKER FARMS INC.;\\nWORTHINGTON FARMS, Inc.,\\n\\n Objectors - Appellants,\\n\\n v.\\n\\nTERESA M. SPEAKS; TOBY SPEAKS; STAN SMITH; EDDIE BROWN;\\nROBERT POINDEXTER; MIKE MITCHELL; ROY L. COOK; ALEX SHUGART;\\nH. RANDLE WOOD; ROBIN ROGERS; DANIEL LEE NELSON,\\n\\n Plaintiffs – Appellees,\\n\\n and\\n\\nU. S. TOBACCO COOPERATIVE INC., f/k/a Flue-Cured Tobacco Cooperative\\nStabilization Corporation,\\n\\n Defendant – Appellee.\\n\\n\\n\\n\\n No. 18-1325\\n\\n\\nDAN LEWIS,\\n\\n Potential Intervenor - Appellant,\\n\\n v.\\n\\nTERESA M. SPEAKS; TOBY SPEAKS; STAN SMITH; EDDIE BROWN;\\nROBERT POINDEXTER; MIKE MITCHELL; ROY L. COOK; ALEX SHUGART;\\nH. RANDLE WOOD; ROBIN ROGERS; DANIEL LEE NELSON,\\n\\n Plaintiffs – Appellees,\\n\\n and\\n\\nU. S. TOBACCO COOPERATIVE INC., f/k/a Flue-Cured Tobacco Cooperative\\nStabilization Corporation,\\n\\n Defendant – Appellee.\\n\\n\\nAppeal from the United States District Court for the Eastern District of North Carolina, at\\nRaleigh. James C. Dever, III, District Judge. (5:12-cv-00729-D)\\n\\n\\nArgued: October 31, 2018 Decided: February 28, 2019\\n\\n\\nBefore GREGORY, Chief Judge, THACKER, and QUATTLEBAUM, Circuit Judges.\\n\\n\\nAffirmed in part, reversed and remanded by published opinion. Chief Judge Gregory\\nwrote the opinion, in which Judge Thacker and Judge Quattlebaum joined.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4372452/\", \"author_raw\": \"Raleigh. James C. Dever, III, District Judge\"}, {\"author\": \"Judge Quattlebaum wrote a concurring\", \"type\": \"concurrence\", \"text\": \"Judge Quattlebaum wrote a concurring opinion.\\n\\n\\nARGUED: Charles Alan Runyan, RUNYAN & PLATTE, Beaufort, South Carolina, for\\nAppellants. Gary K. Shipman, SHIPMAN & WRIGHT, LLP, Wilmington, North\\nCarolina, for Appellees Teresa Speaks, et al. Derek L. Shaffer, QUINN EMANUEL\\nURQUHART & SULLIVAN, LLP, Washington, D.C., for Appellee United States\\nTobacco Cooperative Inc. ON BRIEF: Andrew S. Platte, RUNYAN & PLATTE,\\nBeaufort, South Carolina, for Appellants Sharp Farms, Robert W. May, Tucker\\nFarms, Inc., and Worthington Farms, Inc. John L. Coble, MARSHALL, WILLIAMS\\n& GORHAM, LLP, Wilmington, North Carolina, for Appellant Dan Lewis.\\nWilliam G. Wright, SHIPMAN & WRIGHT, LLP, Wilmington, North Carolina;\\nNamon Leo Daughtry, DAUGHTRY, WOODARD, LAWRENCE & STARLING,\\nSmithfield, North Carolina, for Appellees Teresa Speaks, et al. Lee M. Whitman,\\nTobias S. Hampson, WYRICK ROBBINS, Raleigh, North Carolina; Jonathan Cooper,\\nQUINN EMANUEL URQUHART & SULLIVAN, LLP, Washington, D.C., for Appellee\\n\\n\\n 2\\n\\nUnited States Tobacco Cooperative Inc.\\n\\n\\n\\n\\n 3\\n\\nGREGORY, Chief Judge:\\n\\n This appeal of a class-action settlement concerns a longstanding dispute between\\n\\nU.S. Tobacco Cooperative, Inc., an agricultural cooperative of flue-cured tobacco\\n\\ngrowers in North Carolina, and a class of plaintiffs consisting of current and former\\n\\nCooperative members. From its inception in 1946, the Cooperative administered a\\n\\nfederal price-support program designed to stabilize tobacco prices for member growers\\n\\nthrough purchasing their unsold tobacco at a guaranteed minimum price and marketing\\n\\nthe tobacco to buyers. With a mixed record of success, the price-support program\\n\\nultimately came to an end in 2004, when Congress enacted the Fair and Equitable\\n\\nTobacco Reform Act (“FETRA”). By this point, the Cooperative had accumulated a\\n\\ncapital reserve fund of hundreds of millions of dollars generated from the tobacco the\\n\\nmembers delivered or the fee assessments they paid to the Cooperative as members\\n\\nparticipating in the price-support program.\\n\\n On October 31, 2012, the plaintiffs (“Speaks plaintiffs”) filed a class-action\\n\\ncomplaint against the Cooperative, seeking a declaratory judgment, distribution of the\\n\\nreserve funds to members, and judicial dissolution of the Cooperative as an alternative\\n\\nform of relief. They argued that after Congress enacted FETRA and the price-support\\n\\nprogram ended, the Cooperative’s primary purpose ceased to exist, and it should be\\n\\nforced to distribute the reserve funds and be judicially dissolved. The parties eventually\\n\\nmediated the case in May 2017 and moved for the district court to certify the class and\\n\\napprove their $24 million settlement as fair, reasonable, and adequate for the class\\n\\nmembers. The district court did so.\\n\\n 4\\n\\n But this is not the whole picture. At the time the Speaks plaintiffs filed their\\n\\ncomplaint in October 2012, a parallel class action against the Cooperative was making its\\n\\nway through North Carolina state court. That case was brought several years earlier, and\\n\\nit included a class of member growers (the “Fisher-Lewis plaintiffs”) who form a subset\\n\\nof the Speaks class in this appeal but whose claims to the reserve fund are arguably much\\n\\nstronger than the claims of the Speaks plaintiffs. Indeed, a North Carolina court,\\n\\nreviewing a proposed settlement for the Fisher-Lewis plaintiffs in 2006, concluded that\\n\\n$76.8 million in relief was not even in the “ball park” of being fair, reasonable, and\\n\\nadequate for class members.\\n\\n The Speaks plaintiffs filed their October 2012 complaint just as the Fisher-Lewis\\n\\nplaintiffs were gathering momentum—they had substantially survived a motion to\\n\\ndismiss and moved for class certification before the state court. Acknowledging that the\\n\\npreexisting Fisher-Lewis proceedings could affect their case, the Speaks plaintiffs then\\n\\nstayed the case for several years while those proceedings played out. During this time,\\n\\nthe Fisher-Lewis plaintiffs met with more success, achieving class certification and\\n\\nsuccessfully defending against the Cooperative’s appeal challenging certification. Within\\n\\ntwo weeks of the North Carolina Supreme Court’s decision affirming class certification,\\n\\nhowever, the Speaks parties began their own settlement negotiations. They reached a\\n\\ntentative settlement for $24 million within five months—a settlement that included the\\n\\nFisher-Lewis certified class and extinguished its claims.\\n\\n Before this Court are the Objectors-Appellants—Fisher-Lewis class members who\\n\\nobjected to the Speaks settlement—and would-be intervenor Dan Lewis. Lewis contends\\n\\n 5\\n\\nthat the district court abused its discretion in denying his motion to intervene in Speaks.\\n\\nBecause he filed his appeal with this Court far beyond the 30-day appeal deadline\\n\\nprescribed by statute, we must dismiss his appeal for lack of jurisdiction.\\n\\n The Objectors claim, at bottom, that they got a raw deal. They first contend that\\n\\nthe district court abused its discretion in certifying the Speaks settlement class under\\n\\nFederal Rule of Civil Procedure 23(a), arguing that the Speaks class counsel and class\\n\\nrepresentatives cannot and did not adequately protect their interests in this case. The\\n\\nObjectors also challenge the district court’s final approval of the $24 million settlement\\n\\nas fair, reasonable, and adequate under Rule 23(e). Finally, they argue that the district\\n\\ncourt erred in denying certain Fisher-Lewis class members’ attempts to opt out the entire\\n\\nFisher-Lewis certified class from Speaks.\\n\\n We affirm the district court’s denial of the attempted group opt-out. But after a\\n\\ncareful review of this record—which spans nearly 15 years and 5,000 pages—we cannot\\n\\nagree that the Objectors’ interests were adequately protected or that a $24 million\\n\\nsettlement is fair, reasonable, and adequate for the class. For this reason, we reverse the\\n\\ndistrict court’s order certifying the class and granting final approval of the class-action\\n\\nsettlement and remand for further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 6\\n\\n I.\\n\\n A.\\n\\n Historical Background\\n\\n Created in 1946, U.S. Tobacco Cooperative, Inc. is an agricultural cooperative of\\n\\nflue-cured tobacco growers organized under the North Carolina Cooperative Marketing\\n\\nAct. 1 N.C. Gen. Stat. §§ 54-145 to 54-166. The Cooperative’s purpose is to “engage in\\n\\nany activity involving or relating to the business of receiving, grading, processing,\\n\\ndrying, packing, storing, financing, marketing, selling, and/or distribution, on a\\n\\ncooperative basis, of flue-cured tobacco or products or by-products derived therefrom of\\n\\nits members.” J.A. 345.\\n\\n Under North Carolina law and the Cooperative’s governing documents, the\\n\\nCooperative may establish a capital reserve. See N.C. Gen. Stat. § 54-151(5); J.A. 366–\\n\\n67 (articles of incorporation), J.A. 3200 (1947 bylaws), J.A. 3503–04 (1967 bylaws). In\\n\\nthe 1970s, the Cooperative’s Board of Directors established such a reserve to “prepare for\\n\\n[] rainy days” in the event federal subsidies ended. J.A. 3963. The plaintiffs in this\\n\\nlawsuit are a class of current and former members of the Cooperative who brought an\\n\\naction for dissolution of the Cooperative and distribution of excess capital reserves. 2 J.A.\\n\\n262–90.\\n\\n\\n\\n 1\\n Before changing its name in 2008, the Cooperative was called the Flue-Cured\\nTobacco Cooperative Stabilization Corporation.\\n 2\\n The price-support program was established under a series of federal laws that\\nCongress enacted to protect farmers after the Great Depression. See generally Jasper\\n(Continued)\\n 7\\n\\n To become a member of the Cooperative, a flue-cured tobacco producer “paid five\\n\\ndollars . . . in exchange for one share of [the Cooperative’s common] stock.” Fisher v.\\n\\nFlue-Cured Tobacco Coop. Stabilization Corp., 794 S.E.2d 699, 703 (N.C. 2016)\\n\\n(“Fisher-Lewis”). According to the Cooperative’s governing documents, this common\\n\\nstock could be “purchased, owned or held only by producers who shall patronize the\\n\\ncorporation in accordance with uniform terms and conditions . . . and only such persons\\n\\nshall be regarded as eligible members of the corporation.” J.A. 346. If the common\\n\\nstock passed to someone ineligible for membership, that person had “no rights or\\n\\nprivileges on account of such stock,” and the Cooperative could “purchase such stock at\\n\\nits book or par value, whichever is less.” J.A. 346–47.\\n\\n From 1946–2004, the Cooperative administered a federal price-support program\\n\\nfor flue-cured tobacco for the benefit of its member growers. Under this program,\\n\\ntobacco producers who could not sell their flue-cured tobacco delivered it to a warehouse,\\n\\nwhere the Cooperative graded the tobacco and tried to sell it at auction. Fisher-Lewis,\\n\\n794 S.E.2d at 703. “The auction was subject to a minimum price established annually by\\n\\nthe United States Department of Agriculture, and the tobacco would not be sold for less\\n\\nthan that price.” Id. If the Cooperative could not sell the tobacco, it “would process and\\n\\nstore it, while advancing the minimum price less an administrative fee to the tobacco\\n\\nproducer.” Id. The Cooperative paid the tobacco producers with loans from the\\n\\n\\nWomach, Cong. Research Serv., Tobacco Price Support: An Overview of the Program\\n(Dec. 31, 2005), http://nationalaglawcenter.org/wp-content/uploads/assets/crs/95-129.pdf\\n(saved as ECF opinion attachment; viewed 02/28/2019).\\n\\n 8\\n\\nCommodity Credit Corporation (“CCC”), an entity owned and operated by the federal\\n\\ngovernment that assisted in administering the price-support program. Id. Any unsold\\n\\ntobacco served as collateral for the CCC’s loans. Id.\\n\\n During the lifetime of the price-support program, the Cooperative accumulated a\\n\\nreserve of hundreds of millions of dollars from three main sources: (1) the 1967–73 crop\\n\\nyears; (2) the 1982–84 crop years; and (3) the Fair and Equitable Tobacco Reform Act of\\n\\n2004 (“FETRA”), Pub. L. No. 108-357, 118 Stat. 1418. See Fisher-Lewis, 794 S.E.2d at\\n\\n704.\\n\\n First, during the 1967–73 crop years, the Cooperative “received and stored\\n\\ntobacco . . . and eventually sold the tobacco at a price higher than necessary to repay the\\n\\nloans from the CCC,” earning a profit on the resale. Fisher-Lewis, 794 S.E.2d at 704.\\n\\nThe Cooperative distributed some of these profits to its members in cash and held on to\\n\\nthe remainder—about $26.8 million—as reserve funds. Id. The Cooperative issued\\n\\ncertificates of interest in the reserve on a pro rata basis to members whose tobacco had\\n\\ncreated the surplus during those years. Id.\\n\\n The second source of the Cooperative’s reserve money was the 1982–84 crop\\n\\nyears. The Cooperative’s profits from this period stem from the passage of the No Net\\n\\nCost Tobacco Program Act of 1982 (“NNC Act”), 3 which fundamentally changed the\\n\\nstructure of the federal price-support system. See Leaf Tobacco Exporters Ass’n, Inc. v.\\n\\nBlock, 749 F.2d 1106, 1109 (4th Cir. 1984). Before Congress enacted this law, the\\n\\n\\n 3\\n Pub. L. No. 97-218, 96 Stat. 197.\\n\\n 9\\n\\nCCC’s loans to the Cooperative were “non-recourse” because “[t]he Cooperative’s failure\\n\\nto earn complete repayment funds [from the member growers] would result in a loss to be\\n\\nabsorbed by the CCC: the CCC could sell the collateral [i.e., the growers’ unsold\\n\\ntobacco] for its own account after the loan had matured, but it otherwise had no recourse\\n\\nagainst either the Cooperative or the individual farmers.” Id. This system changed with\\n\\npassage of the NNC Act, which applied starting with the 1982 crop year and required\\n\\nmember growers to pay an assessment to the Cooperative at the time they delivered their\\n\\ntobacco to serve as additional collateral for the CCC’s loans to the Cooperative, a\\n\\nmeasure intended to limit the federal government’s losses. Fisher-Lewis, 794 S.E.2d at\\n\\n703–04. The Cooperative later used the surplus funds collected from the NNC\\n\\nassessments—funds remaining after the CCC loans had been repaid—to redeem unsold\\n\\nmember tobacco from the 1982 crop year that the CCC had held as collateral. Id. The\\n\\nCooperative sold this tobacco and put in the reserve the $110 million in profit that it\\n\\nearned from the sale. The Cooperative did the same for the 1983 and 1984 crop years.\\n\\nJ.A. 3966.\\n\\n Third, the Cooperative added to its reserve fund after Congress enacted FETRA in\\n\\nOctober 2004 and ended the federal price-support program. See Fisher-Lewis, 794\\n\\nS.E.2d at 704. In implementing FETRA, the CCC called the Cooperative’s outstanding\\n\\nloans and took title to the tobacco that had been pledged as collateral for the loans. J.A.\\n\\n4014. The CCC repaid the loans through selling some of the tobacco as well as taking\\n\\npossession of the NNC assessments and applying them to the loan balance. J.A. 3966–\\n\\n67. The CCC returned the remaining tobacco—about 83 million pounds—to the\\n\\n 10\\n\\nCooperative, and the Cooperative eventually sold the tobacco for $81 million, adding this\\n\\nsum to its reserve fund. J.A. 3966–67; see also Fisher-Lewis, 794 S.E.2d at 704.\\n\\n When the price-support program ended in 2004, the Cooperative began culling its\\n\\nmembership rolls as part of an effort to develop a business plan that would enable it to\\n\\nremain financially viable and to continue providing benefits for members at a time when\\n\\nits primary function—administering price supports—had ceased to exist. J.A. 4708–09.\\n\\nThis membership reduction occurred in two phases. First, the Cooperative removed\\n\\nabout 713,072 members listed on the membership rolls who it determined were deceased,\\n\\nhad stopped farming by 1984, or had no financial relationship with the Cooperative. J.A.\\n\\n1781, 4709. Second, the Cooperative removed 89,994 of the remaining 90,840 members\\n\\nwho elected not to sign a marketing agreement with the Cooperative for 2005. J.A. 1781,\\n\\n2384. In a letter to members, the Cooperative explained that members who decided to\\n\\nwithdraw their membership by declining to sign the marketing agreement were no longer\\n\\nentitled to a share of the capital reserve.\\n\\n In 2004, the Cooperative had about 800,000 members. J.A. 4378. By the time it\\n\\nfinished culling the rolls, the Cooperative had eliminated 99% of its membership,\\n\\nreducing the number of members from 803,912 to 846. J.A. 1781. This reduction caused\\n\\nthe reserve—consisting of more than $300 million—to increase from $427.00 per\\n\\nmember to $365,000 per member. J.A. 1761.\\n\\n\\n\\n\\n 11\\n\\n B.\\n\\n Parallel Litigation\\n\\n There are two main lawsuits relevant to this appeal. First is the Fisher-Lewis\\n\\nproceeding in North Carolina state court. The second—this case—is the Speaks\\n\\nproceeding in North Carolina federal court. To provide the background necessary for\\n\\ndisposing of this appeal, we trace the history of each proceeding through the district\\n\\ncourt’s final approval of the Speaks settlement in February 2018.\\n\\n 1.\\n\\n Fisher-Lewis (State Court)\\n\\n In January 2005, a group of current and former Cooperative members, including\\n\\nappellant and would-be intervenor Dan Lewis, filed a putative class action in North\\n\\nCarolina Superior Court after the Cooperative cancelled their memberships and\\n\\nextinguished their accrued interest in the reserve when they failed to enter into the\\n\\nmarketing agreement with the Cooperative (“Lewis”). 4 J.A. 4451–52. The plaintiffs\\n\\nargued that the Cooperative “expelled hundreds of thousands” of members and asserted\\n\\ncontrol over the reserve fund in a deliberate attempt “to create a ‘last man standing’\\n\\nscenario in which a few hundred remaining member[s] potentially have the benefit of\\n\\nhundreds of millions of dollars in assets which have been created through the efforts of\\n\\nall members[s], including [p]laintiffs.” J.A. 1827. The plaintiffs were represented by\\n\\n\\n\\n 4\\n See Dan Lewis et al. v. Flue-Cured Tobacco Coop. Stabilization Corp., No. 05\\nCVS 188 (N.C. Super. Ct.).\\n\\n 12\\n\\nGary K. Shipman and William G. Wright, counsel for the Speaks plaintiffs in this case.\\n\\nJ.A. 59, 4713.\\n\\n One month later, in February 2005, another group of farmers filed a similar\\n\\nlawsuit in North Carolina state court (“Fisher”). 5 These plaintiffs were represented by\\n\\nC. Alan Runyan and Philip Isley, counsel for Objectors and would-be intervenor Lewis.\\n\\nJ.A. 4713.\\n\\n In September 2005, almost nine months after Lewis was filed, the Lewis plaintiffs,\\n\\nrepresented by Shipman and Wright, entered into a preliminary settlement agreement\\n\\nwith the Cooperative for $76.8 million in cash and $212 million in book allocations. J.A.\\n\\n311. But the Fisher plaintiffs, who would be included in the settlement, objected to these\\n\\nsettlement terms, and the state court in May 2006 denied preliminary approval of the\\n\\nsettlement without prejudice on the basis that the record was insufficiently developed to\\n\\nresolve outstanding concerns and that the evidence that had been presented “does not\\n\\nsupport a finding or conclusion that the proposed Settlement is within the necessary ‘ball\\n\\npark’ of being fair, reasonable and adequate.” J.A. 311–12. Given the inadequacy of the\\n\\nrecord, the court ordered the parties to engage in additional discovery on the merits of the\\n\\nproposed settlement. J.A. 311–12. A few days later, the Cooperative filed a preliminary\\n\\nnotice of intent to terminate the proposed settlement. J.A. 4455.\\n\\n In September 2007, Shipman and Wright moved to withdraw as counsel for the\\n\\nLewis plaintiffs because of disagreements with co-counsel. J.A. 4714. The court granted\\n\\n 5\\n See Kay Fisher et al. v. Flue-Cured Tobacco Coop. Stabilization Corp., No. 05\\nCVS 1938 (N.C. Super. Ct.).\\n\\n 13\\n\\nthis motion on October 8, 2007. J.A. 4458. Also in October, the Lewis and Fisher\\n\\nplaintiffs made a settlement offer for both cases, and the parties began settlement\\n\\nnegotiations that extended through July 2008 and included at least one mediation. J.A.\\n\\n4458.\\n\\n The Fisher and Lewis cases were consolidated in May 2009 (“Fisher-Lewis”).\\n\\nJ.A. 4458. The plaintiffs at this time filed a second amended and consolidated complaint\\n\\nalleging the following fourteen claims for relief: (1) conversion; (2) breach of contract;\\n\\n(3) imposition of a constructive trust; (4) accounting; (5) distribution; (6) declaratory\\n\\njudgment; (7) fraud; (8) in the alternative, fraud in the inducement; (9) ultra vires;\\n\\n(10) breach of contract; (11) breach of contract accompanied by a fraudulent act;\\n\\n(12) unfair trade practices; (13) dissolution; and (14) judicial dissolution. J.A. 1837–52.\\n\\nThe Cooperative filed a motion to dismiss in July 2009.\\n\\n On March 30, 2012, the North Carolina Superior Court granted the motion to\\n\\ndismiss on three of the fourteen claims: fraud, fraud in the inducement, and breach of\\n\\ncontract accompanied by a fraudulent act. J.A. 1860–68. The court otherwise denied the\\n\\nCooperative’s motion. On July 9, 2012, the Fisher-Lewis plaintiffs filed a third amended\\n\\nand consolidated complaint, dropping the three claims that had been dismissed and\\n\\nremoving the claims for dissolution and judicial dissolution. J.A. 1918–52.\\n\\n Also on July 9, 2012, the Fisher-Lewis plaintiffs filed a motion for class\\n\\ncertification under Rule 23 of the North Carolina Rules of Civil Procedure. J.A. 1869–\\n\\n1916. The court granted the motion and certified the Fisher-Lewis class in February\\n\\n2014. J.A. 2463–78. The Cooperative appealed this decision, and the North Carolina\\n\\n 14\\n\\nSupreme Court affirmed the amended certification order on December 21, 2016. See\\n\\nFisher-Lewis, 794 S.E.2d at 703. The certified Fisher-Lewis class consisted of the\\n\\nfollowing:\\n\\n All individuals, proprietorships, partnerships, corporations, or their heirs,\\n representatives, executors or assigns, and other proper entities that have\\n been members/shareholders of the Flue-Cured Tobacco Cooperative\\n Stabilization Corporation . . . at any time from its inception through the end\\n of crop year 2004, and any heirs, representatives, executors, successors or\\n assigns, and;\\n\\n (a) had not requested cancellation of their membership and whose\\n membership was cancelled by Stabilization without a hearing, and/or\\n\\n (b) were issued a certificate of interest in capital reserve by Stabilization for\\n any of the tobacco crop years between and including 1967–1973, and/or\\n\\n (c) delivered, consigned for sale, or sold flue-cured tobacco and paid an\\n assessment for deposit into the No Net Cost Tobacco Fund or No Net\\n Cost Tobacco Account during any tobacco crop years between and\\n including 1982–2004.\\n\\nFisher-Lewis, 794 S.E.2d at 704 (alteration in original).\\n\\n In upholding class certification, the North Carolina Supreme Court concluded that\\n\\nthere were no conflicts among this class that would prevent class certification because\\n\\n“each class member’s share of recovery could be determined fairly based upon that\\n\\nmember’s patronage interests in [the Cooperative]”—i.e., each member’s profit\\n\\ncontribution to the Cooperative’s reserve fund. Id. at 708.\\n\\n 2.\\n\\n Speaks (Federal Court)\\n\\n On October 31, 2012, three months after the Fisher-Lewis plaintiffs’ motion for\\n\\nclass certification in state court, a different group of tobacco growers represented by\\n\\n 15\\n\\nShipman and Wright—former Lewis counsel who withdrew in 2007—filed this lawsuit, a\\n\\nputative class action against the Cooperative in the Eastern District of North Carolina.\\n\\nJ.A. 32–70. The Speaks plaintiffs brought claims for a declaratory judgment, distribution\\n\\nto members under N.C. Gen. Stat. § 55A-13-02(c), and an alternative statutory claim for\\n\\njudicial dissolution of the Cooperative under N.C. Gen. Stat. § 55A-14-30. J.A. 52–59,\\n\\n4460. The proposed Speaks class encompassed the class certified in Fisher-Lewis.\\n\\n On December 5, 2012, the parties jointly moved for a temporary stay pending the\\n\\nstate court’s decision on the class-certification motion in Fisher-Lewis. J.A. 71–73. The\\n\\ncourt granted the stay on December 17, 2012. J.A. 74–75. For the next five years, the\\n\\nSpeaks parties continually sought—and were granted—temporary stays, and they\\n\\noccasionally provided the court with status reports. The Cooperative never filed an\\n\\nanswer to the complaint, and no adversarial discovery took place. J.A. 9–14. The parties\\n\\ninformed the court during this period that “[r]esolution of the class issues in [Fisher-\\n\\nLewis] continues to be relevant to [p]laintiffs in the action before this Court and, if\\n\\n[d]efendant’s anticipated appeal in [Fisher-Lewis] is rejected or class certification is\\n\\nupheld on appeal, this federal action may become moot.” J.A. 89.\\n\\n The North Carolina Supreme Court affirmed class certification in Fisher-Lewis in\\n\\nlate December 2016, and about two weeks later, on January 4, 2017, the Cooperative’s\\n\\ncounsel contacted Shipman, counsel for the Speaks plaintiffs, about scheduling a\\n\\nconference call to discuss next steps in the Speaks case given the recent decision in\\n\\nFisher-Lewis. J.A. 4464.\\n\\n\\n\\n 16\\n\\n The conference call took place on January 9, 2017, and the discussions led to an\\n\\nagreement to mediate the Speaks case. J.A. 4464. In the months following the\\n\\nconference call—while the Fisher-Lewis parties were developing the notice plan—the\\n\\nCooperative’s counsel and Shipman discussed selection of a mediator and possible dates\\n\\nfor mediation, developed a list of relevant documents and exchanged them, and set a date\\n\\nto submit position papers to the mediator. J.A. 4465–68. The parties ultimately selected\\n\\nthe Honorable Frank Bullock, a retired federal judge, to mediate a session that would take\\n\\nplace on May 11–12, 2017. J.A. 4716.\\n\\n On April 20, 2017, the Cooperative’s local counsel explained in an email to the\\n\\nSpeaks parties that he had communicated a “courtesy ‘heads-up’ to Philip Isley\\n\\n[plaintiffs’ counsel in Fisher-Lewis]” that the parties had scheduled a mediation in Speaks\\n\\nfor May 11–12 with Judge Bullock. J.A. 4583. Local counsel further stated in his email\\n\\nthat “[w]e will let you know if anything gets filed by the [Fisher-Lewis] plaintiffs with\\n\\n[the Speaks court] concerning the mediation,” and he asked the parties to “please let us\\n\\nknow if you hear from the [Fisher-Lewis] plaintiffs as well.” J.A. 4583. This courtesy\\n\\n“heads up” was the first time the Speaks parties informed Fisher-Lewis counsel that\\n\\nSpeaks was going to be mediated.\\n\\n On May 5, 2017, Bob Cherry, counsel for the Fisher-Lewis plaintiffs, wrote a\\n\\nletter to Shipman, counsel for the Speaks plaintiffs, stating that he had been informed that\\n\\na mediation had been set for May 11 and reminding Shipman that certain class\\n\\nrepresentatives in Fisher-Lewis were Shipman’s former clients to whom he owed\\n\\ncontinuing duties under professional-conduct rules. J.A. 720. Cherry indicated that his\\n\\n 17\\n\\nletter served as “formal notice” that Shipman’s former clients did not consent to his\\n\\nrepresenting the Speaks plaintiffs because such a representation “could be materially\\n\\nadverse” to the interests of the Fisher-Lewis class. J.A. 720–21. Shipman responded that\\n\\nthe mediation would occur as planned, that parallel state–federal class actions are “not\\n\\nunique,” and that “both the [Fisher-Lewis] case and the Speaks case are free to proceed\\n\\nuntil there is a final judgment in one of them.” J.A. 725.\\n\\n On May 10, the day before the mediation, Cooperative counsel sent an email to\\n\\nJudge Bullock noting the parallel state and federal class actions and stating that Fisher-\\n\\nLewis counsel sent a letter “voicing some concern over the upcoming mediation,”\\n\\nconcern that Cooperative counsel and Shipman “do not share.” J.A. 4585. Cooperative\\n\\ncounsel also provided the correspondence between Cherry and Shipman as an attachment\\n\\nto the email.\\n\\n After two days of mediation, the parties reached a settlement in principle. J.A.\\n\\n4350. The Cooperative agreed to pay $24 million in exchange for a release of all claims\\n\\nby the class, including the Fisher-Lewis claims. J.A. 204.\\n\\n On September 7, 2017, the Speaks plaintiffs filed a motion to certify the class\\n\\naction and for preliminary approval of the proposed class-action settlement. J.A. 122–92.\\n\\nThe plaintiffs amended the motion on September 8, filing a stipulation and agreement of\\n\\nclass-action compromise, settlement, and release. J.A. 193–250. Five days later, on\\n\\nSeptember 13, 2017, the district court preliminarily approved the settlement and the\\n\\nnotice plan and scheduled a final fairness hearing for January 19, 2018. J.A. 251–61.\\n\\n\\n\\n 18\\n\\n In the months before the hearing, some class members objected to the settlement,\\n\\nincluding the Objectors-Appellants Sharp Farms, Robert May, Tucker Farms, and\\n\\nWorthington Farms. The Objectors are members of the Fisher-Lewis certified class who\\n\\nwere included in the proposed Speaks settlement class.\\n\\n 3.\\n\\n Fisher-Lewis Challenges to Speaks Settlement\\n\\n As the parties in the Speaks proceedings moved closer to a final settlement in late\\n\\n2017, the Fisher-Lewis plaintiffs protested the Speaks settlement and the manner in\\n\\nwhich it was reached.\\n\\n On September 15, 2017, a week after preliminary approval in Speaks was\\n\\nrequested and two days after it was granted, Fisher-Lewis class representative Dan Lewis\\n\\nmoved to intervene in Speaks, contending that the settlement was inadequate primarily\\n\\nbecause of the earlier settlement valued at $76.8 million in cash and more than $212\\n\\nmillion in book allocations, “three times the current settlement amount” in Speaks. J.A.\\n\\n305. On October 2, 2017, the district court denied Lewis’s motion to intervene as\\n\\nuntimely. The court explained that Lewis had been aware of this lawsuit since at least\\n\\n2014, and that he knew about the mediation no later than May 5, 2017, but waited to\\n\\nmove to intervene until after the court preliminarily approved the settlement. J.A. 1296–\\n\\n99. Lewis subsequently opted himself out of the Speaks class as well as purported to opt\\n\\nout the entire Fisher-Lewis certified class. J.A. 1603–04.\\n\\n The Fisher-Lewis plaintiffs separately filed several motions in state court\\n\\nchallenging Speaks. On September 22, 2017, the plaintiffs filed an order to show cause\\n\\n 19\\n\\nor for sanctions, arguing that the Cooperative’s counsel in mediating Speaks had violated\\n\\nthe court’s case management order from April 2017, North Carolina Rule of Civil\\n\\nProcedure 23, and the North Carolina Rules of Professional Conduct. J.A. 744–58. On\\n\\nOctober 13, the state court denied the motion but nevertheless ordered the Cooperative’s\\n\\ncounsel to produce to Speaks counsel “all communications between it . . . and any\\n\\nmember of the class in these consolidated cases.” J.A. 1327–28. In explaining this\\n\\ndirective, the court noted that “this action has been finally upheld as a certified class by\\n\\nthe North Carolina Supreme Court and is now proceeding to trial,” and indicated that it\\n\\nwas “concerned that the integrity of the class and the administration of justice has been\\n\\ncalled into question given the history of the case, the unusual facts of representation of\\n\\nboth the certified action and the later filed Speaks case, in that the initial counsel in one of\\n\\nthese consolidated actions is now counsel in the Speaks case.” J.A. 1327.\\n\\n On November 28, 2017, the Fisher-Lewis plaintiffs filed a motion under North\\n\\nCarolina Rule of Civil Procedure 23(c) for an order finding that “the settlement reached\\n\\nin Speaks, insofar as it attempts to bind and preclude this certified [] class, is not\\n\\napproved,” and finding that the settlement “was reached in a collusive manner to avoid\\n\\nthe jurisdiction of th[e] court to promote an inadequate settlement.” J.A. 4499. On\\n\\nJanuary 17, 2018, two days before the final fairness hearing in the Speaks case, the\\n\\nFisher-Lewis state court issued a lengthy opinion granting in part the Rule 23(c) motion.\\n\\nJ.A. 4447–90. The court concluded that the Speaks settlement was not fair, reasonable,\\n\\nand adequate for the Fisher-Lewis class, and that counsel for both parties in Speaks had\\n\\nviolated Rules 4.1 and 4.2 of the North Carolina Rules of Professional Conduct. J.A.\\n\\n 20\\n\\n4477–89. The state court found in particular “ample evidence of collusion between the\\n\\nparties in Speaks to (a) exclude counsel in [Fisher-Lewis] from participation in the\\n\\nsettlement of the claims for the class members whom they represent, and [to] [b] mislead\\n\\nthe members of the [Fisher-Lewis] class as to the true facts of this matter.” J.A. 4487–89.\\n\\n 4.\\n\\n Speaks Settlement Approval\\n\\n The final fairness hearing in Speaks took place on January 19, 2018. On February\\n\\n20, the district court issued an 82-page opinion certifying the Speaks settlement class and\\n\\ngranting final approval of the class-action settlement on the basis that it was fair,\\n\\nreasonable, and adequate for class members. A week later, on February 27, the court\\n\\nissued an amended final judgment clarifying the opt-out list.\\n\\n Under the terms of the settlement, the Cooperative will pay into the settlement\\n\\nfund $24 million—less attorneys’ fees, costs, and incentive awards, capped at $2\\n\\nmillion—over a five-year period to be held in escrow on behalf of the class. J.A. 4730.\\n\\nThe final settlement class encompasses the following:\\n\\n all individuals, proprietorships, partnerships, corporations, and other\\n entities that are or were shareholders and/or members of [the Cooperative]\\n at any time during the Class Period [i.e., June 1, 1946, through the effective\\n date of the settlement in 2018], without any exclusion, including any heirs,\\n representatives, executors, powers-of-attorney, successors, assigns, or\\n others purporting to act for or on their behalf with respect to [the\\n Cooperative] and/or the Settled Claims.\\n\\n This class definition is broader than the definition of the class certified in Fisher-\\n\\nLewis. That class included current or former members of the Cooperative from 1946–\\n\\n2004 and tied recovery to whether the class member’s patronage resulted in a net gain for\\n\\n 21\\n\\nthe Cooperative and thus contributed to the reserve. By contrast, the Speaks settlement,\\n\\nwhich extinguishes the Fisher-Lewis class claims, entitles all current or former\\n\\nCooperative members from 1946–2018 to a portion of the Cooperative’s reserve funds\\n\\nirrespective of whether they produced net gains for the reserve. Each member’s share of\\n\\nthe recovery in Speaks is indeed based on two factors unrelated to the patronage concept.\\n\\nSee J.A. 4730–31 (describing “Group 1” and “Group 2” claims). The first factor is the\\n\\nnumber of pounds of tobacco that the member marketed to the Cooperative from 1946–\\n\\n2018 relative to the total number of pounds from all class members who submit this type\\n\\nof claim (subject to a $15,000 cap). The second factor is the number of years the member\\n\\nmarketed and sold tobacco relative to the total number of years of all class members who\\n\\nsubmit this type of claim. J.A. 4730–31. The Speaks class structure thus allows a class\\n\\nmember to share in the recovery of the reserve funds even if he contributed no profits to\\n\\nthe reserve.\\n\\n On March 21, 2018, the Objectors, represented by Fisher-Lewis counsel, appealed\\n\\nthe district court’s final order approving the settlement and the amended final judgment\\n\\nclarifying the opt-out list. J.A. 4797–99. On the same day, Lewis appealed the district\\n\\ncourt’s order denying his motion to intervene, an order that was entered on October 2,\\n\\n2017. 6 J.A. 4801–03.\\n\\n\\n\\n\\n 6\\n Lewis’s notice of appeal states that the order denying his motion to intervene was\\nentered on October 20, 2017, but the docket sheet indicates that the order was in fact\\nentered on October 2, 2017. See J.A. 16.\\n\\n 22\\n\\n II.\\n\\n Analysis\\n\\n This case presents three main claims of error. First, would-be intervenor\\n\\nDan Lewis contends that the district court abused its discretion in denying his motion to\\n\\nintervene. Second, the Objectors argue that the district court abused its discretion in\\n\\ncertifying the Speaks settlement class under Federal Rule of Civil Procedure 23(a)\\n\\nbecause the Speaks representatives and class counsel cannot and did not adequately\\n\\nrepresent the distinct interests of the Fisher-Lewis class members. Finally, the Objectors\\n\\ncontend that the district court abused its discretion in approving the class settlement as\\n\\nfair, reasonable, and adequate under Rule 23(e). We address each contention in turn.\\n\\n A.\\n\\n Lewis’s Motion to Intervene\\n\\n In his appeal (No. 18-1325), would-be intervenor Lewis, a Fisher-Lewis class\\n\\nrepresentative, contends that the district court abused its discretion in denying his motion\\n\\nto intervene in Speaks. Because Lewis’s appeal of the order denying his motion is\\n\\nuntimely, we must dismiss the appeal.\\n\\n The district court’s denial of a motion to intervene is “treated as a final judgment\\n\\nthat is appealable.” Bridges v. Dep’t of Md. State Police, 441 F.3d 197, 207 (4th Cir.\\n\\n2006); see also Scott v. Bond, 734 F. App’x 188, 189 n.2 (4th Cir. 2018). Once the\\n\\ndistrict court enters the order denying intervention, a party has 30 days to file a notice of\\n\\nappeal. See 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A). He “may not await final\\n\\n\\n\\n 23\\n\\njudgment in the underlying action” to do so. United States v. City of Milwaukee, 144\\n\\nF.3d 524, 528 (7th Cir. 1998).\\n\\n Lewis filed his notice of appeal on March 21, 2018, about 170 days after the\\n\\ndistrict court denied his motion to intervene on October 2, 2017. As the Supreme Court\\n\\nrecently made clear, “a provision governing the time to appeal in a civil action qualifies\\n\\nas jurisdictional [] if Congress sets the time.” Hamer v. Neighborhood Hous. Servs. of\\n\\nChi., 138 S. Ct. 13, 17 (2017); see also Bowles v. Russell, 551 U.S. 205, 211–12 (2007)\\n\\n(observing “the jurisdictional distinction between court-promulgated rules and limits\\n\\nenacted by Congress”); United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009)\\n\\n(recognizing “the jurisdictional nature of statutory time constraints”). Because Lewis’s\\n\\nappeal of the order denying his motion is governed by the 30-day time period prescribed\\n\\nin 28 U.S.C. § 2107(a), we lack jurisdiction over his untimely appeal and must dismiss it.\\n\\nSee Hamer, 138 S. Ct. at 17 (“Failure to comply with a jurisdictional time prescription\\n\\n. . . deprives a court of adjudicatory authority over the case, necessitating dismissal[.]”).\\n\\n B.\\n\\n Class Certification Under Rule 23(a)\\n\\n The Objectors contend that the district court abused its discretion in certifying the\\n\\nSpeaks settlement class under Rule 23(a). See Brown v. Nucor Corp., 576 F.3d 149, 152\\n\\n(4th Cir. 2009) (reviewing a district court’s decision to certify a class for abuse of\\n\\ndiscretion).\\n\\n “Rule 23(a) requires that the prospective class comply with four prerequisites:\\n\\n(1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.”\\n\\n 24\\n\\nEQT Prod. Co. v. Adair, 764 F.3d 347, 357 (4th Cir. 2014); Fed. R. Civ. P. 23(a). The\\n\\nObjectors challenge only the adequacy of representation in this case, arguing that both\\n\\nSpeaks class counsel and the class representatives were inadequate. 1 William B.\\n\\nRubenstein, Newberg on Class Actions § 3.52, at 325–26 (5th ed. 2011) (“Although Rule\\n\\n23(a)(4) provides that a class action may be maintained only if ‘the representative parties\\n\\nwill fairly and adequately protect the interests of the class,’ courts have long used Rule\\n\\n23(a)(4) . . . to scrutinize the adequacy of class counsel as well as the adequacy of the\\n\\nclass representatives.” (footnote omitted) (quoting Fed. R. Civ. P. 23(a)(4))). 7 The\\n\\nObjectors also separately challenge the district court’s denial of certain Fisher-Lewis\\n\\nclass representatives’ attempts to opt out the entire Fisher-Lewis certified class from the\\n\\nSpeaks settlement.\\n\\n For the reasons that follow, we conclude that the district court abused its discretion\\n\\nin certifying the settlement class because Speaks class counsel and the class\\n\\nrepresentatives cannot and did not adequately represent the Fisher-Lewis certified class.\\n\\nWe therefore reverse that part of the district court’s order certifying the settlement class.\\n\\nWe hold, however, that the district court did not err in denying the attempted opt-out of\\n\\nthe entire Fisher-Lewis class, and we therefore affirm the district court’s order in this\\n\\nrespect.\\n\\n\\n\\n 7\\n See 1 Newberg on Class Actions § 3:72, at 394 (noting that Congress in 2003\\n“adopted Rule 23(g) that creates an explicit textual mooring for the class counsel\\nanalysis[,] but most courts continue to employ the substantive standards generated under\\nRule 23(a)(4) prior to Rule 23(g)’s adoption in their analysis of counsel’s adequacy”).\\n\\n 25\\n\\n 1.\\n\\n Adequacy of Class Counsel\\n\\n First, the Objectors contend that the district court abused its discretion in\\n\\ncertifying the class because Speaks class counsel—Shipman and Wright—did not\\n\\nadequately and fairly represent the Fisher-Lewis class members who became members of\\n\\nthe Speaks settlement class. The Objectors argue in particular that the district court\\n\\n“erroneously refused to consider” the Fisher-Lewis state court’s findings that counsel in\\n\\nSpeaks colluded to exclude Fisher-Lewis class counsel from participating in the\\n\\nsettlement mediation and to mislead the Fisher-Lewis class members into believing that\\n\\nany Speaks settlement would not preclude the Fisher-Lewis class claims. We agree.\\n\\n In its order approving the settlement, the district court concluded that Speaks class\\n\\ncounsel “fully and adequately represents the settlement class” primarily because “counsel\\n\\nhas over twenty-years[’] experience litigating class actions and has expended significant\\n\\nresources investigating and pursuing the claims in this action.” J.A. 4741–42.\\n\\nAddressing the collusion argument, the court stated that the Objectors “essentially\\n\\nsuggest that Judge Bullock was too blind to see collusion at the tip of his nose during the\\n\\nmediation, or that Judge Bullock was part of the collusion,” arguments that the court\\n\\nrejected as “insulting” and “baseless.” J.A. 4743. The court emphasized that\\n\\nJudge Bullock was “an experienced mediator who served with honor and distinction as a\\n\\n[district judge] for 24 years,” and that he “reviewed briefings submitted by the parties and\\n\\nfacilitated a two-day intense mediation that resulted in the proposed settlement.” J.A.\\n\\n\\n\\n 26\\n\\n4743. Judge Bullock, in sum, “would not and did not participate in a collusive mediation\\n\\nor permit one to take place in front of him.” J.A. 4744.\\n\\n The district court’s reasoning in rejecting the Objectors’ collusion argument rests\\n\\non two flawed premises. First, the court appears to have regarded the allegations of\\n\\ncollusion as an attack on the mediator himself and his integrity and intelligence. See,\\n\\ne.g., J.A. 4743 (stating that “[i]f the parties were going to collude or attempt to collude,\\n\\nthe last person they would have asked to serve as a mediator is Judge Bullock”); id.\\n\\n(asserting that “Judge Bullock is as smart and honorable as the universe is large”); id.\\n\\nn.18 (explaining that Judge Bullock “is one of the most highly respected lawyers, judges,\\n\\nand mediators in North Carolina’s history”); see also Oral Arg. 35:45–36:05\\n\\n(Cooperative counsel stating that “there were some traces of that, frankly,” in response to\\n\\nthis Court’s assertion that the district court seemed to believe that “the mediator was\\n\\nbeing accused of collusion when the mediator really didn’t have the information in front\\n\\nof him”). The extent of the district court’s comments defending the mediator’s character\\n\\nsuggests that this mistaken assumption was a driving force in the court’s rejection of the\\n\\nserious collusion allegations.\\n\\n Second, the district court’s analysis erroneously assumes that the mediator had all\\n\\nthe relevant information on the collusion allegations at the time he presided over and\\n\\nfacilitated the mediation in May 2017. As an initial matter, and as counsel for the Speaks\\n\\nplaintiffs acknowledged at oral argument, the mediator did not have the benefit of the\\n\\nstate court’s January 2018 order extensively documenting what it deemed counsel’s\\n\\nimproper and unethical conduct, some of which allegedly occurred after the mediation,\\n\\n 27\\n\\nduring the summer and fall of 2017. See generally J.A. 4477–90; see also Oral Arg.\\n\\n24:16–24:37 (Speaks class counsel acknowledging that “the mediation was conducted\\n\\nprior to the time of [the state court’s] order” and agreeing with this Court’s statement that\\n\\n“the mediator was not aware” of the violations identified in the order); id. at 35:00–35:07\\n\\n(Cooperative counsel recognizing the same). Without the state court’s order, the\\n\\nmediator could not consider in his assessment the full extent of the collusion allegations\\n\\nand necessarily relied only on information that the parties conveyed before and during the\\n\\nmediation about events preceding the mediation. That the mediator was present during\\n\\nthe settlement negotiations thus cannot provide the sole basis on which to reject the\\n\\nObjectors’ charges of collusion.\\n\\n Defending the district court’s reasoning, the Cooperative emphasizes that a\\n\\n“strong presumption against collusion” applies “[w]hen a reputable mediator . . . oversees\\n\\nsettlement negotiations.” Coop. Br. 33 (citing Jones v. Singing River Health Servs.\\n\\nFound., 865 F.3d 285, 295–96 (5th Cir. 2017), and D’Amato v. Deutsche Bank, 236 F.3d\\n\\n78, 85 (2d Cir. 2001)). In this regard, the Cooperative asserts that “[d]uring the\\n\\nmediation, the parties discussed with Judge Bullock the propriety of proceeding in the\\n\\nface of the relevant correspondence and interplay with Fisher-Lewis, including in\\n\\nreference to that litigation’s history and the 2005 settlement offer.” Coop. Br. 16.\\n\\n Even if we could look past the fact that the mediator could not assess the extensive\\n\\nstate court findings at the time of the mediation, the record reveals little about the extent\\n\\nto which the mediator understood and evaluated the Fisher-Lewis class members’\\n\\nconcerns about collusion. Unlike in the cases the Cooperative cites, for example, the\\n\\n 28\\n\\nmediator did not testify by affidavit or at the fairness hearing in this case. See Jones, 865\\n\\nF.3d at 295 (affidavit); D’Amato, 236 F.3d at 85 (testimony at the fairness hearing). And\\n\\nthe primary evidence the Cooperative marshals in support of its position consists of an\\n\\nemail from May 10, the evening before the mediation, in which Cooperative counsel\\n\\nnotified the mediator of the parallel proceedings, indicated that Fisher-Lewis counsel had\\n\\nsent a letter to Speaks class counsel “voicing some concern over the upcoming\\n\\nmediation,” and explained that neither Speaks class counsel nor Cooperative counsel\\n\\n“share[d] those concerns.” J.A. 4585. On this record, the Cooperative cannot\\n\\nsuccessfully argue that the mediator’s presence ensured that there was no collusion or\\n\\nother improper conduct during the settlement of this case.\\n\\n For these reasons, the district court abused its discretion in rejecting the possibility\\n\\nof collusion based on the presence of the mediator and concluding that Speaks class\\n\\ncounsel was adequate under Rule 23(a)(4) without sufficiently grappling with the state\\n\\ncourt’s detailed order setting forth the allegedly collusive conduct. See In re Payment\\n\\nCard Interchange Fee & Merch. Disc. Antitrust Litig., 827 F.3d 223, 234–35 (2d Cir.\\n\\n2016) (“One aspect of the Settlement Agreement that emphatically cannot remedy the\\n\\ninadequate representation is the assistance of judges and mediators in the bargaining\\n\\nprocess.”), cert. denied sub nom. Photos Etc. Corp. v. Home Depot U.S.A., Inc., 137 S.\\n\\nCt. 1374 (2017); In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242,\\n\\n252–53 (2d Cir. 2011) (concluding that “an intense, protracted, adversarial mediation,”\\n\\nwith “highly respected and capable” mediators, “does not compensate for the absence of\\n\\nindependent representation”).\\n\\n 29\\n\\n The state court’s order, which was before the district court at the time it approved\\n\\nthe settlement and is part of the record, found that counsel for both the Speaks plaintiffs\\n\\nand the Cooperative committed a series of violations in settling this case. Specifically,\\n\\nthe order concluded in part the following:\\n\\n • The Speaks parties “intentionally and deliberately negotiated a\\n settlement that was intended to resolve the claims of the [Fisher-Lewis]\\n class after specifically being advised by the only counsel authorized to\\n represent the interests of that class that the Speaks plaintiffs did not have\\n the authority to do so nor did they have permission to do so.” J.A. 4470\\n ¶ 71.\\n\\n • Counsel for the Speaks plaintiffs and the Cooperative “violated Rules\\n 4.1 and 4.2 of the North Carolina Rules of Professional Conduct in their\\n communications with the [Fisher-Lewis] class members.” J.A. 4480 ¶\\n 103. See N.C. Rule of Prof’l Conduct 4.2(a) (providing that “a lawyer\\n shall not communicate about the subject of the representation with a\\n person the lawyer knows to be represented by another lawyer in the\\n matter”); N.C. Rule of Prof’l Conduct 4.1 (providing that “a lawyer\\n shall not knowingly make a false statement of material fact or law to a\\n third person”).\\n\\n • In drafting the class-action complaint and the amended complaint,\\n Speaks class counsel, with Cooperative counsel’s knowledge, attempted\\n to “manipulate facts in order to construct and present to the Speaks court\\n and public a false narrative as to” the circumstances surrounding the\\n state court’s denial of the proposed $76.8 million settlement on the basis\\n that there was insufficient evidence that the settlement was fair,\\n reasonable, and adequate. J.A. 4483 ¶¶ 110–11.\\n\\n • Counsel for the Speaks class, with assistance from Cooperative counsel,\\n drafted and edited “the Long Form Notice in such a way as, at best, to\\n ambiguously state the impact of the settlement on the [Fisher-Lewis]\\n class and at worst to intentionally misrepresent” the preclusive effect of\\n the Speaks settlement, a violation of Rule 4.1. J.A. 4484–85 ¶ 114.\\n\\n • The Speaks parties’ actions in setting up and conducting the mediation\\n without sufficiently notifying Fisher-Lewis class counsel “demonstrate\\n a deliberate attempt to exclude [Fisher-Lewis counsel] from having any\\n\\n\\n 30\\n\\n meaningful participation in the settlement of their clients’ claims.” J.A.\\n 4485–86 ¶ 115.\\n\\n • “[G]iven the apparent inactivity in Speaks, even after the last of the\\n stays in Speaks, the Speaks case served as a convenient placeholder for\\n [the Cooperative], so as to be able to negotiate with someone other than\\n [Fisher-Lewis counsel]. Simply put, . . . [the Cooperative’s] counsel has\\n engaged in attorney shopping.” J.A. 4488 ¶ 121.\\n\\n • “[T]here is ample evidence of collusion between the parties in Speaks to\\n (a) exclude counsel in [Fisher-Lewis] from participation in the\\n settlement of the claims for the class members whom they represent,\\n and [to] [b] mislead the members of the [Fisher-Lewis] class as to the\\n true facts of this matter.” J.A. 4489 ¶ 126.\\n\\n • In light of these considerations, “the Speaks settlement is not\\n reasonable, fair and adequate” for the Fisher-Lewis class members. J.A.\\n 4490.\\n\\n In approving the settlement, the district court acknowledged the state court’s order\\n\\nbut did not meaningfully grapple with the court’s extensive findings or its conclusions\\n\\nthat the Speaks parties had engaged in collusive conduct to the detriment of the Fisher-\\n\\nLewis class members and violated Rules 4.1 and 4.2. See Oral Arg. 23:46–24:10 (Speaks\\n\\nclass counsel stating that he “totally agree[s]” that the district court did not specifically\\n\\nmention the ethical violations and conceding that “there is no express discussion about”\\n\\nthe violations in the order). Instead, the district court downplayed the state court’s order,\\n\\nasserting that the state court “did not have the benefit of the extensive record that this\\n\\ncourt has to assess the fairness, reasonableness, and adequacy of the proposed\\n\\nsettlement.” J.A. 4765. The district court also emphasized that the state court’s order is a\\n\\n“collateral interlocutory order” that is not binding, and that the order includes no\\n\\n“analysis of the merits of the underlying federal case, which is the most important factor\\n\\n\\n 31\\n\\nin considering the fairness, reasonableness, and adequacy of the proposed settlement.”\\n\\nJ.A. 4766–67. Addressing the state court’s finding that the class notice was misleading,\\n\\nthe district court stated in a footnote that it “disagrees” without elaborating. J.A. 4778\\n\\nn.32.\\n\\n The district court, in failing to engage sufficiently with the merits of the state\\n\\ncourt’s findings, did not act as a fiduciary of the class and thus abused its discretion in\\n\\ncertifying the Speaks settlement class under Rule 23(a). See Kaufman v. Am. Express\\n\\nTravel Related Servs. Co., 877 F.3d 276, 283 (7th Cir. 2017) (“[W]e have repeatedly\\n\\nstated that district courts should act as the fiduciary of the class, subject to the high duty\\n\\nof care that the law requires of fiduciaries.” (citation and internal quotation marks\\n\\nomitted)); Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1078 (2d Cir.\\n\\n1995) (stating that “the district court has a fiduciary responsibility to ensure that the\\n\\nsettlement is fair and not a product of collusion, and that the class members’ interests\\n\\nwere represented adequately” (citation and internal quotation marks omitted)); see also 1\\n\\nNewberg on Class Actions § 3:72, at 394 (explaining that “judges provide the primary\\n\\noversight of class counsel, and they have long utilized the adequate representation\\n\\nrequirement of Rule 23(a)(4) to do so”); 4 William B. Rubenstein, Newberg on Class\\n\\nActions § 13:40, at 427–30 (5th ed. 2014) (explaining the court’s fiduciary duty during\\n\\nsettlement).\\n\\n In arguing that the district court did not abuse its discretion, the Cooperative\\n\\nasserts that the state court’s findings are not dispositive on collusion. As the Objectors\\n\\npoint out, however, “[t]he issue here is not whether the district court was bound by the\\n\\n 32\\n\\nfindings of collusion by the state court . . . but whether the district court failed to require\\n\\ncloser scrutiny especially given those findings” and given its duty as a fiduciary to the\\n\\nabsent class members. See Kaufman, 877 F.3d at 283. The Cooperative further argues\\n\\nthat, in any event, the district court “expressly considered the state court’s decision,\\n\\nproperly found it both legally and factually deficient, and rightly declined to follow it.”\\n\\nCoop. Br. 36. To the contrary, the district court’s rejection of the state court’s order\\n\\nconsisted largely of conclusory statements and evinced little sustained evaluation of the\\n\\nserious charges of collusion.\\n\\n The Cooperative also challenges the state court’s order on the merits, arguing that\\n\\nthe order “is misconceived in multiple respects.” None of these asserted deficiencies,\\n\\nhowever, undermines our core conclusion that the district court improperly rejected the\\n\\ncollusion argument based on the mere presence of the mediator and without adequately\\n\\naddressing the state court’s findings.\\n\\n Under these circumstances, we hold that the district court abused its discretion in\\n\\ncertifying the Speaks settlement class under Rule 23(a). 8\\n\\n\\n 8\\n The Objectors separately argue that the North Carolina Supreme Court’s decision\\naffirming class certification in December 2016 should have been granted full faith and\\ncredit—and thus should have barred class certification in Speaks—because the state court\\njudgment “is final on all issues covered by [] certification.” See App. Br. 30–31. As the\\nSupreme Court has made clear, however, “[o]rders granting or denying class certification\\n. . . are ‘inherently interlocutory.’” Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1706\\n(2017) (citation omitted). Contrary to the Objectors’ assertion, then, the district court did\\nnot err in declining to give such an interlocutory order full faith and credit in this case.\\nSee, e.g., Bryan v. BellSouth Commc’ns, Inc., 492 F.3d 231, 239–40 (4th Cir. 2007)\\n(holding under North Carolina law that full faith and credit did not require a federal court\\nto give preclusive effect to a non-final and interlocutory state court order); cf. Matsushita\\n(Continued)\\n 33\\n\\n 2.\\n\\n Adequacy of Class Representation\\n\\n The Objectors also argue that the district court abused its discretion because the\\n\\nSpeaks class representatives cannot adequately represent the class given certain conflicts\\n\\nof interest between the Speaks class representatives and the Fisher-Lewis class members.\\n\\nThis argument also has merit.\\n\\n “Under the adequacy requirement of Rule 23(a)(4), a district court may certify a\\n\\nclass only if the class representative ‘will fairly and adequately protect the interests of the\\n\\nclass.’” Ward v. Dixie Nat. Life Ins. Co., 595 F.3d 164, 179 (4th Cir. 2010) (quoting Fed.\\n\\nR. Civ. P. 23(a)(4)). “The adequacy inquiry . . . serves to uncover conflicts of interest\\n\\nbetween named parties and the class they seek to represent.” Amchem Prods., Inc. v.\\n\\nWindsor, 521 U.S. 591, 625 (1997). “[A] class representative must be part of the class\\n\\nand ‘possess the same interest and suffer the same injury’ as the class members.” Id. at\\n\\n625–26 (alteration in original) (quoting East Tex. Motor Freight Sys., Inc. v. Rodriguez,\\n\\n431 U.S. 395, 403 (1977)). “For a conflict of interest to defeat the adequacy requirement,\\n\\n‘that conflict must be fundamental.’” Ward, 595 F.3d at 180 (citation omitted). “A\\n\\nconflict is not fundamental when . . . all class members ‘share common objectives and the\\n\\n\\n\\n\\nElec. Indus. Co. v. Epstein, 516 U.S. 367, 369 (1996) (concluding that a federal court\\nmay not “withhold full faith and credit from a state-court judgment approving a class-\\naction settlement”—a final judgment on the merits—“simply because the settlement\\nreleases claims within the exclusive jurisdiction of the federal courts”).\\n\\n 34\\n\\nsame factual and legal positions [and] have the same interest in establishing the liability\\n\\nof [defendants].’” Id. (alterations in original) (citation omitted).\\n\\n The Objectors first contend that conflicts of interest exist between the Speaks class\\n\\nrepresentatives and the Fisher-Lewis class members because the Fisher-Lewis members’\\n\\ninterest in the Cooperative’s reserve “is tied and traceable to their patronage gains” while\\n\\nin the Speaks class all members are entitled to a portion of the reserve funds irrespective\\n\\nof whether they contributed to the reserve through their patronage. See Fisher-Lewis,\\n\\n794 S.E.2d at 708 (stating that “each class member’s share of recovery could be\\n\\ndetermined fairly based upon that member’s patronage interests in defendant”). The\\n\\nObjectors thus argue that a conflict exists because the legal theory in the Speaks case is\\n\\nnot tied to each member’s patronage interest and would provide broader relief to the\\n\\nsettlement class at the expense of the Fisher-Lewis class members with identifiable\\n\\npatronage interests in the reserve. The Objectors separately argue that a conflict exists\\n\\nbecause the members’ legal claims are different. Unlike the Fisher-Lewis class, the\\n\\nSpeaks class seeks recovery based on two weak statutory claims, and these weaknesses,\\n\\nsay the Objectors, prejudice the Fisher-Lewis class members given their much stronger\\n\\nclaims.\\n\\n We agree with the Objectors, and conclude that the district court abused its\\n\\ndiscretion in certifying the Speaks settlement class given the fundamental conflicts\\n\\nbetween the Speaks class representatives and the Fisher-Lewis class members. These\\n\\nconflicts stem from the Cooperative’s structure, the manner in which the reserve was\\n\\n\\n\\n 35\\n\\nestablished, and the divergent legal theories in which the Fisher-Lewis class and the\\n\\nSpeaks class ground their respective claims.\\n\\n The vast reserve at the center of these lawsuits exists because of certain members’\\n\\npatronage during the periods of the Cooperative’s history from 1946–2004 when the\\n\\nprice-support program was profitable. Consistent with the statutory framework for North\\n\\nCarolina agricultural cooperatives, the Cooperative’s governing documents recognize that\\n\\nthis subset of productive members in effect created the reserve, and the Cooperative thus\\n\\nspecifically gave these members a patronage interest in the reserve through providing that\\n\\nany excess reserves would be distributed to them in recognition of their contributions.\\n\\nSee N.C. Gen. Stat. § 54-130 (explaining that such associations “are not organized to\\n\\nmake profits for themselves, as such, or for their members, as such, but only for their\\n\\nmembers as producers”); id. § 54-126 (stating that the “net earnings or losses shall be\\n\\napportioned among the members in accordance with the ratio [of] each member’s\\n\\npatronage” compared to total patronage and defining patronage as a member’s “amount\\n\\nof purchases, sales, business, labor, wages or other similar criteria”).\\n\\n For the 1967–73 crop years, a member’s interest in the reserves was based on a\\n\\npercentage of his gain. J.A. 2396 (acknowledging that individual member growers\\n\\ncontributed the reserves and stating that any excess shall be paid “ratably” to patron\\n\\ncontributors); J.A. 2397 (explaining that the “contribution to [reserves]” would be “just\\n\\nthe same as if the total of each member’s allocation of profit was delivered to him in cash\\n\\nand he returned the established percentage to [the Cooperative] as his pro[-]rata\\n\\ncontribution to” the reserve). Because the Cooperative was able to sell the members’\\n\\n 36\\n\\ntobacco for a profit during these years, it “distributed a portion of the net gains to the\\n\\ngrowers of these crops . . . as cash patronage distributions” and kept the remaining $26.8\\n\\nmillion for the reserve while issuing certificates of interest to these members for their pro\\n\\nrata portion of the undistributed net gains. J.A. 2458.\\n\\n After the No Net Cost Act became law in 1982, a member’s interest in the reserve\\n\\nwas based on the individual NNC assessments he paid relative to the total assessments\\n\\npaid during the post-1982 period in which the Cooperative was profitable and building its\\n\\nreserve. J.A. 859. At oral argument on the proposed Fisher-Lewis settlement in 2005–\\n\\n2006, counsel for the Cooperative acknowledged that each member’s patronage interest\\n\\nwas the driving force of this lawsuit. J.A. 1789 (“In this cooperative, as in most\\n\\ncooperatives, any interest in the equity of the co-op, other than upon dissolution, is\\n\\ndetermined by each member’s patronage with the co-op over time, and more importantly,\\n\\nwhether that patronage resulted in profits to the co-op.”); J.A. 4608 (Cooperative counsel\\n\\nstating in 2010 that the class members’ “argument is that these reserves were derived\\n\\nfrom their patronage, so whether any individual grower has an interest in any particular\\n\\npot of money depends on whether the grower contributed to growing the tobacco in\\n\\nquestion that generated those proceeds”).\\n\\n This patronage interest in the reserve fund serves as the Fisher-Lewis class\\n\\nmembers’ theory of their case. Their patronage resulted in profits for the Cooperative,\\n\\nthey contend, and their corresponding patronage interest was unlawfully extinguished—\\n\\nin violation of statutory cooperative legal principles as well as common law principles\\n\\nlike breach of contract—when the Cooperative undertook the membership purge in\\n\\n 37\\n\\n2004–2005. The members’ patronage interests in fact provided the basis on which the\\n\\nstate court in Fisher-Lewis concluded that there were no conflicts of interest within the\\n\\nclass. See Fisher-Lewis, 794 S.E.2d at 708 (“The trial court did not find that conflicts of\\n\\ninterest divide the members of the class. Instead, the court concluded that each class\\n\\nmember’s share of recovery could be determined fairly based upon that member’s\\n\\npatronage interests . . . .”).\\n\\n The Speaks class representatives, by contrast, represent a class consisting of all\\n\\nCooperative members from 1946–2018 irrespective of whether the members produced\\n\\nany profits for the Cooperative—and thus irrespective of whether they contributed to the\\n\\nreserve fund. The Speaks settlement indeed proposes to distribute the reserve money to\\n\\nall members based merely on the number of pounds of tobacco each member marketed to\\n\\nthe Cooperative and the number of years the member marketed and sold tobacco. But as\\n\\nthe Objectors assert, “[m]embership alone has never been the basis for any interest in\\n\\nCooperative reserves. It has always been tied pro rata to a member’s individual interest\\n\\nin either the tobacco marketed [pre-1982] or the NNC assessment paid [post-1982].”\\n\\nReply Br. 5 (“Gains have not been paid to, nor interests in the reserve created for, those\\n\\nwhose tobacco or assessments did not produce them. From [the Cooperative’s] inception\\n\\nin 1946 through 2004, . . . participation in the reserves was restricted to those whose\\n\\ncontributions had created them.”). As the Objectors’ expert explained, the Speaks\\n\\ndistribution plan “actually tak[es] money away from people who have contributed to net\\n\\npatronage interest” because “[t]he only way that you give money to people who\\n\\ncontributed zero – that have zero patronage interest is by taking a dollar away from\\n\\n 38\\n\\npeople . . . who have generated [a] patronage interest,” a result the expert characterized as\\n\\n“fairly obviously inequitable.” J.A. 3834.\\n\\n The Cooperative suggests, and the district court found, that no conflict exists\\n\\nbecause both classes seek to recover “excess” reserves. Coop. Br. 31–32; J.A. 4737. But\\n\\nthis reasoning obscures the key distinction between the two classes—the Fisher-Lewis\\n\\nclass members have taken the position that the Speaks class can claim no legal\\n\\nentitlement or recognized interest in any “excess” reserves because they have no earned\\n\\npatronage interest in the reserve based on any profit contribution. Cf. Ward, 595 F.3d at\\n\\n180 (stating that “[a] conflict is not fundamental when . . . all class members ‘share\\n\\ncommon objectives and the same factual and legal positions’” (emphasis added) (citation\\n\\nomitted)). The Fisher-Lewis class members indeed assert a fundamentally different\\n\\ninterest and a different injury from the Speaks class representatives: they claim an\\n\\ninterest in the reserve tied specifically to the profits they produced for the Cooperative,\\n\\nand an injury tied directly to the deprivation of their patronage interest as a result of the\\n\\n2004–2005 membership purge. Cf. Amchem, 521 U.S. at 625 (stating that a “class\\n\\nrepresentative must be part of the class and ‘possess the same interest and suffer the same\\n\\ninjury’ as the class members” (citation omitted)). A settlement involving all Cooperative\\n\\nmembers would vitiate this interest through awarding to noncontributing members a\\n\\nportion of the reserve funds that the Fisher-Lewis class members created.\\n\\n That the Fisher-Lewis class members and the Speaks representatives are pursuing\\n\\ndifferent legal claims only underscores the conflict of interest between the two.\\n\\n“Adequacy does not require complete identity of claims or interests between the proposed\\n\\n 39\\n\\nrepresentative[s] and the class,” but there must be “sufficient similarity of interest such\\n\\nthat there is no affirmative antagonism between the representative[s] and the class.” 1\\n\\nNewberg on Class Actions § 3:58, at 342–44. The different claims of the Speaks\\n\\nrepresentatives and the Fisher-Lewis class members reflect their different theories of the\\n\\ncase, and these theories are in tension. The Speaks class members are pursuing claims for\\n\\nvoluntary distribution or, alternatively, dissolution precisely because—unlike the Fisher-\\n\\nLewis class members—they can likely claim no legal entitlement to the reserve funds on\\n\\ncommon law and statutory theories that are grounded in the notion that members’\\n\\npatronage gives them an interest in all profit that the Cooperative has kept as reserves and\\n\\nthat the Cooperative has deprived them of this interest.\\n\\n For these reasons, we hold that the district court abused its discretion in certifying\\n\\nthe Speaks settlement class in this respect as well.\\n\\n 3.\\n\\n Fisher-Lewis Classwide Opt-Out\\n\\n The Objectors contend that the district court abused its discretion when it certified\\n\\nthe class after rejecting the attempts of certain Fisher-Lewis class representatives to opt\\n\\nout the entire Fisher-Lewis class from this case. Finding no merit to this argument, we\\n\\naffirm the district court’s denial of the class opt-out.\\n\\n In holding that the Fisher-Lewis representatives could not opt out the entire class,\\n\\nthe district court first noted that its preliminary approval order “expressly prohibited\\n\\ngroup or class-wide opt-outs.” J.A. 4740. The court then went on to explain that the Due\\n\\nProcess Clause prohibits classwide opt-outs because due process “requires that class\\n\\n 40\\n\\nmembers be provided notice and an individual choice to proceed as a class member or to\\n\\nopt-out and avoid being bound by a judgment.” J.A. 4740. For this proposition the court\\n\\ncited several cases. See Sloan v. Winn Dixie Raleigh, Inc., 25 F. App’x 197, 198 (4th Cir.\\n\\n2002) (“[C]lass representatives cannot opt out on behalf of other putative class\\n\\nmembers.”); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1024 (9th Cir. 1998) (“There is\\n\\nno class action rule, statute, or case that allows a putative class plaintiff or counsel to\\n\\nexercise class rights en masse, either by making a class-wide objection or by attempting\\n\\nto effect a group-wide exclusion from an existing class. Indeed, to do so would infringe\\n\\non the due process rights of the individual class members, who have the right to\\n\\nintelligently and individually choose whether to continue in a suit as class members.”);\\n\\nBerry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 412 (2d Cir. 1975) (prohibiting the\\n\\nplaintiff from opting out prospective class members in shareholder suit before they had\\n\\nbeen given an opportunity to opt out and stating that “[t]he only way to avoid such chaos\\n\\nis to require that opting out of a class action, like the decision to participate in it, must be\\n\\nan individual decision”), abrogated on other grounds by Menowitz v. Brown, 991 F.2d 36\\n\\n(2d Cir. 1993).\\n\\n The Objectors recognize that courts have generally held that representatives of a\\n\\nputative class cannot opt out individual members on due-process grounds, but contend\\n\\nthat this rule does not apply here because the Fisher-Lewis class is no longer putative and\\n\\nhas already received notice and been certified. The Objectors argue that “[s]ince the\\n\\nmembers of the [Fisher-Lewis] class had exercised their rights and [chose] to remain in\\n\\n[Fisher-Lewis], the class representatives can act to bind those absent class members” and\\n\\n 41\\n\\nopt out of Speaks on their behalf. App. Br. 49–50. According to the Objectors, the class\\n\\nrepresentatives in fact had “the fiduciary duty to represent the legal interests of [Fisher-\\n\\nLewis] absent class members once they had exercised their due process choice to be part\\n\\nof the [Fisher-Lewis] certified class.” App. Br. 46.\\n\\n The Objectors cite no authority for the proposition that the Fisher-Lewis members’\\n\\nstatus as a certified class creates an exception to the settled rule that the Due Process\\n\\nClause reposes only in “individual class members . . . the right to intelligently and\\n\\nindividually choose whether to continue in a suit as class members.” Hanlon, 150 F.3d at\\n\\n1024 (emphasis added). Even though the Fisher-Lewis class is certified, the policy\\n\\nconcerns that militate against permitting group opt-outs in the putative class context are\\n\\npresent here as well—allowing representatives to opt out a group of class members would\\n\\ndeprive those members of their due-process right to make that choice for themselves and\\n\\nwould “completely gut the class action mechanism as objectors could dismantle any class\\n\\naction by removing groups of plaintiffs.” 3 William B. Rubenstein, Newberg on Class\\n\\nActions § 9:49, at 555 (5th ed. 2013).\\n\\n In the absence of any authority or policy justification, we see no basis on which to\\n\\nconclude that the representatives of the Fisher-Lewis certified class can opt out of the\\n\\nSpeaks case on behalf of the absent Fisher-Lewis class members. See 3 Newberg on\\n\\nClass Actions § 9:49, at 556–57 (“Courts have permitted representative opt-outs only in\\n\\nvery rare circumstances, such as when a government official or political subdivision\\n\\nrequests to opt out on behalf of its constituents.”). As the Cooperative notes, moreover,\\n\\nthe Objectors’ position presents an unworkable scenario because four of the Fisher-Lewis\\n\\n 42\\n\\nclass representatives declined to opt out of Speaks. Compare J.A. 2463 (Fisher-Lewis\\n\\nrepresentatives), with J.A. 4794 (Speaks opt-outs). Certain Fisher-Lewis representatives\\n\\nthus attempted to opt out the entire Fisher-Lewis class from Speaks even while other\\n\\nrepresentatives elected to remain in Speaks.\\n\\n For these reasons, the district court did not abuse its discretion in rejecting the\\n\\nFisher-Lewis representatives’ efforts to opt out the entire Fisher-Lewis class from this\\n\\ncase.\\n\\n C.\\n\\n Final Settlement Approval Under Rule 23(e)\\n\\n Finally, the Objectors challenge the district court’s approval of the $24 million\\n\\nSpeaks class settlement as fair, reasonable, and adequate. This Court affords the district\\n\\ncourt’s decision “substantial deference, reversing only ‘upon a clear showing that the\\n\\ndistrict court abused its discretion in approving the settlement.’” Berry v. Schulman, 807\\n\\nF.3d 600, 614 (4th Cir. 2015) (quoting Flinn v. FMC Corp., 528 F.2d 1169, 1172 (4th\\n\\nCir. 1975)). We agree with the Objectors that the district court abused its discretion\\n\\nunder these circumstances. We therefore also reverse that part of the district court’s\\n\\norder approving the Speaks class settlement as fair, reasonable, and adequate.\\n\\n Federal Rule of Civil Procedure 23(e) provides that “[t]he claims, issues, or\\n\\ndefenses of a certified class—or a class proposed to be certified for purposes of\\n\\nsettlement—may be settled, voluntarily dismissed, or compromised only with the court’s\\n\\napproval.” Fed. R. Civ. P. 23(e). Before a court may approve a proposed settlement, it\\n\\nmust conclude that the settlement is “fair, reasonable, and adequate.” Fed. R. Civ. P.\\n\\n 43\\n\\n23(e)(2). In assessing the adequacy of the proposed settlement, courts consider the\\n\\nfollowing factors: “(1) the relative strength of the plaintiffs’ case on the merits, (2) the\\n\\nexistence of any difficulties of proof or strong defenses the plaintiffs are likely to\\n\\nencounter if the case goes to trial, (3) the anticipated duration and expense of additional\\n\\nlitigation, (4) the solvency of the defendants and the likelihood of recovery on a litigated\\n\\njudgment, and (5) the degree of opposition to the settlement.” In re Jiffy Lube Secs.\\n\\nLitig., 927 F.2d 155, 159 (4th Cir. 1991). The most important factors in this analysis are\\n\\nthe relative strength of the plaintiffs’ claims on the merits and the existence of any\\n\\ndifficulties of proof or strong defenses. See Berry, 807 F.3d at 614–15.\\n\\n The Objectors contend only that the district court erred when it concluded that the\\n\\nSpeaks class claims “are weak[] and the likelihood of recovery if plaintiffs litigated this\\n\\ncase to final judgment and final appeal is low.” J.A. 4748–49. Specifically, the\\n\\nObjectors argue that the district court improperly viewed the weakness of the claims and\\n\\nthe strength of the Cooperative’s defenses by reference to the Speaks class claims without\\n\\nregard for the much stronger Fisher-Lewis class claims. Although a $24 million\\n\\nsettlement may be reasonable for the Speaks class members, the Objectors assert, this\\n\\namount is not reasonable for the Fisher-Lewis class members who form a subset of the\\n\\nSpeaks class and whose separate claims are extinguished as part of this settlement.\\n\\n A high-level comparison of the two cases provides a useful starting point for our\\n\\nanalysis. The Fisher-Lewis claims arose in 2004–2005, when the Cooperative drastically\\n\\nreduced its membership rolls by 99%—from 803,912 members to 846 members—\\n\\nthrough removing all members who did not appear on sales bills from 1984–2003 or who\\n\\n 44\\n\\ndeclined to sign a marketing agreement with the Cooperative for 2005. J.A. 1781. As the\\n\\nCooperative stated in a letter to members, anyone whose membership was cancelled lost\\n\\nall accrued interest in the reserve. See Fisher-Lewis, 794 S.E.2d at 704. The membership\\n\\nreduction caused the reserve to increase from $427.00 per member to $365,000 for each\\n\\nof the remaining 846 members. J.A. 1761.\\n\\n Based on these events, the Fisher-Lewis plaintiffs brought a consolidated suit in\\n\\nMay 2009 alleging a variety of common law and statutory claims against the\\n\\nCooperative, including breach of contract, conversion, ultra vires, and unfair trade\\n\\npractices. J.A. 1837–54. According to the Fisher-Lewis plaintiffs, two related legal\\n\\ntheories undergird their claims. The first, as we have explained, relies on cooperative\\n\\nlegal principles. J.A. 1802 n.44. The plaintiffs contend that a cooperative, by its nature,\\n\\ncannot make profits for itself and must distribute all net earnings pro rata to members\\n\\nbased on their patronage, or profit contribution, to the cooperative. See N.C. Gen. Stat.\\n\\n§§ 54-126, 54-130. By retaining a reserve far in excess of what is reasonable—a reserve\\n\\nthat exists because of members’ patronage—the Cooperative deprives the plaintiffs of\\n\\ntheir legal interest in the excess portion of the reserve. J.A. 1802 n.44; J.A. 1956 n.7.\\n\\n The Fisher-Lewis plaintiffs’ second legal theory is tied specifically to the\\n\\nCooperative’s 2004–2005 membership purge and its decision to expel members who\\n\\nrefused to sign the new marketing agreement. See Fisher-Lewis, 794 S.E.2d at 704. The\\n\\nplaintiffs argue that the Cooperative “systematically disenfranchise[d] [p]laintiffs and\\n\\nother [members] by purging the membership rolls and eliminating” the plaintiffs as\\n\\nmembers without a hearing. J.A. 1827. Through these actions, the Cooperative\\n\\n 45\\n\\n“expelled hundreds of thousands” of members and took control of the reserve in an\\n\\nattempt “to create a ‘last man standing’ scenario in which a few hundred remaining\\n\\n[members] potentially have the benefit of hundreds of millions of dollars in assets which\\n\\nhave been created through the efforts of all” members. J.A. 1827. According to the\\n\\nplaintiffs, this campaign to eliminate members deprived them of their right to participate\\n\\nin the “net earnings” derived from their patronage because the Cooperative took the\\n\\nposition that expelled members would lose any accrued interest they had in the reserve.\\n\\nJ.A. 1802 n.44.\\n\\n As the record shows, the Fisher-Lewis plaintiffs met with considerable success\\n\\nfrom 2012–2016. The plaintiffs largely survived a motion to dismiss, achieved class\\n\\ncertification, and successfully defended against the Cooperative’s challenge to\\n\\ncertification before the North Carolina Supreme Court. And these victories all occurred\\n\\nin the wake of the state court’s conclusion that the record did not support a proposed\\n\\nsettlement consisting of $76.8 million in cash and $212 million in book allocations\\n\\nbecause such a settlement was not within the ball park of being fair, reasonable, and\\n\\nadequate for the Fisher-Lewis class members.\\n\\n It was only after the Fisher-Lewis plaintiffs survived the motion to dismiss and\\n\\nmoved for class certification that the Speaks plaintiffs filed their complaint in October\\n\\n2012. Within two months, however, the Speaks suit was stayed in deference to the\\n\\nongoing class-certification proceedings in Fisher-Lewis, and the Speaks case remained\\n\\nstayed until the North Carolina Supreme Court issued its decision in December 2016\\n\\naffirming class certification. Shortly after this decision, the Speaks parties started\\n\\n 46\\n\\nsettlement negotiations, and they reached a tentative settlement within five months, after\\n\\nhaving conducted essentially no adversarial discovery and without the Cooperative even\\n\\nhaving filed an answer to the Speaks complaint—a stark contrast to the extensive\\n\\nmultiyear process in Fisher-Lewis, as the state court properly recognized. See J.A. 4488\\n\\n(observing that the Fisher-Lewis plaintiffs filed “two complaints, three amended\\n\\ncomplaints, participated in class discovery, defended class discovery and merits\\n\\ndiscovery, substantially survived a motion to dismiss, obtained class certification and\\n\\nsuccessfully defended the same” while the Speaks plaintiffs “filed one complaint and,\\n\\nwith the input of the [Cooperative], filed an amended complaint, obtained approximately\\n\\n8 stays of their case, submitted a number of status reports, reviewed documents\\n\\nvoluntarily provided by the [Cooperative] then mediated and settled their claims”). The\\n\\nSpeaks settlement amount was $24 million—another stark contrast with Fisher-Lewis,\\n\\nwhere a $76.8 million settlement was deemed as being not even in the ball park of fair\\n\\nand adequate.\\n\\n The Speaks case also involved claims and legal theories different from—and\\n\\narguably weaker than—the claims in Fisher-Lewis. The Speaks plaintiffs contend\\n\\nprimarily that after Congress enacted FETRA in 2004 and ended the federal price-support\\n\\nprogram, the Cooperative’s principal function ceased to exist, and it was thus\\n\\nunreasonably and unlawfully failing to distribute to members hundreds of millions of\\n\\ndollars in excess reserves that were not necessary to the Cooperative’s continued\\n\\nfunctions and activities in a post-FETRA environment. The Speaks plaintiffs do not\\n\\n\\n\\n 47\\n\\nassert the Fisher-Lewis common law and statutory claims for relief based on the\\n\\nCooperative’s 2004–2005 membership purge and members’ lost patronage interest.\\n\\n Given this history and the differences between the two cases, we agree with the\\n\\nObjectors that the strength of the Fisher-Lewis case drove the Speaks settlement\\n\\nnegotiations, and that the district court erroneously relied on the weaknesses of the\\n\\nSpeaks claims to justify the $24 million settlement as reasonable for the class when that\\n\\namount is plainly inadequate for the Fisher-Lewis class members.\\n\\n In evaluating the adequacy of the $24 million settlement, the district court\\n\\nconcluded that the Speaks claims were weak for the following reasons. First, the Speaks\\n\\nplaintiffs provided no authority for the proposition that § 55A-13-02(c)—a statute\\n\\nauthorizing distributions—requires or forces the Cooperative to make distributions to\\n\\nmembers. J.A. 4751. Second, FETRA does not provide the plaintiffs with a basis for\\n\\nrelief because the statute’s plain language “makes clear that the Cooperative was entitled\\n\\nto retain the proceeds from the sale of the loan tobacco” and because the statute does not\\n\\ncreate a private right of action. J.A. 4750–51. Third, “[w]ithout statutory or contractual\\n\\nentitlement to relief, plaintiffs’ claim concerning unreasonable reserves amounts to a\\n\\nclaim that the Cooperative’s Board breached their fiduciary duties in failing to distribute\\n\\nreserves.” J.A. 4751–52. The plaintiffs have not shown that a fiduciary relationship\\n\\nexisted between them and the Board, the court indicated, but even if they could make\\n\\nsuch a showing, the claim would fall within North Carolina’s business-judgment rule.\\n\\nJ.A. 4752–53. Fourth, the statutory claim for judicial dissolution under N.C. Gen. Stat.\\n\\n\\n\\n 48\\n\\n§ 55A-14-30 is weak because, among other reasons, the Cooperative is still carrying out\\n\\nits statutory purpose. J.A. 4754–56.\\n\\n Despite the district court’s thorough analysis of the claims before it, many of the\\n\\nweaknesses identified do not apply to the claims of the Fisher-Lewis class members. The\\n\\nFisher-Lewis plaintiffs did not request judicial dissolution of the Cooperative, for\\n\\nexample, nor did they seek to force distribution of the Cooperative’s reserves under N.C.\\n\\nGen. Stat. § 55A-13-02(c), which by its terms merely authorizes distributions. See N.C.\\n\\nGen. Stat. § 55A-13-02(c) (providing that “a corporation . . . may make distributions to\\n\\npurchase its memberships” (emphasis added)). The Fisher-Lewis plaintiffs also make no\\n\\nallegation that FETRA provides a basis for relief. See Def.-Appellant’s Reply Br., Fisher\\n\\nv. Flue-Cured Tobacco Coop. Stabilization Corp., 2015 WL 275307, at *19 (N.C. filed\\n\\nJan. 9, 2015) (“Plaintiffs did not plead any claim under FETRA.”).\\n\\n The district court also reasoned in its analysis that, without a statutory or\\n\\ncontractual entitlement to relief, the Speaks plaintiffs can allege only a breach-of-\\n\\nfiduciary-duty claim, which would fall within the business-judgment rule. This\\n\\nassessment also proves problematic as applied to Fisher-Lewis. First, the Fisher-Lewis\\n\\nplaintiffs alleged several statutory and contractual claims for relief not present in Speaks,\\n\\nand these claims survived a motion to dismiss—including a business-judgment-rule\\n\\ndefense—and were part of the certified case. Second, the state court later ruled that the\\n\\nFisher-Lewis claims were not derivative in nature and expressly left open the question\\n\\nwhether the business-judgment rule would apply to the surviving claims. J.A. 4609, 4614\\n\\n& n.1 (granting partial summary judgment to the plaintiffs on the Cooperative’s twelfth\\n\\n 49\\n\\naffirmative defense, which argued that “plaintiffs’ claims are barred for failure . . . to\\n\\nsatisfy the requirements of the North Carolina statutes applicable to derivative actions”).\\n\\nFor these reasons, the district court’s business-judgment-rule analysis applies with\\n\\nconsiderably less force to the Fisher-Lewis claims.\\n\\n In concluding that the $24 million settlement was adequate, the district court also\\n\\nindicated that the Cooperative’s defenses were strong, noting in particular that the\\n\\n“statute of limitations is a substantial barrier to large swaths of plaintiffs’ claims.” J.A.\\n\\n4756. Again, this reasoning applies with less force to the Fisher-Lewis claims. Those\\n\\nplaintiffs filed suit in early 2005, shortly after being notified in late 2004 of the\\n\\nCooperative’s plan to terminate most of its members and retain their accrued patronage\\n\\ninterests. The claims indeed arose precisely because of the Cooperative’s 2004–2005\\n\\nmembership purge—the moment when the expelled members lost their interest and the\\n\\nreserve increased to an unreasonable $365,000 per member—and the claims substantially\\n\\nsurvived a motion to dismiss. J.A. 1866–67 (dismissing only three of the 14 claims, all\\n\\ninvolving fraud allegations). In fact, the state court expressly rejected the Cooperative’s\\n\\nlimitations defense at the motion-to-dismiss stage. J.A. 1866. As the Objectors point\\n\\nout, moreover, if anyone had a statute-of-limitations problem, it was the Speaks plaintiffs.\\n\\nThe two Speaks complaints pleaded equitable tolling based on the 2005 Fisher-Lewis\\n\\nfilings, an acknowledgment that the claims faced a limitations barrier. J.A. 49, 279.\\n\\n The district court, in approving the $24 million settlement as reasonable, also\\n\\nrelied on several faulty premises concerning the proposed $76 million settlement. First,\\n\\nthe court asserted that the state court “did not find that the proposed settlement was\\n\\n 50\\n\\nunreasonable” but rather denied preliminary approval “without prejudice” based on\\n\\ncertain plaintiffs’ objection that discovery on the merits of the settlement was necessary.\\n\\nJ.A. 4759–60. Although the state court did deny approval without prejudice, the court\\n\\nindicated in no uncertain terms that the record before it “d[id] not support a finding or\\n\\nconclusion that the proposed Settlement is within the necessary ‘ball park’ of being fair,\\n\\nreasonable and adequate” at only $76 million. J.A. 311–12.\\n\\n Second, the district court, relying on Federal Rule of Evidence 408 and our\\n\\ndecision in Fiberglass Insulators, Inc. v. Dupuy, 856 F.2d 652 (4th Cir. 1988), concluded\\n\\nthat a settlement offer does not reflect the relative strength of the plaintiffs’ claims on the\\n\\nmerits, and that such an offer cannot establish the Cooperative’s liability at trial. J.A.\\n\\n4760. But the $76 million figure was not merely a settlement offer made in the course of\\n\\nthe parties’ negotiations. Cf. Fiberglass Insulators, 856 F.2d at 653 (holding that Rule\\n\\n408 requires excluding “statements made by attorneys in the course of settling prior\\n\\nrelated litigation between the same parties”). The figure instead was the basis on which\\n\\nthe court, after briefing and argument, denied preliminary approval for the settlement as\\n\\nnot fair, reasonable, and adequate for class members. Neither the district court nor the\\n\\nCooperative points to any authority suggesting that this Court cannot consider the state\\n\\ncourt’s denial in our review of the Speaks settlement.\\n\\n Third, the district court deemed the $76 million proposed settlement from 2005–\\n\\n2006 outdated and irrelevant—and thus an improper benchmark by which to gauge the\\n\\nreasonableness of the Speaks settlement—both because the Cooperative’s “business\\n\\nstrategy from 2005 to 2017 has proven reasonable and beneficial” to members and\\n\\n 51\\n\\nbecause the litigation risks “have substantially changed in the Cooperative’s favor since\\n\\n2005.” J.A. 4768.\\n\\n As an initial matter, even assuming the Cooperative can now—in 2018–2019—\\n\\njustify its large pool of reserves based on an evolving business strategy undertaken over\\n\\nthe last fifteen years, the Fisher-Lewis case turns on the reasonableness of the reserve in\\n\\n2004–2005, when the Cooperative eliminated 99% of members and extinguished their\\n\\naccrued interest in the reserve. That the Cooperative’s circumstances may have changed\\n\\nin more recent years has little relevance for the Fisher-Lewis class members and their\\n\\nclaims.\\n\\n As to the increased litigation risks for the Fisher-Lewis plaintiffs, the district court\\n\\ncited the Georgia state court’s 2014 opinion in Rigby as proof that the Speaks plaintiffs\\n\\nhave a weak case on the merits and would be unlikely to recover more than $24 million if\\n\\nthe case were litigated to judgment. See Rigby v. Flue-Cured Tobacco Coop.\\n\\nStabilization Corp., 755 S.E.2d 915 (Ga. Ct. App. 2014); see also Rigby v. Flue-Cured\\n\\nTobacco Coop. Stabilization Corp., 794 S.E.2d 413 (Ga. Ct. App. 2016). Rigby is\\n\\nanother case against the Cooperative, with claims similar to the claims in Fisher-Lewis,\\n\\nand the plaintiffs did not recover anything. But the district court relies heavily on Rigby\\n\\nwithout giving due regard to the Fisher-Lewis proceedings directly related to this case—\\n\\nthe Fisher-Lewis plaintiffs largely defeated the Cooperative’s motion to dismiss,\\n\\nincluding challenges based on the business judgment rule and statute of limitations, the\\n\\nplaintiffs achieved class certification and beat back the Cooperative’s challenge on\\n\\nappeal, and they secured summary judgment on the Cooperative’s derivative defense.\\n\\n 52\\n\\nFor these reasons, the Rigby decision does not provide a valid basis on which to conclude\\n\\nthat the $24 million settlement is reasonable and that the $76 million proposed settlement\\n\\nhas no relevance in our analysis.\\n\\n In conclusion, the district court stated that although the Fisher-Lewis class asserted\\n\\nmany state law causes of action not present in Speaks, counsel has failed to explain how\\n\\nthese causes of action would enable the plaintiffs to obtain relief greater than $24 million\\n\\n“given that each of these claims appears to rest on the same fundamentally flawed\\n\\nallegation that the Cooperative unlawfully retained reserves.” J.A. 4768. But as we have\\n\\nexplained, the Fisher-Lewis claims do not rest on the “same fundamentally flawed\\n\\nallegation,” and the Fisher-Lewis plaintiffs have detailed at length their separate theory of\\n\\nthe case based specifically on the events in 2004–2005.\\n\\n The Cooperative, for its part, protests that the Fisher-Lewis class members have\\n\\nfailed to identify the amount of reserves that the Cooperative may reasonably retain for\\n\\nthe members’ benefit. But any lack of clarity in the record on the exact amount of\\n\\nreasonable reserves is hardly surprising given that this issue was not contested in Speaks\\n\\nand full merits discovery in Lewis had commenced only in April 2017, a month before\\n\\nthe Speaks parties mediated the case and arrived at the $24 million figure. J.A. 4465.\\n\\nThe Cooperative also seizes on a statement from the Objectors’ counsel, made at the\\n\\nfairness hearing in a colloquy with the court, that the recovery could be “zero” if at trial\\n\\nthe Cooperative’s entire reserve is deemed reasonable. J.A. 4674. Viewed in its proper\\n\\ncontext, this statement was nothing more than an acknowledgment from counsel that, if\\n\\nplaintiffs’ expert determined that the entire reserve was reasonable, it would follow that\\n\\n 53\\n\\nthe plaintiffs could not recover any excess reserves. As counsel made clear in the\\n\\nsubsequent exchange—in which he argued vigorously for a robust recovery—this remark\\n\\nwas not a concession that the expert would find that the entire reserve was reasonable.\\n\\n Under these circumstances, we conclude that the district court abused its discretion\\n\\nin approving the $24 million settlement as fair, reasonable, and adequate.\\n\\n\\n\\n III.\\n\\n Conclusion\\n\\n To sum up, we hold that the district court abused its discretion in certifying the\\n\\nSpeaks settlement class under Rule 23(a) and in approving the final settlement as fair,\\n\\nreasonable, and adequate under Rule 23(e). We dismiss as untimely Lewis’s appeal of\\n\\nthe order denying his motion to intervene, and we affirm the district court’s denial of the\\n\\nattempted class opt-outs.\\n\\n For the foregoing reasons, we reverse the district court’s order certifying the class\\n\\nand approving the final settlement and remand for further proceedings consistent with\\n\\nthis opinion.\\n\\n\\n\\n AFFIRMED IN PART,\\n REVERSED AND REMANDED\\n\\n\\n\\n\\n 54\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4372452/\", \"author_raw\": \"Judge Quattlebaum wrote a concurring\"}, {\"author\": \"QUATTLEBAUM, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"QUATTLEBAUM, Circuit Judge, concurring:\\n\\n Modern class actions are an important innovation in our legal system. They are a\\n\\nrare departure from “a principle of general application in Anglo-American jurisprudence\\n\\nthat one is not bound by a judgment in personam in a litigation in which he is not\\n\\ndesignated as a party or to which he has not been made a party by service of process.”\\n\\nHansberry v. Lee, 311 U.S. 32, 40 (1940). When properly employed, class actions\\n\\nefficiently provide consistent outcomes in resolving large numbers of disputes involving\\n\\ncommon questions of law or fact.\\n\\n As with many innovations, however, these benefits come with risks. 1 The very\\n\\nfeatures of class actions that provide efficiency and consistency at the same time present\\n\\nserious risks, including the risk of due process violations. For a plaintiff class, absent\\n\\nclass members’ grievances are litigated not directly by the class members themselves but\\n\\nby class representatives. Defendants in those actions can be sued by a class of hundreds\\n\\nor thousands of people who are relieved of their normal responsibility to file and\\n\\nprosecute their own case. For a defendant class, concerns are arguably even greater with\\n\\nthe very real possibility that judgments can be entered against absent defendants without\\n\\nthose defendants receiving notice of the underlying action itself. See 1 Joseph M.\\n\\nMcLaughlin, McLaughlin on Class Actions § 4:46 (15th ed. 2018).\\n\\n\\n\\n\\n 1\\n One need not look far or long to find current events that illustrate this point.\\nRecent news coverage of social media platforms and the opioid crisis underscore the old\\ntruth that innovation can be a double-edged sword.\\n\\n 55\\n\\n Rule 23 of the Federal Rules of Civil Procedure is a structural safeguard in our\\n\\nlegal system developed to provide the benefits of class actions while simultaneously\\n\\navoiding the risks associated with them. As a leading commentator on class actions\\n\\nexplains, the primary function of Rule 23 “is, through its various parts, to ensure the\\n\\nprotection of absent class members’ rights and, hence, the justification of the binding\\n\\neffect of the resulting judgment.” 1 William B. Rubenstein, Newberg on Class Actions\\n\\n§ 1:10 (5th ed. 2011). Thus, to appropriately strike this balance of maximizing benefits\\n\\nand minimizing risks, compliance with Rule 23 is necessary.\\n\\n In this appeal, Objectors challenge a number of the district court’s decisions,\\n\\nincluding several findings regarding the Rule 23 requirements. Addressing those\\n\\ndecisions, the majority affirms the district court’s denial of attempted class wide opt-outs\\n\\nand dismisses an appeal of an order denying a motion to intervene as untimely. Maj. Op.\\n\\nat 53. The majority reverses the district court’s certification and settlement approval\\n\\ndecisions, holding that the district court abused its discretion in certifying the Speaks\\n\\nsettlement class under Rule 23(a) and in approving the final settlement as fair, reasonable\\n\\nand adequate under Rule 23(e). Maj. Op. at 53. I agree that the district court erred on\\n\\nthese issues and, therefore, join with the majority in reversing the district court’s order.\\n\\nHowever, I write separately because, although I agree with the result the majority\\n\\nreaches, I reach those results for different reasons.\\n\\n I.\\n\\n I first address the district court’s finding regarding the adequacy of the class\\n\\nrepresentatives. Because the district court found the class representatives to be adequate\\n\\n 56\\n\\nwhen intra-class conflicts existed regarding the patronage theory of recovery, I join the\\n\\nmajority in finding that the district court abused its discretion in certifying the Speaks\\n\\nclass.\\n\\n In considering the adequacy of the class representatives, we look to Rule 23(a).\\n\\nThat subsection requires adequacy of class representatives—along with numerosity,\\n\\ntypicality and commonality—for a class to be certified. Although a district court is rightly\\n\\nafforded wide discretion in its adequacy determination under Rule 23(a), this discretion is\\n\\nnot absolute or unlimited. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625–28\\n\\n(1997) and its progeny make clear that a district court abuses its discretion when it finds\\n\\nclass representatives to be adequate despite the presence of intra-class conflicts. The\\n\\nconcerns about intra-class conflicts relate to the same due process concerns identified\\n\\nabove. “The premise of a class action is that litigation by representative parties\\n\\nadjudicates the rights of all class members, so basic due process requires that named\\n\\nplaintiffs possess undivided loyalties to absent class members.” Broussard v. Meineke\\n\\nDisc. Muffler Shops, Inc., 155 F.3d 331, 338 (4th Cir 1998).\\n\\n Decisions from the Supreme Court and this Court provide guidance on the issue of\\n\\nintra-class conflicts. In Amchem, the Supreme Court considered whether a settlement\\n\\nclass consisting of victims of asbestos exposure satisfied the requirements of Rule 23.\\n\\n521 U.S. at 591. In considering the requirements of Rule 23(a)(4), the Court emphasized\\n\\nthe purpose of the adequacy requirement, noting “[t]he adequacy inquiry under Rule\\n\\n23(a)(4) serves to uncover conflicts of interest between named parties and the class they\\n\\nseek to represent. [A] class representative must be part of the class and possess the same\\n\\n 57\\n\\ninterest and suffer the same injury as the class members.” Id. at 625–26 (citing General\\n\\nTel. Co. of Sw. v. Falcon, 457 U.S. 147, 157–58 n.13 (1982)) (internal citation omitted)\\n\\n(internal quotation marks omitted). The Court identified one such intra-class conflict,\\n\\nfinding that “[i]n significant respects, the interests of those within the single class are not\\n\\naligned. Most saliently, for the currently injured, the critical goal is generous immediate\\n\\npayments. That goal tugs against the interest of exposure-only plaintiffs in ensuring an\\n\\nample, inflation-protected fund for the future.” Id. at 626. In affirming the decision to\\n\\ndecertify the class in part because of this conflict, the Court concluded “[t]he settling\\n\\nparties, in sum, achieved a global compromise with no structural assurance of fair and\\n\\nadequate representation for the diverse groups and individuals affected.” Id. at 627.\\n\\n Ortiz v. Fibreboard, 527 U.S. 815, 856–58 (1999) affirmed the principle\\n\\nestablished by Amchem and further explained its meaning. In yet another asbestos case,\\n\\nthe Supreme Court in Ortiz considered whether a mandatory settlement class certified\\n\\nunder a limited fund theory satisfied the requirements of Rule 23. Id. at 821. In\\n\\nconsidering the fairness of the distribution of the settlement fund among class members,\\n\\nthe Supreme Court applied the adequacy principles set out in Amchem and identified two\\n\\ntypes of conflicts within the class. First, reiterating its holding in Amchem, the Court\\n\\nidentified a conflict between class members with present injuries and future injuries. Id.\\n\\nat 856. The Court noted “it is obvious after Amchem that a class divided between holders\\n\\nof present and future claims . . . requires division into homogenous subclasses under Rule\\n\\n23(c)(4)(B).” Id. Second, the Court identified a conflict between class members related to\\n\\nthe value of individual class members’ claims. Id. at 857. Noting that some class\\n\\n 58\\n\\nmembers necessarily had “more valuable claims” than others, the Court found that this\\n\\nmisalignment of interests required subclasses. Id. According to the Court, both types of\\n\\nconflict were “well within the requirement of structural protection recognized in\\n\\nAmchem.” Id.\\n\\n After Ortiz, it is clear that Amchem extends beyond conflicts between current and\\n\\nfuture damages. Our Court, a year earlier, recognized this in Broussard v. Meineke Disc.\\n\\nMuffler Shops, Inc., 155 F.3d 331 (4th Cir 1998). There, this Court followed Amchem in\\n\\ndetermining a nationwide class of franchise holders was improperly certified. Broussard,\\n\\n155 F.3d at 337–39. According to this Court, the putative class of franchise holders\\n\\ncontained “manifest conflicts of interests,” largely driven by class members’ diverging\\n\\ninterests in the amount and type of recovery. Id. at 338. This Court noted, “The interest of\\n\\nformer franchisees in damages and of many EDP franchisees in restitution reveals an\\n\\nobvious initial schism within the putative class regarding the appropriate remedy for [the\\n\\ndefendant’s] alleged wrongdoing.” Id. In describing the prejudice caused by these\\n\\nconflicts of interests, this Court observed that the “three distinct groups have potentially\\n\\ndivergent aims” and that the remedy sought by the plaintiffs “is consistent with–and only\\n\\nwith–the aims [of one of the groups].” Id. at 339 (internal quotation marks omitted).\\n\\n Broussard also suggests that intra-class conflicts infringe the due process rights\\n\\nnot only of absent plaintiff class members but also of defendants. In that case, the\\n\\npresence of intra-class conflict forced the defendant to respond to inconsistent legal\\n\\ntheories and damages claims some of which involved individualized considerations. See\\n\\nid. at 338 (“[O]ne group of [absent plaintiffs] sought to intervene below and appear as\\n\\n 59\\n\\namici on appeal, claiming their ongoing business relationship with [the defendant] and\\n\\ntheir interests in the long-term financial health of the company were imperiled by\\n\\nplaintiff’s efforts to wring a large damage award out of defendants.”). While the\\n\\ndefendant in this case did not raise these issues below or on appeal, in the parallel state\\n\\nproceeding it argued that the differences in arguably a less diverse class prevented class\\n\\ncertification. 2\\n\\n Here, the district court concluded that there were no intra-class conflicts in this\\n\\ncase that precluded certification or necessitated subclasses under Rule 23(a)(4). In\\n\\nreaching this conclusion, the district court attempted to distinguish Amchem,\\n\\ncharacterizing the differences in class members as mere differences in damages between\\n\\nclass members. Because of that, the district court concluded that the differences in class\\n\\nmembers did not create diverging interests or a fundamental conflict. The district court\\n\\nnoted “[a]ny differences between class members only arise with respect to the amount of\\n\\ndamages each member seeks to recover. Such differences do not create adverse or\\n\\ndiverging interests.” J.A. 4738 (citing In re Pet Food Products Liab. Litig., 629 F.3d 333,\\n\\n345–46 (3d Cir. 2010) and In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 272–73\\n\\n(3d Cir. 2009)).\\n\\n\\n\\n 2\\n In pointing out the Cooperative’s lack of consistency, I note that this\\ncharacteristic appears to be contagious in this case. In the parallel state action, the Fisher-\\nLewis class was apparently not limited to patronage members, see definition of Fisher-\\nLewis class at Fisher v. Flue-Cured Tobacco Coop. Stabilization Corp., 794 S.E.2d 699,\\n704 (N.C. 2016), but the class nevertheless argued for certification. It is hard to reconcile\\nthat position with the one it takes in this case.\\n\\n 60\\n\\n It is clear from the record that the district court gave thoughtful consideration to\\n\\nthis issue. However, the district court did not address either Ortiz or Broussard.\\n\\nMoreover, the pertinent issue—the proper scope of Amchem—ultimately is one of law. 3\\n\\nThe majority in effect concludes that the district court applied Amchem too narrowly. I\\n\\nagree. In the same way that class certification was improper in Amchem because of\\n\\ndifferences in the timing of payments, in Ortiz because of the differences in strength of\\n\\nthe class members’ claims and in Broussard because of inconsistent claims and damages\\n\\ntheories and the individualized issues among class members, the patronage theory4\\n\\nasserted by some class members makes the class certification improper in this case. 5\\n\\n In order to satisfy the requirements of Rule 23(a), Amchem and its progeny require\\n\\na named class representative to be not only common and typical of those of the entire\\n\\n\\n 3\\n While we should defer to the district court on matters within its discretion, an\\nappellate court need not defer to a district court’s error of law. Berry v. Schulman, 807\\nF.3d 600, 608 (4th Cir. 2015)\\n 4\\n As described by the majority, the most glaring conflict in the class is the conflict\\nbetween class members with traceable patronage interests in the Cooperative’s reserves\\nand those class members without such interests. Class members with patronage interests\\ncan trace their interest in the Cooperative’s reserves to their individual contributions to\\nthe reserves over time, and class members without those patronage interests cannot.\\nPatronage interests accrued over time and largely derived from contributions made during\\nprofitable years in the Cooperative’s history and from assessments under the No Net Cost\\nAct.\\n 5\\n While typicality and commonality are not specifically raised on appeal, the same\\nissues about which the Objectors complain in the class representative argument also\\napply to those issues. As the Supreme Court has instructed, typicality, commonality and\\nadequacy of class representative often merge into the same or similar analysis. Gen. Tel.\\nCo. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). That was in fact the case in\\nBroussard.\\n\\n 61\\n\\nclass, but also to adequately represent the interests of all. When those requirements are\\n\\nnot met, the due process rights of the absent class members, as well as defendants, are\\n\\nprejudiced and classes should not be certified.\\n\\n II.\\n\\n Turning next to the district court’s findings regarding the adequacy of class\\n\\ncounsel under Rule 23(g), I agree with the majority that the district court abused its\\n\\ndiscretion in finding class counsel to be adequate, but for a different reason. In contrast to\\n\\nthe majority’s approach, if the issue needs to be reached at all, I would simply find that\\n\\nthe district court necessarily abused its discretion because it appointed class counsel for a\\n\\nclass that was improperly certified due to the presence of intra-class conflicts.\\n\\n Instead of relying upon the inadequacy of class representatives to conclude that\\n\\ncounsel was therefore inadequate, the majority questions the manner in which the district\\n\\ncourt evaluated the adequacy of class counsel. The majority finds that “the district court\\n\\nimproperly rejected the collusion argument based on the mere presence of the mediator”\\n\\nand “did not meaningfully grapple” with the North Carolina court’s findings about\\n\\ncollusion. Maj. Op. at 30, 32. Respectfully, the record does not support this conclusion,\\n\\nand affording the findings of the district court appropriate deference, I cannot agree that\\n\\nthe district court erred in its findings regarding collusion. I write separately on this issue\\n\\nto address my disagreement with the majority’s analysis and to illustrate the ways in\\n\\n\\n\\n\\n 62\\n\\nwhich the district court meaningfully grappled with the North Carolina court’s findings of\\n\\ncollusion. 6\\n\\n As an initial matter, the district court carefully considered Objectors’ arguments\\n\\nthat the North Carolina court orders were binding on its own analysis of the adequacy of\\n\\nclass counsel. Regarding the North Carolina court’s certification order, the district court\\n\\ncorrectly concluded that the certification of the Fisher-Lewis class did not impact the\\n\\nSpeaks action. Likewise, the district court correctly concluded that the North Carolina\\n\\ncase management order could not limit the parties or counsel in the Speaks action. In\\n\\nreaching this decision, the district court noted that the Objectors offered no case law in\\n\\nsupport of their positions. Finally, the district court concluded that the North Carolina\\n\\ncourt’s interlocutory order dated January 17, 2018 was not binding on its own analysis.\\n\\n These decisions are not surprising since, in advancing these arguments, the\\n\\nObjectors fundamentally mischaracterized the relationship between the two parallel\\n\\nactions. It is well settled that a parallel action has no effect on a competing action until a\\n\\n 6\\n While I disagree with the majority on this issue, I in no way minimize the\\nimportance of allegations and findings about ethical violations. Compliance with the\\nRules of Professional Responsibility are fundamental to our profession. My concurrence\\nshould not be construed to suggest allegations of ethical misconduct should not be taken\\nseriously or carefully evaluated in the appropriate forum. They should. However, those\\nfindings were neither binding on the district court nor necessarily relevant to the district\\ncourt’s adequacy determination here. See, e.g., W. Morgan-E. Lawrence Water & Sewer\\nAuth. v. 3M Co., 737 F.App'x 457, 465 n.10 (11th Cir. 2018) (“Although state ethical\\nrules may be relevant to our determination of whether approval of the settlement was\\nappropriate, a violation of state ethical rules is neither necessary nor sufficient to\\nestablish a violation of federal Rule 23(g).”). What was and remains relevant is whether\\nthe district court considered the objections and, in doing so, made decisions for which\\nthere is legal and evidentiary support. As noted above, the district did that here.\\n\\n\\n 63\\n\\nfinal judgment is reached. See 3 William B. Rubenstein, Newberg on Class Actions\\n\\n§10:33 (5th ed. 2011). That is even true for the certification decision. “A common\\n\\nmisunderstanding is that certification of a class in one suit somehow forestalls other\\n\\nrelated cases; in fact, only the preclusive effect of a final judgment can formally achieve\\n\\nthat end and a decision simply certifying a class is not itself a final judgment.” Id. Simply\\n\\nput, the North Carolina court’s interlocutory decisions did not apply to the Speaks case.\\n\\n Turning now to issues raised in the majority’s analysis, the record reveals that the\\n\\ndistrict court did not improperly reject the collusion argument based on the mere presence\\n\\nof the mediator and did meaningfully grapple with the North Carolina court’s findings\\n\\nabout collusion. Regarding the role of the mediator, the district court admittedly viewed\\n\\nthe mediator as a factor in rejecting the collusion arguments. As the court noted, the\\n\\nSpeaks settlement was reached after a mediation led by a well-respected North Carolina\\n\\nmediator. The court correctly cited to authority that stands for the proposition that the\\n\\npresence of an unbiased mediator is some evidence against the presence of collusion. See\\n\\nJones v. Singing River Health Servs. Found., 865 F.3d 285, 295 (5th Cir. 2017), cert.\\n\\ndenied sub nom. Almond v. Singing River Health Sys., 138 S. Ct. 1000 (2018) (“The\\n\\ninvolvement of an experienced and well-known mediator is also a strong indicator of\\n\\nprocedural fairness.”) (internal quotation marks omitted).\\n\\n However, the district court’s decision on alleged collusion was based on more than\\n\\nthe involvement of the mediator. Despite the district court’s conclusion about the legal\\n\\neffect of the North Carolina court orders (or lack thereof), the district court nevertheless\\n\\nconsidered issues they raised concerning the adequacy of class counsel. Specifically,\\n\\n 64\\n\\ndespite the majority’s contention to the contrary, the district court considered at length\\n\\nissues raised by the North Carolina court’s interlocutory order dated January 17, 2018.\\n\\nAdmittedly, the court’s treatment of the issues raised by the North Carolina order are not\\n\\nall contained in the same part of the order. However, when the order is considered as a\\n\\nwhole, it meaningfully grappled with the North Carolina court’s findings cited by the\\n\\nmajority on pages twenty-nine and thirty above.\\n\\n Regarding notice, the district court considered the issue of whether the Fisher-\\n\\nLewis class was adequately notified of the Speaks mediation. For the same reasons set\\n\\nforth in the preceding paragraphs, the court found that it was. Specifically, the court\\n\\nrejected “the contention that the Fisher/Lewis class members have some interest, separate\\n\\nand apart, from the interests of the other class members in this case.” J.A. 4742.\\n\\n The district court also considered the issue of whether the notices issued in the\\n\\nSpeaks case adequately described the effect of the Speaks settlement on the Fisher-Lewis\\n\\nclaims. It reviewed the contents of the actual notices and found the short form notice, the\\n\\nsettlement website and the long form notice contained the necessary information about\\n\\nthe effect of the settlement. See J.A. 4779 (“The long form notice also clearly details how\\n\\nthe Speaks action affects the Fisher/Lewis action . . . . The settlement website, which is\\n\\nlisted on the short form notice and the media publications, provides additional\\n\\ninformation about the settlement and the Fisher/Lewis action . . . .”).\\n\\n The district court also considered the relative inactivity in Speaks prior to the\\n\\nsettlement. It found that while admittedly there was less formal discovery in the Speaks\\n\\ncase than the Fisher-Lewis case, there was extensive information discovery and\\n\\n 65\\n\\ninformation exchange. See J.A. 4764 (“Here, the parties engaged in informal discovery\\n\\nand class counsel received numerous documents from the Cooperative . . . . The\\n\\nmediation process provided class counsel with sufficient information about the merits of\\n\\nthe case.”)\\n\\n Last, the district court considered whether the record contained evidence of\\n\\ncollusion. After reviewing the oral arguments made at two hearings and the extensive\\n\\nbriefing on this issue, the district court assessed whether actual evidence of collusion had\\n\\nbeen offered. The court concluded that there was no evidence presented of collusion\\n\\nbesides the timing of the Speaks settlement.\\n\\n In sum, the record reveals that the district court erred in appointing class counsel\\n\\nbut not in the way the majority suggests. The district court erred in appointing class\\n\\ncounsel for a settlement class that should not have been certified to begin with because\\n\\nthe class representatives were not adequate. However, its conclusions regarding\\n\\nallegations of collusion were not error. 7 On this issue, the district court applied the law\\n\\nreasonably and based its decision on the record before it.\\n\\n\\n\\n 7\\n Under the abuse of discretion standard, an appellate court gives “substantial\\ndeference” to a district court’s certification and settlement decisions, “recognizing that a\\n‘district court possesses greater familiarity and expertise than a court of appeals in\\nmanaging the practical problems of a class action.’” Berry¸ 807 F.3d at 608 (quoting\\nWard v. Dixie Nat’l. Life Ins. Co., 595 F.3d 164, 179 (4th Cir. 2010)). In applying this\\nstandard, an appellate court may not substitute its own ideas of fairness for the those of\\ndistrict court. Flinn v. FMC Corp., 528 F.2d 1169, 1172 (4th Cir. 1975). Rather, an\\nappellate court may reverse a district court’s certification or settlement decision only\\nwhen the district court has committed an error of law or a clear error in finding of fact.\\nBerry, 807 F.3d at 608.\\n\\n 66\\n\\n III.\\n\\n I turn last to the district court’s finding that the settlement was fair, reasonable and\\n\\nadequate. Since the class representatives in this case were not adequate, approval of the\\n\\nsettlement was not appropriate in these circumstances. The Supreme Court has found “[a]\\n\\nfairness hearing under subdivision (e) can no more swallow the preceding protective\\n\\nrequirements of Rule 23 in a subdivision (b)(1)(B) action than in one under subdivision\\n\\n(b)(3).” Ortiz, 527 U.S. at 858–59. In this limited sense, I join the majority in reversing\\n\\nthe district court’s approval of the settlement. However, I write separately to express my\\n\\nconcerns about the majority’s reasoning for reversing the district court.\\n\\n Like a district court’s certification decision, a district court’s approval of a class\\n\\naction settlement is afforded substantial deference and should be reversed only upon a\\n\\nclear showing that the district court abused its discretion. Berry, 807 F.3d at 614.\\n\\n Significantly, the majority does not find fault with the legal factors the district\\n\\ncourt considered in reaching its decision. And it does not find fault with the district court\\n\\nin determining the most important of those factors are the relative strength of the\\n\\nplaintiffs’ claims and the existence of difficulties of proof or strong defenses. It also does\\n\\nnot object to the way the district court evaluated those issues as they relate to the Speaks\\n\\nclass. Indeed, the majority describes the district court’s analysis as thorough.\\n\\n Instead, the majority finds the district court abused its discretion because, to the\\n\\nmajority, many of the weaknesses the district court found with the Speaks class claims do\\n\\nnot apply to the Fisher-Lewis class claims or at least apply with less force. Specifically,\\n\\nthe majority contends that the statute of limitations and business judgment rule defenses\\n\\n 67\\n\\nare less compelling as to the Fisher-Lewis class claims than the district court found. The\\n\\nmajority then criticizes the district court’s reasoning as to why the $76 million settlement\\n\\noffer from 2005 in the Fisher-Lewis action did not make the settlement here inadequate\\n\\nand as to why the failure of a case in Georgia with claims very similar to the Fisher-\\n\\nLewis class claims suggested weaknesses of the claims in this case.\\n\\n In my view, the majority here deviates from reviewing the district court’s\\n\\ndecisions under the abuse of discretion standard. Instead, it substitutes its judgment for\\n\\nthe district court’s. The district court evaluated each claim for relief. It considered the\\n\\ndefenses faced by the plaintiffs, including the statute of limitations and business\\n\\njudgment rule defenses. It considered and found persuasive a nearly identical action\\n\\nbrought in Georgia resulting in no recovery. It considered the $76 million settlement offer\\n\\nin the North Carolina state case in 2005, determining that offer did not mean the\\n\\nsettlement here was inadequate because, in its view, the litigation risks surrounding the\\n\\nclaims have changed significantly since 2005 in favor of the Cooperative.\\n\\n The district court also considered the differences between the Speaks class claims\\n\\nand the Fisher-Lewis class claims. Specifically, the court reasoned:\\n\\n [C]ounsel . . . failed to explain at the fairness hearing or anywhere else how\\n including these additional causes of action would provide a route for the\\n Fisher/Lewis plaintiffs to litigate that case through final judgment and final\\n appeal and recover any greater relief than $24 million, given that each of\\n these claims appears to rest on the same fundamentally flawed allegation\\n that the Cooperative unlawfully retained reserves.\\n\\nJ.A. 4768. The court then added “[a]t the fairness hearing, this court asked counsel . . . to\\n\\ndiscuss the strength of plaintiffs’ claims in Fisher/Lewis and Speaks and explain how\\n\\n\\n 68\\n\\nplaintiffs in either case could recover anything approaching $24 million if they litigated\\n\\nto final judgment and final appeal.” J.A. 4770. The district court found the absence of a\\n\\nmeaningful response significant.\\n\\n Reasonable minds could of course differ on the strengths and weaknesses of the\\n\\nSpeaks class claims. Indeed, if one hundred judges or lawyers were asked their views\\n\\nabout the strengths and weaknesses of the claims here and about an appropriate value of\\n\\nthe case, there would likely be one hundred different responses. That is why it is critical\\n\\nthat we steadfastly adhere to the applicable standard of review. Under the abuse of\\n\\ndiscretion standard, our inquiry is simply whether the district court identified and applied\\n\\nthe appropriate legal principles and whether it based its decision based on evidence in the\\n\\nrecord. Here, the district court did that. When that occurs, an appellate court should not\\n\\nsubstitute its judgment for the district court’s.\\n\\n As noted above, I agree with the majority that the order approving the class\\n\\nsettlement should be reversed. However, my agreement is based on the adequacy of the\\n\\nclass representative issue as described above. My agreement is not based on the district\\n\\ncourt’s evaluation of the fairness and adequacy of the settlement. In my view, the district\\n\\ncourt carefully considered the appropriate legal issues and based its decision on a\\n\\nreasonable interpretation of the record.\\n\\n IV.\\n\\n In conclusion, I join the majority in affirming the district court’s denial of\\n\\nattempted class wide opt-outs and in dismissing the appeal of the order denying the\\n\\nmotion to intervene. I also join the majority in reversing the district court’s order\\n\\n 69\\n\\ncertifying the class and approving the final settlement. While in the end, the majority and\\n\\nI arrive at the same destination, I arrive by a different path.\\n\\n\\n\\n\\n 70\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4372452/\", \"author_raw\": \"QUATTLEBAUM, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"GREGORY"},"judge2":{"kind":"string","value":"THACKER"},"judge3":{"kind":"string","value":"QUATTLEBAUM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":5,"string":"5"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":3,"string":"3"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4595199/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":1,"string":"1"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: SHARP FARMS; Robert W. May ; Tucker Farms Inc.; Worthington Farms, Inc., Objectors-Appellants, v. Teresa M. SPEAKS; Toby Speaks ; Stan Smith; Eddie Brown; Robert Poindexter ; Mike Mitchell; Roy L. Cook; Alex Shugart ; H. Randle Wood; Robin Rogers; Daniel Lee Nelson, Plaintiffs-Appellees, and U. S. Tobacco Cooperative Inc., F/K/A Flue-Cured Tobacco Cooperative Stabilization Corporation, Defendant-Appellee. Dan Lewis, Potential Intervenor-Appellant, v. Teresa M. Speaks; Toby Speaks ; Stan Smith; Eddie Brown; Robert Poindexter ; Mike Mitchell; Roy L. Cook; Alex Shugart ; H. Randle Wood; Robin Rogers; Daniel Lee Nelson, Plaintiffs-Appellees, and U. S. Tobacco Cooperative Inc., F/K/A Flue-Cured Tobacco Cooperative Stabilization Corporation, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1316\n\n\nSHARP FARMS; ROBERT W. MAY; TUCKER FARMS INC.;\nWORTHINGTON FARMS, Inc.,\n\n Objectors - Appellants,\n\n v.\n\nTERESA M. SPEAKS; TOBY SPEAKS; STAN SMITH; EDDIE BROWN;\nROBERT POINDEXTER; MIKE MITCHELL; ROY L. COOK; ALEX SHUGART;\nH. RANDLE WOOD; ROBIN ROGERS; DANIEL LEE NELSON,\n\n Plaintiffs – Appellees,\n\n and\n\nU. S. TOBACCO COOPERATIVE INC., f/k/a Flue-Cured Tobacco Cooperative\nStabilization Corporation,\n\n Defendant – Appellee.\n\n\n\n\n No. 18-1325\n\n\nDAN LEWIS,\n\n Potential Intervenor - Appellant,\n\n v.\n\nTERESA M. SPEAKS; TOBY SPEAKS; STAN SMITH; EDDIE BROWN;\nROBERT POINDEXTER; MIKE MITCHELL; ROY L. COOK; ALEX SHUGART;\nH. RANDLE WOOD; ROBIN ROGERS; DANIEL LEE NELSON,\n\n Plaintiffs – Appellees,\n\n and\n\nU. S. TOBACCO COOPERATIVE INC., f/k/a Flue-Cured Tobacco Cooperative\nStabilization Corporation,\n\n Defendant – Appellee.\n\n\nAppeal from the United States District Court for the Eastern District of North Carolina, at\nRaleigh. James C. Dever, III, District Judge. (5:12-cv-00729-D)\n\n\nArgued: October 31, 2018 Decided: February 28, 2019\n\n\nBefore GREGORY, Chief Judge, THACKER, and QUATTLEBAUM, Circuit Judges.\n\n\nAffirmed in part, reversed and remanded by published opinion. Chief Judge Gregory\nwrote the opinion, in which Judge Thacker and Judge Quattlebaum joined.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: SHARP FARMS; Robert W. May ; Tucker Farms Inc.; Worthington Farms, Inc., Objectors-Appellants, v. Teresa M. SPEAKS; Toby Speaks ; Stan Smith; Eddie Brown; Robert Poindexter ; Mike Mitchell; Roy L. Cook; Alex Shugart ; H. Randle Wood; Robin Rogers; Daniel Lee Nelson, Plaintiffs-Appellees, and U. S. Tobacco Cooperative Inc., F/K/A Flue-Cured Tobacco Cooperative Stabilization Corporation, Defendant-Appellee. Dan Lewis, Potential Intervenor-Appellant, v. Teresa M. Speaks; Toby Speaks ; Stan Smith; Eddie Brown; Robert Poindexter ; Mike Mitchell; Roy L. Cook; Alex Shugart ; H. Randle Wood; Robin Rogers; Daniel Lee Nelson, Plaintiffs-Appellees, and U. S. Tobacco Cooperative Inc., F/K/A Flue-Cured Tobacco Cooperative Stabilization Corporation, Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-28\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1316\\n\\n\\nSHARP FARMS; ROBERT W. MAY; TUCKER FARMS INC.;\\nWORTHINGTON FARMS, Inc.,\\n\\n Objectors - Appellants,\\n\\n v.\\n\\nTERESA M. SPEAKS; TOBY SPEAKS; STAN SMITH; EDDIE BROWN;\\nROBERT POINDEXTER; MIKE MITCHELL; ROY L. COOK; ALEX SHUGART;\\nH. RANDLE WOOD; ROBIN ROGERS; DANIEL LEE NELSON,\\n\\n Plaintiffs – Appellees,\\n\\n and\\n\\nU. S. TOBACCO COOPERATIVE INC., f/k/a Flue-Cured Tobacco Cooperative\\nStabilization Corporation,\\n\\n Defendant – Appellee.\\n\\n\\n\\n\\n No. 18-1325\\n\\n\\nDAN LEWIS,\\n\\n Potential Intervenor - Appellant,\\n\\n v.\\n\\nTERESA M. SPEAKS; TOBY SPEAKS; STAN SMITH; EDDIE BROWN;\\nROBERT POINDEXTER; MIKE MITCHELL; ROY L. COOK; ALEX SHUGART;\\nH. RANDLE WOOD; ROBIN ROGERS; DANIEL LEE NELSON,\\n\\n Plaintiffs – Appellees,\\n\\n and\\n\\nU. S. TOBACCO COOPERATIVE INC., f/k/a Flue-Cured Tobacco Cooperative\\nStabilization Corporation,\\n\\n Defendant – Appellee.\\n\\n\\nAppeal from the United States District Court for the Eastern District of North Carolina, at\\nRaleigh. James C. Dever, III, District Judge. (5:12-cv-00729-D)\\n\\n\\nArgued: October 31, 2018 Decided: February 28, 2019\\n\\n\\nBefore GREGORY, Chief Judge, THACKER, and QUATTLEBAUM, Circuit Judges.\\n\\n\\nAffirmed in part, reversed and remanded by published opinion. Chief Judge Gregory\\nwrote the opinion, in which Judge Thacker and Judge Quattlebaum joined.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":575,"cells":{"id":{"kind":"number","value":4595213,"string":"4,595,213"},"name":{"kind":"string","value":"GATEWAY RESIDENCES AT EXCHANGE, LLC, Plaintiff-Appellant, v. ILLINOIS UNION INSURANCE COMPANY, D/B/A ACE American Insurance Company, D/B/A ACE Environmental, D/B/A ACE USA, D/B/A ACE USA Companies, Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Gateway Residences at Exch., LLC v. Ill. Union Ins. Co."},"decision_date":{"kind":"string","value":"2019-02-28"},"docket_number":{"kind":"string","value":"18-1491"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Agee, Diaz, Harris\", \"parties\": \"\", \"opinions\": [{\"author\": \"DIAZ, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1491\\n\\n\\nGATEWAY RESIDENCES AT EXCHANGE, LLC,\\n\\n Plaintiff − Appellant,\\n\\n v.\\n\\nILLINOIS UNION INSURANCE COMPANY, d/b/a ACE American Insurance\\nCompany, d/b/a ACE Environmental, d/b/a Ace USA, d/b/a ACE USA Companies,\\n\\n Defendant – Appellee.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nAlexandria. Liam O’Grady, District Judge. (1:17-cv-00629-LO-JFA)\\n\\n\\nArgued: December 12, 2018 Decided: February 28, 2019\\n\\n\\nBefore AGEE, DIAZ, and HARRIS, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Agee and\\nJudge Harris joined.\\n\\n\\nARGUED: C. Thomas Brown, SILVER & BROWN, Fairfax, Virginia, for Appellant.\\nDouglas Aaron Winegardner, SANDS ANDERSON, PC, Richmond, Virginia, for\\nAppellee. ON BRIEF: Eric B. Lawson, SILVER & BROWN, Fairfax, Virginia, for\\nAppellant.\\n\\fDIAZ, Circuit Judge:\\n\\n Having been awarded more than $900,000 for a contractor’s faulty workmanship,\\n\\nGateway Residences at Exchange, LLC, sued to collect the judgment from the\\n\\ncontractor’s liability insurer, Illinois Union Insurance Company. The relevant policy,\\n\\nhowever, covered only claims reported to the insurer during the policy period, and that\\n\\npolicy expired 19 months before Illinois Union learned about Gateway’s claim.\\n\\n That should end this case. But Gateway claims it may nonetheless recover on the\\n\\npolicy because, by Virginia statute, Illinois Union waived certain defenses by failing to\\n\\npromptly inform Gateway of its coverage denial. See Va. Code Ann. § 38.2-2226. The\\n\\ndistrict court was unpersuaded and, for reasons that follow, we affirm.\\n\\n\\n\\n I.\\n\\n A.\\n\\n This insurance dispute started with two broken generators in an Alexandria,\\n\\nVirginia, apartment complex. Gateway, the building’s owner, had hired a local\\n\\ncontractor, Mechanical Design Group (MDG), to provide various engineering and design\\n\\nservices. Among MDG’s jobs was to install two “life and safety power generators” in the\\n\\ngarage. J.A. 208. MDG apparently didn’t install the generators very well, though, for\\n\\nwhen they started up in August 2014, they caught fire, wrecking the generators and\\n\\ndelaying the 217-unit building’s opening.\\n\\n\\n\\n\\n 2\\n\\f Blaming MDG for the damage, Gateway demanded that its contractor “cure the\\n\\nnegligent design and installation” of the generators. J.A. 209. But it didn’t sue MDG, at\\n\\nleast initially. And in September 2014, MDG went out of business.\\n\\n Before starting work on the Gateway project, MDG had bought liability insurance\\n\\nfrom Illinois Union. Under the policy, Illinois Union had agreed to indemnify MDG for\\n\\nlegal claims that might arise from the Gateway job. The front page of the policy advised\\n\\nthat it provided liability coverage “ON A CLAIMS-MADE AND REPORTED\\n\\nBASIS,” meaning that it covered “ONLY CLAIMS FIRST MADE AGAINST THE\\n\\nINSURED AND REPORTED TO THE INSURER, IN WRITING, DURING THE\\n\\nPOLICY PERIOD.” J.A. 256 (typeface in original). To further stress the point, the\\n\\npolicy made it a “condition precedent to coverage” that any claim be reported to the\\n\\ninsurer during the policy period. J.A. 259. The policy period began on February 1, 2014,\\n\\nand ended one year later on February 1, 2015. 1\\n\\n MDG apparently never told Illinois Union about Gateway’s potential claim before\\n\\nits insurance policy expired in 2015. Instead, Illinois Union first heard about the\\n\\ngenerator incident on September 6, 2016, after Gateway notified MDG’s insurers that it\\n\\nintended to sue. Ten days later, Gateway sued MDG in Virginia state court alleging\\n\\nnegligence and breach of contract.\\n\\n\\n\\n\\n 1\\n The policy also provided a 60-day “extended reporting period,” subject to\\nvarious conditions. J.A. 269. These provisions have no bearing on this appeal.\\n\\n\\n 3\\n\\f In early October 2016, MDG learned that Illinois Union had denied it coverage for\\n\\nGateway’s claim. The denial letter, sent by Chubb North American Claims “on behalf\\n\\nof” Illinois Union, 2 explained that because the claim was first reported in September\\n\\n2016 there was “no coverage for this matter as no claims were made and reported during\\n\\nthe policy period.” J.A. 294, 296. A couple of weeks later, Gateway’s counsel received a\\n\\ncopy of Illinois Union’s denial letter from MDG’s insurance broker. Chubb, however,\\n\\ndidn’t contact Gateway directly about its coverage denial until January 23, 2017.\\n\\n In the meantime, Gateway’s lawsuit against MDG proceeded in state court. MDG\\n\\nnever appeared, so the court entered a default judgment awarding Gateway $910,148 in\\n\\ndamages and $22,580 in costs and attorneys’ fees.\\n\\n B.\\n\\n Having obtained this judgment, Gateway filed the present lawsuit seeking to\\n\\ncollect from Illinois Union under MDG’s liability policy. Gateway first sued in Virginia\\n\\nstate court, but Illinois Union removed the case to the U.S. District Court for the Eastern\\n\\nDistrict of Virginia, invoking that court’s diversity jurisdiction. (Gateway is a citizen of\\n\\nVirginia and Maryland, whereas Illinois Union is a citizen of Pennsylvania and Illinois.)\\n\\nGateway moved unsuccessfully to remand. See Gateway Residences at Exch., LLC v. Ill.\\n\\nUnion Ins. Co., No. 1:17-cv-629, 2017 WL 7805743, at *2 (E.D. Va. Sept. 11, 2017).\\n\\n Following discovery, the district court granted summary judgment to Illinois\\n\\nUnion because its policy didn’t cover claims first reported after the policy period ended\\n\\n 2\\n Illinois Union’s parent company, ACE USA, merged with Chubb in 2016.\\n\\n\\n 4\\n\\fin February 2015. The court also rejected Gateway’s contention that Illinois Union had\\n\\nwaived this noncoverage argument because it gave Gateway untimely notice of its denial.\\n\\nGateway Residences at Exch., LLC v. Ill. Union Ins. Co., No. 1:17-cv-629,\\n\\n2018 WL 1629107, at *2–4 (E.D. Va. Apr. 3, 2018). This appeal followed.\\n\\n\\n\\n II.\\n\\n Gateway challenges the district court’s refusal to remand the case and its entry of\\n\\njudgment in Illinois Union’s favor. We have reviewed both issues de novo and find no\\n\\nerror.\\n\\n A.\\n\\n Gateway first argues that the district court lacked subject matter jurisdiction and\\n\\nshould have remanded this case to Virginia state court. It contends that the present suit is\\n\\na “direct action” against an insurer and that Illinois Union therefore assumes the\\n\\ncitizenship of its insured under 28 U.S.C. § 1332(c)(1). Were that true, the court would\\n\\nlack diversity jurisdiction because both Gateway and Illinois Union’s insured, MDG, are\\n\\ncitizens of Virginia. We disagree, however, that Gateway’s lawsuit is a “direct action.”\\n\\n Federal courts have original jurisdiction over suits for more than $75,000 between\\n\\n“citizens of different States.” 28 U.S.C. § 1332(a)(1). For diversity jurisdiction\\n\\npurposes, a corporation is a citizen of any state in which it is incorporated, plus the state\\n\\nor foreign country “where it has its principal place of business.” Id. § 1332(c)(1). But\\n\\n§ 1332(c) has an extra citizenship rule for insurance companies. Namely:\\n\\n\\n\\n 5\\n\\f [I]n any direct action against the insurer of a policy or contract of liability\\n insurance . . . to which action the insured is not joined as a party-defendant,\\n such insurer shall be deemed a citizen of . . . every State and foreign state of\\n which the insured is a citizen.\\n\\nId. § 1332(c)(1)(A). In other words, if a plaintiff brings a “direct action” against a\\n\\nwrongdoer’s liability insurer, the insurer assumes the citizenship of the insured. Kong v.\\n\\nAllied Prof’l Ins. Co., 750 F.3d 1295, 1299 (11th Cir. 2014).\\n\\n On its face, this language sweeps broadly, potentially covering any lawsuit in\\n\\nwhich a third party sues a liability insurer over its insured’s conduct. But the unanimous\\n\\nunderstanding of our sister circuits has been that “direct action” as used in § 1332(c) has\\n\\na much narrower meaning. Specifically, it refers to a suit in which the plaintiff sues a\\n\\nwrongdoer’s liability insurer without joining or first obtaining a judgment against the\\n\\ninsured. Kong, 750 F.3d at 1300; accord Hyland v. Liberty Mut. Fire Ins. Co., 885 F.3d\\n\\n482, 484–85 (7th Cir. 2018); Rosa v. Allstate Ins. Co., 981 F.2d 669, 675 (2d Cir. 1992);\\n\\nBeckham v. Safeco Ins. Co. of Am., 691 F.2d 898, 901–02 (9th Cir. 1982); see Velez v.\\n\\nCrown Life Ins. Co., 599 F.2d 471, 473 (1st Cir. 1979); Henderson v. Selective Ins. Co.,\\n\\n369 F.2d 143, 149 (6th Cir. 1966); see also 7A Couch on Insurance § 107:4 (3d ed.\\n\\nupdated 2018) (collecting additional cases).\\n\\n Section 1332(c)’s legislative history strongly supports this reading. In 1964,\\n\\nCongress added language to the diversity jurisdiction statute to address “direct action”\\n\\nlawsuits allowed by the laws of Louisiana and Wisconsin. See S. Rep. No. 88-1308, at\\n\\n1–2 (1964); see also Velez, 599 F.2d at 473. Under these laws, a plaintiff may sue a\\n\\ntortfeasor’s liability insurer without joining the tortfeasor as a defendant and establish\\n\\n\\n 6\\n\\fboth the insured’s liability and the insurer’s obligation in a single suit. See La. Stat. Ann.\\n\\n§ 22:1269(B); Wis. Stat. Ann. § 632.24. Such statutes often created federal diversity\\n\\njurisdiction when the insurer’s citizenship was different from the plaintiff’s. And as a\\n\\nresult, what were essentially tort disputes between local residents would end up in federal\\n\\ncourt. See H.R. Rep. No. 88-1229, at 1–2 (1964); cf. Lumbermen’s Mut. Cas. Co. v.\\n\\nElbert, 348 U.S. 48, 56–57 (1954) (Frankfurter, J., concurring) (bemoaning “direct\\n\\naction” forum-shopping). In response, Congress amended § 1332(c) to provide that the\\n\\ndefendant insurer adopts the insured’s citizenship in such cases, thereby destroying\\n\\ndiversity and ensuring that the merits of the tort claim would be resolved in state court.\\n\\n Given this provision’s background, we agree with the Eleventh Circuit that the\\n\\n“key feature” of a direct action is “the plaintiff’s ability to skip suing the [tortfeasor] and\\n\\nsue directly his insurance carrier.” Kong, 750 F.3d at 1300–01 (internal quotation marks\\n\\nomitted). When a plaintiff must either join the local tortfeasor or first obtain a separate\\n\\njudgment against it, the lack of diverse citizenship forces the state tort claim into state\\n\\ncourt. It’s only when the plaintiff skips this step and sues the insurer directly that the\\n\\nconcerns behind Congress’s “direct action” amendments are implicated. See Kong, 750\\n\\nF.3d at 1300–01 (no direct action when plaintiff sued insurer after obtaining judgment\\n\\nfrom insured); Hyland, 885 F.3d at 485 (same).\\n\\n Under this definition, Gateway’s lawsuit is not a direct action. Virginia doesn’t\\n\\nhave a direct action statute but instead requires a third-party claimant to first obtain a\\n\\njudgment against the insured. The claimant may then sue the insurer on the policy to\\n\\ncollect the judgment. Va. Code Ann. § 38.2-2200; Richmond, Fredericksburg, &\\n\\n 7\\n\\fPotomac R.R. Co. v. Hughes-Keegan, Inc., 152 S.E.2d 28, 33–34 (Va. 1967). And that is\\n\\njust what happened here. Gateway obtained a default judgment against MDG in state\\n\\ncourt then sued to collect that judgment under Illinois Union’s liability policy. Gateway\\n\\ndid not (and could not) skip the tortfeasor, the insured. Its present lawsuit is therefore not\\n\\na direct action within the meaning of § 1332(c)(1).\\n\\n Gateway’s arguments do not persuade otherwise. First, it notes that we have\\n\\npreviously used the words “direct action” to describe, under Virginia law, a lawsuit\\n\\nagainst an insurer to enforce a judgment against its insured. See Morrel v. Nationwide\\n\\nMut. Fire Ins. Co., 188 F.3d 218, 221–22 (4th Cir. 1999). But in Morrel, we used “direct\\n\\naction” in the generic sense of a lawsuit filed against an insurer. We did not consider\\n\\nwhether such a suit fits the technical meaning of § 1332(c). Second, Gateway points us\\n\\nto a sprinkling of district court cases holding that suits like this one are direct actions\\n\\nbecause they essentially do “in two steps” what Louisiana’s and Wisconsin’s statutes “did\\n\\nin one.” See, e.g., Sherman v. Pa. Lumbermen’s Mut. Ins. Co., 21 F. Supp. 2d 543, 544–\\n\\n45 (D. Md. 1998) (quoting Prendergast v. All. Gen. Ins. Co., 921 F. Supp. 653, 655 (E.D.\\n\\nMo. 1996)). But these cases, as the weight of contrary circuit precedent shows, are\\n\\nplainly wrong. It is precisely the first step of suing the insured tortfeasor (or, for that\\n\\nmatter, the simultaneous step of joining it as a party) that funnels the tort suit into state\\n\\ncourt and thus eases Congress’s jurisdictional and forum-shopping concerns.\\n\\n This lawsuit, in sum, is not a direct action for purposes of § 1332(c)(1), and\\n\\nIllinois Union therefore does not adopt MDG’s Virginia citizenship. Because this lawsuit\\n\\n\\n\\n 8\\n\\finstead pits a Virginia plaintiff against an Illinois defendant, the district court had\\n\\ndiversity jurisdiction and rightly refused to remand to state court.\\n\\n B.\\n\\n On the merits, the district court awarded summary judgment to Illinois Union\\n\\nbecause its policy covered only claims made and reported during the policy period and\\n\\nGateway’s claim wasn’t reported until well after the policy had expired. Gateway’s main\\n\\ncontention on appeal is that, under a Virginia statute, Illinois Union waived that argument\\n\\nby failing to inform Gateway of its coverage denial within 45 days of receiving the claim.\\n\\nIllinois Union, in response, says the relevant statute doesn’t apply in this case.\\n\\n Gateway’s waiver argument invokes Virginia Code Section 38.2-2226. Under this\\n\\nstatute, an insurer that wants to defend against a third-party claimant based on its\\n\\ninsured’s breach of the underlying policy must notify the claimant of that intention.\\n\\nSpecifically, it provides that:\\n\\n Whenever any insurer on a policy of liability insurance discovers a breach\\n of the terms or conditions of the insurance contract by the insured, the\\n insurer shall notify the claimant or the claimant’s counsel of the breach.\\n Notification shall be given within forty-five days after discovery by the\\n insurer of the breach or of the claim, whichever is later.\\n\\nVa. Code. Ann. § 38.2-2226. Failure to give the required 45 days’ notice “will result in a\\n\\nwaiver of the defense based on such breach to the extent of the claim by operation of\\n\\nlaw.” Id.\\n\\n The statute’s text makes two things clear: it covers denials based on the insured’s\\n\\n“breach” of the terms and conditions of the policy and applies to arguments properly\\n\\ncharacterized as waivable “defenses.” Courts have therefore rightly held that that the\\n\\n 9\\n\\fstatue (or its precursor) doesn’t apply when an insurer denies coverage because the claim\\n\\nfalls outside the scope of policy coverage. See Cheatham v. NGM Ins. Co., No.\\n\\n3:12cv263-HEH, 2013 WL 509049, at *5 (E.D. Va. Feb. 11, 2013); Berry v. State Farm\\n\\nMut. Auto Ins. Co., 340 F. Supp. 228, 231 (E.D. Va. 1972); Jackson v. Middleton, 90 Va.\\n\\nCir. 279, 2015 WL 10765161, at *3–4 (Va. Cir. Ct. 2015). The argument that a claim is\\n\\noutside the scope of coverage is not about an insured’s “breach” of contract. A “breach”\\n\\nassumes a legal duty on the insured’s part, but the insured obviously has no legal duty to\\n\\nincur covered claims. Likewise, a denial based on scope of coverage is not a “defense,”\\n\\nas a “defense” presupposes the insurer’s existing obligation to provide coverage.\\n\\n With this understanding, we conclude that the statute doesn’t apply in this case.\\n\\nIllinois Union hasn’t denied coverage because of MDG’s breach. Rather, it asserts—\\n\\ncorrectly—that the present claim is simply not covered by the policy.\\n\\n As the policy’s bold, all-caps preface makes clear, Illinois Union sold MDG a\\n\\n“claims-made-and-reported” policy. This is a type of “claims-made” policy, which\\n\\ndiffers from an ordinary “occurrence” policy in the type of risk it insures. An occurrence\\n\\npolicy insures against a specific occurrence (say, a car accident or building fire), and\\n\\nusually doesn’t depend on when the claim itself is filed. In contrast, under a claims-made\\n\\npolicy, the making of the claim itself is the peril being insured. First Am. Title Ins. Co. v.\\n\\nCont’l Cas. Co., 709 F.3d 1170, 1174 n.2 (5th Cir. 2013). Coverage usually attaches to a\\n\\nclaim made during the policy period regardless of when the events underlying the claim\\n\\ntook place. Id. See generally 7 Couch, supra, § 102:22 (describing different liability\\n\\npolicies).\\n\\n 10\\n\\f Claims-made-and-reported policies, like the one Illinois Union sold MDG, are a\\n\\ndistinct brand of claims-made policies. A claims-made-and-reported policy usually\\n\\n“requires the claim both be made against the insured and reported to the insurer during\\n\\nthe policy period.” Sherwood Brands, Inc. v. Great Am. Ins. Co., 13 A.3d 1268, 1282\\n\\n(Md. 2011). If no claim is reported, no coverage is triggered, even if the events\\n\\nunderlying the claim took place during the policy period. And after the policy expires,\\n\\n“the insurer’s potential liability ends.” T.H.E. Ins. Co. v. P.T.P. Inc., 628 A.2d 223, 227\\n\\n(Md. 1993) (quoting St. Paul Fire & Marine Ins. Co. v. House, 554 A.2d 404, 418 (Md.\\n\\n1989) (Murphy, C.J., dissenting)).\\n\\n We do not think Virginia Code Section 38.2-2226 applies when, as here, an\\n\\ninsurer denies coverage under a claims-made-and-reported policy because no claim was\\n\\nreported during the policy period. Illinois Union’s potential liability under this policy\\n\\nended when it expired in February 2015, so the policy simply can’t cover a claim first\\n\\nreported to the insurer a full 19 months later in September 2016. Illinois Union is\\n\\ntherefore not raising a “defense based on [an insured’s] breach.” Va. Code. Ann. § 38.2-\\n\\n2226. There was no “breach” because, after February 2015, there was no policy to be\\n\\nbreached; there is no “defense” because, after February 2015, Illinois Union had no\\n\\ncoverage obligation to defend against. See T.H.E., 628 A.2d at 227, 230 (holding, under\\n\\nsimilar Maryland statute, that denial of claim made after expiry of claims-made-and-\\n\\nreported policy “resulted from the terms of coverage” and “is not attributed to a ‘breach’”\\n\\nby the insured); Minn. Lawyers Mut. Ins. Co. v. Baylor & Jackson, PLLC, 531 F. App’x\\n\\n312, 325 (4th Cir. 2013) (Thacker, J., dissenting) (“If [the act triggering coverage]\\n\\n 11\\n\\foccurred after the expiration of the liability policy . . . there is simply no policy which the\\n\\ninsured can breach when it fails to notify the insurer of the claim.”). Because Illinois\\n\\nUnion’s argument is based on noncoverage, and not on MDG’s breach, Section 38.2-\\n\\n2226 does not apply. 3\\n\\n Besides being textually awkward, Gateway’s reading of Section 38.2-2226 would\\n\\nhave the policy embrace claims it was never intended to cover. In a claims-made-and-\\n\\nreported policy, the condition that claims be reported during the policy period is an\\n\\nessential part of the bargain between insurer and insured. See Chas T. Main, Inc. v.\\n\\nFireman’s Fund Ins. Co., 551 N.E.2d 28, 29–30 (Mass. 1990). For the insurer, claim-\\n\\ntriggering reporting allows it to “close its books on a policy at its expiration and therefore\\n\\nattain a level of predictability unattainable under standard occurrence policies.” First\\n\\nAm., 709 F.3d at 1175 (internal quotation marks omitted). In exchange, the insurer may\\n\\naccept a lower premium from the insured than it would for an occurrence policy with\\n\\nenduring liability. Id.; Stine v. Cont’l Cas. Co., 349 N.W.2d 127, 131 (Mich. 1984).\\n\\n\\n\\n\\n 3\\n Gateway puts heavy stock in Section 38.2-2226’s use of the phrase “terms or\\nconditions” and language in Illinois Union’s policy that makes reporting a claim during\\nthe policy period a “condition precedent to coverage.” J.A. 259 (emphasis added). But\\nGateway’s focus on this single word ignores the broader statutory language. The statute\\napplies only to “conditions” that can plausibly be “breached,” and where the breach of\\nsuch conditions could rightly be understood as a “defense” to coverage. That is not true\\nabout the reporting condition in a claims-made-and-reported policy. See Sherwood\\nBrands, 13 A.3d at 1288 (where notice of claim under claims-made policy occurs only\\nafter expiration, “this non-occurrence of the condition precedent to coverage is not a\\n‘breach of the policy’”).\\n\\n\\n 12\\n\\f Applying Section 38.2-2226 as Gateway urges, however, would expand the policy\\n\\nto confer benefits that MDG didn’t pay for and that Illinois Union never agreed to\\n\\nprovide. Though Virginia’s legislature clearly designed Section 38.2-2226 to override\\n\\ncertain defenses, we doubt it intended the statute to effectively rewrite basic coverage\\n\\nterms of insurance contracts. Cf. Burns v. Int’l Ins. Co., 929 F.2d 1422, 1424–25 (9th\\n\\nCir. 1993) (declining, for this reason, to apply a similar California rule to a claims-made\\n\\npolicy); Zuckerman v. Nat’l Union Fire Ins. Co., 495 A.2d 395, 405–06 (N.J. 1985)\\n\\n(same under New Jersey law).\\n\\n Gateway’s effort to shoehorn this dispute into Section 38.2-2226 misconstrues the\\n\\ninsurance contract at issue. Gateway says its demand on MDG in August 2014 triggered\\n\\ncoverage under the policy and obligated MDG to report that claim to its insurer. MDG’s\\n\\nfailure to make that report, Gateway says, was a “breach of the reporting condition.”\\n\\nAppellant’s Br. at 30. But under Illinois Union’s claims-made-and-reported policy, the\\n\\nact triggering coverage was not Gateway’s 2014 demand, as Gateway claims, but rather\\n\\nthe communication of that claim to Illinois Union, which didn’t happen until well after\\n\\nthe policy expired.\\n\\n This case might come out quite differently had MDG reported Gateway’s demand\\n\\nin 2014, or had MDG instead bought an occurrence policy. In those scenarios, coverage\\n\\nunder the policy would likely have been triggered, leaving Illinois Union to defend,\\n\\nperhaps, because MDG didn’t give prompt enough notice or failed to fully cooperate with\\n\\nthe insurer. In similar circumstances, courts have required notice under the statute at\\n\\nissue. See Morrel, 188 F.3d at 226–27 (insurer waived defense based on insured’s failure\\n\\n 13\\n\\fto assist); Fed. Ins. Co. v. Nationwide Mut. Ins. Co., 448 F. Supp. 723, 725–26 (waived\\n\\ndefense based on insured’s failure to notify “as soon as practicable”). But those are not\\n\\nthe facts of this case. Here, MDG bought a claims-made-and-reported policy and\\n\\nreported no claim to Illinois Union during the policy period. MDG did not “breach” the\\n\\npolicy by not reporting Gateway’s 2014 demand any more than one breaches a fire\\n\\ninsurance policy by incurring damage from a flood.\\n\\n Applying the text of the statute to the policy terms MDG and Illinois Union agreed\\n\\nto, we hold that Section 38.2-2226 does not apply to Illinois Union’s denial of coverage.\\n\\nIllinois Union may therefore deny Gateway coverage despite allegedly failing to give\\n\\nnotice. And since the policy by its clear terms does not cover Gateway’s post-\\n\\ntermination claim, summary judgment for Illinois Union was proper. 4\\n\\n III.\\n\\n We hold that the district court had subject matter jurisdiction and properly\\n\\nawarded summary judgment in Illinois Union’s favor. The judgment of the district court\\n\\nis therefore\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 4\\n Given our holding, we do not decide whether Illinois Union complied with\\nVirginia’s notice statute because Gateway received actual (though indirect) notice of the\\ndenial less than 45 days after making its claim.\\n\\n\\n\\n 14\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4372466/\", \"author_raw\": \"DIAZ, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"AGEE"},"judge2":{"kind":"string","value":"DIAZ"},"judge3":{"kind":"string","value":"HARRIS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4595213/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: GATEWAY RESIDENCES AT EXCHANGE, LLC, Plaintiff-Appellant, v. ILLINOIS UNION INSURANCE COMPANY, D/B/A ACE American Insurance Company, D/B/A ACE Environmental, D/B/A ACE USA, D/B/A ACE USA Companies, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-02-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1491\n\n\nGATEWAY RESIDENCES AT EXCHANGE, LLC,\n\n Plaintiff − Appellant,\n\n v.\n\nILLINOIS UNION INSURANCE COMPANY, d/b/a ACE American Insurance\nCompany, d/b/a ACE Environmental, d/b/a Ace USA, d/b/a ACE USA Companies,\n\n Defendant – Appellee.\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nAlexandria. Liam O’Grady, District Judge. (1:17-cv-00629-LO-JFA)\n\n\nArgued: December 12, 2018 Decided: February 28, 2019\n\n\nBefore AGEE, DIAZ, and HARRIS, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Agee and\nJudge Harris joined.\n\n\nARGUED: C. Thomas Brown, SILVER & BROWN, Fairfax, Virginia, for Appellant.\nDouglas Aaron Winegardner, SANDS ANDERSON, PC, Richmond, Virginia, for\nAppellee. ON BRIEF: Eric B. Lawson, SILVER & BROWN, Fairfax, Virginia, for\nAppellant.\n\fDIAZ, Circuit Judge:\n\n Having been awarded more than $900,000 for a contractor’s faulty workmanship,\n\nGateway Residences at Exchange, LLC, sued to collect the judgment from the\n\ncontractor’s liability insurer, Illinois Union Insurance Company. The relevant policy,\n\nhowever, covered only claims reported to the insurer during the policy period, and that\n\npolicy expired 19 months before Illinois Union learned about Gateway’s claim.\n\n That should end this case. But Gateway claims it may nonetheless recover on the\n\npolicy because, by Virginia statute, Illinois Union waived certain defenses by failing to\n\npromptly inform Gateway of its coverage denial. See Va. Code Ann. § 38.2-2226. The\n\ndistrict court was unpersuaded and, for reasons that follow, we affirm.\n\n\n\n I.\n\n A.\n\n This insurance dispute started with two broken generators in an Alexandria,\n\nVirginia, apartment complex. Gateway, the building’s owner, had hired a local\n\ncontractor, Mechanical Design Group (MDG), to provide various engineering and design\n\nservices. Among MDG’s jobs was to install two “life and safety power generators” in the\n\ngarage. J.A. 208. MDG apparently didn’t install the generators very well, though, for\n\nwhen they started up in August 2014, they caught fire, wrecking the generators and\n\ndelaying the 217-unit building’s opening.\n\n\n\n\n 2\n\f Blaming MDG for the damage, Gateway demanded that its contractor “cure the\n\nnegligent design and installation” of the generators. J.A. 209. But it didn’t sue MDG, at\n\nleast initially. And in September 2014, MDG went out of business.\n\n Before starting work on the Gateway project, MDG had bought liability insurance\n\nfrom Illinois Union. Under the policy, Illinois Union had agreed to indemnify MDG for\n\nlegal claims that might arise from the Gateway job. The front page of the policy advised\n\nthat it provided liability coverage “ON A CLAIMS-MADE AND REPORTED\n\nBASIS,” meaning that it covered “ONLY CLAIMS FIRST MADE AGAINST THE\n\nINSURED AND REPORTED TO THE INSURER, IN WRITING, DURING THE\n\nPOLICY PERIOD.” J.A. 256 (typeface in original). To further stress the point, the\n\npolicy made it a “condition precedent to coverage” that any claim be reported to the\n\ninsurer during the policy period. J.A. 259. The policy period began on February 1, 2014,\n\nand ended one year later on February 1, 2015. 1\n\n MDG apparently never told Illinois Union about Gateway’s potential claim before\n\nits insurance policy expired in 2015. Instead, Illinois Union first heard about the\n\ngenerator incident on September 6, 2016, after Gateway notified MDG’s insurers that it\n\nintended to sue. Ten days later, Gateway sued MDG in Virginia state court alleging\n\nnegligence and breach of contract.\n\n\n\n\n 1\n The policy also provided a 60-day “extended reporting period,” subject to\nvarious conditions. J.A. 269. These provisions have no bearing on this appeal.\n\n\n 3\n\f In early October 2016, MDG learned that Illinois Union had denied it coverage for\n\nGateway’s claim. The denial letter, sent by Chubb North American Claims “on behalf\n\nof” Illinois Union, 2 explained that because the claim was first reported in September\n\n2016 there was “no coverage for this matter as no claims were made and reported during\n\nthe policy period.” J.A. 294, 296. A couple of weeks later, Gateway’s counsel received a\n\ncopy of Illinois Union’s denial letter from MDG’s insurance broker. Chubb, however,\n\ndidn’t contact Gateway directly about its coverage denial until January 23, 2017.\n\n In the meantime, Gateway’s lawsuit against MDG proceeded in state court. MDG\n\nnever appeared, so the court entered a default judgment awarding Gateway $910,148 in\n\ndamages and $22,580 in costs and attorneys’ fees.\n\n B.\n\n Having obtained this judgment, Gateway filed the present lawsuit seeking to\n\ncollect from Illinois Union under MDG’s liability policy. Gateway first sued in Virginia\n\nstate court, but Illinois Union removed the case to the U.S. District Court for the Eastern\n\nDistrict of Virginia, invoking that court’s diversity jurisdiction. (Gateway is a citizen of\n\nVirginia and Maryland, whereas Illinois Union is a citizen of Pennsylvania and Illinois.)\n\nGateway moved unsuccessfully to remand. See Gateway Residences at Exch., LLC v. Ill.\n\nUnion Ins. Co., No. 1:17-cv-629, 2017 WL 7805743, at *2 (E.D. Va. Sept. 11, 2017).\n\n Following discovery, the district court granted summary judgment to Illinois\n\nUnion because its policy didn’t cover claims first reported after the policy period ended\n\n 2\n Illinois Union’s parent company, ACE USA, merged with Chubb in 2016.\n\n\n 4\n\fin February 2015. The court also rejected Gateway’s contention that Illinois Union had\n\nwaived this noncoverage argument because it gave Gateway untimely notice of its denial.\n\nGateway Residences at Exch., LLC v. Ill. Union Ins. Co., No. 1:17-cv-629,\n\n2018 WL 1629107, at *2–4 (E.D. Va. Apr. 3, 2018). This appeal followed.\n\n\n\n II.\n\n Gateway challenges the district court’s refusal to remand the case and its entry of\n\njudgment in Illinois Union’s favor. We have reviewed both issues de novo and find no\n\nerror.\n\n A.\n\n Gateway first argues that the district court lacked subject matter jurisdiction and\n\nshould have remanded this case to Virginia state court. It contends that the present suit is\n\na “direct action” against an insurer and that Illinois Union therefore assumes the\n\ncitizenship of its insured under 28 U.S.C. § 1332(c)(1). Were that true, the court would\n\nlack diversity jurisdiction because both Gateway and Illinois Union’s insured, MDG, are\n\ncitizens of Virginia. We disagree, however, that Gateway’s lawsuit is a “direct action.”\n\n Federal courts have original jurisdiction over suits for more than $75,000 between\n\n“citizens of different States.” 28 U.S.C. § 1332(a)(1). For diversity jurisdiction\n\npurposes, a corporation is a citizen of any state in which it is incorporated, plus the state\n\nor foreign country “where it has its principal place of business.” Id. § 1332(c)(1). But\n\n§ 1332(c) has an extra citizenship rule for insurance companies. Namely:\n\n\n\n 5\n\f [I]n any direct action against the insurer of a policy or contract of liability\n insurance . . . to which action the insured is not joined as a party-defendant,\n such insurer shall be deemed a citizen of . . . every State and foreign state of\n which the insured is a citizen.\n\nId. § 1332(c)(1)(A). In other words, if a plaintiff brings a “direct action” against a\n\nwrongdoer’s liability insurer, the insurer assumes the citizenship of the insured. Kong v.\n\nAllied Prof’l Ins. Co., 750 F.3d 1295, 1299 (11th Cir. 2014).\n\n On its face, this language sweeps broadly, potentially covering any lawsuit in\n\nwhich a third party sues a liability insurer over its insured’s conduct. But the unanimous\n\nunderstanding of our sister circuits has been that “direct action” as used in § 1332(c) has\n\na much narrower meaning. Specifically, it refers to a suit in which the plaintiff sues a\n\nwrongdoer’s liability insurer without joining or first obtaining a judgment against the\n\ninsured. Kong, 750 F.3d at 1300; accord Hyland v. Liberty Mut. Fire Ins. Co., 885 F.3d\n\n482, 484–85 (7th Cir. 2018); Rosa v. Allstate Ins. Co., 981 F.2d 669, 675 (2d Cir. 1992);\n\nBeckham v. Safeco Ins. Co. of Am., 691 F.2d 898, 901–02 (9th Cir. 1982); see Velez v.\n\nCrown Life Ins. Co., 599 F.2d 471, 473 (1st Cir. 1979); Henderson v. Selective Ins. Co.,\n\n369 F.2d 143, 149 (6th Cir. 1966); see also 7A Couch on Insurance § 107:4 (3d ed.\n\nupdated 2018) (collecting additional cases).\n\n Section 1332(c)’s legislative history strongly supports this reading. In 1964,\n\nCongress added language to the diversity jurisdiction statute to address “direct action”\n\nlawsuits allowed by the laws of Louisiana and Wisconsin. See S. Rep. No. 88-1308, at\n\n1–2 (1964); see also Velez, 599 F.2d at 473. Under these laws, a plaintiff may sue a\n\ntortfeasor’s liability insurer without joining the tortfeasor as a defendant and establish\n\n\n 6\n\fboth the insured’s liability and the insurer’s obligation in a single suit. See La. Stat. Ann.\n\n§ 22:1269(B); Wis. Stat. Ann. § 632.24. Such statutes often created federal diversity\n\njurisdiction when the insurer’s citizenship was different from the plaintiff’s. And as a\n\nresult, what were essentially tort disputes between local residents would end up in federal\n\ncourt. See H.R. Rep. No. 88-1229, at 1–2 (1964); cf. Lumbermen’s Mut. Cas. Co. v.\n\nElbert, 348 U.S. 48, 56–57 (1954) (Frankfurter, J., concurring) (bemoaning “direct\n\naction” forum-shopping). In response, Congress amended § 1332(c) to provide that the\n\ndefendant insurer adopts the insured’s citizenship in such cases, thereby destroying\n\ndiversity and ensuring that the merits of the tort claim would be resolved in state court.\n\n Given this provision’s background, we agree with the Eleventh Circuit that the\n\n“key feature” of a direct action is “the plaintiff’s ability to skip suing the [tortfeasor] and\n\nsue directly his insurance carrier.” Kong, 750 F.3d at 1300–01 (internal quotation marks\n\nomitted). When a plaintiff must either join the local tortfeasor or first obtain a separate\n\njudgment against it, the lack of diverse citizenship forces the state tort claim into state\n\ncourt. It’s only when the plaintiff skips this step and sues the insurer directly that the\n\nconcerns behind Congress’s “direct action” amendments are implicated. See Kong, 750\n\nF.3d at 1300–01 (no direct action when plaintiff sued insurer after obtaining judgment\n\nfrom insured); Hyland, 885 F.3d at 485 (same).\n\n Under this definition, Gateway’s lawsuit is not a direct action. Virginia doesn’t\n\nhave a direct action statute but instead requires a third-party claimant to first obtain a\n\njudgment against the insured. The claimant may then sue the insurer on the policy to\n\ncollect the judgment. Va. Code Ann. § 38.2-2200; Richmond, Fredericksburg, &\n\n 7\n\fPotomac R.R. Co. v. Hughes-Keegan, Inc., 152 S.E.2d 28, 33–34 (Va. 1967). And that is\n\njust what happened here. Gateway obtained a default judgment against MDG in state\n\ncourt then sued to collect that judgment under Illinois Union’s liability policy. Gateway\n\ndid not (and could not) skip the tortfeasor, the insured. Its present lawsuit is therefore not\n\na direct action within the meaning of § 1332(c)(1).\n\n Gateway’s arguments do not persuade otherwise. First, it notes that we have\n\npreviously used the words “direct action” to describe, under Virginia law, a lawsuit\n\nagainst an insurer to enforce a judgment against its insured. See Morrel v. Nationwide\n\nMut. Fire Ins. Co., 188 F.3d 218, 221–22 (4th Cir. 1999). But in Morrel, we used “direct\n\naction” in the generic sense of a lawsuit filed against an insurer. We did not consider\n\nwhether such a suit fits the technical meaning of § 1332(c). Second, Gateway points us\n\nto a sprinkling of district court cases holding that suits like this one are direct actions\n\nbecause they essentially do “in two steps” what Louisiana’s and Wisconsin’s statutes “did\n\nin one.” See, e.g., Sherman v. Pa. Lumbermen’s Mut. Ins. Co., 21 F. Supp. 2d 543, 544–\n\n45 (D. Md. 1998) (quoting Prendergast v. All. Gen. Ins. Co., 921 F. Supp. 653, 655 (E.D.\n\nMo. 1996)). But these cases, as the weight of contrary circuit precedent shows, are\n\nplainly wrong. It is precisely the first step of suing the insured tortfeasor (or, for that\n\nmatter, the simultaneous step of joining it as a party) that funnels the tort suit into state\n\ncourt and thus eases Congress’s jurisdictional and forum-shopping concerns.\n\n This lawsuit, in sum, is not a direct action for purposes of § 1332(c)(1), and\n\nIllinois Union therefore does not adopt MDG’s Virginia citizenship. Because this lawsuit\n\n\n\n 8\n\finstead pits a Virginia plaintiff against an Illinois defendant, the district court had\n\ndiversity jurisdiction and rightly refused to remand to state court.\n\n B.\n\n On the merits, the district court awarded summary judgment to Illinois Union\n\nbecause its policy covered only claims made and reported during the policy period and\n\nGateway’s claim wasn’t reported until well after the policy had expired. Gateway’s main\n\ncontention on appeal is that, under a Virginia statute, Illinois Union waived that argument\n\nby failing to inform Gateway of its coverage denial within 45 days of receiving the claim.\n\nIllinois Union, in response, says the relevant statute doesn’t apply in this case.\n\n Gateway’s waiver argument invokes Virginia Code Section 38.2-2226. Under this\n\nstatute, an insurer that wants to defend against a third-party claimant based on its\n\ninsured’s breach of the underlying policy must notify the claimant of that intention.\n\nSpecifically, it provides that:\n\n Whenever any insurer on a policy of liability insurance discovers a breach\n of the terms or conditions of the insurance contract by the insured, the\n insurer shall notify the claimant or the claimant’s counsel of the breach.\n Notification shall be given within forty-five days after discovery by the\n insurer of the breach or of the claim, whichever is later.\n\nVa. Code. Ann. § 38.2-2226. Failure to give the required 45 days’ notice “will result in a\n\nwaiver of the defense based on such breach to the extent of the claim by operation of\n\nlaw.” Id.\n\n The statute’s text makes two things clear: it covers denials based on the insured’s\n\n“breach” of the terms and conditions of the policy and applies to arguments properly\n\ncharacterized as waivable “defenses.” Courts have therefore rightly held that that the\n\n 9\n\fstatue (or its precursor) doesn’t apply when an insurer denies coverage because the claim\n\nfalls outside the scope of policy coverage. See Cheatham v. NGM Ins. Co., No.\n\n3:12cv263-HEH, 2013 WL 509049, at *5 (E.D. Va. Feb. 11, 2013); Berry v. State Farm\n\nMut. Auto Ins. Co., 340 F. Supp. 228, 231 (E.D. Va. 1972); Jackson v. Middleton, 90 Va.\n\nCir. 279, 2015 WL 10765161, at *3–4 (Va. Cir. Ct. 2015). The argument that a claim is\n\noutside the scope of coverage is not about an insured’s “breach” of contract. A “breach”\n\nassumes a legal duty on the insured’s part, but the insured obviously has no legal duty to\n\nincur covered claims. Likewise, a denial based on scope of coverage is not a “defense,”\n\nas a “defense” presupposes the insurer’s existing obligation to provide coverage.\n\n With this understanding, we conclude that the statute doesn’t apply in this case.\n\nIllinois Union hasn’t denied coverage because of MDG’s breach. Rather, it asserts—\n\ncorrectly—that the present claim is simply not covered by the policy.\n\n As the policy’s bold, all-caps preface makes clear, Illinois Union sold MDG a\n\n“claims-made-and-reported” policy. This is a type of “claims-made” policy, which\n\ndiffers from an ordinary “occurrence” policy in the type of risk it insures. An occurrence\n\npolicy insures against a specific occurrence (say, a car accident or building fire), and\n\nusually doesn’t depend on when the claim itself is filed. In contrast, under a claims-made\n\npolicy, the making of the claim itself is the peril being insured. First Am. Title Ins. Co. v.\n\nCont’l Cas. Co., 709 F.3d 1170, 1174 n.2 (5th Cir. 2013). Coverage usually attaches to a\n\nclaim made during the policy period regardless of when the events underlying the claim\n\ntook place. Id. See generally 7 Couch, supra, § 102:22 (describing different liability\n\npolicies).\n\n 10\n\f Claims-made-and-reported policies, like the one Illinois Union sold MDG, are a\n\ndistinct brand of claims-made policies. A claims-made-and-reported policy usually\n\n“requires the claim both be made against the insured and reported to the insurer during\n\nthe policy period.” Sherwood Brands, Inc. v. Great Am. Ins. Co., 13 A.3d 1268, 1282\n\n(Md. 2011). If no claim is reported, no coverage is triggered, even if the events\n\nunderlying the claim took place during the policy period. And after the policy expires,\n\n“the insurer’s potential liability ends.” T.H.E. Ins. Co. v. P.T.P. Inc., 628 A.2d 223, 227\n\n(Md. 1993) (quoting St. Paul Fire & Marine Ins. Co. v. House, 554 A.2d 404, 418 (Md.\n\n1989) (Murphy, C.J., dissenting)).\n\n We do not think Virginia Code Section 38.2-2226 applies when, as here, an\n\ninsurer denies coverage under a claims-made-and-reported policy because no claim was\n\nreported during the policy period. Illinois Union’s potential liability under this policy\n\nended when it expired in February 2015, so the policy simply can’t cover a claim first\n\nreported to the insurer a full 19 months later in September 2016. Illinois Union is\n\ntherefore not raising a “defense based on [an insured’s] breach.” Va. Code. Ann. § 38.2-\n\n2226. There was no “breach” because, after February 2015, there was no policy to be\n\nbreached; there is no “defense” because, after February 2015, Illinois Union had no\n\ncoverage obligation to defend against. See T.H.E., 628 A.2d at 227, 230 (holding, under\n\nsimilar Maryland statute, that denial of claim made after expiry of claims-made-and-\n\nreported policy “resulted from the terms of coverage” and “is not attributed to a ‘breach’”\n\nby the insured); Minn. Lawyers Mut. Ins. Co. v. Baylor & Jackson, PLLC, 531 F. App’x\n\n312, 325 (4th Cir. 2013) (Thacker, J., dissenting) (“If [the act triggering coverage]\n\n 11\n\foccurred after the expiration of the liability policy . . . there is simply no policy which the\n\ninsured can breach when it fails to notify the insurer of the claim.”). Because Illinois\n\nUnion’s argument is based on noncoverage, and not on MDG’s breach, Section 38.2-\n\n2226 does not apply. 3\n\n Besides being textually awkward, Gateway’s reading of Section 38.2-2226 would\n\nhave the policy embrace claims it was never intended to cover. In a claims-made-and-\n\nreported policy, the condition that claims be reported during the policy period is an\n\nessential part of the bargain between insurer and insured. See Chas T. Main, Inc. v.\n\nFireman’s Fund Ins. Co., 551 N.E.2d 28, 29–30 (Mass. 1990). For the insurer, claim-\n\ntriggering reporting allows it to “close its books on a policy at its expiration and therefore\n\nattain a level of predictability unattainable under standard occurrence policies.” First\n\nAm., 709 F.3d at 1175 (internal quotation marks omitted). In exchange, the insurer may\n\naccept a lower premium from the insured than it would for an occurrence policy with\n\nenduring liability. Id.; Stine v. Cont’l Cas. Co., 349 N.W.2d 127, 131 (Mich. 1984).\n\n\n\n\n 3\n Gateway puts heavy stock in Section 38.2-2226’s use of the phrase “terms or\nconditions” and language in Illinois Union’s policy that makes reporting a claim during\nthe policy period a “condition precedent to coverage.” J.A. 259 (emphasis added). But\nGateway’s focus on this single word ignores the broader statutory language. The statute\napplies only to “conditions” that can plausibly be “breached,” and where the breach of\nsuch conditions could rightly be understood as a “defense” to coverage. That is not true\nabout the reporting condition in a claims-made-and-reported policy. See Sherwood\nBrands, 13 A.3d at 1288 (where notice of claim under claims-made policy occurs only\nafter expiration, “this non-occurrence of the condition precedent to coverage is not a\n‘breach of the policy’”).\n\n\n 12\n\f Applying Section 38.2-2226 as Gateway urges, however, would expand the policy\n\nto confer benefits that MDG didn’t pay for and that Illinois Union never agreed to\n\nprovide. Though Virginia’s legislature clearly designed Section 38.2-2226 to override\n\ncertain defenses, we doubt it intended the statute to effectively rewrite basic coverage\n\nterms of insurance contracts. Cf. Burns v. Int’l Ins. Co., 929 F.2d 1422, 1424–25 (9th\n\nCir. 1993) (declining, for this reason, to apply a similar California rule to a claims-made\n\npolicy); Zuckerman v. Nat’l Union Fire Ins. Co., 495 A.2d 395, 405–06 (N.J. 1985)\n\n(same under New Jersey law).\n\n Gateway’s effort to shoehorn this dispute into Section 38.2-2226 misconstrues the\n\ninsurance contract at issue. Gateway says its demand on MDG in August 2014 triggered\n\ncoverage under the policy and obligated MDG to report that claim to its insurer. MDG’s\n\nfailure to make that report, Gateway says, was a “breach of the reporting condition.”\n\nAppellant’s Br. at 30. But under Illinois Union’s claims-made-and-reported policy, the\n\nact triggering coverage was not Gateway’s 2014 demand, as Gateway claims, but rather\n\nthe communication of that claim to Illinois Union, which didn’t happen until well after\n\nthe policy expired.\n\n This case might come out quite differently had MDG reported Gateway’s demand\n\nin 2014, or had MDG instead bought an occurrence policy. In those scenarios, coverage\n\nunder the policy would likely have been triggered, leaving Illinois Union to defend,\n\nperhaps, because MDG didn’t give prompt enough notice or failed to fully cooperate with\n\nthe insurer. In similar circumstances, courts have required notice under the statute at\n\nissue. See Morrel, 188 F.3d at 226–27 (insurer waived defense based on insured’s failure\n\n 13\n\fto assist); Fed. Ins. Co. v. Nationwide Mut. Ins. Co., 448 F. Supp. 723, 725–26 (waived\n\ndefense based on insured’s failure to notify “as soon as practicable”). But those are not\n\nthe facts of this case. Here, MDG bought a claims-made-and-reported policy and\n\nreported no claim to Illinois Union during the policy period. MDG did not “breach” the\n\npolicy by not reporting Gateway’s 2014 demand any more than one breaches a fire\n\ninsurance policy by incurring damage from a flood.\n\n Applying the text of the statute to the policy terms MDG and Illinois Union agreed\n\nto, we hold that Section 38.2-2226 does not apply to Illinois Union’s denial of coverage.\n\nIllinois Union may therefore deny Gateway coverage despite allegedly failing to give\n\nnotice. And since the policy by its clear terms does not cover Gateway’s post-\n\ntermination claim, summary judgment for Illinois Union was proper. 4\n\n III.\n\n We hold that the district court had subject matter jurisdiction and properly\n\nawarded summary judgment in Illinois Union’s favor. The judgment of the district court\n\nis therefore\n\n AFFIRMED.\n\n\n\n\n 4\n Given our holding, we do not decide whether Illinois Union complied with\nVirginia’s notice statute because Gateway received actual (though indirect) notice of the\ndenial less than 45 days after making its claim.\n\n\n\n 14\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: GATEWAY RESIDENCES AT EXCHANGE, LLC, Plaintiff-Appellant, v. ILLINOIS UNION INSURANCE COMPANY, D/B/A ACE American Insurance Company, D/B/A ACE Environmental, D/B/A ACE USA, D/B/A ACE USA Companies, Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-02-28\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1491\\n\\n\\nGATEWAY RESIDENCES AT EXCHANGE, LLC,\\n\\n Plaintiff − Appellant,\\n\\n v.\\n\\nILLINOIS UNION INSURANCE COMPANY, d/b/a ACE American Insurance\\nCompany, d/b/a ACE Environmental, d/b/a Ace USA, d/b/a ACE USA Companies,\\n\\n Defendant – Appellee.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nAlexandria. Liam O’Grady, District Judge. (1:17-cv-00629-LO-JFA)\\n\\n\\nArgued: December 12, 2018 Decided: February 28, 2019\\n\\n\\nBefore AGEE, DIAZ, and HARRIS, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Agee and\\nJudge Harris joined.\\n\\n\\nARGUED: C. Thomas Brown, SILVER & BROWN, Fairfax, Virginia, for Appellant.\\nDouglas Aaron Winegardner, SANDS ANDERSON, PC, Richmond, Virginia, for\\nAppellee. ON BRIEF: Eric B. Lawson, SILVER & BROWN, Fairfax, Virginia, for\\nAppellant.\\n\\fDIAZ, Circuit Judge:\\n\\n Having been awarded more than $900,000 for a contractor’s faulty workmanship,\\n\\nGateway Residences at Exchange, LLC, sued to collect the judgment from the\\n\\ncontractor’s liability insurer, Illinois Union Insurance Company. The relevant policy,\\n\\nhowever, covered only claims reported to the insurer during the policy period, and that\\n\\npolicy expired 19 months before Illinois Union learned about Gateway’s claim.\\n\\n That should end this case. But Gateway claims it may nonetheless recover on the\\n\\npolicy because, by Virginia statute, Illinois Union waived certain defenses by failing to\\n\\npromptly inform Gateway of its coverage denial. See Va. Code Ann. § 38.2-2226. The\\n\\ndistrict court was unpersuaded and, for reasons that follow, we affirm.\\n\\n\\n\\n I.\\n\\n A.\\n\\n This insurance dispute started with two broken generators in an Alexandria,\\n\\nVirginia, apartment complex. Gateway, the building’s owner, had hired a local\\n\\ncontractor, Mechanical Design Group (MDG), to provide various engineering and design\\n\\nservices. Among MDG’s jobs was to install two “life and safety power generators” in the\\n\\ngarage. J.A. 208. MDG apparently didn’t install the generators very well, though, for\\n\\nwhen they started up in August 2014, they caught fire, wrecking the generators and\\n\\ndelaying the 217-unit building’s opening.\\n\\n\\n\\n\\n 2\\n\\f Blaming MDG for the damage, Gateway demanded that its contractor “cure the\\n\\nnegligent design and installation” of the generators. J.A. 209. But it didn’t sue MDG, at\\n\\nleast initially. And in September 2014, MDG went out of business.\\n\\n Before starting work on the Gateway project, MDG had bought liability insurance\\n\\nfrom Illinois Union. Under the policy, Illinois Union had agreed to indemnify MDG for\\n\\nlegal claims that might arise from the Gateway job. The front page of the policy advised\\n\\nthat it provided liability coverage “ON A CLAIMS-MADE AND REPORTED\\n\\nBASIS,” meaning that it covered “ONLY CLAIMS FIRST MADE AGAINST THE\\n\\nINSURED AND REPORTED TO THE INSURER, IN WRITING, DURING THE\\n\\nPOLICY PERIOD.” J.A. 256 (typeface in original). To further stress the point, the\\n\\npolicy made it a “condition precedent to coverage” that any claim be reported to the\\n\\ninsurer during the policy period. J.A. 259. The policy period began on February 1, 2014,\\n\\nand ended one year later on February 1, 2015. 1\\n\\n MDG apparently never told Illinois Union about Gateway’s potential claim before\\n\\nits insurance policy expired in 2015. Instead, Illinois Union first heard about the\\n\\ngenerator incident on September 6, 2016, after Gateway notified MDG’s insurers that it\\n\\nintended to sue. Ten days later, Gateway sued MDG in Virginia state court alleging\\n\\nnegligence and breach of contract.\\n\\n\\n\\n\\n 1\\n The policy also provided a 60-day “extended reporting period,” subject to\\nvarious conditions. J.A. 269. These provisions have no bearing on this appeal.\\n\\n\\n 3\\n\\f In early October 2016, MDG learned that Illinois Union had denied it coverage for\\n\\nGateway’s claim. The denial letter, sent by Chubb North American Claims “on behalf\\n\\nof” Illinois Union, 2 explained that because the claim was first reported in September\\n\\n2016 there was “no coverage for this matter as no claims were made and reported during\\n\\nthe policy period.” J.A. 294, 296. A couple of weeks later, Gateway’s counsel received a\\n\\ncopy of Illinois Union’s denial letter from MDG’s insurance broker. Chubb, however,\\n\\ndidn’t contact Gateway directly about its coverage denial until January 23, 2017.\\n\\n In the meantime, Gateway’s lawsuit against MDG proceeded in state court. MDG\\n\\nnever appeared, so the court entered a default judgment awarding Gateway $910,148 in\\n\\ndamages and $22,580 in costs and attorneys’ fees.\\n\\n B.\\n\\n Having obtained this judgment, Gateway filed the present lawsuit seeking to\\n\\ncollect from Illinois Union under MDG’s liability policy. Gateway first sued in Virginia\\n\\nstate court, but Illinois Union removed the case to the U.S. District Court for the Eastern\\n\\nDistrict of Virginia, invoking that court’s diversity jurisdiction. (Gateway is a citizen of\\n\\nVirginia and Maryland, whereas Illinois Union is a citizen of Pennsylvania and Illinois.)\\n\\nGateway moved unsuccessfully to remand. See Gateway Residences at Exch., LLC v. Ill.\\n\\nUnion Ins. Co., No. 1:17-cv-629, 2017 WL 7805743, at *2 (E.D. Va. Sept. 11, 2017).\\n\\n Following discovery, the district court granted summary judgment to Illinois\\n\\nUnion because its policy didn’t cover claims first reported after the policy period ended\\n\\n 2\\n Illinois Union’s parent company, ACE USA, merged with Chubb in 2016.\\n\\n\\n 4\\n\\fin February 2015. The court also rejected Gateway’s contention that Illinois Union had\\n\\nwaived this noncoverage argument because it gave Gateway untimely notice of its denial.\\n\\nGateway Residences at Exch., LLC v. Ill. Union Ins. Co., No. 1:17-cv-629,\\n\\n2018 WL 1629107, at *2–4 (E.D. Va. Apr. 3, 2018). This appeal followed.\\n\\n\\n\\n II.\\n\\n Gateway challenges the district court’s refusal to remand the case and its entry of\\n\\njudgment in Illinois Union’s favor. We have reviewed both issues de novo and find no\\n\\nerror.\\n\\n A.\\n\\n Gateway first argues that the district court lacked subject matter jurisdiction and\\n\\nshould have remanded this case to Virginia state court. It contends that the present suit is\\n\\na “direct action” against an insurer and that Illinois Union therefore assumes the\\n\\ncitizenship of its insured under 28 U.S.C. § 1332(c)(1). Were that true, the court would\\n\\nlack diversity jurisdiction because both Gateway and Illinois Union’s insured, MDG, are\\n\\ncitizens of Virginia. We disagree, however, that Gateway’s lawsuit is a “direct action.”\\n\\n Federal courts have original jurisdiction over suits for more than $75,000 between\\n\\n“citizens of different States.” 28 U.S.C. § 1332(a)(1). For diversity jurisdiction\\n\\npurposes, a corporation is a citizen of any state in which it is incorporated, plus the state\\n\\nor foreign country “where it has its principal place of business.” Id. § 1332(c)(1). But\\n\\n§ 1332(c) has an extra citizenship rule for insurance companies. Namely:\\n\\n\\n\\n 5\\n\\f [I]n any direct action against the insurer of a policy or contract of liability\\n insurance . . . to which action the insured is not joined as a party-defendant,\\n such insurer shall be deemed a citizen of . . . every State and foreign state of\\n which the insured is a citizen.\\n\\nId. § 1332(c)(1)(A). In other words, if a plaintiff brings a “direct action” against a\\n\\nwrongdoer’s liability insurer, the insurer assumes the citizenship of the insured. Kong v.\\n\\nAllied Prof’l Ins. Co., 750 F.3d 1295, 1299 (11th Cir. 2014).\\n\\n On its face, this language sweeps broadly, potentially covering any lawsuit in\\n\\nwhich a third party sues a liability insurer over its insured’s conduct. But the unanimous\\n\\nunderstanding of our sister circuits has been that “direct action” as used in § 1332(c) has\\n\\na much narrower meaning. Specifically, it refers to a suit in which the plaintiff sues a\\n\\nwrongdoer’s liability insurer without joining or first obtaining a judgment against the\\n\\ninsured. Kong, 750 F.3d at 1300; accord Hyland v. Liberty Mut. Fire Ins. Co., 885 F.3d\\n\\n482, 484–85 (7th Cir. 2018); Rosa v. Allstate Ins. Co., 981 F.2d 669, 675 (2d Cir. 1992);\\n\\nBeckham v. Safeco Ins. Co. of Am., 691 F.2d 898, 901–02 (9th Cir. 1982); see Velez v.\\n\\nCrown Life Ins. Co., 599 F.2d 471, 473 (1st Cir. 1979); Henderson v. Selective Ins. Co.,\\n\\n369 F.2d 143, 149 (6th Cir. 1966); see also 7A Couch on Insurance § 107:4 (3d ed.\\n\\nupdated 2018) (collecting additional cases).\\n\\n Section 1332(c)’s legislative history strongly supports this reading. In 1964,\\n\\nCongress added language to the diversity jurisdiction statute to address “direct action”\\n\\nlawsuits allowed by the laws of Louisiana and Wisconsin. See S. Rep. No. 88-1308, at\\n\\n1–2 (1964); see also Velez, 599 F.2d at 473. Under these laws, a plaintiff may sue a\\n\\ntortfeasor’s liability insurer without joining the tortfeasor as a defendant and establish\\n\\n\\n 6\\n\\fboth the insured’s liability and the insurer’s obligation in a single suit. See La. Stat. Ann.\\n\\n§ 22:1269(B); Wis. Stat. Ann. § 632.24. Such statutes often created federal diversity\\n\\njurisdiction when the insurer’s citizenship was different from the plaintiff’s. And as a\\n\\nresult, what were essentially tort disputes between local residents would end up in federal\\n\\ncourt. See H.R. Rep. No. 88-1229, at 1–2 (1964); cf. Lumbermen’s Mut. Cas. Co. v.\\n\\nElbert, 348 U.S. 48, 56–57 (1954) (Frankfurter, J., concurring) (bemoaning “direct\\n\\naction” forum-shopping). In response, Congress amended § 1332(c) to provide that the\\n\\ndefendant insurer adopts the insured’s citizenship in such cases, thereby destroying\\n\\ndiversity and ensuring that the merits of the tort claim would be resolved in state court.\\n\\n Given this provision’s background, we agree with the Eleventh Circuit that the\\n\\n“key feature” of a direct action is “the plaintiff’s ability to skip suing the [tortfeasor] and\\n\\nsue directly his insurance carrier.” Kong, 750 F.3d at 1300–01 (internal quotation marks\\n\\nomitted). When a plaintiff must either join the local tortfeasor or first obtain a separate\\n\\njudgment against it, the lack of diverse citizenship forces the state tort claim into state\\n\\ncourt. It’s only when the plaintiff skips this step and sues the insurer directly that the\\n\\nconcerns behind Congress’s “direct action” amendments are implicated. See Kong, 750\\n\\nF.3d at 1300–01 (no direct action when plaintiff sued insurer after obtaining judgment\\n\\nfrom insured); Hyland, 885 F.3d at 485 (same).\\n\\n Under this definition, Gateway’s lawsuit is not a direct action. Virginia doesn’t\\n\\nhave a direct action statute but instead requires a third-party claimant to first obtain a\\n\\njudgment against the insured. The claimant may then sue the insurer on the policy to\\n\\ncollect the judgment. Va. Code Ann. § 38.2-2200; Richmond, Fredericksburg, &\\n\\n 7\\n\\fPotomac R.R. Co. v. Hughes-Keegan, Inc., 152 S.E.2d 28, 33–34 (Va. 1967). And that is\\n\\njust what happened here. Gateway obtained a default judgment against MDG in state\\n\\ncourt then sued to collect that judgment under Illinois Union’s liability policy. Gateway\\n\\ndid not (and could not) skip the tortfeasor, the insured. Its present lawsuit is therefore not\\n\\na direct action within the meaning of § 1332(c)(1).\\n\\n Gateway’s arguments do not persuade otherwise. First, it notes that we have\\n\\npreviously used the words “direct action” to describe, under Virginia law, a lawsuit\\n\\nagainst an insurer to enforce a judgment against its insured. See Morrel v. Nationwide\\n\\nMut. Fire Ins. Co., 188 F.3d 218, 221–22 (4th Cir. 1999). But in Morrel, we used “direct\\n\\naction” in the generic sense of a lawsuit filed against an insurer. We did not consider\\n\\nwhether such a suit fits the technical meaning of § 1332(c). Second, Gateway points us\\n\\nto a sprinkling of district court cases holding that suits like this one are direct actions\\n\\nbecause they essentially do “in two steps” what Louisiana’s and Wisconsin’s statutes “did\\n\\nin one.” See, e.g., Sherman v. Pa. Lumbermen’s Mut. Ins. Co., 21 F. Supp. 2d 543, 544–\\n\\n45 (D. Md. 1998) (quoting Prendergast v. All. Gen. Ins. Co., 921 F. Supp. 653, 655 (E.D.\\n\\nMo. 1996)). But these cases, as the weight of contrary circuit precedent shows, are\\n\\nplainly wrong. It is precisely the first step of suing the insured tortfeasor (or, for that\\n\\nmatter, the simultaneous step of joining it as a party) that funnels the tort suit into state\\n\\ncourt and thus eases Congress’s jurisdictional and forum-shopping concerns.\\n\\n This lawsuit, in sum, is not a direct action for purposes of § 1332(c)(1), and\\n\\nIllinois Union therefore does not adopt MDG’s Virginia citizenship. Because this lawsuit\\n\\n\\n\\n 8\\n\\finstead pits a Virginia plaintiff against an Illinois defendant, the district court had\\n\\ndiversity jurisdiction and rightly refused to remand to state court.\\n\\n B.\\n\\n On the merits, the district court awarded summary judgment to Illinois Union\\n\\nbecause its policy covered only claims made and reported during the policy period and\\n\\nGateway’s claim wasn’t reported until well after the policy had expired. Gateway’s main\\n\\ncontention on appeal is that, under a Virginia statute, Illinois Union waived that argument\\n\\nby failing to inform Gateway of its coverage denial within 45 days of receiving the claim.\\n\\nIllinois Union, in response, says the relevant statute doesn’t apply in this case.\\n\\n Gateway’s waiver argument invokes Virginia Code Section 38.2-2226. Under this\\n\\nstatute, an insurer that wants to defend against a third-party claimant based on its\\n\\ninsured’s breach of the underlying policy must notify the claimant of that intention.\\n\\nSpecifically, it provides that:\\n\\n Whenever any insurer on a policy of liability insurance discovers a breach\\n of the terms or conditions of the insurance contract by the insured, the\\n insurer shall notify the claimant or the claimant’s counsel of the breach.\\n Notification shall be given within forty-five days after discovery by the\\n insurer of the breach or of the claim, whichever is later.\\n\\nVa. Code. Ann. § 38.2-2226. Failure to give the required 45 days’ notice “will result in a\\n\\nwaiver of the defense based on such breach to the extent of the claim by operation of\\n\\nlaw.” Id.\\n\\n The statute’s text makes two things clear: it covers denials based on the insured’s\\n\\n“breach” of the terms and conditions of the policy and applies to arguments properly\\n\\ncharacterized as waivable “defenses.” Courts have therefore rightly held that that the\\n\\n 9\\n\\fstatue (or its precursor) doesn’t apply when an insurer denies coverage because the claim\\n\\nfalls outside the scope of policy coverage. See Cheatham v. NGM Ins. Co., No.\\n\\n3:12cv263-HEH, 2013 WL 509049, at *5 (E.D. Va. Feb. 11, 2013); Berry v. State Farm\\n\\nMut. Auto Ins. Co., 340 F. Supp. 228, 231 (E.D. Va. 1972); Jackson v. Middleton, 90 Va.\\n\\nCir. 279, 2015 WL 10765161, at *3–4 (Va. Cir. Ct. 2015). The argument that a claim is\\n\\noutside the scope of coverage is not about an insured’s “breach” of contract. A “breach”\\n\\nassumes a legal duty on the insured’s part, but the insured obviously has no legal duty to\\n\\nincur covered claims. Likewise, a denial based on scope of coverage is not a “defense,”\\n\\nas a “defense” presupposes the insurer’s existing obligation to provide coverage.\\n\\n With this understanding, we conclude that the statute doesn’t apply in this case.\\n\\nIllinois Union hasn’t denied coverage because of MDG’s breach. Rather, it asserts—\\n\\ncorrectly—that the present claim is simply not covered by the policy.\\n\\n As the policy’s bold, all-caps preface makes clear, Illinois Union sold MDG a\\n\\n“claims-made-and-reported” policy. This is a type of “claims-made” policy, which\\n\\ndiffers from an ordinary “occurrence” policy in the type of risk it insures. An occurrence\\n\\npolicy insures against a specific occurrence (say, a car accident or building fire), and\\n\\nusually doesn’t depend on when the claim itself is filed. In contrast, under a claims-made\\n\\npolicy, the making of the claim itself is the peril being insured. First Am. Title Ins. Co. v.\\n\\nCont’l Cas. Co., 709 F.3d 1170, 1174 n.2 (5th Cir. 2013). Coverage usually attaches to a\\n\\nclaim made during the policy period regardless of when the events underlying the claim\\n\\ntook place. Id. See generally 7 Couch, supra, § 102:22 (describing different liability\\n\\npolicies).\\n\\n 10\\n\\f Claims-made-and-reported policies, like the one Illinois Union sold MDG, are a\\n\\ndistinct brand of claims-made policies. A claims-made-and-reported policy usually\\n\\n“requires the claim both be made against the insured and reported to the insurer during\\n\\nthe policy period.” Sherwood Brands, Inc. v. Great Am. Ins. Co., 13 A.3d 1268, 1282\\n\\n(Md. 2011). If no claim is reported, no coverage is triggered, even if the events\\n\\nunderlying the claim took place during the policy period. And after the policy expires,\\n\\n“the insurer’s potential liability ends.” T.H.E. Ins. Co. v. P.T.P. Inc., 628 A.2d 223, 227\\n\\n(Md. 1993) (quoting St. Paul Fire & Marine Ins. Co. v. House, 554 A.2d 404, 418 (Md.\\n\\n1989) (Murphy, C.J., dissenting)).\\n\\n We do not think Virginia Code Section 38.2-2226 applies when, as here, an\\n\\ninsurer denies coverage under a claims-made-and-reported policy because no claim was\\n\\nreported during the policy period. Illinois Union’s potential liability under this policy\\n\\nended when it expired in February 2015, so the policy simply can’t cover a claim first\\n\\nreported to the insurer a full 19 months later in September 2016. Illinois Union is\\n\\ntherefore not raising a “defense based on [an insured’s] breach.” Va. Code. Ann. § 38.2-\\n\\n2226. There was no “breach” because, after February 2015, there was no policy to be\\n\\nbreached; there is no “defense” because, after February 2015, Illinois Union had no\\n\\ncoverage obligation to defend against. See T.H.E., 628 A.2d at 227, 230 (holding, under\\n\\nsimilar Maryland statute, that denial of claim made after expiry of claims-made-and-\\n\\nreported policy “resulted from the terms of coverage” and “is not attributed to a ‘breach’”\\n\\nby the insured); Minn. Lawyers Mut. Ins. Co. v. Baylor & Jackson, PLLC, 531 F. App’x\\n\\n312, 325 (4th Cir. 2013) (Thacker, J., dissenting) (“If [the act triggering coverage]\\n\\n 11\\n\\foccurred after the expiration of the liability policy . . . there is simply no policy which the\\n\\ninsured can breach when it fails to notify the insurer of the claim.”). Because Illinois\\n\\nUnion’s argument is based on noncoverage, and not on MDG’s breach, Section 38.2-\\n\\n2226 does not apply. 3\\n\\n Besides being textually awkward, Gateway’s reading of Section 38.2-2226 would\\n\\nhave the policy embrace claims it was never intended to cover. In a claims-made-and-\\n\\nreported policy, the condition that claims be reported during the policy period is an\\n\\nessential part of the bargain between insurer and insured. See Chas T. Main, Inc. v.\\n\\nFireman’s Fund Ins. Co., 551 N.E.2d 28, 29–30 (Mass. 1990). For the insurer, claim-\\n\\ntriggering reporting allows it to “close its books on a policy at its expiration and therefore\\n\\nattain a level of predictability unattainable under standard occurrence policies.” First\\n\\nAm., 709 F.3d at 1175 (internal quotation marks omitted). In exchange, the insurer may\\n\\naccept a lower premium from the insured than it would for an occurrence policy with\\n\\nenduring liability. Id.; Stine v. Cont’l Cas. Co., 349 N.W.2d 127, 131 (Mich. 1984).\\n\\n\\n\\n\\n 3\\n Gateway puts heavy stock in Section 38.2-2226’s use of the phrase “terms or\\nconditions” and language in Illinois Union’s policy that makes reporting a claim during\\nthe policy period a “condition precedent to coverage.” J.A. 259 (emphasis added). But\\nGateway’s focus on this single word ignores the broader statutory language. The statute\\napplies only to “conditions” that can plausibly be “breached,” and where the breach of\\nsuch conditions could rightly be understood as a “defense” to coverage. That is not true\\nabout the reporting condition in a claims-made-and-reported policy. See Sherwood\\nBrands, 13 A.3d at 1288 (where notice of claim under claims-made policy occurs only\\nafter expiration, “this non-occurrence of the condition precedent to coverage is not a\\n‘breach of the policy’”).\\n\\n\\n 12\\n\\f Applying Section 38.2-2226 as Gateway urges, however, would expand the policy\\n\\nto confer benefits that MDG didn’t pay for and that Illinois Union never agreed to\\n\\nprovide. Though Virginia’s legislature clearly designed Section 38.2-2226 to override\\n\\ncertain defenses, we doubt it intended the statute to effectively rewrite basic coverage\\n\\nterms of insurance contracts. Cf. Burns v. Int’l Ins. Co., 929 F.2d 1422, 1424–25 (9th\\n\\nCir. 1993) (declining, for this reason, to apply a similar California rule to a claims-made\\n\\npolicy); Zuckerman v. Nat’l Union Fire Ins. Co., 495 A.2d 395, 405–06 (N.J. 1985)\\n\\n(same under New Jersey law).\\n\\n Gateway’s effort to shoehorn this dispute into Section 38.2-2226 misconstrues the\\n\\ninsurance contract at issue. Gateway says its demand on MDG in August 2014 triggered\\n\\ncoverage under the policy and obligated MDG to report that claim to its insurer. MDG’s\\n\\nfailure to make that report, Gateway says, was a “breach of the reporting condition.”\\n\\nAppellant’s Br. at 30. But under Illinois Union’s claims-made-and-reported policy, the\\n\\nact triggering coverage was not Gateway’s 2014 demand, as Gateway claims, but rather\\n\\nthe communication of that claim to Illinois Union, which didn’t happen until well after\\n\\nthe policy expired.\\n\\n This case might come out quite differently had MDG reported Gateway’s demand\\n\\nin 2014, or had MDG instead bought an occurrence policy. In those scenarios, coverage\\n\\nunder the policy would likely have been triggered, leaving Illinois Union to defend,\\n\\nperhaps, because MDG didn’t give prompt enough notice or failed to fully cooperate with\\n\\nthe insurer. In similar circumstances, courts have required notice under the statute at\\n\\nissue. See Morrel, 188 F.3d at 226–27 (insurer waived defense based on insured’s failure\\n\\n 13\\n\\fto assist); Fed. Ins. Co. v. Nationwide Mut. Ins. Co., 448 F. Supp. 723, 725–26 (waived\\n\\ndefense based on insured’s failure to notify “as soon as practicable”). But those are not\\n\\nthe facts of this case. Here, MDG bought a claims-made-and-reported policy and\\n\\nreported no claim to Illinois Union during the policy period. MDG did not “breach” the\\n\\npolicy by not reporting Gateway’s 2014 demand any more than one breaches a fire\\n\\ninsurance policy by incurring damage from a flood.\\n\\n Applying the text of the statute to the policy terms MDG and Illinois Union agreed\\n\\nto, we hold that Section 38.2-2226 does not apply to Illinois Union’s denial of coverage.\\n\\nIllinois Union may therefore deny Gateway coverage despite allegedly failing to give\\n\\nnotice. And since the policy by its clear terms does not cover Gateway’s post-\\n\\ntermination claim, summary judgment for Illinois Union was proper. 4\\n\\n III.\\n\\n We hold that the district court had subject matter jurisdiction and properly\\n\\nawarded summary judgment in Illinois Union’s favor. The judgment of the district court\\n\\nis therefore\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 4\\n Given our holding, we do not decide whether Illinois Union complied with\\nVirginia’s notice statute because Gateway received actual (though indirect) notice of the\\ndenial less than 45 days after making its claim.\\n\\n\\n\\n 14\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":576,"cells":{"id":{"kind":"number","value":4586728,"string":"4,586,728"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. David Hughes"},"decision_date":{"kind":"string","value":"2019-02-01"},"docket_number":{"kind":"string","value":"18-20015"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before REAVLEY, ELROD, and WILLETT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"REAVLEY, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"REVISED February 1, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 18-20015\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\nUNITED STATES OF AMERICA, January 30, 2019\\n Lyle W. Cayce\\n Plaintiff – Appellee, Clerk\\n\\nv.\\n\\nDAVID THOMAS HUGHES,\\n\\n Defendant – Appellant.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore REAVLEY, ELROD, and WILLETT, Circuit Judges.\\nREAVLEY, Circuit Judge:\\n David Thomas Hughes pleaded guilty to bank burglary. He was\\nsentenced to 240 months in prison and ordered to pay $189,933.31 in\\nrestitution, with interest charged. The judgment provided that $100 was “due\\nimmediately” and provided the following payment schedule for the remaining\\namount:\\n Balance due in payments of the greater of $25 per quarter or 50%\\n of any wages earned while in prison in accordance with the Bureau\\n of Prisons’ Inmate Financial Responsibility Program. Any balance\\n remaining after release from imprisonment shall be paid in equal\\n\\f No. 18-20015\\n monthly installments of $500 to commence 60 days after the\\n release to a term of supervision.\\n\\n Several years later the government discovered that Hughes had\\naccumulated $3,464.85—largely prison wages—in his inmate trust account.\\nPursuant to 18 U.S.C. §§ 3613(a), 3664(n), and 3664(k), the government moved\\nfor the immediate turnover of those funds. Hughes opposed the request and\\nfiled a cross-motion to release funds, arguing, inter alia, that the district court\\n(1) only required him to make payments in installments and (2) “specifically\\ndeclined to order immediate payment of the entire amount.” Agreeing with the\\ngovernment, however, the district court ordered the immediate turnover of\\n“funds up to the amount of $ 201,493.63,” with a $200 carve out for Hughes’s\\ntelephone and commissary needs. Hughes timely appealed.\\n On appeal, Hughes argues that the district court erred in granting the\\ngovernment’s motion because his criminal judgment required the restitution\\nbalance owed beyond $100 to be paid in quarterly installments and did not\\norder that the balance be paid immediately. Because the government does not\\nallege that he defaulted on his restitution payments, Hughes argues, the\\ngovernment lacked the authority to seek immediate payment of the full\\nrestitution amount.\\n The parties do not cite, and research has not revealed, any binding\\nprecedent from this court analyzing a case to Hughes’s, in which the criminal\\njudgment included a repayment schedule that began during the term of\\nimprisonment but did not state that the full restitution amount was due\\nimmediately. Hughes, however, directs us to United States v. Martinez, in\\nwhich the Tenth Circuit confronted a structurally similar payment schedule.\\n812 F.3d 1200 (10th Cir. 2015). The judgment in Martinez required the\\ndefendant to pay “$300 immediately,” with the “balance due” in accordance\\nwith an installment schedule. Id. at 1203–04. Although the defendant had\\n 2\\n\\f No. 18-20015\\ncomplied with his payment plan, the government nevertheless sought\\ngarnishment of his retirement accounts. Id. at 1202.\\n The Tenth Circuit concluded that the government lacked the authority\\nto garnish the defendant’s retirement accounts because doing so would exceed\\nthe terms of the restitution order; it reasoned that:\\n By statute, it is the district court—not the government—that\\n determines how a defendant is to pay restitution. See [18 U.S.C.] §\\n 3664(f)(2) (“[T]he court shall . . . specify in the restitution order the\\n manner in which, and the schedule according to which, the\\n restitution is to be paid . . . .”) (emphasis added)). Thus, the\\n government can enforce only what the district court has ordered\\n the defendant to pay. See Enforce, Black’s Law Dictionary 645\\n (10th ed. 2014) (defining “enforce” primarily as “[t]o give force or\\n effect to [a law]; to compel obedience to [a law]”).\\nId. The court rejected the government’s argument that it could enforce the full\\namount notwithstanding the installment schedule, construing § 3572(d), which\\nprovides that “[a] person sentenced to pay . . . restitution . . . shall make such\\npayment immediately, unless, in the interest of justice, the court provides for\\npayment . . . in installments,” to imply that the full restitution amount is not\\ndue immediately when a court orders repayment pursuant to an installment-\\nbased plan. Id. at 1205.\\n We are persuaded by the Tenth Circuit’s analysis. When a restitution\\norder specifies an installment plan, unless there is language directing that the\\nfunds are also immediately due, the government cannot attempt to enforce the\\njudgment beyond its plain terms absent a modification of the restitution order\\nor default on the payment plan. See § 3572(d)(1); Martinez, 812 F.3d at 1205.\\nTurning to Hughes’s order, we find no language directing that the full\\nrestitution amount was immediately due or owing, and the government does\\n\\n\\n\\n\\n 3\\n\\f No. 18-20015\\nnot allege he was in default. 1 Like Martinez, Hughes’s criminal judgment\\nspecifies that a small amount ($100) was due immediately, and for the\\nremaining balance to be paid in installments. The government cannot enforce\\nrestitution payments beyond those terms unless Hughes defaults on his\\npayments or the district court modifies the payment schedule.\\n The government points to United States v. Ekong, 518 F.3d 285 (5th Cir.\\n2007) (per curiam) and United States v. Diehl, 848 F.3d 629 (5th Cir. 2017) in\\nsupport of its argument that Hughes’s payment schedule is of no consequence.\\nBoth are distinguishable because the judgments in those cases contained\\ndifferent language. The payment schedule in Ekong, for example, was\\nconditioned on whether a balance remained when the defendant began her\\nterm of supervised release. 2 In rejecting the defendant’s argument that the\\ngovernment was barred from seeking immediate payment “because the\\ncriminal judgment specified that restitution be paid in installments,” we noted\\nthat “[t]here [was] nothing in the criminal judgment to the contrary.” Ekong,\\n518 F.3d at 286. From this, we infer that the full restitution amount was\\ncollectible immediately simply because the payment schedule was never\\ntriggered. See id.; see Martinez, 812 F.3d at 1207. Ekong is thus\\ndistinguishable.\\n\\n\\n\\n\\n 1 Although the government argues that it can seek payment beyond the installment\\nschedule because the judgment says that “[u]nless the court has expressly ordered\\notherwise . . . payment of criminal monetary penalties is due during imprisonment,” this is a\\ndefault provision and, as explained, the court expressly ordered otherwise. See United States\\nv. Roush, 452 F. Supp. 2d 676, 681 (N.D. Tex. 2006) (“The negative pregnant of that default\\nprovision is that if the court has expressly ordered otherwise—as this Court did by checking\\nbox D—then payment is not due during imprisonment.”).\\n 2 See Martinez, 812 F.3d at 1207 (“If upon commencement of the term of supervised\\n\\nrelease any part of the restitution remains unpaid, the defendant shall make payments on\\nsuch unpaid balance beginning 60 days after the release from custody at the rate of $500 per\\nmonth until the restitution is paid in full.”) (quoting Judgment in a Criminal Case at\\n6, United States v. Ekong, No. 3:04–CR–030–M (N.D. Tex. Sept. 10, 2004), ECF No. 74).\\n 4\\n\\f No. 18-20015\\n And the judgment in Diehl did not specify a payment schedule; rather, it\\nprovided that “[i]f the defendant is unable to pay this indebtedness at this\\ntime, the defendant shall cooperate fully with the [government] to make\\npayment in full as so[o]n as possible, including during any period of\\nincarceration.” 848 F.3d at 630. The relevant issue there was whether the\\ndefendant’s participation in the BOP’s inmate financial responsibility program\\nand adherence to its payment schedule barred the government from enforcing\\nthe full restitution amount. Id. at 633. Although we agreed with the decisions\\nof other courts “determining that an inmate’s compliance with an IFRP\\npayment schedule does not change the fact that the Government may collect\\non a criminal monetary penalty immediately,” we noted this would only be the\\ncase “where the judgment does not specify a payment schedule.” Id. Indeed, we\\nheld the government could demand immediate payment in Diehl because the\\njudgment “did not . . . specify installment payments for satisfaction of either\\nthe fine or the special assessment as required by 18 U.S.C. § 3572(d) to disrupt\\nthe default rule of immediate payment.” Id. at 635. Importantly, we noted that\\nthe government’s “enforcement of the order against Diehl’s property, including\\nsurplus funds held in his inmate trust account, did not exceed the terms of the\\noriginal judgment.” Id. (emphasis added). As discussed, that is not the case\\nhere, as the government’s attempt to enforce the full restitution amount\\nconflicts with the installment-based directive in Hughes’s original judgment.\\n The government argues in the alternative that it is entitled to the funds\\nin Hughes’s trust account by virtue of § 3664(n), which provides:\\n If a person obligated to provide restitution, or pay a fine, receives\\n substantial resources from any source, including inheritance,\\n settlement, or other judgment, during a period of incarceration,\\n such person shall be required to apply the value of such resources\\n to any restitution or fine still owed.\\n\\n\\n\\n 5\\n\\f No. 18-20015\\n We do not think the gradual accumulation of prison wages constitutes\\n“substantial resources” such that it fits within § 3664(n)’s ambit; rather we\\nthink this provision refers to windfalls or sudden financial injections. 3 Indeed,\\nin United States v. Scales, we suggested that this provision contemplates\\n“unanticipated resources” that become “suddenly available.” 639 F. App’x 233,\\n239 (5th Cir. 2016) (per curiam); see also United States v. Bratton-Bey, 564 F.\\nApp’x 28, 29 (4th Cir. 2014) (“Additionally, a defendant’s receipt of a windfall\\nduring imprisonment triggers an automatic payment requirement.”); United\\nStates v. Key, No. 3:12-CV-3026-L, 2013 WL 2322470, at *2 (N.D. Tex. May 28,\\n2013) (“There is no indication that Key has received a ‘windfall’ or ‘substantial\\nresources’ of the type in section 3664(n).”). 4 Put simply, we think the examples\\nlisted in § 3664(n)—“inheritance, settlement, or other judgment”—fit the mold\\nof “substantial resources,” but that prison wages do not. As a result, the\\ngovernment is not entitled to the immediate turnover of Hughes’s inmate trust\\naccount under § 3664(n).\\n The government’s final argument arises under § 3664(k), which grants a\\ndistrict court the authority to modify a payment schedule upon receiving\\nnotification of a “material change in the defendant’s economic circumstances.”\\n§ 3664(k); see United States v. Franklin, 595 F. App’x 267, 272 (5th Cir. 2014)\\n\\n\\n\\n 3 Although the government urges us to follow United States v. Poff, in which the Ninth\\nCircuit concluded that veteran disability benefits deposited into an inmate’s trust account\\nconstituted “substantial resources,” we note the Supreme Court recently vacated and\\nremanded the judgment in that case. 727 F. App’x 249, 251 (9th Cir. 2018), cert. granted,\\njudgment vacated, 18-195, 2019 WL 113040 (U.S. Jan. 7, 2019).\\n 4 See also United States v. French, No. 3:09-CV-1657-BF, 2010 WL 11618076, at *1\\n\\n(N.D. Tex. Aug. 19, 2010) (“Similarly, a windfall during incarceration triggers an automatic\\nobligation to pay restitution.”); Roush, 452 F. Supp. 2d at 679 (N.D. Tex. 2006) (“Moreover, a\\ndefendant’s receipt of a windfall during imprisonment triggers an automatic payment\\nrequirement.”). We also note the Supreme Court recently favored a narrower reading of the\\nMVRA. See Lagos v. United States, 138 S. Ct. 1684, 1689 (2018) (“To interpret the statute\\nbroadly is to invite controversy on those and other matters; our narrower construction avoids\\nit.”).\\n 6\\n\\f No. 18-20015\\n(per curiam) (“A district court may adjust a restitution-payment schedule when\\nthere has been a ‘material change in the defendant’s economic circumstances\\nthat might affect the defendant’s ability to pay restitution.’”). Although it is\\ndubious whether the gradual accumulation of prison wages constitutes a\\n“material change in the defendant’s economic circumstances,” we note that the\\ndistrict court’s turnover order was not based on § 3664(k), and we find no\\nlanguage demonstrating that it intended to adjust or modify the payment\\nschedule contained in Hughes’s original judgment.\\n The district court’s order dated November 27, 2017, is VACATED.\\n\\n\\n\\n\\n 7\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4363981/\", \"author_raw\": \"REAVLEY, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"REAVLEY"},"judge2":{"kind":"string","value":"ELROD"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"REAVLEY\": \", Circuit\", \"ELROD\": \", Circuit\", \"WILLETT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4586728/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. David Hughes\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nREVISED February 1, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 18-20015\n United States Court of Appeals\n Fifth Circuit\n\n FILED\nUNITED STATES OF AMERICA, January 30, 2019\n Lyle W. Cayce\n Plaintiff – Appellee, Clerk\n\nv.\n\nDAVID THOMAS HUGHES,\n\n Defendant – Appellant.\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore REAVLEY, ELROD, and WILLETT, Circuit Judges.\nREAVLEY, Circuit Judge:\n David Thomas Hughes pleaded guilty to bank burglary. He was\nsentenced to 240 months in prison and ordered to pay $189,933.31 in\nrestitution, with interest charged. The judgment provided that $100 was “due\nimmediately” and provided the following payment schedule for the remaining\namount:\n Balance due in payments of the greater of $25 per quarter or 50%\n of any wages earned while in prison in accordance with the Bureau\n of Prisons’ Inmate Financial Responsibility Program. Any balance\n remaining after release from imprisonment shall be paid in equal\n\f No. 18-20015\n monthly installments of $500 to commence 60 days after the\n release to a term of supervision.\n\n Several years later the government discovered that Hughes had\naccumulated $3,464.85—largely prison wages—in his inmate trust account.\nPursuant to 18 U.S.C. §§ 3613(a), 3664(n), and 3664(k), the government moved\nfor the immediate turnover of those funds. Hughes opposed the request and\nfiled a cross-motion to release funds, arguing, inter alia, that the district court\n(1) only required him to make payments in installments and (2) “specifically\ndeclined to order immediate payment of the entire amount.” Agreeing with the\ngovernment, however, the district court ordered the immediate turnover of\n“funds up to the amount of $ 201,493.63,” with a $200 carve out for Hughes’s\ntelephone and commissary needs. Hughes timely appealed.\n On appeal, Hughes argues that the district court erred in granting the\ngovernment’s motion because his criminal judgment required the restitution\nbalance owed beyond $100 to be paid in quarterly installments and did not\norder that the balance be paid immediately. Because the government does not\nallege that he defaulted on his restitution payments, Hughes argues, the\ngovernment lacked the authority to seek immediate payment of the full\nrestitution amount.\n The parties do not cite, and research has not revealed, any binding\nprecedent from this court analyzing a case to Hughes’s, in which the criminal\njudgment included a repayment schedule that began during the term of\nimprisonment but did not state that the full restitution amount was due\nimmediately. Hughes, however, directs us to United States v. Martinez, in\nwhich the Tenth Circuit confronted a structurally similar payment schedule.\n812 F.3d 1200 (10th Cir. 2015). The judgment in Martinez required the\ndefendant to pay “$300 immediately,” with the “balance due” in accordance\nwith an installment schedule. Id. at 1203–04. Although the defendant had\n 2\n\f No. 18-20015\ncomplied with his payment plan, the government nevertheless sought\ngarnishment of his retirement accounts. Id. at 1202.\n The Tenth Circuit concluded that the government lacked the authority\nto garnish the defendant’s retirement accounts because doing so would exceed\nthe terms of the restitution order; it reasoned that:\n By statute, it is the district court—not the government—that\n determines how a defendant is to pay restitution. See [18 U.S.C.] §\n 3664(f)(2) (“[T]he court shall . . . specify in the restitution order the\n manner in which, and the schedule according to which, the\n restitution is to be paid . . . .”) (emphasis added)). Thus, the\n government can enforce only what the district court has ordered\n the defendant to pay. See Enforce, Black’s Law Dictionary 645\n (10th ed. 2014) (defining “enforce” primarily as “[t]o give force or\n effect to [a law]; to compel obedience to [a law]”).\nId. The court rejected the government’s argument that it could enforce the full\namount notwithstanding the installment schedule, construing § 3572(d), which\nprovides that “[a] person sentenced to pay . . . restitution . . . shall make such\npayment immediately, unless, in the interest of justice, the court provides for\npayment . . . in installments,” to imply that the full restitution amount is not\ndue immediately when a court orders repayment pursuant to an installment-\nbased plan. Id. at 1205.\n We are persuaded by the Tenth Circuit’s analysis. When a restitution\norder specifies an installment plan, unless there is language directing that the\nfunds are also immediately due, the government cannot attempt to enforce the\njudgment beyond its plain terms absent a modification of the restitution order\nor default on the payment plan. See § 3572(d)(1); Martinez, 812 F.3d at 1205.\nTurning to Hughes’s order, we find no language directing that the full\nrestitution amount was immediately due or owing, and the government does\n\n\n\n\n 3\n\f No. 18-20015\nnot allege he was in default. 1 Like Martinez, Hughes’s criminal judgment\nspecifies that a small amount ($100) was due immediately, and for the\nremaining balance to be paid in installments. The government cannot enforce\nrestitution payments beyond those terms unless Hughes defaults on his\npayments or the district court modifies the payment schedule.\n The government points to United States v. Ekong, 518 F.3d 285 (5th Cir.\n2007) (per curiam) and United States v. Diehl, 848 F.3d 629 (5th Cir. 2017) in\nsupport of its argument that Hughes’s payment schedule is of no consequence.\nBoth are distinguishable because the judgments in those cases contained\ndifferent language. The payment schedule in Ekong, for example, was\nconditioned on whether a balance remained when the defendant began her\nterm of supervised release. 2 In rejecting the defendant’s argument that the\ngovernment was barred from seeking immediate payment “because the\ncriminal judgment specified that restitution be paid in installments,” we noted\nthat “[t]here [was] nothing in the criminal judgment to the contrary.” Ekong,\n518 F.3d at 286. From this, we infer that the full restitution amount was\ncollectible immediately simply because the payment schedule was never\ntriggered. See id.; see Martinez, 812 F.3d at 1207. Ekong is thus\ndistinguishable.\n\n\n\n\n 1 Although the government argues that it can seek payment beyond the installment\nschedule because the judgment says that “[u]nless the court has expressly ordered\notherwise . . . payment of criminal monetary penalties is due during imprisonment,” this is a\ndefault provision and, as explained, the court expressly ordered otherwise. See United States\nv. Roush, 452 F. Supp. 2d 676, 681 (N.D. Tex. 2006) (“The negative pregnant of that default\nprovision is that if the court has expressly ordered otherwise—as this Court did by checking\nbox D—then payment is not due during imprisonment.”).\n 2 See Martinez, 812 F.3d at 1207 (“If upon commencement of the term of supervised\n\nrelease any part of the restitution remains unpaid, the defendant shall make payments on\nsuch unpaid balance beginning 60 days after the release from custody at the rate of $500 per\nmonth until the restitution is paid in full.”) (quoting Judgment in a Criminal Case at\n6, United States v. Ekong, No. 3:04–CR–030–M (N.D. Tex. Sept. 10, 2004), ECF No. 74).\n 4\n\f No. 18-20015\n And the judgment in Diehl did not specify a payment schedule; rather, it\nprovided that “[i]f the defendant is unable to pay this indebtedness at this\ntime, the defendant shall cooperate fully with the [government] to make\npayment in full as so[o]n as possible, including during any period of\nincarceration.” 848 F.3d at 630. The relevant issue there was whether the\ndefendant’s participation in the BOP’s inmate financial responsibility program\nand adherence to its payment schedule barred the government from enforcing\nthe full restitution amount. Id. at 633. Although we agreed with the decisions\nof other courts “determining that an inmate’s compliance with an IFRP\npayment schedule does not change the fact that the Government may collect\non a criminal monetary penalty immediately,” we noted this would only be the\ncase “where the judgment does not specify a payment schedule.” Id. Indeed, we\nheld the government could demand immediate payment in Diehl because the\njudgment “did not . . . specify installment payments for satisfaction of either\nthe fine or the special assessment as required by 18 U.S.C. § 3572(d) to disrupt\nthe default rule of immediate payment.” Id. at 635. Importantly, we noted that\nthe government’s “enforcement of the order against Diehl’s property, including\nsurplus funds held in his inmate trust account, did not exceed the terms of the\noriginal judgment.” Id. (emphasis added). As discussed, that is not the case\nhere, as the government’s attempt to enforce the full restitution amount\nconflicts with the installment-based directive in Hughes’s original judgment.\n The government argues in the alternative that it is entitled to the funds\nin Hughes’s trust account by virtue of § 3664(n), which provides:\n If a person obligated to provide restitution, or pay a fine, receives\n substantial resources from any source, including inheritance,\n settlement, or other judgment, during a period of incarceration,\n such person shall be required to apply the value of such resources\n to any restitution or fine still owed.\n\n\n\n 5\n\f No. 18-20015\n We do not think the gradual accumulation of prison wages constitutes\n“substantial resources” such that it fits within § 3664(n)’s ambit; rather we\nthink this provision refers to windfalls or sudden financial injections. 3 Indeed,\nin United States v. Scales, we suggested that this provision contemplates\n“unanticipated resources” that become “suddenly available.” 639 F. App’x 233,\n239 (5th Cir. 2016) (per curiam); see also United States v. Bratton-Bey, 564 F.\nApp’x 28, 29 (4th Cir. 2014) (“Additionally, a defendant’s receipt of a windfall\nduring imprisonment triggers an automatic payment requirement.”); United\nStates v. Key, No. 3:12-CV-3026-L, 2013 WL 2322470, at *2 (N.D. Tex. May 28,\n2013) (“There is no indication that Key has received a ‘windfall’ or ‘substantial\nresources’ of the type in section 3664(n).”). 4 Put simply, we think the examples\nlisted in § 3664(n)—“inheritance, settlement, or other judgment”—fit the mold\nof “substantial resources,” but that prison wages do not. As a result, the\ngovernment is not entitled to the immediate turnover of Hughes’s inmate trust\naccount under § 3664(n).\n The government’s final argument arises under § 3664(k), which grants a\ndistrict court the authority to modify a payment schedule upon receiving\nnotification of a “material change in the defendant’s economic circumstances.”\n§ 3664(k); see United States v. Franklin, 595 F. App’x 267, 272 (5th Cir. 2014)\n\n\n\n 3 Although the government urges us to follow United States v. Poff, in which the Ninth\nCircuit concluded that veteran disability benefits deposited into an inmate’s trust account\nconstituted “substantial resources,” we note the Supreme Court recently vacated and\nremanded the judgment in that case. 727 F. App’x 249, 251 (9th Cir. 2018), cert. granted,\njudgment vacated, 18-195, 2019 WL 113040 (U.S. Jan. 7, 2019).\n 4 See also United States v. French, No. 3:09-CV-1657-BF, 2010 WL 11618076, at *1\n\n(N.D. Tex. Aug. 19, 2010) (“Similarly, a windfall during incarceration triggers an automatic\nobligation to pay restitution.”); Roush, 452 F. Supp. 2d at 679 (N.D. Tex. 2006) (“Moreover, a\ndefendant’s receipt of a windfall during imprisonment triggers an automatic payment\nrequirement.”). We also note the Supreme Court recently favored a narrower reading of the\nMVRA. See Lagos v. United States, 138 S. Ct. 1684, 1689 (2018) (“To interpret the statute\nbroadly is to invite controversy on those and other matters; our narrower construction avoids\nit.”).\n 6\n\f No. 18-20015\n(per curiam) (“A district court may adjust a restitution-payment schedule when\nthere has been a ‘material change in the defendant’s economic circumstances\nthat might affect the defendant’s ability to pay restitution.’”). Although it is\ndubious whether the gradual accumulation of prison wages constitutes a\n“material change in the defendant’s economic circumstances,” we note that the\ndistrict court’s turnover order was not based on § 3664(k), and we find no\nlanguage demonstrating that it intended to adjust or modify the payment\nschedule contained in Hughes’s original judgment.\n The district court’s order dated November 27, 2017, is VACATED.\n\n\n\n\n 7\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. David Hughes\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nREVISED February 1, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 18-20015\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\nUNITED STATES OF AMERICA, January 30, 2019\\n Lyle W. Cayce\\n Plaintiff – Appellee, Clerk\\n\\nv.\\n\\nDAVID THOMAS HUGHES,\\n\\n Defendant – Appellant.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore REAVLEY, ELROD, and WILLETT, Circuit Judges.\\nREAVLEY, Circuit Judge:\\n David Thomas Hughes pleaded guilty to bank burglary. He was\\nsentenced to 240 months in prison and ordered to pay $189,933.31 in\\nrestitution, with interest charged. The judgment provided that $100 was “due\\nimmediately” and provided the following payment schedule for the remaining\\namount:\\n Balance due in payments of the greater of $25 per quarter or 50%\\n of any wages earned while in prison in accordance with the Bureau\\n of Prisons’ Inmate Financial Responsibility Program. Any balance\\n remaining after release from imprisonment shall be paid in equal\\n\\f No. 18-20015\\n monthly installments of $500 to commence 60 days after the\\n release to a term of supervision.\\n\\n Several years later the government discovered that Hughes had\\naccumulated $3,464.85—largely prison wages—in his inmate trust account.\\nPursuant to 18 U.S.C. §§ 3613(a), 3664(n), and 3664(k), the government moved\\nfor the immediate turnover of those funds. Hughes opposed the request and\\nfiled a cross-motion to release funds, arguing, inter alia, that the district court\\n(1) only required him to make payments in installments and (2) “specifically\\ndeclined to order immediate payment of the entire amount.” Agreeing with the\\ngovernment, however, the district court ordered the immediate turnover of\\n“funds up to the amount of $ 201,493.63,” with a $200 carve out for Hughes’s\\ntelephone and commissary needs. Hughes timely appealed.\\n On appeal, Hughes argues that the district court erred in granting the\\ngovernment’s motion because his criminal judgment required the restitution\\nbalance owed beyond $100 to be paid in quarterly installments and did not\\norder that the balance be paid immediately. Because the government does not\\nallege that he defaulted on his restitution payments, Hughes argues, the\\ngovernment lacked the authority to seek immediate payment of the full\\nrestitution amount.\\n The parties do not cite, and research has not revealed, any binding\\nprecedent from this court analyzing a case to Hughes’s, in which the criminal\\njudgment included a repayment schedule that began during the term of\\nimprisonment but did not state that the full restitution amount was due\\nimmediately. Hughes, however, directs us to United States v. Martinez, in\\nwhich the Tenth Circuit confronted a structurally similar payment schedule.\\n812 F.3d 1200 (10th Cir. 2015). The judgment in Martinez required the\\ndefendant to pay “$300 immediately,” with the “balance due” in accordance\\nwith an installment schedule. Id. at 1203–04. Although the defendant had\\n 2\\n\\f No. 18-20015\\ncomplied with his payment plan, the government nevertheless sought\\ngarnishment of his retirement accounts. Id. at 1202.\\n The Tenth Circuit concluded that the government lacked the authority\\nto garnish the defendant’s retirement accounts because doing so would exceed\\nthe terms of the restitution order; it reasoned that:\\n By statute, it is the district court—not the government—that\\n determines how a defendant is to pay restitution. See [18 U.S.C.] §\\n 3664(f)(2) (“[T]he court shall . . . specify in the restitution order the\\n manner in which, and the schedule according to which, the\\n restitution is to be paid . . . .”) (emphasis added)). Thus, the\\n government can enforce only what the district court has ordered\\n the defendant to pay. See Enforce, Black’s Law Dictionary 645\\n (10th ed. 2014) (defining “enforce” primarily as “[t]o give force or\\n effect to [a law]; to compel obedience to [a law]”).\\nId. The court rejected the government’s argument that it could enforce the full\\namount notwithstanding the installment schedule, construing § 3572(d), which\\nprovides that “[a] person sentenced to pay . . . restitution . . . shall make such\\npayment immediately, unless, in the interest of justice, the court provides for\\npayment . . . in installments,” to imply that the full restitution amount is not\\ndue immediately when a court orders repayment pursuant to an installment-\\nbased plan. Id. at 1205.\\n We are persuaded by the Tenth Circuit’s analysis. When a restitution\\norder specifies an installment plan, unless there is language directing that the\\nfunds are also immediately due, the government cannot attempt to enforce the\\njudgment beyond its plain terms absent a modification of the restitution order\\nor default on the payment plan. See § 3572(d)(1); Martinez, 812 F.3d at 1205.\\nTurning to Hughes’s order, we find no language directing that the full\\nrestitution amount was immediately due or owing, and the government does\\n\\n\\n\\n\\n 3\\n\\f No. 18-20015\\nnot allege he was in default. 1 Like Martinez, Hughes’s criminal judgment\\nspecifies that a small amount ($100) was due immediately, and for the\\nremaining balance to be paid in installments. The government cannot enforce\\nrestitution payments beyond those terms unless Hughes defaults on his\\npayments or the district court modifies the payment schedule.\\n The government points to United States v. Ekong, 518 F.3d 285 (5th Cir.\\n2007) (per curiam) and United States v. Diehl, 848 F.3d 629 (5th Cir. 2017) in\\nsupport of its argument that Hughes’s payment schedule is of no consequence.\\nBoth are distinguishable because the judgments in those cases contained\\ndifferent language. The payment schedule in Ekong, for example, was\\nconditioned on whether a balance remained when the defendant began her\\nterm of supervised release. 2 In rejecting the defendant’s argument that the\\ngovernment was barred from seeking immediate payment “because the\\ncriminal judgment specified that restitution be paid in installments,” we noted\\nthat “[t]here [was] nothing in the criminal judgment to the contrary.” Ekong,\\n518 F.3d at 286. From this, we infer that the full restitution amount was\\ncollectible immediately simply because the payment schedule was never\\ntriggered. See id.; see Martinez, 812 F.3d at 1207. Ekong is thus\\ndistinguishable.\\n\\n\\n\\n\\n 1 Although the government argues that it can seek payment beyond the installment\\nschedule because the judgment says that “[u]nless the court has expressly ordered\\notherwise . . . payment of criminal monetary penalties is due during imprisonment,” this is a\\ndefault provision and, as explained, the court expressly ordered otherwise. See United States\\nv. Roush, 452 F. Supp. 2d 676, 681 (N.D. Tex. 2006) (“The negative pregnant of that default\\nprovision is that if the court has expressly ordered otherwise—as this Court did by checking\\nbox D—then payment is not due during imprisonment.”).\\n 2 See Martinez, 812 F.3d at 1207 (“If upon commencement of the term of supervised\\n\\nrelease any part of the restitution remains unpaid, the defendant shall make payments on\\nsuch unpaid balance beginning 60 days after the release from custody at the rate of $500 per\\nmonth until the restitution is paid in full.”) (quoting Judgment in a Criminal Case at\\n6, United States v. Ekong, No. 3:04–CR–030–M (N.D. Tex. Sept. 10, 2004), ECF No. 74).\\n 4\\n\\f No. 18-20015\\n And the judgment in Diehl did not specify a payment schedule; rather, it\\nprovided that “[i]f the defendant is unable to pay this indebtedness at this\\ntime, the defendant shall cooperate fully with the [government] to make\\npayment in full as so[o]n as possible, including during any period of\\nincarceration.” 848 F.3d at 630. The relevant issue there was whether the\\ndefendant’s participation in the BOP’s inmate financial responsibility program\\nand adherence to its payment schedule barred the government from enforcing\\nthe full restitution amount. Id. at 633. Although we agreed with the decisions\\nof other courts “determining that an inmate’s compliance with an IFRP\\npayment schedule does not change the fact that the Government may collect\\non a criminal monetary penalty immediately,” we noted this would only be the\\ncase “where the judgment does not specify a payment schedule.” Id. Indeed, we\\nheld the government could demand immediate payment in Diehl because the\\njudgment “did not . . . specify installment payments for satisfaction of either\\nthe fine or the special assessment as required by 18 U.S.C. § 3572(d) to disrupt\\nthe default rule of immediate payment.” Id. at 635. Importantly, we noted that\\nthe government’s “enforcement of the order against Diehl’s property, including\\nsurplus funds held in his inmate trust account, did not exceed the terms of the\\noriginal judgment.” Id. (emphasis added). As discussed, that is not the case\\nhere, as the government’s attempt to enforce the full restitution amount\\nconflicts with the installment-based directive in Hughes’s original judgment.\\n The government argues in the alternative that it is entitled to the funds\\nin Hughes’s trust account by virtue of § 3664(n), which provides:\\n If a person obligated to provide restitution, or pay a fine, receives\\n substantial resources from any source, including inheritance,\\n settlement, or other judgment, during a period of incarceration,\\n such person shall be required to apply the value of such resources\\n to any restitution or fine still owed.\\n\\n\\n\\n 5\\n\\f No. 18-20015\\n We do not think the gradual accumulation of prison wages constitutes\\n“substantial resources” such that it fits within § 3664(n)’s ambit; rather we\\nthink this provision refers to windfalls or sudden financial injections. 3 Indeed,\\nin United States v. Scales, we suggested that this provision contemplates\\n“unanticipated resources” that become “suddenly available.” 639 F. App’x 233,\\n239 (5th Cir. 2016) (per curiam); see also United States v. Bratton-Bey, 564 F.\\nApp’x 28, 29 (4th Cir. 2014) (“Additionally, a defendant’s receipt of a windfall\\nduring imprisonment triggers an automatic payment requirement.”); United\\nStates v. Key, No. 3:12-CV-3026-L, 2013 WL 2322470, at *2 (N.D. Tex. May 28,\\n2013) (“There is no indication that Key has received a ‘windfall’ or ‘substantial\\nresources’ of the type in section 3664(n).”). 4 Put simply, we think the examples\\nlisted in § 3664(n)—“inheritance, settlement, or other judgment”—fit the mold\\nof “substantial resources,” but that prison wages do not. As a result, the\\ngovernment is not entitled to the immediate turnover of Hughes’s inmate trust\\naccount under § 3664(n).\\n The government’s final argument arises under § 3664(k), which grants a\\ndistrict court the authority to modify a payment schedule upon receiving\\nnotification of a “material change in the defendant’s economic circumstances.”\\n§ 3664(k); see United States v. Franklin, 595 F. App’x 267, 272 (5th Cir. 2014)\\n\\n\\n\\n 3 Although the government urges us to follow United States v. Poff, in which the Ninth\\nCircuit concluded that veteran disability benefits deposited into an inmate’s trust account\\nconstituted “substantial resources,” we note the Supreme Court recently vacated and\\nremanded the judgment in that case. 727 F. App’x 249, 251 (9th Cir. 2018), cert. granted,\\njudgment vacated, 18-195, 2019 WL 113040 (U.S. Jan. 7, 2019).\\n 4 See also United States v. French, No. 3:09-CV-1657-BF, 2010 WL 11618076, at *1\\n\\n(N.D. Tex. Aug. 19, 2010) (“Similarly, a windfall during incarceration triggers an automatic\\nobligation to pay restitution.”); Roush, 452 F. Supp. 2d at 679 (N.D. Tex. 2006) (“Moreover, a\\ndefendant’s receipt of a windfall during imprisonment triggers an automatic payment\\nrequirement.”). We also note the Supreme Court recently favored a narrower reading of the\\nMVRA. See Lagos v. United States, 138 S. Ct. 1684, 1689 (2018) (“To interpret the statute\\nbroadly is to invite controversy on those and other matters; our narrower construction avoids\\nit.”).\\n 6\\n\\f No. 18-20015\\n(per curiam) (“A district court may adjust a restitution-payment schedule when\\nthere has been a ‘material change in the defendant’s economic circumstances\\nthat might affect the defendant’s ability to pay restitution.’”). Although it is\\ndubious whether the gradual accumulation of prison wages constitutes a\\n“material change in the defendant’s economic circumstances,” we note that the\\ndistrict court’s turnover order was not based on § 3664(k), and we find no\\nlanguage demonstrating that it intended to adjust or modify the payment\\nschedule contained in Hughes’s original judgment.\\n The district court’s order dated November 27, 2017, is VACATED.\\n\\n\\n\\n\\n 7\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":577,"cells":{"id":{"kind":"number","value":4586730,"string":"4,586,730"},"name":{"kind":"string","value":"ST. BERNARD PARISH, Through the St. Bernard Parish Government, Plaintiff-Appellee, v. LAFARGE NORTH AMERICA, INCORPORATED, Defendant-Appellee, v. Richard T. Seymour; Law Office of Richard T. Seymour, P.L.L.C., Movants-Appellants."},"name_abbreviation":{"kind":"string","value":"St. Bernard Parish v. Lafarge North America, Inc."},"decision_date":{"kind":"string","value":"2019-02-01"},"docket_number":{"kind":"string","value":"18-30029"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Stewart, Dennis, Willett\", \"parties\": \"\", \"opinions\": [{\"author\": \"DON R. WILLETT, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-30029 Document: 00514819166 Page: 1 Date Filed: 02/01/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n February 1, 2019\\n No. 18-30029\\n Lyle W. Cayce\\n Clerk\\nST. BERNARD PARISH, Through the St. Bernard Parish Government,\\n\\n Plaintiff–Appellee,\\n\\nv.\\n\\nLAFARGE NORTH AMERICA, INCORPORATED,\\n\\n Defendant–Appellee,\\n\\nv.\\n\\nRICHARD T. SEYMOUR; LAW OFFICE OF RICHARD T. SEYMOUR,\\nP.L.L.C.,\\n\\n Movants–Appellants.\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Louisiana\\n\\n\\nBefore STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.\\nDON R. WILLETT, Circuit Judge:\\n When Hurricane Katrina struck in 2005, a barge moored by Lafarge\\nwound up at large. According to New Orleans residents then represented by\\nRichard T. Seymour, the breakaway barge hurtled through a floodwall,\\nunleashing catastrophic flooding in the Lower 9th Ward before finally coming\\nto rest atop several homes and a yellow school bus. (It remains disputed\\nwhether the barge caused the breach or surfed through it after the floodwall\\ngave way.)\\n\\f Case: 18-30029 Document: 00514819166 Page: 2 Date Filed: 02/01/2019\\n\\n\\n\\n No. 18-30029\\n Seymour withdrew from the Barge Litigation in 2011. But when it\\nsettled several years later, he moved to intervene in this related case to pursue\\nhis fees and expenses. We agree with the district court that Seymour’s\\nintervention motion was untimely. As to intervention of right, we AFFIRM the\\ndistrict court’s order. As to permissive intervention, we DISMISS Seymour’s\\nappeal for lack of jurisdiction.\\n\\n I. BACKGROUND\\nA. Factual\\n In August 2005, Hurricane Katrina, the most destructive natural\\ndisaster in United States history, inflicted cataclysmic damage on New\\nOrleans. According to many residents of the Lower 9th Ward, a predominantly\\nAfrican-American neighborhood bordering the Industrial Canal, the damage\\nwas worsened by a barge that broke free and allided with a floodwall before\\ncrashing into the residential streets, unleashing a surge of water that ripped\\nhomes from their foundations before scattering them in splinters. 1 The\\nresidents alleged that the barge had been improperly moored at a facility\\nowned by Lafarge North America, Inc. The district court consolidated many of\\nthe resulting cases into the Barge Litigation.\\n Appellants Richard T. Seymour and the Law Office of Richard T.\\nSeymour, P.L.L.C. represented plaintiffs in the Barge Litigation. Seymour\\nperformed significant work in the consolidated cases, as noted in the order\\ngranting his motion to withdraw. This work contributed to multiple cases\\nincluding, per Seymour, this one. But Seymour never represented a party in\\nthis case because this action by St. Bernard Parish against Lafarge was not\\nconsolidated into the Barge Litigation.\\n\\n\\n\\n 1 See generally St. Bernard Par. v. Lafarge N. Am., Inc., 550 F. App’x 184 (5th Cir.\\n2013) (earlier appeal of summary-judgment decision).\\n 2\\n\\f Case: 18-30029 Document: 00514819166 Page: 3 Date Filed: 02/01/2019\\n\\n\\n\\n No. 18-30029\\nB. Procedural\\n In 2011 Seymour withdrew from the Barge Litigation because of a fee\\ndispute with Baker Sanders, LLC, a firm that now represents the Parish. In\\ngranting Seymour’s motion to withdraw, the district court explicitly recognized\\nhis potential claim to fees in the Barge Litigation. The Parish filed this case on\\nAugust 23, 2011, the same day Seymour withdrew.\\n About six years later, in 2017, the Parish and Lafarge settled this case.\\nOn July 20 Parish counsel called Seymour to tell him that the parties had\\nreached a settlement. The attorney told Seymour that at most he would be\\ncompensated for only some of his expenses. On July 23 Seymour served Baker\\nSanders with a Notice of Lien for fees and expenses in this case. Undaunted,\\nthe Parish and Lafarge filed a joint stipulation of dismissal with prejudice.\\n Seymour, intending to pursue his claim for fees in the district court,\\nmoved on August 9 to appear pro hac vice. The district court denied this motion\\nwithout prejudice because, before intervening in the case, Seymour would not\\nhave been representing anyone. So Seymour moved to intervene on September\\n17. Meanwhile, a Baker Sanders attorney had filed an interpleader action in\\nNew York state court that named Seymour as a defendant. The interpleader\\naction concerned the same funds that Seymour sought to pursue via\\nintervention.\\n The district court denied Seymour’s motion to intervene as untimely.\\nSeymour appealed.\\n\\n\\n\\n\\n 3\\n\\f Case: 18-30029 Document: 00514819166 Page: 4 Date Filed: 02/01/2019\\n\\n\\n\\n No. 18-30029\\n II. JURISDICTION AND STANDARD OF REVIEW\\nA. Jurisdiction\\n The district court had jurisdiction based on federal question; 2 diversity; 3\\nand the Multiparty, Multiforum Trial Jurisdiction Act of 2002. 4\\n We have jurisdiction under 28 U.S.C. § 1291 to review the denial of the\\nmotion to intervene of right. 5 And we have “provisional jurisdiction” to review\\nthe denial of permissive intervention. 6 This means that “[i]f the district court’s\\ndenial of permissive intervention does not constitute an abuse of discretion, we\\nmust dismiss the appeal for lack of jurisdiction.” 7\\nB. Standard of Review\\n “A ruling denying intervention of right is reviewed de novo.” 8 But the\\ntimeliness of an intervention motion is reviewed for abuse of discretion, so long\\nas the district court gave reasons for its determination. 9\\n “Denial of permissive intervention, on the other hand, is reviewed for\\nclear abuse of discretion.” 10 “Under this standard, the Court will reverse a\\ndistrict court decision only under extraordinary circumstances.” 11\\n\\n III. DISCUSSION\\n Federal Rule of Civil Procedure 24 covers two types of intervention, one\\nmandatory (“the court must permit”) 12 and the other permissive (“the court\\n\\n\\n\\n\\n 2 28 U.S.C. § 1331.\\n 3 28 U.S.C. § 1332.\\n 4 28 U.S.C. § 1369.\\n 5 Sommers v. Bank of Am., N.A., 835 F.3d 509, 512 (5th Cir. 2016).\\n 6 Id. (quoting Edwards v. City of Houston, 78 F.3d 983, 992 (5th Cir. 1996) (en banc)).\\n 7 Id. (quoting Edwards, 78 F.3d at 992).\\n 8 Edwards, 78 F.3d at 995.\\n 9 Sommers, 835 F.3d at 513; Edwards, 78 F.3d at 1000.\\n 10 Edwards, 78 F.3d at 995.\\n 11 Id. (quoting Cajun Elec. Power Coop. v. Gulf States Utils., Inc., 940 F.2d 117, 121\\n\\n(5th Cir. 1991)).\\n 12 FED. R. CIV. P. 24(a).\\n\\n 4\\n\\f Case: 18-30029 Document: 00514819166 Page: 5 Date Filed: 02/01/2019\\n\\n\\n\\n No. 18-30029\\nmay permit”). 13 While the provisions cover different situations, both prize\\npunctuality, beginning with the same three words: “On timely motion . . . .” 14\\nA. Intervention of Right\\n Rule 24(a)(2) governs intervention of right based on an interest in the\\naction. We have distilled the rule into four elements:\\n (1) the application for intervention must be timely; (2) the\\n applicant must have an interest relating to the property or\\n transaction which is the subject of the action; (3) the applicant\\n must be so situated that the disposition of the action may, as a\\n practical matter, impair his ability to protect that interest; (4) the\\n applicant’s interest must be inadequately represented by the\\n existing parties to the suit. 15\\n“Failure to satisfy any one requirement precludes intervention of right.” 16\\nTimeliness was the only element the district court decided and is the only one\\ndisputed here. In evaluating timeliness, a district court should consider four\\nfactors:\\n (1) The length of time during which the would-be intervenor\\n actually knew or reasonably should have known of its interest in\\n the case before it petitioned for leave to intervene; (2) the extent of\\n the prejudice that the existing parties to the litigation may suffer\\n as a result of the would-be intervenor’s failure to apply for\\n intervention as soon as it knew or reasonably should have known\\n of its interest in the case; (3) the extent of the prejudice that the\\n would-be intervenor may suffer if intervention is denied; and\\n (4) the existence of unusual circumstances militating either for or\\n against a determination that the application is timely. 17\\n\\n\\n\\n\\n 13 FED. R. CIV. P. 24(b).\\n 14 FED. R. CIV. P. 24(a); FED. R. CIV. P. 24(b).\\n 15 Sommers, 835 F.3d at 512 (quoting Texas v. United States, 805 F.3d 653, 657 (5th\\n\\nCir. 2015)).\\n 16 Edwards, 78 F.3d at 999 (citation omitted).\\n 17 Sommers, 835 F.3d at 512–13 (quoting Ford v. City of Huntsville, 242 F.3d 235, 239\\n\\n(5th Cir. 2001)).\\n 5\\n\\f Case: 18-30029 Document: 00514819166 Page: 6 Date Filed: 02/01/2019\\n\\n\\n\\n No. 18-30029\\n 1. Length of Time Elapsed\\n Seymour says he moved to intervene less than two months after\\nreceiving notice that his claim would not be paid. But the relevant starting\\npoint is “not when he knew or should have known that his interests would be\\nadversely affected but, instead, when he knew that he had an interest in the\\ncase.” 18 Here, Seymour knew that he had an interest in the case when he\\nwithdrew in 2011, six years before he moved to intervene.\\n Seymour counters that the “timeliness clock” does not begin until a\\nmovant knows or should know that his interest is no longer represented by an\\nexisting party. 19 But in 2011 he should have also known that no remaining\\nparty represented his interest. Although a plaintiff adequately represents his\\nattorney’s interest during the attorney-client relationship, 20 no party in a case\\nrepresents the interest of a discharged attorney. 21 And in Keith v. St. George\\nPacking Co. and Gaines v. Dixie Carriers, Inc., discharged attorneys were\\npermitted to intervene when their motions came within a year of being\\ndischarged. 22 Here, much more time lapsed—six years from withdrawal to\\nintervention. So the first timeliness factor weighs against permitting\\nintervention.\\n 2. Prejudice to Existing Parties\\n Seymour says his intervention will not prejudice other parties because it\\nwill not cause burdensome additional proceedings. He says the Parish cannot\\n\\n\\n\\n 18 Id. at 513.\\n 19 See Edwards, 78 F.3d at 1000.\\n 20 Valley Ranch Dev. Co. v. FDIC, 960 F.2d 550, 556 (5th Cir. 1992) (“His interest is\\n\\nidentical to [the client’s] until the agency relationship is broken.”).\\n 21 See Keith v. St. George Packing Co., 806 F.2d 525, 526 (5th Cir. 1986) (“[N]either\\n\\nparty to the pending action is interested in representing [the attorney’s] interests.”); Gaines\\nv. Dixie Carriers, Inc., 434 F.2d 52, 54 (5th Cir. 1970) (“Neither of the existing parties is\\nconcerned with protecting the appellant’s interest.”); see also Gilbert v. Johnson, 601 F.2d\\n761, 767 (5th Cir. 1979) (holding similar facts indistinguishable from Gaines).\\n 22 Keith, 806 F.2d at 525; Gaines, 434 F.2d at 54.\\n\\n 6\\n\\f Case: 18-30029 Document: 00514819166 Page: 7 Date Filed: 02/01/2019\\n\\n\\n\\n No. 18-30029\\nidentify anything it would have done differently had Seymour been a party all\\nalong. And his fee is to be taken from the existing settlement pool, not from a\\nrenewed settlement negotiation.\\n Seymour is correct that opening a fee dispute between the plaintiff, its\\ncurrent counsel, and former counsel would not necessarily relitigate the\\nunderlying case. But it would at least hold up the distribution of settlement\\nfunds, which could have been avoided had Seymour intervened when his\\ninterest was no longer represented. So the second timeliness factor is neutral.\\n 3. Prejudice to Seymour\\n Seymour says he will be prejudiced absent intervention because it will\\nbe difficult to pursue his claim elsewhere. He has numerous objections to the\\nNew York interpleader action, including lack of personal jurisdiction. And he\\nsays that a federal interpleader action is unavailable. But this does not rule\\nout other possibilities, such as a state-law action against the Parish or Baker\\nSanders to recover for his services. 23 At oral argument Seymour suggested that\\nhe preferred not to bring a separate action because it would be difficult to\\nobtain discovery of a confidential settlement agreement. 24 But discovery of\\nconfidential settlement agreements is generally available under an\\nappropriate protective order. 25 So the third timeliness factor weighs against\\npermitting intervention.\\n\\n\\n\\n 23 See, e.g., Gilbert, 601 F.2d at 767 (Rubin, J., specially concurring) (stating that\\nunder Georgia law the attorney “may, however, if discharged from the case by his client, bring\\nan action under quantum meruit for the reasonable value of services rendered”).\\n 24 Seymour cites Ford, 242 F.3d at 240, for the proposition that the presence of a\\n\\n“confidentiality order” is a consideration in granting or denying intervention. In Ford we\\ngranted a newspaper’s motion to intervene to challenge the confidentiality of a settlement.\\n242 F.3d at 241. But Ford did not address the discoverability of a confidential settlement\\nagreement in a separate private dispute.\\n 25 E.g., Cleveland Const. Inc. v. Whitehouse Hotel Ltd. P’ship, No. Civ.A. 01-2666, 2004\\n\\nWL 385052, at *1–2 (E.D. La. Feb. 25, 2004); Perez v. State Indus., Inc., 578 So. 2d 1018, 1020\\n(La. Ct. App. 1991).\\n 7\\n\\f Case: 18-30029 Document: 00514819166 Page: 8 Date Filed: 02/01/2019\\n\\n\\n\\n No. 18-30029\\n 4. “Unusual Circumstances”\\n Finally, Seymour says that the Parish’s or Baker Sanders’s attempt to\\nwithhold his fees, including filing a questionable interpleader action, are\\nspecial circumstances that favor intervention. Another special circumstance,\\nhe contends: the difficulty of intervening in the Barge Litigation as it stood in\\n2011—that is, in multiple fragmented cases.\\n The Parish, for its part, cites precedent that moving to intervene after a\\ncase is dismissed weighs against timeliness. 26 (We note, though, that the\\ndismissal did not deprive the district court of jurisdiction to grant intervention\\nor to grant the ultimate relief sought by Seymour. 27) Considering all of this,\\nthe fourth factor is neutral.\\n * * *\\n Viewing the four timeliness factors together, the district court did not\\nabuse its discretion in concluding that Seymour’s motion to intervene came too\\nlate.\\nB. Permissive Intervention\\n Like intervention of right, permissive intervention must be timely. 28 As\\nSeymour’s motion was untimely, no further analysis is needed. 29 The district\\ncourt did not clearly abuse its discretion in denying permissive intervention,\\nand this portion of Seymour’s appeal is dismissed for lack of jurisdiction. 30\\n\\n\\n\\n\\n 26See Sommers, 835 F.3d at 513 (“Though the appellees are incorrect in suggesting\\nthat intervention is always improper after a case has been dismissed, they are accurate in\\nasserting that it is a factor weighing against timeliness.”).\\n 27 See id.; United States v. Transocean Air Lines, Inc., 356 F.2d 702, 705 (5th Cir. 1966)\\n\\n(“[A] perfected charging lien of attorneys cannot be defeated by a dismissal by stipulation\\nunder Rule 41.”).\\n 28 FED. R. CIV. P. 24(b).\\n 29 See, e.g., Lucas v. McKeithen, 102 F.3d 171, 173 (5th Cir. 1996) (denying\\n\\nintervention of right and dismissing permissive intervention based on timeliness).\\n 30 See Sommers, 835 F.3d at 512.\\n\\n 8\\n\\f Case: 18-30029 Document: 00514819166 Page: 9 Date Filed: 02/01/2019\\n\\n\\n\\n No. 18-30029\\n IV. CONCLUSION\\n We AFFIRM the district court’s decision as to intervention of right and\\nDISMISS Seymour’s appeal for lack of jurisdiction as to permissive\\nintervention.\\n\\n\\n\\n\\n 9\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4363983/\", \"author_raw\": \"DON R. WILLETT, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"DENNIS"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4586730/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: ST. BERNARD PARISH, Through the St. Bernard Parish Government, Plaintiff-Appellee, v. LAFARGE NORTH AMERICA, INCORPORATED, Defendant-Appellee, v. Richard T. Seymour; Law Office of Richard T. Seymour, P.L.L.C., Movants-Appellants.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-30029 Document: 00514819166 Page: 1 Date Filed: 02/01/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 1, 2019\n No. 18-30029\n Lyle W. Cayce\n Clerk\nST. BERNARD PARISH, Through the St. Bernard Parish Government,\n\n Plaintiff–Appellee,\n\nv.\n\nLAFARGE NORTH AMERICA, INCORPORATED,\n\n Defendant–Appellee,\n\nv.\n\nRICHARD T. SEYMOUR; LAW OFFICE OF RICHARD T. SEYMOUR,\nP.L.L.C.,\n\n Movants–Appellants.\n\n\n Appeal from the United States District Court\n for the Eastern District of Louisiana\n\n\nBefore STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.\nDON R. WILLETT, Circuit Judge:\n When Hurricane Katrina struck in 2005, a barge moored by Lafarge\nwound up at large. According to New Orleans residents then represented by\nRichard T. Seymour, the breakaway barge hurtled through a floodwall,\nunleashing catastrophic flooding in the Lower 9th Ward before finally coming\nto rest atop several homes and a yellow school bus. (It remains disputed\nwhether the barge caused the breach or surfed through it after the floodwall\ngave way.)\n\f Case: 18-30029 Document: 00514819166 Page: 2 Date Filed: 02/01/2019\n\n\n\n No. 18-30029\n Seymour withdrew from the Barge Litigation in 2011. But when it\nsettled several years later, he moved to intervene in this related case to pursue\nhis fees and expenses. We agree with the district court that Seymour’s\nintervention motion was untimely. As to intervention of right, we AFFIRM the\ndistrict court’s order. As to permissive intervention, we DISMISS Seymour’s\nappeal for lack of jurisdiction.\n\n I. BACKGROUND\nA. Factual\n In August 2005, Hurricane Katrina, the most destructive natural\ndisaster in United States history, inflicted cataclysmic damage on New\nOrleans. According to many residents of the Lower 9th Ward, a predominantly\nAfrican-American neighborhood bordering the Industrial Canal, the damage\nwas worsened by a barge that broke free and allided with a floodwall before\ncrashing into the residential streets, unleashing a surge of water that ripped\nhomes from their foundations before scattering them in splinters. 1 The\nresidents alleged that the barge had been improperly moored at a facility\nowned by Lafarge North America, Inc. The district court consolidated many of\nthe resulting cases into the Barge Litigation.\n Appellants Richard T. Seymour and the Law Office of Richard T.\nSeymour, P.L.L.C. represented plaintiffs in the Barge Litigation. Seymour\nperformed significant work in the consolidated cases, as noted in the order\ngranting his motion to withdraw. This work contributed to multiple cases\nincluding, per Seymour, this one. But Seymour never represented a party in\nthis case because this action by St. Bernard Parish against Lafarge was not\nconsolidated into the Barge Litigation.\n\n\n\n 1 See generally St. Bernard Par. v. Lafarge N. Am., Inc., 550 F. App’x 184 (5th Cir.\n2013) (earlier appeal of summary-judgment decision).\n 2\n\f Case: 18-30029 Document: 00514819166 Page: 3 Date Filed: 02/01/2019\n\n\n\n No. 18-30029\nB. Procedural\n In 2011 Seymour withdrew from the Barge Litigation because of a fee\ndispute with Baker Sanders, LLC, a firm that now represents the Parish. In\ngranting Seymour’s motion to withdraw, the district court explicitly recognized\nhis potential claim to fees in the Barge Litigation. The Parish filed this case on\nAugust 23, 2011, the same day Seymour withdrew.\n About six years later, in 2017, the Parish and Lafarge settled this case.\nOn July 20 Parish counsel called Seymour to tell him that the parties had\nreached a settlement. The attorney told Seymour that at most he would be\ncompensated for only some of his expenses. On July 23 Seymour served Baker\nSanders with a Notice of Lien for fees and expenses in this case. Undaunted,\nthe Parish and Lafarge filed a joint stipulation of dismissal with prejudice.\n Seymour, intending to pursue his claim for fees in the district court,\nmoved on August 9 to appear pro hac vice. The district court denied this motion\nwithout prejudice because, before intervening in the case, Seymour would not\nhave been representing anyone. So Seymour moved to intervene on September\n17. Meanwhile, a Baker Sanders attorney had filed an interpleader action in\nNew York state court that named Seymour as a defendant. The interpleader\naction concerned the same funds that Seymour sought to pursue via\nintervention.\n The district court denied Seymour’s motion to intervene as untimely.\nSeymour appealed.\n\n\n\n\n 3\n\f Case: 18-30029 Document: 00514819166 Page: 4 Date Filed: 02/01/2019\n\n\n\n No. 18-30029\n II. JURISDICTION AND STANDARD OF REVIEW\nA. Jurisdiction\n The district court had jurisdiction based on federal question; 2 diversity; 3\nand the Multiparty, Multiforum Trial Jurisdiction Act of 2002. 4\n We have jurisdiction under 28 U.S.C. § 1291 to review the denial of the\nmotion to intervene of right. 5 And we have “provisional jurisdiction” to review\nthe denial of permissive intervention. 6 This means that “[i]f the district court’s\ndenial of permissive intervention does not constitute an abuse of discretion, we\nmust dismiss the appeal for lack of jurisdiction.” 7\nB. Standard of Review\n “A ruling denying intervention of right is reviewed de novo.” 8 But the\ntimeliness of an intervention motion is reviewed for abuse of discretion, so long\nas the district court gave reasons for its determination. 9\n “Denial of permissive intervention, on the other hand, is reviewed for\nclear abuse of discretion.” 10 “Under this standard, the Court will reverse a\ndistrict court decision only under extraordinary circumstances.” 11\n\n III. DISCUSSION\n Federal Rule of Civil Procedure 24 covers two types of intervention, one\nmandatory (“the court must permit”) 12 and the other permissive (“the court\n\n\n\n\n 2 28 U.S.C. § 1331.\n 3 28 U.S.C. § 1332.\n 4 28 U.S.C. § 1369.\n 5 Sommers v. Bank of Am., N.A., 835 F.3d 509, 512 (5th Cir. 2016).\n 6 Id. (quoting Edwards v. City of Houston, 78 F.3d 983, 992 (5th Cir. 1996) (en banc)).\n 7 Id. (quoting Edwards, 78 F.3d at 992).\n 8 Edwards, 78 F.3d at 995.\n 9 Sommers, 835 F.3d at 513; Edwards, 78 F.3d at 1000.\n 10 Edwards, 78 F.3d at 995.\n 11 Id. (quoting Cajun Elec. Power Coop. v. Gulf States Utils., Inc., 940 F.2d 117, 121\n\n(5th Cir. 1991)).\n 12 FED. R. CIV. P. 24(a).\n\n 4\n\f Case: 18-30029 Document: 00514819166 Page: 5 Date Filed: 02/01/2019\n\n\n\n No. 18-30029\nmay permit”). 13 While the provisions cover different situations, both prize\npunctuality, beginning with the same three words: “On timely motion . . . .” 14\nA. Intervention of Right\n Rule 24(a)(2) governs intervention of right based on an interest in the\naction. We have distilled the rule into four elements:\n (1) the application for intervention must be timely; (2) the\n applicant must have an interest relating to the property or\n transaction which is the subject of the action; (3) the applicant\n must be so situated that the disposition of the action may, as a\n practical matter, impair his ability to protect that interest; (4) the\n applicant’s interest must be inadequately represented by the\n existing parties to the suit. 15\n“Failure to satisfy any one requirement precludes intervention of right.” 16\nTimeliness was the only element the district court decided and is the only one\ndisputed here. In evaluating timeliness, a district court should consider four\nfactors:\n (1) The length of time during which the would-be intervenor\n actually knew or reasonably should have known of its interest in\n the case before it petitioned for leave to intervene; (2) the extent of\n the prejudice that the existing parties to the litigation may suffer\n as a result of the would-be intervenor’s failure to apply for\n intervention as soon as it knew or reasonably should have known\n of its interest in the case; (3) the extent of the prejudice that the\n would-be intervenor may suffer if intervention is denied; and\n (4) the existence of unusual circumstances militating either for or\n against a determination that the application is timely. 17\n\n\n\n\n 13 FED. R. CIV. P. 24(b).\n 14 FED. R. CIV. P. 24(a); FED. R. CIV. P. 24(b).\n 15 Sommers, 835 F.3d at 512 (quoting Texas v. United States, 805 F.3d 653, 657 (5th\n\nCir. 2015)).\n 16 Edwards, 78 F.3d at 999 (citation omitted).\n 17 Sommers, 835 F.3d at 512–13 (quoting Ford v. City of Huntsville, 242 F.3d 235, 239\n\n(5th Cir. 2001)).\n 5\n\f Case: 18-30029 Document: 00514819166 Page: 6 Date Filed: 02/01/2019\n\n\n\n No. 18-30029\n 1. Length of Time Elapsed\n Seymour says he moved to intervene less than two months after\nreceiving notice that his claim would not be paid. But the relevant starting\npoint is “not when he knew or should have known that his interests would be\nadversely affected but, instead, when he knew that he had an interest in the\ncase.” 18 Here, Seymour knew that he had an interest in the case when he\nwithdrew in 2011, six years before he moved to intervene.\n Seymour counters that the “timeliness clock” does not begin until a\nmovant knows or should know that his interest is no longer represented by an\nexisting party. 19 But in 2011 he should have also known that no remaining\nparty represented his interest. Although a plaintiff adequately represents his\nattorney’s interest during the attorney-client relationship, 20 no party in a case\nrepresents the interest of a discharged attorney. 21 And in Keith v. St. George\nPacking Co. and Gaines v. Dixie Carriers, Inc., discharged attorneys were\npermitted to intervene when their motions came within a year of being\ndischarged. 22 Here, much more time lapsed—six years from withdrawal to\nintervention. So the first timeliness factor weighs against permitting\nintervention.\n 2. Prejudice to Existing Parties\n Seymour says his intervention will not prejudice other parties because it\nwill not cause burdensome additional proceedings. He says the Parish cannot\n\n\n\n 18 Id. at 513.\n 19 See Edwards, 78 F.3d at 1000.\n 20 Valley Ranch Dev. Co. v. FDIC, 960 F.2d 550, 556 (5th Cir. 1992) (“His interest is\n\nidentical to [the client’s] until the agency relationship is broken.”).\n 21 See Keith v. St. George Packing Co., 806 F.2d 525, 526 (5th Cir. 1986) (“[N]either\n\nparty to the pending action is interested in representing [the attorney’s] interests.”); Gaines\nv. Dixie Carriers, Inc., 434 F.2d 52, 54 (5th Cir. 1970) (“Neither of the existing parties is\nconcerned with protecting the appellant’s interest.”); see also Gilbert v. Johnson, 601 F.2d\n761, 767 (5th Cir. 1979) (holding similar facts indistinguishable from Gaines).\n 22 Keith, 806 F.2d at 525; Gaines, 434 F.2d at 54.\n\n 6\n\f Case: 18-30029 Document: 00514819166 Page: 7 Date Filed: 02/01/2019\n\n\n\n No. 18-30029\nidentify anything it would have done differently had Seymour been a party all\nalong. And his fee is to be taken from the existing settlement pool, not from a\nrenewed settlement negotiation.\n Seymour is correct that opening a fee dispute between the plaintiff, its\ncurrent counsel, and former counsel would not necessarily relitigate the\nunderlying case. But it would at least hold up the distribution of settlement\nfunds, which could have been avoided had Seymour intervened when his\ninterest was no longer represented. So the second timeliness factor is neutral.\n 3. Prejudice to Seymour\n Seymour says he will be prejudiced absent intervention because it will\nbe difficult to pursue his claim elsewhere. He has numerous objections to the\nNew York interpleader action, including lack of personal jurisdiction. And he\nsays that a federal interpleader action is unavailable. But this does not rule\nout other possibilities, such as a state-law action against the Parish or Baker\nSanders to recover for his services. 23 At oral argument Seymour suggested that\nhe preferred not to bring a separate action because it would be difficult to\nobtain discovery of a confidential settlement agreement. 24 But discovery of\nconfidential settlement agreements is generally available under an\nappropriate protective order. 25 So the third timeliness factor weighs against\npermitting intervention.\n\n\n\n 23 See, e.g., Gilbert, 601 F.2d at 767 (Rubin, J., specially concurring) (stating that\nunder Georgia law the attorney “may, however, if discharged from the case by his client, bring\nan action under quantum meruit for the reasonable value of services rendered”).\n 24 Seymour cites Ford, 242 F.3d at 240, for the proposition that the presence of a\n\n“confidentiality order” is a consideration in granting or denying intervention. In Ford we\ngranted a newspaper’s motion to intervene to challenge the confidentiality of a settlement.\n242 F.3d at 241. But Ford did not address the discoverability of a confidential settlement\nagreement in a separate private dispute.\n 25 E.g., Cleveland Const. Inc. v. Whitehouse Hotel Ltd. P’ship, No. Civ.A. 01-2666, 2004\n\nWL 385052, at *1–2 (E.D. La. Feb. 25, 2004); Perez v. State Indus., Inc., 578 So. 2d 1018, 1020\n(La. Ct. App. 1991).\n 7\n\f Case: 18-30029 Document: 00514819166 Page: 8 Date Filed: 02/01/2019\n\n\n\n No. 18-30029\n 4. “Unusual Circumstances”\n Finally, Seymour says that the Parish’s or Baker Sanders’s attempt to\nwithhold his fees, including filing a questionable interpleader action, are\nspecial circumstances that favor intervention. Another special circumstance,\nhe contends: the difficulty of intervening in the Barge Litigation as it stood in\n2011—that is, in multiple fragmented cases.\n The Parish, for its part, cites precedent that moving to intervene after a\ncase is dismissed weighs against timeliness. 26 (We note, though, that the\ndismissal did not deprive the district court of jurisdiction to grant intervention\nor to grant the ultimate relief sought by Seymour. 27) Considering all of this,\nthe fourth factor is neutral.\n * * *\n Viewing the four timeliness factors together, the district court did not\nabuse its discretion in concluding that Seymour’s motion to intervene came too\nlate.\nB. Permissive Intervention\n Like intervention of right, permissive intervention must be timely. 28 As\nSeymour’s motion was untimely, no further analysis is needed. 29 The district\ncourt did not clearly abuse its discretion in denying permissive intervention,\nand this portion of Seymour’s appeal is dismissed for lack of jurisdiction. 30\n\n\n\n\n 26See Sommers, 835 F.3d at 513 (“Though the appellees are incorrect in suggesting\nthat intervention is always improper after a case has been dismissed, they are accurate in\nasserting that it is a factor weighing against timeliness.”).\n 27 See id.; United States v. Transocean Air Lines, Inc., 356 F.2d 702, 705 (5th Cir. 1966)\n\n(“[A] perfected charging lien of attorneys cannot be defeated by a dismissal by stipulation\nunder Rule 41.”).\n 28 FED. R. CIV. P. 24(b).\n 29 See, e.g., Lucas v. McKeithen, 102 F.3d 171, 173 (5th Cir. 1996) (denying\n\nintervention of right and dismissing permissive intervention based on timeliness).\n 30 See Sommers, 835 F.3d at 512.\n\n 8\n\f Case: 18-30029 Document: 00514819166 Page: 9 Date Filed: 02/01/2019\n\n\n\n No. 18-30029\n IV. CONCLUSION\n We AFFIRM the district court’s decision as to intervention of right and\nDISMISS Seymour’s appeal for lack of jurisdiction as to permissive\nintervention.\n\n\n\n\n 9\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: ST. BERNARD PARISH, Through the St. Bernard Parish Government, Plaintiff-Appellee, v. LAFARGE NORTH AMERICA, INCORPORATED, Defendant-Appellee, v. Richard T. Seymour; Law Office of Richard T. Seymour, P.L.L.C., Movants-Appellants.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-30029 Document: 00514819166 Page: 1 Date Filed: 02/01/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n February 1, 2019\\n No. 18-30029\\n Lyle W. Cayce\\n Clerk\\nST. BERNARD PARISH, Through the St. Bernard Parish Government,\\n\\n Plaintiff–Appellee,\\n\\nv.\\n\\nLAFARGE NORTH AMERICA, INCORPORATED,\\n\\n Defendant–Appellee,\\n\\nv.\\n\\nRICHARD T. SEYMOUR; LAW OFFICE OF RICHARD T. SEYMOUR,\\nP.L.L.C.,\\n\\n Movants–Appellants.\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Louisiana\\n\\n\\nBefore STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.\\nDON R. WILLETT, Circuit Judge:\\n When Hurricane Katrina struck in 2005, a barge moored by Lafarge\\nwound up at large. According to New Orleans residents then represented by\\nRichard T. Seymour, the breakaway barge hurtled through a floodwall,\\nunleashing catastrophic flooding in the Lower 9th Ward before finally coming\\nto rest atop several homes and a yellow school bus. (It remains disputed\\nwhether the barge caused the breach or surfed through it after the floodwall\\ngave way.)\\n\\f Case: 18-30029 Document: 00514819166 Page: 2 Date Filed: 02/01/2019\\n\\n\\n\\n No. 18-30029\\n Seymour withdrew from the Barge Litigation in 2011. But when it\\nsettled several years later, he moved to intervene in this related case to pursue\\nhis fees and expenses. We agree with the district court that Seymour’s\\nintervention motion was untimely. As to intervention of right, we AFFIRM the\\ndistrict court’s order. As to permissive intervention, we DISMISS Seymour’s\\nappeal for lack of jurisdiction.\\n\\n I. BACKGROUND\\nA. Factual\\n In August 2005, Hurricane Katrina, the most destructive natural\\ndisaster in United States history, inflicted cataclysmic damage on New\\nOrleans. According to many residents of the Lower 9th Ward, a predominantly\\nAfrican-American neighborhood bordering the Industrial Canal, the damage\\nwas worsened by a barge that broke free and allided with a floodwall before\\ncrashing into the residential streets, unleashing a surge of water that ripped\\nhomes from their foundations before scattering them in splinters. 1 The\\nresidents alleged that the barge had been improperly moored at a facility\\nowned by Lafarge North America, Inc. The district court consolidated many of\\nthe resulting cases into the Barge Litigation.\\n Appellants Richard T. Seymour and the Law Office of Richard T.\\nSeymour, P.L.L.C. represented plaintiffs in the Barge Litigation. Seymour\\nperformed significant work in the consolidated cases, as noted in the order\\ngranting his motion to withdraw. This work contributed to multiple cases\\nincluding, per Seymour, this one. But Seymour never represented a party in\\nthis case because this action by St. Bernard Parish against Lafarge was not\\nconsolidated into the Barge Litigation.\\n\\n\\n\\n 1 See generally St. Bernard Par. v. Lafarge N. Am., Inc., 550 F. App’x 184 (5th Cir.\\n2013) (earlier appeal of summary-judgment decision).\\n 2\\n\\f Case: 18-30029 Document: 00514819166 Page: 3 Date Filed: 02/01/2019\\n\\n\\n\\n No. 18-30029\\nB. Procedural\\n In 2011 Seymour withdrew from the Barge Litigation because of a fee\\ndispute with Baker Sanders, LLC, a firm that now represents the Parish. In\\ngranting Seymour’s motion to withdraw, the district court explicitly recognized\\nhis potential claim to fees in the Barge Litigation. The Parish filed this case on\\nAugust 23, 2011, the same day Seymour withdrew.\\n About six years later, in 2017, the Parish and Lafarge settled this case.\\nOn July 20 Parish counsel called Seymour to tell him that the parties had\\nreached a settlement. The attorney told Seymour that at most he would be\\ncompensated for only some of his expenses. On July 23 Seymour served Baker\\nSanders with a Notice of Lien for fees and expenses in this case. Undaunted,\\nthe Parish and Lafarge filed a joint stipulation of dismissal with prejudice.\\n Seymour, intending to pursue his claim for fees in the district court,\\nmoved on August 9 to appear pro hac vice. The district court denied this motion\\nwithout prejudice because, before intervening in the case, Seymour would not\\nhave been representing anyone. So Seymour moved to intervene on September\\n17. Meanwhile, a Baker Sanders attorney had filed an interpleader action in\\nNew York state court that named Seymour as a defendant. The interpleader\\naction concerned the same funds that Seymour sought to pursue via\\nintervention.\\n The district court denied Seymour’s motion to intervene as untimely.\\nSeymour appealed.\\n\\n\\n\\n\\n 3\\n\\f Case: 18-30029 Document: 00514819166 Page: 4 Date Filed: 02/01/2019\\n\\n\\n\\n No. 18-30029\\n II. JURISDICTION AND STANDARD OF REVIEW\\nA. Jurisdiction\\n The district court had jurisdiction based on federal question; 2 diversity; 3\\nand the Multiparty, Multiforum Trial Jurisdiction Act of 2002. 4\\n We have jurisdiction under 28 U.S.C. § 1291 to review the denial of the\\nmotion to intervene of right. 5 And we have “provisional jurisdiction” to review\\nthe denial of permissive intervention. 6 This means that “[i]f the district court’s\\ndenial of permissive intervention does not constitute an abuse of discretion, we\\nmust dismiss the appeal for lack of jurisdiction.” 7\\nB. Standard of Review\\n “A ruling denying intervention of right is reviewed de novo.” 8 But the\\ntimeliness of an intervention motion is reviewed for abuse of discretion, so long\\nas the district court gave reasons for its determination. 9\\n “Denial of permissive intervention, on the other hand, is reviewed for\\nclear abuse of discretion.” 10 “Under this standard, the Court will reverse a\\ndistrict court decision only under extraordinary circumstances.” 11\\n\\n III. DISCUSSION\\n Federal Rule of Civil Procedure 24 covers two types of intervention, one\\nmandatory (“the court must permit”) 12 and the other permissive (“the court\\n\\n\\n\\n\\n 2 28 U.S.C. § 1331.\\n 3 28 U.S.C. § 1332.\\n 4 28 U.S.C. § 1369.\\n 5 Sommers v. Bank of Am., N.A., 835 F.3d 509, 512 (5th Cir. 2016).\\n 6 Id. (quoting Edwards v. City of Houston, 78 F.3d 983, 992 (5th Cir. 1996) (en banc)).\\n 7 Id. (quoting Edwards, 78 F.3d at 992).\\n 8 Edwards, 78 F.3d at 995.\\n 9 Sommers, 835 F.3d at 513; Edwards, 78 F.3d at 1000.\\n 10 Edwards, 78 F.3d at 995.\\n 11 Id. (quoting Cajun Elec. Power Coop. v. Gulf States Utils., Inc., 940 F.2d 117, 121\\n\\n(5th Cir. 1991)).\\n 12 FED. R. CIV. P. 24(a).\\n\\n 4\\n\\f Case: 18-30029 Document: 00514819166 Page: 5 Date Filed: 02/01/2019\\n\\n\\n\\n No. 18-30029\\nmay permit”). 13 While the provisions cover different situations, both prize\\npunctuality, beginning with the same three words: “On timely motion . . . .” 14\\nA. Intervention of Right\\n Rule 24(a)(2) governs intervention of right based on an interest in the\\naction. We have distilled the rule into four elements:\\n (1) the application for intervention must be timely; (2) the\\n applicant must have an interest relating to the property or\\n transaction which is the subject of the action; (3) the applicant\\n must be so situated that the disposition of the action may, as a\\n practical matter, impair his ability to protect that interest; (4) the\\n applicant’s interest must be inadequately represented by the\\n existing parties to the suit. 15\\n“Failure to satisfy any one requirement precludes intervention of right.” 16\\nTimeliness was the only element the district court decided and is the only one\\ndisputed here. In evaluating timeliness, a district court should consider four\\nfactors:\\n (1) The length of time during which the would-be intervenor\\n actually knew or reasonably should have known of its interest in\\n the case before it petitioned for leave to intervene; (2) the extent of\\n the prejudice that the existing parties to the litigation may suffer\\n as a result of the would-be intervenor’s failure to apply for\\n intervention as soon as it knew or reasonably should have known\\n of its interest in the case; (3) the extent of the prejudice that the\\n would-be intervenor may suffer if intervention is denied; and\\n (4) the existence of unusual circumstances militating either for or\\n against a determination that the application is timely. 17\\n\\n\\n\\n\\n 13 FED. R. CIV. P. 24(b).\\n 14 FED. R. CIV. P. 24(a); FED. R. CIV. P. 24(b).\\n 15 Sommers, 835 F.3d at 512 (quoting Texas v. United States, 805 F.3d 653, 657 (5th\\n\\nCir. 2015)).\\n 16 Edwards, 78 F.3d at 999 (citation omitted).\\n 17 Sommers, 835 F.3d at 512–13 (quoting Ford v. City of Huntsville, 242 F.3d 235, 239\\n\\n(5th Cir. 2001)).\\n 5\\n\\f Case: 18-30029 Document: 00514819166 Page: 6 Date Filed: 02/01/2019\\n\\n\\n\\n No. 18-30029\\n 1. Length of Time Elapsed\\n Seymour says he moved to intervene less than two months after\\nreceiving notice that his claim would not be paid. But the relevant starting\\npoint is “not when he knew or should have known that his interests would be\\nadversely affected but, instead, when he knew that he had an interest in the\\ncase.” 18 Here, Seymour knew that he had an interest in the case when he\\nwithdrew in 2011, six years before he moved to intervene.\\n Seymour counters that the “timeliness clock” does not begin until a\\nmovant knows or should know that his interest is no longer represented by an\\nexisting party. 19 But in 2011 he should have also known that no remaining\\nparty represented his interest. Although a plaintiff adequately represents his\\nattorney’s interest during the attorney-client relationship, 20 no party in a case\\nrepresents the interest of a discharged attorney. 21 And in Keith v. St. George\\nPacking Co. and Gaines v. Dixie Carriers, Inc., discharged attorneys were\\npermitted to intervene when their motions came within a year of being\\ndischarged. 22 Here, much more time lapsed—six years from withdrawal to\\nintervention. So the first timeliness factor weighs against permitting\\nintervention.\\n 2. Prejudice to Existing Parties\\n Seymour says his intervention will not prejudice other parties because it\\nwill not cause burdensome additional proceedings. He says the Parish cannot\\n\\n\\n\\n 18 Id. at 513.\\n 19 See Edwards, 78 F.3d at 1000.\\n 20 Valley Ranch Dev. Co. v. FDIC, 960 F.2d 550, 556 (5th Cir. 1992) (“His interest is\\n\\nidentical to [the client’s] until the agency relationship is broken.”).\\n 21 See Keith v. St. George Packing Co., 806 F.2d 525, 526 (5th Cir. 1986) (“[N]either\\n\\nparty to the pending action is interested in representing [the attorney’s] interests.”); Gaines\\nv. Dixie Carriers, Inc., 434 F.2d 52, 54 (5th Cir. 1970) (“Neither of the existing parties is\\nconcerned with protecting the appellant’s interest.”); see also Gilbert v. Johnson, 601 F.2d\\n761, 767 (5th Cir. 1979) (holding similar facts indistinguishable from Gaines).\\n 22 Keith, 806 F.2d at 525; Gaines, 434 F.2d at 54.\\n\\n 6\\n\\f Case: 18-30029 Document: 00514819166 Page: 7 Date Filed: 02/01/2019\\n\\n\\n\\n No. 18-30029\\nidentify anything it would have done differently had Seymour been a party all\\nalong. And his fee is to be taken from the existing settlement pool, not from a\\nrenewed settlement negotiation.\\n Seymour is correct that opening a fee dispute between the plaintiff, its\\ncurrent counsel, and former counsel would not necessarily relitigate the\\nunderlying case. But it would at least hold up the distribution of settlement\\nfunds, which could have been avoided had Seymour intervened when his\\ninterest was no longer represented. So the second timeliness factor is neutral.\\n 3. Prejudice to Seymour\\n Seymour says he will be prejudiced absent intervention because it will\\nbe difficult to pursue his claim elsewhere. He has numerous objections to the\\nNew York interpleader action, including lack of personal jurisdiction. And he\\nsays that a federal interpleader action is unavailable. But this does not rule\\nout other possibilities, such as a state-law action against the Parish or Baker\\nSanders to recover for his services. 23 At oral argument Seymour suggested that\\nhe preferred not to bring a separate action because it would be difficult to\\nobtain discovery of a confidential settlement agreement. 24 But discovery of\\nconfidential settlement agreements is generally available under an\\nappropriate protective order. 25 So the third timeliness factor weighs against\\npermitting intervention.\\n\\n\\n\\n 23 See, e.g., Gilbert, 601 F.2d at 767 (Rubin, J., specially concurring) (stating that\\nunder Georgia law the attorney “may, however, if discharged from the case by his client, bring\\nan action under quantum meruit for the reasonable value of services rendered”).\\n 24 Seymour cites Ford, 242 F.3d at 240, for the proposition that the presence of a\\n\\n“confidentiality order” is a consideration in granting or denying intervention. In Ford we\\ngranted a newspaper’s motion to intervene to challenge the confidentiality of a settlement.\\n242 F.3d at 241. But Ford did not address the discoverability of a confidential settlement\\nagreement in a separate private dispute.\\n 25 E.g., Cleveland Const. Inc. v. Whitehouse Hotel Ltd. P’ship, No. Civ.A. 01-2666, 2004\\n\\nWL 385052, at *1–2 (E.D. La. Feb. 25, 2004); Perez v. State Indus., Inc., 578 So. 2d 1018, 1020\\n(La. Ct. App. 1991).\\n 7\\n\\f Case: 18-30029 Document: 00514819166 Page: 8 Date Filed: 02/01/2019\\n\\n\\n\\n No. 18-30029\\n 4. “Unusual Circumstances”\\n Finally, Seymour says that the Parish’s or Baker Sanders’s attempt to\\nwithhold his fees, including filing a questionable interpleader action, are\\nspecial circumstances that favor intervention. Another special circumstance,\\nhe contends: the difficulty of intervening in the Barge Litigation as it stood in\\n2011—that is, in multiple fragmented cases.\\n The Parish, for its part, cites precedent that moving to intervene after a\\ncase is dismissed weighs against timeliness. 26 (We note, though, that the\\ndismissal did not deprive the district court of jurisdiction to grant intervention\\nor to grant the ultimate relief sought by Seymour. 27) Considering all of this,\\nthe fourth factor is neutral.\\n * * *\\n Viewing the four timeliness factors together, the district court did not\\nabuse its discretion in concluding that Seymour’s motion to intervene came too\\nlate.\\nB. Permissive Intervention\\n Like intervention of right, permissive intervention must be timely. 28 As\\nSeymour’s motion was untimely, no further analysis is needed. 29 The district\\ncourt did not clearly abuse its discretion in denying permissive intervention,\\nand this portion of Seymour’s appeal is dismissed for lack of jurisdiction. 30\\n\\n\\n\\n\\n 26See Sommers, 835 F.3d at 513 (“Though the appellees are incorrect in suggesting\\nthat intervention is always improper after a case has been dismissed, they are accurate in\\nasserting that it is a factor weighing against timeliness.”).\\n 27 See id.; United States v. Transocean Air Lines, Inc., 356 F.2d 702, 705 (5th Cir. 1966)\\n\\n(“[A] perfected charging lien of attorneys cannot be defeated by a dismissal by stipulation\\nunder Rule 41.”).\\n 28 FED. R. CIV. P. 24(b).\\n 29 See, e.g., Lucas v. McKeithen, 102 F.3d 171, 173 (5th Cir. 1996) (denying\\n\\nintervention of right and dismissing permissive intervention based on timeliness).\\n 30 See Sommers, 835 F.3d at 512.\\n\\n 8\\n\\f Case: 18-30029 Document: 00514819166 Page: 9 Date Filed: 02/01/2019\\n\\n\\n\\n No. 18-30029\\n IV. CONCLUSION\\n We AFFIRM the district court’s decision as to intervention of right and\\nDISMISS Seymour’s appeal for lack of jurisdiction as to permissive\\nintervention.\\n\\n\\n\\n\\n 9\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":578,"cells":{"id":{"kind":"number","value":4586916,"string":"4,586,916"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. City of Meridian"},"decision_date":{"kind":"string","value":"2019-02-01"},"docket_number":{"kind":"string","value":"17-60805"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before REAVLEY, ELROD, and HIGGINSON, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JENNIFER WALKER ELROD, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-60805 Document: 00514819440 Page: 1 Date Filed: 02/01/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 17-60805 United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n February 1, 2019\\nUNITED STATES OF AMERICA,\\n Lyle W. Cayce\\n Plaintiff – Appellant, Clerk\\n\\n\\nv.\\n\\nLAUDERDALE COUNTY, MISSISSIPPI; JUDGE VELDORE YOUNG-\\nGRAHAM, In her official capacity; and JUDGE LISA HOWELL, In her\\nofficial capacity,\\n\\n Defendants – Appellees.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Mississippi\\n\\n\\nBefore REAVLEY, ELROD, and HIGGINSON, Circuit Judges.\\nJENNIFER WALKER ELROD, Circuit Judge:\\n This case presents a question of statutory interpretation. The question\\nis whether the phrase “officials or employees of any governmental agency with\\nresponsibility for the administration of juvenile justice,” as it is used in 34\\nU.S.C. § 12601(a), includes the judges of a county youth court. Holding that it\\ndoes not, we AFFIRM the judgment of the district court.\\n I.\\n As this is a question of statutory interpretation, we begin with the text\\nof the statute. In 1994, Congress passed the Violent Crime Control and Law\\n\\f Case: 17-60805 Document: 00514819440 Page: 2 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nEnforcement Act. 1 Relevant to this case are the provisions found in Title XXI,\\n§ 210401, 108 Stat. 2071, now codified at 34 U.S.C. § 12601. That section,\\nenacted under a title heading of “State and Local Law Enforcement,” and a\\nsubtitle heading of “Police Pattern or Practice,” reads as follows:\\n (a) Unlawful conduct\\n It shall be unlawful for any governmental authority, or any agent\\n thereof, or any person acting on behalf of a governmental\\n authority, to engage in a pattern or practice of conduct by law\\n enforcement officers or by officials or employees of any\\n governmental agency with responsibility for the administration of\\n juvenile justice or the incarceration of juveniles that deprives\\n persons of rights, privileges, or immunities secured or protected by\\n the Constitution or laws of the United States.\\n (b) Civil action by Attorney General\\n Whenever the Attorney General has reasonable cause to believe\\n that a violation of paragraph (1) 2 has occurred, the Attorney\\n General, for or in the name of the United States, may in a civil\\n action obtain appropriate equitable and declaratory relief to\\n eliminate the pattern or practice.\\n34 U.S.C. § 12601.\\n\\n\\n\\n\\n 1 Pub. L. No. 103-322, 108 Stat. 1796 (1994).\\n\\n 2 The reference to “paragraph (1)” is presumably a scrivener’s error that should read\\n“paragraph (a)”—as there does not appear to be a paragraph (1) in the associated statutory\\nscheme to which it could plausibly be referring, and it appears quite clear that the intended\\nreference was to paragraph (a). See also Holloway v. United States, 526 U.S. 1, 19 n.2 (1999)\\n(Scalia, J., dissenting) (noting that a scrivener’s error in a statute may only properly be\\ncorrected by a court when the text is devoid of any plausible purpose for being written in that\\nmanner); United States v. X-Citement Video, Inc., 513 U.S. 64, 82 (1994) (Scalia, J.,\\ndissenting) (“[T]he sine qua non of any ‘scrivener’s error’ doctrine . . . is that the meaning\\ngenuinely intended but inadequately expressed must be absolutely clear; otherwise we might\\nbe rewriting the statute rather than correcting a technical mistake.”).\\n\\n 2\\n\\f Case: 17-60805 Document: 00514819440 Page: 3 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\n II.\\n The United States Department of Justice initiated this litigation in\\nOctober 2012. In its complaint, the United States alleged, inter alia, 3 that\\nLauderdale County and its two Youth Court judges 4 operated a “school-to-\\nprison pipeline” and, through their administration of the juvenile justice\\nprocess, were engaged in patterns or practices that denied juveniles their\\nconstitutional rights under the Fourth, Fifth, and Fourteenth Amendments.\\n Before we further address the litigation underlying this appeal, it will be\\nuseful to offer some background on the Lauderdale County Youth Court, its\\njudges, and its procedures. In Mississippi, county youth courts are divisions of\\nthe county courts, and the judges of the county courts are also the judges of the\\nyouth courts. Miss. Code Ann. § 43-21-107. County judges are elected for\\nterms of four years, and the Governor has authority to fill vacancies by\\nappointment. Id. §§ 9-9-5, 9-7-1, 9-1-103. Lauderdale County is authorized\\ntwo county judges. Id. § 9-9-18.3. When a juvenile is charged with offenses\\nunder youth court jurisdiction, he or she is brought before an intake officer of\\nthe court who establishes jurisdiction and recommends whether informal\\nresolution or custody is warranted. Id. § 43-21-357. If the juvenile is placed\\ninto custody, he or she must be brought before a youth court judge within 48\\nhours—excluding weekends and holidays—for a probable cause determination.\\nId. § 43-21-301. If needed, the juvenile is appointed a guardian ad litem and/or\\n\\n\\n\\n 3 In the same complaint, the government also made allegations against the City of\\nMeridian, through the Meridian Police Department, and the state of Mississippi, through its\\nDivision of Youth Services. However, those allegations are not part of the appeal before us.\\n\\n 4 The complaint and initial litigation named Judges Frank Coleman and Veldore\\nYoung-Graham as defendants in their official capacities. During the course of this litigation,\\nJudge Coleman was replaced by Judge Lisa Howell on the Youth Court, and the parties agree\\nthat she should be substituted in as a party to this appeal. We have therefore adjusted the\\nstyle of the case to replace Judge Coleman with Judge Howell.\\n 3\\n\\f Case: 17-60805 Document: 00514819440 Page: 4 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\ndefense counsel. Id. §§ 43-21-121, 43-21-201. If the juvenile is held in custody,\\nan adjudicatory hearing must be held within 21 days, with a few exceptions.\\nId. § 43-21-551. If the juvenile is adjudicated to be delinquent or in need of\\nsupervision, a disposition hearing must then be scheduled within 14 days. Id.\\n§ 43-21-601. If the disposition requires detention, the detention cannot exceed\\n90 days. Id. § 43-21-605(1)(l). To perform the work of the youth courts, the\\nyouth court judges may appoint intake officers, guardians ad litem, defense\\ncounsel, and prosecutors. Id. §§ 43-21-119 (intake officers); 43-21-117\\n(prosecutors); 43-21-121 (guardians ad litem); 43-21-201 (defense counsel).\\nThe county board of supervisors controls the funding and budget for county\\nyouth courts. Id. § 43-21-123.\\n The government brought this action against Lauderdale County and its\\nYouth Court judges under 34 U.S.C. § 12601 (formerly codified at 42 U.S.C.\\n14141). By way of alleged constitutional violations, the government alleges\\nthat the Lauderdale County judges: delay detention hearings for longer than\\n48 hours; do not base their detention determinations on whether probable\\ncause exists; do not consistently provide defense counsel; do not clearly\\narticulate the standards for school suspensions; do not conduct hearings that\\ndetermine whether violations occurred but instead “exist solely to determine\\npunishment[;]” and do not allow juveniles sufficient access to their attorneys. 5\\n By way of relief, the complaint filed by the United States seeks: (1) a\\ndeclaration that constitutional violations are occurring; (2) an injunction\\nagainst said unconstitutional practices; (3) an order requiring the defendants\\n“to promulgate and effectuate” policies more protective of constitutional rights;\\n\\n\\n\\n 5 This list is by no means exclusive of all the alleged constitutional violations pleaded\\nby the government in their complaint, but it summarizes the judges’ alleged constitutional\\nviolations that were briefed by the government on appeal.\\n\\n 4\\n\\f Case: 17-60805 Document: 00514819440 Page: 5 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\n(4) an order directing the creation of “alternatives to detention and juvenile\\njustice processes for children,” as well as the “review and expungement of\\nyouth records[;]” (5) for the court to retain jurisdiction until the defendants\\nfully comply; and (6) “any such additional relief as the interests of justice\\nrequire.” Though not the basis of our decision, we share the concerns expressed\\nby the district court that the government appears to be seeking remedies that\\nwould not only exceed the authority of the Youth Court judges, but also dictate\\nhow the Youth Court judges shall perform their adjudicatory functions when\\nenforcing state law. 6 Accord ODonnell v. Harris Cty, 892 F.3d 147, 155 (5th\\nCir. 2018) (holding that the judge of a county court may be liable under 42\\nU.S.C. § 1983 when acting as a policymaker for the county, but not when\\n“acting in his or her judicial capacity to enforce state law” (quoting Johnson v.\\nMoore, 958 F.2d 92, 94 (5th Cir. 1992))).\\n The litigation underlying this appeal was tied up in motions, discovery,\\nand settlement discussions for years. The judges first moved to dismiss this\\nlitigation on Younger abstention grounds, but that argument was rejected by\\nthe district court. The judges next moved to dismiss on the grounds of the\\nRooker-Feldman doctrine and judicial immunity. In September 2017, the\\ndistrict court rejected the Rooker-Feldman argument, but granted the motion\\nto dismiss on the bases that the plain statutory language of 34 U.S.C. § 12601\\ndid not encompass youth court judges, and also that the judges were entitled\\nto judicial immunity with respect to the claims raised. The government timely\\n\\n\\n\\n\\n 6 At oral argument, the government averred that, at least as applied to the judges, it\\nis only seeking remedies that are “procedural” in nature. Oral Argument at 15:30, 16:10.\\nUnited States v. Lauderdale Cty, (No. 17-60805), http://www.ca5.uscourts.gov/oral-argument-\\ninformation/oral-argument-recordings. However, the government subsequently declined\\nmultiple opportunities to explain, precisely, the nature of the remedies it is seeking against\\nthe judges. See, e.g., id. at 18:30, 19:55, 21:40.\\n\\n 5\\n\\f Case: 17-60805 Document: 00514819440 Page: 6 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nappeals the statutory interpretation and judicial immunity determinations. As\\nfar as we are aware, this is the first—and thus far the only—Section 12601\\nclaim brought against the judges of a youth court (or any court) to be resolved\\nin the federal courts through adjudication.\\n III.\\n The government contends that the district court erred in its conclusion\\nthat 34 U.S.C. § 12601 does not encompass the Lauderdale County Youth\\nCourt judges. 7 Boiled down to its core, the argument between the parties is\\nwhether the phrase “officials or employees of any governmental agency with\\nresponsibility for the administration of juvenile justice,” when viewed in the\\ncontext of 34 U.S.C. § 12601, should include the judges of the Youth Court. To\\nput an even finer point on the argument, the question is whether the Youth\\nCourt should be considered an “agency” under the statute.\\n We review questions of statutory interpretation de novo. Matter of\\nGlenn, 900 F.3d 187, 189 (5th Cir. 2018). “The task of statutory interpretation\\nbegins and, if possible, ends with the language of the statute.” Trout Point\\nLodge, Ltd. v. Handshoe, 729 F.3d 481, 486 (5th Cir. 2013). “When the\\nlanguage is plain, we ‘must enforce the statute’s plain meaning, unless\\nabsurd.’ ” Id. (quoting In re Nowlin, 576 F.3d 258, 261–62 (5th Cir. 2009)); see\\nalso BedRoc Ltd. v. United States, 541 U.S. 176, 183 (2004) (“The preeminent\\ncanon of statutory interpretation requires [the court] to ‘presume that [the]\\n\\n\\n\\n\\n 7We note that the district court framed its analysis by: first holding that the judges\\nhad judicial immunity against the claims made against them in this case; and then holding\\nthat that judicial immunity was not overcome by 34 U.S.C. § 12601, as that statute does not\\napply to the judges. However, the question of judicial immunity as to specific claims need\\nnot be reached if the judges are not proper defendants under the statute to begin with.\\nAccordingly, on appeal, both the government and the judges in this case correctly present the\\nquestion as: first, whether the statute applies to judges; and second, if it does, whether the\\njudges have judicial immunity against the specific claims made.\\n 6\\n\\f Case: 17-60805 Document: 00514819440 Page: 7 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nlegislature says in a statute what it means and means in a statute what it says\\nthere.’ ” (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54 (1992))).\\n Because 34 U.S.C. § 12601 does not define how the term “agency” is used\\nin the statute, we “look first to the word’s ordinary meaning.” Schindler\\nElevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 407 (2011). The\\ngovernment enters this analysis at a disadvantage. The Supreme Court has\\nobserved that “[i]n ordinary parlance, . . . courts are not described as\\n‘departments’ or ‘agencies’ of the Government.” Hubbard v. United States, 514\\nU.S. 695, 699 (1995). In fact, the Supreme Court has noted that “it would be\\nstrange indeed to refer to a court as an ‘agency.’ ” Id. Even setting that\\nprecedent aside, a common sense understanding of the word “agency” would\\nseem to require, at least when the word is used in the ordinary sense, that\\nthere be a principal on behalf of whom the agent acts. See Agency, Black’s Law\\nDictionary (6th ed. 1990). The government does not identify what principal\\nthe Youth Court judges would be acting as agents for.\\n The fact that the word “agency” is not normally understood to include\\nthe courts does not mean that Congress could not have enacted a statute that\\nincludes them in the definition. Indeed, Congress has enacted several other\\nstatutes that do just that. See, e.g., 22 U.S.C. § 6106(1) 8 (defining “agency” for\\nthe purposes of the Mansfield Fellowship Program to include “any court of the\\njudicial branch”); 5 U.S.C. § 3371(3) 9 (defining “[f]ederal agency” for the\\npurposes of a statute governing employee assignments between the federal and\\nstate governments to include “a court of the United States”). But this fact also\\ncuts against the government here. Given that Congress, when it so chooses,\\n\\n\\n 8 Pub. L. 103-236, § 257, 108 Stat. 432 (1994).\\n\\n 9 Pub. L. 91-648, § 402(a), 84 Stat. 1920 (1971), amended by Pub. L. 95-454, § 603(a),\\n92 Stat. 1189 (1978).\\n\\n 7\\n\\f Case: 17-60805 Document: 00514819440 Page: 8 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nknows how to deviate from the ordinary usage of “agency” by expressly defining\\nthe term to include courts, the fact that Congress did not do so in this statute\\nweighs against deviating from the ordinary usage here. 10 Accord Whitfield v.\\nUnited States, 543 U.S. 209, 216 (2005) (noting, in the context of a different\\nstatutory interpretation question, that the inclusion of an overt act\\nrequirement in other statutes clearly demonstrated Congress “knows how to\\nimpose such a requirement when it wishes to do so”); Dole Food Co. v.\\nPatrickson, 538 U.S. 468, 476 (2003) (noting that “[w]here Congress intends to\\nrefer to ownership in other than the formal sense, it knows how to do so”). But\\nsee 5 U.S.C. § 551(1)(B) 11 (defining “agency” for the purposes of the\\nAdministrative Procedure Act to explicitly exclude the courts).\\n Recognizing that the ordinary usage of “agency” will not lead to its\\ndesired outcome, the government maintains that we must view the word in the\\ncontext of the rest of the statute. See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004)\\n(“[W]e construe language in its context and in light of the terms surrounding\\nit”); Deal v. United States, 508 U.S. 129, 132 (1993) (observing the\\n“fundamental principle of statutory construction (and, indeed, of language\\nitself) that the meaning of a word cannot be determined in isolation, but must\\nbe drawn from the context in which it is used”). See also Antonin Scalia &\\nBryan A. Garner, Reading Law: The Interpretation of Legal Texts, 69 (2012)\\n(“Words are to be understood in their ordinary, everyday meanings—unless\\nthe context indicates that they bear a technical sense.”). So we now turn to the\\ncontext.\\n\\n\\n\\n 10 The statute now codified at 22 U.S.C. § 6106(1) (expressly defining “agency” to\\ninclude “any court” for the purposes of that act) and the statute now codified at 34 U.S.C.\\n§ 12601 (not expressly defining “agency” to include courts for the purpose of that act) were\\nboth passed in 1994 by the same Congress.\\n\\n 11 Pub. L. 89–554, 80 Stat. 381 (1966).\\n 8\\n\\f Case: 17-60805 Document: 00514819440 Page: 9 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\n We will begin our contextual analysis by looking at the title and subtitle\\nof the statutory section enacting this text. While section headings are not\\ncontrolling, they can be used as evidence when interpreting the operative text\\nof the statute. See Yates v. United States, 135 S. Ct. 1074, 1083 (2015)\\n(plurality op.); id. at 1089–90 (Alito, J., concurring in the judgment);\\nAlmendarez–Torres v. United States, 523 U.S. 224, 234 (1998) (“the title of a\\nstatute and the heading of a section are tools available for the resolution of a\\ndoubt about the meaning of a statute” (internal quotation marks omitted)). As\\nalready noted, 34 U.S.C. § 12601 was enacted under the title heading of “State\\nand Local Law Enforcement,” and the subtitle heading of “Police Pattern or\\nPractice.” Pub. L. No. 103-322, § 210401, 108 Stat. 2071. Those headings do\\nnot support the government’s argument that the statute is intended to include\\njudges. 12\\n We next address the question of superfluity. “It is ‘a cardinal principle\\nof statutory construction’ that ‘a statute ought, upon the whole, to be so\\nconstrued that, if it can be prevented, no clause, sentence, or word shall be\\nsuperfluous, void, or insignificant.’ ” TRW Inc. v. Andrews, 534 U.S. 19, 31\\n(2001) (quoting Duncan v. Walker, 553 U.S. 167, 174 (2001)). See also Asadi v.\\nG.E. Energy (USA), L.L.C., 720 F.3d 620, 622 (5th Cir. 2013) (“In construing a\\n\\n\\n 12 The government argues that we should disregard those titles based on its assertion\\nthat, after the titles were written, the text was modified by an amendment whose sponsor\\nmade a single statement purportedly suggesting an intent to include juvenile court systems.\\nWe reject this argument. In construing a statute, it is our duty to evaluate the text that was\\nactually enacted into law by both houses of Congress and the President. We will not go down\\nthe rabbit hole of attempting to divine the intent of Congress as a whole based on a single\\nstatement by a single Senator. Accord Blanchard v. Bergeron, 489 U.S. 87, 99 (1989) (Scalia,\\nJ., concurring) (“I decline to participate in this process. It is neither compatible with our\\njudicial responsibility of assuring reasoned, consistent, and effective application of the\\nstatutes of the United States, nor conducive to a genuine effectuation of congressional\\nintent[.]”); Texas v. United States Envtl. Prot. Agency, 829 F.3d 405, 422 n.27 (5th Cir. 2016)\\n(declining to consider a single comment in a House Report because “[w]e do not consider\\npassing commentary in the legislative history . . . when the statutory text itself yields a single\\nmeaning”).\\n 9\\n\\f Case: 17-60805 Document: 00514819440 Page: 10 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nstatute, a court should give effect, if possible, to every word and every provision\\nCongress used.”). 34 U.S.C. § 12601 refers to “pattern[s] or practice[s] of\\nconduct by law enforcement officers or by officials or employees of any\\ngovernmental agency with responsibility for the administration of juvenile\\njustice or the incarceration of juveniles[.]” (emphasis added). The government\\nargues in its opening brief on appeal that the second clause would be rendered\\nsuperfluous if we interpret Section 12601 to encompass only law enforcement\\npersonnel. However, that is not the only alternate reading of the statute. As\\nthe government rightly concedes in its Reply Brief, the second clause would\\nstill encompass more than law enforcement personnel even if not read to\\ninclude youth court judges. The “incarceration of juveniles” language would\\nclearly still include the personnel of the juvenile detention facilities, and, as\\nthe original parties to this litigation demonstrate, the “administration of\\njuvenile justice” language would still include, just to name a few examples,\\nboth Lauderdale County and Mississippi’s Division of Youth Services. Thus,\\nexcluding the judges of the Youth Court from Section 12601 would not render\\nportions of the statute superfluous.\\n The judges, for their part, raise a noscitur a sociis argument. “[W]e rely\\non the principle of noscitur a sociis—a word is known by the company it\\nkeeps—to ‘avoid ascribing to one word a meaning so broad that it is\\ninconsistent with its accompanying words, thus giving unintended breadth to\\nthe Acts of Congress.’ ” Yates, 135 S. Ct. at 1085 (plurality op.) (quoting\\nGustafson v. Alloyd Co., 513 U.S. 561, 575 (1995)). See also Scalia & Garner,\\nReading Law at 195 (“When several [words] are associated in a context\\nsuggesting that the words have something in common, they should be assigned\\na permissible meaning that makes them similar.”). The judges argue that the\\nprinciple of noscitur a sociis weighs towards interpreting the clause “conduct\\nby law enforcement officers” as limiting the meaning of “any governmental\\n 10\\n\\f Case: 17-60805 Document: 00514819440 Page: 11 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nagency” to entities that are similar to law enforcement agencies. However, on\\nthis point the judges’ argument holds little water. As the government correctly\\npoints out, noscitur a sociis “is invoked when a string of statutory terms raises\\nthe implication that the ‘words grouped in a list should be given related\\nmeaning.’ ” S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 378 (2006)\\n(quoting Dole v. Steelworkers, 494 U.S. 26, 36 (1990)). The statutory text\\n“conduct by law enforcement officers or by officials or employees of any\\ngovernmental agency” does not contain a string of terms; rather, it contains\\ntwo independent clauses separated by a disjunctive “or.” See Encino\\nMotorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018) (noting that “or” is\\n“almost always disjunctive” (quoting United States v. Woods, 571 U.S. 31, 45\\n(2013))). As such, the noscitur a sociis argument does not support the judges’\\nargument that Section 12601 should be interpreted to exclude judges—though\\nits rejection does not necessarily lend weight to the government’s counter-\\ncontention that Section 12601 must be interpreted to include them. On net,\\nthis argument is a wash.\\n We now turn to the government’s argument that “governmental agency”\\nshould not be viewed in isolation, but instead should be interpreted as modified\\nby the clause “with responsibility for the administration of juvenile justice.”\\nSee, e.g., Leocal, 543 U.S. at 9 (“we construe language . . . in light of the terms\\nsurrounding it”). See also Scalia & Garner, Reading Law at 167 (noting that\\n“the judicial interpreter [must] consider the entire text, in view of its structure\\nand of the physical and logical relation of its many parts”). The government\\nasserts that the modifying phrase “with responsibility for the administration\\nof juvenile justice” should be interpreted to include juvenile courts within the\\nmeaning of “governmental agency.” However, this argument is weak for the\\nsame reason that the superfluity argument fails. Even though juvenile courts\\n\\n\\n 11\\n\\f Case: 17-60805 Document: 00514819440 Page: 12 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nare indeed entities with responsibility for administering juvenile justice, 13 not\\nall entities are “agencies.” There is no shortage of non-adjudicatory entities\\nwith responsibility for the administration of juvenile justice—most, if not all,\\nof which are more amenable to the ordinary understanding of the word\\n“agency” than is a court. It seems quite reasonable to infer that Congress was\\nreferring to those non-adjudicatory entities when enacting the phrase\\n“governmental agency with responsibility for the administration of juvenile\\njustice[,]” and we see little support for the government’s argument that by\\nadding such language Congress deviated from the ordinary usage of the term\\n“agency.” As such, the government’s invocation of the modifying phrase “with\\nresponsibility for the administration of juvenile justice” is weak evidence for\\nthe proposition that the word “agency” should be interpreted outside its\\nordinary meaning.\\n The government also makes the related argument that the phrase\\n“governmental agency” should be interpreted to include juvenile courts\\nbecause the phrase is modified by the word “any.” Specifically, the government\\nappears to argue that by using the phrase “any governmental agency,” what\\nCongress intended to say was “all governmental entities.” This argument is\\njust like the previous one, but weaker still. “Entity” is still not a synonym for\\n“agency.” It is quite reasonable to infer that Congress, by use of the word “any,”\\nwas referring to any agency ordinarily referred to as an agency. As such, use\\nof the word “any” to modify “governmental agency” is also weak evidence for\\nthe proposition that the phrase should be interpreted outside its ordinary\\nmeaning.\\n\\n\\n\\n\\n 13 See Court, Black’s Law Dictionary (6th ed. 1990) (defining “court” as “a body\\norganized to administer justice[.]”).\\n 12\\n\\f Case: 17-60805 Document: 00514819440 Page: 13 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\n Finally, we will address the purpose argument. Congress’s stated\\npurpose in authorizing the Attorney General to bring lawsuits under Section\\n12601 was “to eliminate the pattern or practice” of denying juveniles their\\nconstitutional and statutory rights. 34 U.S.C. § 12601(b). The government\\nargues that because juvenile courts are a central part of the juvenile justice\\nsystem, interpreting Section 12601 to exclude juvenile courts would “effectively\\nvitiate” the purpose of the statute. See also Scalia & Garner, Reading Law at\\n63 (“A textually permissible interpretation that furthers rather than obstructs\\nthe document’s purpose should be favored.”). However, “no law pursues its\\npurpose at all costs, and . . . the textual limitations upon a law’s scope are no\\nless a part of its ‘purpose’ than its substantive authorizations.” Rapanos v.\\nUnited States, 547 U.S. 715, 752 (2006) (plurality op.). 34 U.S.C. § 12601 has\\na clear textual limitation in the form of the word “agency.” Moreover, given\\nthat the government can presumably still bring Section 12601 lawsuits against\\nmany other entities in the juvenile justice system without stretching the\\nordinary meaning of any words—including counties, city councils, mayors,\\npolice commissioners, correctional facilities, and youth services—we think it\\nstrains credulity to say that Congress’s purpose in enacting the statute would\\nbe vitiated unless the word “agency” was interpreted outside of its ordinary\\nmeaning.\\n Therefore, we decline to interpret the word “agency,” as it is used in 34\\nU.S.C. § 12601, to encompass the Youth Court. As such, the district court did\\nnot err in dismissing the Section 12601 claims brought against the Lauderdale\\nCounty Youth Court judges.\\n IV.\\n We now turn to two residual matters raised by the parties. First, we\\nconsider the question of judicial immunity. The parties dedicate considerable\\nportions of their briefs disputing whether or not the Youth Court judges should\\n 13\\n\\f Case: 17-60805 Document: 00514819440 Page: 14 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nhave judicial immunity against the specific claims made against them in his\\nlawsuit. However, because we hold that the text of 34 U.S.C. § 12601 is not\\napplicable to the judges of the Youth Court, we do not reach the question of\\njudicial immunity as to any of the specific claims raised in this case. 14\\n Second, we consider the question of whether this lawsuit can continue\\nagainst Lauderdale County if the Youth Court judges are excluded. Before the\\ndistrict court, the government argued that Lauderdale County was\\nindependently liable under Section 12601 because of its budgetary authority\\nover the Youth Court and its alleged failure to provide indigent juveniles with\\nadequate representation. However, on appeal, the government changed course\\nand now only argues that dismissal of the County follows dismissal of the\\njudges, and that reversing the latter also requires reversing the former. 15\\nMoreover, at oral argument, counsel for the government conceded that it did\\nnot brief an independent basis for continuing the litigation against the County,\\nand stated that if the judges are deemed to be outside of Section 12601 then\\nthe claims against the County should also be dismissed. Oral Argument at\\n59:00. We take the government at its word.\\n Therefore, because we hold that the district court did not err in\\ndismissing the lawsuit against the judges on the basis that they are outside\\nthe scope of Section 12601, and because the government has affirmatively\\n\\n\\n 14We likewise do not consider the district court’s determinations regarding the\\nYounger abstention and Rooker-Feldman arguments.\\n\\n 15 In a letter filed with the court after oral argument, the government argues that if\\nwe interpret Section 12601’s use of the phrase “governmental agency” to exclude the Youth\\nCourt, then we should remand to determine whether public defenders and non-judicial court\\npersonnel can be held liable under the statute. However, not only did the government fail to\\nmake that argument in its briefs, but it has also not named these persons as defendants in\\nthis litigation. As such, we decline the government’s invitation to remand for that purpose,\\nand leave it be addressed in future cases where the issue is squarely raised and litigated.\\nSee, e.g., Sindhi v. Raina, 905 F.3d 327, 334 (5th Cir. 2018) (noting that issues not briefed\\nwill not be considered on appeal).\\n 14\\n\\f Case: 17-60805 Document: 00514819440 Page: 15 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nwaived any other argument for continuing the lawsuit against the County, we\\naffirm the dismissal of this litigation as it pertains to Lauderdale County. See\\nUnited States v. Young, 872 F.3d 742, 747 (5th Cir. 2017) (“Waiver is the\\n‘intentional relinquishment or abandonment of a known right.’ ” (quoting\\nUnited States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006))).\\n The judgment of the district court is AFFIRMED.\\n\\n\\n\\n\\n 15\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4364169/\", \"author_raw\": \"JENNIFER WALKER ELROD, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"REAVLEY"},"judge2":{"kind":"string","value":"ELROD"},"judge3":{"kind":"string","value":"HIGGINSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"REAVLEY\": \", Circuit\", \"ELROD\": \", Circuit\", \"HIGGINSON\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4586916/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. City of Meridian\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-60805 Document: 00514819440 Page: 1 Date Filed: 02/01/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 17-60805 United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 1, 2019\nUNITED STATES OF AMERICA,\n Lyle W. Cayce\n Plaintiff – Appellant, Clerk\n\n\nv.\n\nLAUDERDALE COUNTY, MISSISSIPPI; JUDGE VELDORE YOUNG-\nGRAHAM, In her official capacity; and JUDGE LISA HOWELL, In her\nofficial capacity,\n\n Defendants – Appellees.\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Mississippi\n\n\nBefore REAVLEY, ELROD, and HIGGINSON, Circuit Judges.\nJENNIFER WALKER ELROD, Circuit Judge:\n This case presents a question of statutory interpretation. The question\nis whether the phrase “officials or employees of any governmental agency with\nresponsibility for the administration of juvenile justice,” as it is used in 34\nU.S.C. § 12601(a), includes the judges of a county youth court. Holding that it\ndoes not, we AFFIRM the judgment of the district court.\n I.\n As this is a question of statutory interpretation, we begin with the text\nof the statute. In 1994, Congress passed the Violent Crime Control and Law\n\f Case: 17-60805 Document: 00514819440 Page: 2 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nEnforcement Act. 1 Relevant to this case are the provisions found in Title XXI,\n§ 210401, 108 Stat. 2071, now codified at 34 U.S.C. § 12601. That section,\nenacted under a title heading of “State and Local Law Enforcement,” and a\nsubtitle heading of “Police Pattern or Practice,” reads as follows:\n (a) Unlawful conduct\n It shall be unlawful for any governmental authority, or any agent\n thereof, or any person acting on behalf of a governmental\n authority, to engage in a pattern or practice of conduct by law\n enforcement officers or by officials or employees of any\n governmental agency with responsibility for the administration of\n juvenile justice or the incarceration of juveniles that deprives\n persons of rights, privileges, or immunities secured or protected by\n the Constitution or laws of the United States.\n (b) Civil action by Attorney General\n Whenever the Attorney General has reasonable cause to believe\n that a violation of paragraph (1) 2 has occurred, the Attorney\n General, for or in the name of the United States, may in a civil\n action obtain appropriate equitable and declaratory relief to\n eliminate the pattern or practice.\n34 U.S.C. § 12601.\n\n\n\n\n 1 Pub. L. No. 103-322, 108 Stat. 1796 (1994).\n\n 2 The reference to “paragraph (1)” is presumably a scrivener’s error that should read\n“paragraph (a)”—as there does not appear to be a paragraph (1) in the associated statutory\nscheme to which it could plausibly be referring, and it appears quite clear that the intended\nreference was to paragraph (a). See also Holloway v. United States, 526 U.S. 1, 19 n.2 (1999)\n(Scalia, J., dissenting) (noting that a scrivener’s error in a statute may only properly be\ncorrected by a court when the text is devoid of any plausible purpose for being written in that\nmanner); United States v. X-Citement Video, Inc., 513 U.S. 64, 82 (1994) (Scalia, J.,\ndissenting) (“[T]he sine qua non of any ‘scrivener’s error’ doctrine . . . is that the meaning\ngenuinely intended but inadequately expressed must be absolutely clear; otherwise we might\nbe rewriting the statute rather than correcting a technical mistake.”).\n\n 2\n\f Case: 17-60805 Document: 00514819440 Page: 3 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\n II.\n The United States Department of Justice initiated this litigation in\nOctober 2012. In its complaint, the United States alleged, inter alia, 3 that\nLauderdale County and its two Youth Court judges 4 operated a “school-to-\nprison pipeline” and, through their administration of the juvenile justice\nprocess, were engaged in patterns or practices that denied juveniles their\nconstitutional rights under the Fourth, Fifth, and Fourteenth Amendments.\n Before we further address the litigation underlying this appeal, it will be\nuseful to offer some background on the Lauderdale County Youth Court, its\njudges, and its procedures. In Mississippi, county youth courts are divisions of\nthe county courts, and the judges of the county courts are also the judges of the\nyouth courts. Miss. Code Ann. § 43-21-107. County judges are elected for\nterms of four years, and the Governor has authority to fill vacancies by\nappointment. Id. §§ 9-9-5, 9-7-1, 9-1-103. Lauderdale County is authorized\ntwo county judges. Id. § 9-9-18.3. When a juvenile is charged with offenses\nunder youth court jurisdiction, he or she is brought before an intake officer of\nthe court who establishes jurisdiction and recommends whether informal\nresolution or custody is warranted. Id. § 43-21-357. If the juvenile is placed\ninto custody, he or she must be brought before a youth court judge within 48\nhours—excluding weekends and holidays—for a probable cause determination.\nId. § 43-21-301. If needed, the juvenile is appointed a guardian ad litem and/or\n\n\n\n 3 In the same complaint, the government also made allegations against the City of\nMeridian, through the Meridian Police Department, and the state of Mississippi, through its\nDivision of Youth Services. However, those allegations are not part of the appeal before us.\n\n 4 The complaint and initial litigation named Judges Frank Coleman and Veldore\nYoung-Graham as defendants in their official capacities. During the course of this litigation,\nJudge Coleman was replaced by Judge Lisa Howell on the Youth Court, and the parties agree\nthat she should be substituted in as a party to this appeal. We have therefore adjusted the\nstyle of the case to replace Judge Coleman with Judge Howell.\n 3\n\f Case: 17-60805 Document: 00514819440 Page: 4 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\ndefense counsel. Id. §§ 43-21-121, 43-21-201. If the juvenile is held in custody,\nan adjudicatory hearing must be held within 21 days, with a few exceptions.\nId. § 43-21-551. If the juvenile is adjudicated to be delinquent or in need of\nsupervision, a disposition hearing must then be scheduled within 14 days. Id.\n§ 43-21-601. If the disposition requires detention, the detention cannot exceed\n90 days. Id. § 43-21-605(1)(l). To perform the work of the youth courts, the\nyouth court judges may appoint intake officers, guardians ad litem, defense\ncounsel, and prosecutors. Id. §§ 43-21-119 (intake officers); 43-21-117\n(prosecutors); 43-21-121 (guardians ad litem); 43-21-201 (defense counsel).\nThe county board of supervisors controls the funding and budget for county\nyouth courts. Id. § 43-21-123.\n The government brought this action against Lauderdale County and its\nYouth Court judges under 34 U.S.C. § 12601 (formerly codified at 42 U.S.C.\n14141). By way of alleged constitutional violations, the government alleges\nthat the Lauderdale County judges: delay detention hearings for longer than\n48 hours; do not base their detention determinations on whether probable\ncause exists; do not consistently provide defense counsel; do not clearly\narticulate the standards for school suspensions; do not conduct hearings that\ndetermine whether violations occurred but instead “exist solely to determine\npunishment[;]” and do not allow juveniles sufficient access to their attorneys. 5\n By way of relief, the complaint filed by the United States seeks: (1) a\ndeclaration that constitutional violations are occurring; (2) an injunction\nagainst said unconstitutional practices; (3) an order requiring the defendants\n“to promulgate and effectuate” policies more protective of constitutional rights;\n\n\n\n 5 This list is by no means exclusive of all the alleged constitutional violations pleaded\nby the government in their complaint, but it summarizes the judges’ alleged constitutional\nviolations that were briefed by the government on appeal.\n\n 4\n\f Case: 17-60805 Document: 00514819440 Page: 5 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\n(4) an order directing the creation of “alternatives to detention and juvenile\njustice processes for children,” as well as the “review and expungement of\nyouth records[;]” (5) for the court to retain jurisdiction until the defendants\nfully comply; and (6) “any such additional relief as the interests of justice\nrequire.” Though not the basis of our decision, we share the concerns expressed\nby the district court that the government appears to be seeking remedies that\nwould not only exceed the authority of the Youth Court judges, but also dictate\nhow the Youth Court judges shall perform their adjudicatory functions when\nenforcing state law. 6 Accord ODonnell v. Harris Cty, 892 F.3d 147, 155 (5th\nCir. 2018) (holding that the judge of a county court may be liable under 42\nU.S.C. § 1983 when acting as a policymaker for the county, but not when\n“acting in his or her judicial capacity to enforce state law” (quoting Johnson v.\nMoore, 958 F.2d 92, 94 (5th Cir. 1992))).\n The litigation underlying this appeal was tied up in motions, discovery,\nand settlement discussions for years. The judges first moved to dismiss this\nlitigation on Younger abstention grounds, but that argument was rejected by\nthe district court. The judges next moved to dismiss on the grounds of the\nRooker-Feldman doctrine and judicial immunity. In September 2017, the\ndistrict court rejected the Rooker-Feldman argument, but granted the motion\nto dismiss on the bases that the plain statutory language of 34 U.S.C. § 12601\ndid not encompass youth court judges, and also that the judges were entitled\nto judicial immunity with respect to the claims raised. The government timely\n\n\n\n\n 6 At oral argument, the government averred that, at least as applied to the judges, it\nis only seeking remedies that are “procedural” in nature. Oral Argument at 15:30, 16:10.\nUnited States v. Lauderdale Cty, (No. 17-60805), http://www.ca5.uscourts.gov/oral-argument-\ninformation/oral-argument-recordings. However, the government subsequently declined\nmultiple opportunities to explain, precisely, the nature of the remedies it is seeking against\nthe judges. See, e.g., id. at 18:30, 19:55, 21:40.\n\n 5\n\f Case: 17-60805 Document: 00514819440 Page: 6 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nappeals the statutory interpretation and judicial immunity determinations. As\nfar as we are aware, this is the first—and thus far the only—Section 12601\nclaim brought against the judges of a youth court (or any court) to be resolved\nin the federal courts through adjudication.\n III.\n The government contends that the district court erred in its conclusion\nthat 34 U.S.C. § 12601 does not encompass the Lauderdale County Youth\nCourt judges. 7 Boiled down to its core, the argument between the parties is\nwhether the phrase “officials or employees of any governmental agency with\nresponsibility for the administration of juvenile justice,” when viewed in the\ncontext of 34 U.S.C. § 12601, should include the judges of the Youth Court. To\nput an even finer point on the argument, the question is whether the Youth\nCourt should be considered an “agency” under the statute.\n We review questions of statutory interpretation de novo. Matter of\nGlenn, 900 F.3d 187, 189 (5th Cir. 2018). “The task of statutory interpretation\nbegins and, if possible, ends with the language of the statute.” Trout Point\nLodge, Ltd. v. Handshoe, 729 F.3d 481, 486 (5th Cir. 2013). “When the\nlanguage is plain, we ‘must enforce the statute’s plain meaning, unless\nabsurd.’ ” Id. (quoting In re Nowlin, 576 F.3d 258, 261–62 (5th Cir. 2009)); see\nalso BedRoc Ltd. v. United States, 541 U.S. 176, 183 (2004) (“The preeminent\ncanon of statutory interpretation requires [the court] to ‘presume that [the]\n\n\n\n\n 7We note that the district court framed its analysis by: first holding that the judges\nhad judicial immunity against the claims made against them in this case; and then holding\nthat that judicial immunity was not overcome by 34 U.S.C. § 12601, as that statute does not\napply to the judges. However, the question of judicial immunity as to specific claims need\nnot be reached if the judges are not proper defendants under the statute to begin with.\nAccordingly, on appeal, both the government and the judges in this case correctly present the\nquestion as: first, whether the statute applies to judges; and second, if it does, whether the\njudges have judicial immunity against the specific claims made.\n 6\n\f Case: 17-60805 Document: 00514819440 Page: 7 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nlegislature says in a statute what it means and means in a statute what it says\nthere.’ ” (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54 (1992))).\n Because 34 U.S.C. § 12601 does not define how the term “agency” is used\nin the statute, we “look first to the word’s ordinary meaning.” Schindler\nElevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 407 (2011). The\ngovernment enters this analysis at a disadvantage. The Supreme Court has\nobserved that “[i]n ordinary parlance, . . . courts are not described as\n‘departments’ or ‘agencies’ of the Government.” Hubbard v. United States, 514\nU.S. 695, 699 (1995). In fact, the Supreme Court has noted that “it would be\nstrange indeed to refer to a court as an ‘agency.’ ” Id. Even setting that\nprecedent aside, a common sense understanding of the word “agency” would\nseem to require, at least when the word is used in the ordinary sense, that\nthere be a principal on behalf of whom the agent acts. See Agency, Black’s Law\nDictionary (6th ed. 1990). The government does not identify what principal\nthe Youth Court judges would be acting as agents for.\n The fact that the word “agency” is not normally understood to include\nthe courts does not mean that Congress could not have enacted a statute that\nincludes them in the definition. Indeed, Congress has enacted several other\nstatutes that do just that. See, e.g., 22 U.S.C. § 6106(1) 8 (defining “agency” for\nthe purposes of the Mansfield Fellowship Program to include “any court of the\njudicial branch”); 5 U.S.C. § 3371(3) 9 (defining “[f]ederal agency” for the\npurposes of a statute governing employee assignments between the federal and\nstate governments to include “a court of the United States”). But this fact also\ncuts against the government here. Given that Congress, when it so chooses,\n\n\n 8 Pub. L. 103-236, § 257, 108 Stat. 432 (1994).\n\n 9 Pub. L. 91-648, § 402(a), 84 Stat. 1920 (1971), amended by Pub. L. 95-454, § 603(a),\n92 Stat. 1189 (1978).\n\n 7\n\f Case: 17-60805 Document: 00514819440 Page: 8 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nknows how to deviate from the ordinary usage of “agency” by expressly defining\nthe term to include courts, the fact that Congress did not do so in this statute\nweighs against deviating from the ordinary usage here. 10 Accord Whitfield v.\nUnited States, 543 U.S. 209, 216 (2005) (noting, in the context of a different\nstatutory interpretation question, that the inclusion of an overt act\nrequirement in other statutes clearly demonstrated Congress “knows how to\nimpose such a requirement when it wishes to do so”); Dole Food Co. v.\nPatrickson, 538 U.S. 468, 476 (2003) (noting that “[w]here Congress intends to\nrefer to ownership in other than the formal sense, it knows how to do so”). But\nsee 5 U.S.C. § 551(1)(B) 11 (defining “agency” for the purposes of the\nAdministrative Procedure Act to explicitly exclude the courts).\n Recognizing that the ordinary usage of “agency” will not lead to its\ndesired outcome, the government maintains that we must view the word in the\ncontext of the rest of the statute. See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004)\n(“[W]e construe language in its context and in light of the terms surrounding\nit”); Deal v. United States, 508 U.S. 129, 132 (1993) (observing the\n“fundamental principle of statutory construction (and, indeed, of language\nitself) that the meaning of a word cannot be determined in isolation, but must\nbe drawn from the context in which it is used”). See also Antonin Scalia &\nBryan A. Garner, Reading Law: The Interpretation of Legal Texts, 69 (2012)\n(“Words are to be understood in their ordinary, everyday meanings—unless\nthe context indicates that they bear a technical sense.”). So we now turn to the\ncontext.\n\n\n\n 10 The statute now codified at 22 U.S.C. § 6106(1) (expressly defining “agency” to\ninclude “any court” for the purposes of that act) and the statute now codified at 34 U.S.C.\n§ 12601 (not expressly defining “agency” to include courts for the purpose of that act) were\nboth passed in 1994 by the same Congress.\n\n 11 Pub. L. 89–554, 80 Stat. 381 (1966).\n 8\n\f Case: 17-60805 Document: 00514819440 Page: 9 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\n We will begin our contextual analysis by looking at the title and subtitle\nof the statutory section enacting this text. While section headings are not\ncontrolling, they can be used as evidence when interpreting the operative text\nof the statute. See Yates v. United States, 135 S. Ct. 1074, 1083 (2015)\n(plurality op.); id. at 1089–90 (Alito, J., concurring in the judgment);\nAlmendarez–Torres v. United States, 523 U.S. 224, 234 (1998) (“the title of a\nstatute and the heading of a section are tools available for the resolution of a\ndoubt about the meaning of a statute” (internal quotation marks omitted)). As\nalready noted, 34 U.S.C. § 12601 was enacted under the title heading of “State\nand Local Law Enforcement,” and the subtitle heading of “Police Pattern or\nPractice.” Pub. L. No. 103-322, § 210401, 108 Stat. 2071. Those headings do\nnot support the government’s argument that the statute is intended to include\njudges. 12\n We next address the question of superfluity. “It is ‘a cardinal principle\nof statutory construction’ that ‘a statute ought, upon the whole, to be so\nconstrued that, if it can be prevented, no clause, sentence, or word shall be\nsuperfluous, void, or insignificant.’ ” TRW Inc. v. Andrews, 534 U.S. 19, 31\n(2001) (quoting Duncan v. Walker, 553 U.S. 167, 174 (2001)). See also Asadi v.\nG.E. Energy (USA), L.L.C., 720 F.3d 620, 622 (5th Cir. 2013) (“In construing a\n\n\n 12 The government argues that we should disregard those titles based on its assertion\nthat, after the titles were written, the text was modified by an amendment whose sponsor\nmade a single statement purportedly suggesting an intent to include juvenile court systems.\nWe reject this argument. In construing a statute, it is our duty to evaluate the text that was\nactually enacted into law by both houses of Congress and the President. We will not go down\nthe rabbit hole of attempting to divine the intent of Congress as a whole based on a single\nstatement by a single Senator. Accord Blanchard v. Bergeron, 489 U.S. 87, 99 (1989) (Scalia,\nJ., concurring) (“I decline to participate in this process. It is neither compatible with our\njudicial responsibility of assuring reasoned, consistent, and effective application of the\nstatutes of the United States, nor conducive to a genuine effectuation of congressional\nintent[.]”); Texas v. United States Envtl. Prot. Agency, 829 F.3d 405, 422 n.27 (5th Cir. 2016)\n(declining to consider a single comment in a House Report because “[w]e do not consider\npassing commentary in the legislative history . . . when the statutory text itself yields a single\nmeaning”).\n 9\n\f Case: 17-60805 Document: 00514819440 Page: 10 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nstatute, a court should give effect, if possible, to every word and every provision\nCongress used.”). 34 U.S.C. § 12601 refers to “pattern[s] or practice[s] of\nconduct by law enforcement officers or by officials or employees of any\ngovernmental agency with responsibility for the administration of juvenile\njustice or the incarceration of juveniles[.]” (emphasis added). The government\nargues in its opening brief on appeal that the second clause would be rendered\nsuperfluous if we interpret Section 12601 to encompass only law enforcement\npersonnel. However, that is not the only alternate reading of the statute. As\nthe government rightly concedes in its Reply Brief, the second clause would\nstill encompass more than law enforcement personnel even if not read to\ninclude youth court judges. The “incarceration of juveniles” language would\nclearly still include the personnel of the juvenile detention facilities, and, as\nthe original parties to this litigation demonstrate, the “administration of\njuvenile justice” language would still include, just to name a few examples,\nboth Lauderdale County and Mississippi’s Division of Youth Services. Thus,\nexcluding the judges of the Youth Court from Section 12601 would not render\nportions of the statute superfluous.\n The judges, for their part, raise a noscitur a sociis argument. “[W]e rely\non the principle of noscitur a sociis—a word is known by the company it\nkeeps—to ‘avoid ascribing to one word a meaning so broad that it is\ninconsistent with its accompanying words, thus giving unintended breadth to\nthe Acts of Congress.’ ” Yates, 135 S. Ct. at 1085 (plurality op.) (quoting\nGustafson v. Alloyd Co., 513 U.S. 561, 575 (1995)). See also Scalia & Garner,\nReading Law at 195 (“When several [words] are associated in a context\nsuggesting that the words have something in common, they should be assigned\na permissible meaning that makes them similar.”). The judges argue that the\nprinciple of noscitur a sociis weighs towards interpreting the clause “conduct\nby law enforcement officers” as limiting the meaning of “any governmental\n 10\n\f Case: 17-60805 Document: 00514819440 Page: 11 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nagency” to entities that are similar to law enforcement agencies. However, on\nthis point the judges’ argument holds little water. As the government correctly\npoints out, noscitur a sociis “is invoked when a string of statutory terms raises\nthe implication that the ‘words grouped in a list should be given related\nmeaning.’ ” S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 378 (2006)\n(quoting Dole v. Steelworkers, 494 U.S. 26, 36 (1990)). The statutory text\n“conduct by law enforcement officers or by officials or employees of any\ngovernmental agency” does not contain a string of terms; rather, it contains\ntwo independent clauses separated by a disjunctive “or.” See Encino\nMotorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018) (noting that “or” is\n“almost always disjunctive” (quoting United States v. Woods, 571 U.S. 31, 45\n(2013))). As such, the noscitur a sociis argument does not support the judges’\nargument that Section 12601 should be interpreted to exclude judges—though\nits rejection does not necessarily lend weight to the government’s counter-\ncontention that Section 12601 must be interpreted to include them. On net,\nthis argument is a wash.\n We now turn to the government’s argument that “governmental agency”\nshould not be viewed in isolation, but instead should be interpreted as modified\nby the clause “with responsibility for the administration of juvenile justice.”\nSee, e.g., Leocal, 543 U.S. at 9 (“we construe language . . . in light of the terms\nsurrounding it”). See also Scalia & Garner, Reading Law at 167 (noting that\n“the judicial interpreter [must] consider the entire text, in view of its structure\nand of the physical and logical relation of its many parts”). The government\nasserts that the modifying phrase “with responsibility for the administration\nof juvenile justice” should be interpreted to include juvenile courts within the\nmeaning of “governmental agency.” However, this argument is weak for the\nsame reason that the superfluity argument fails. Even though juvenile courts\n\n\n 11\n\f Case: 17-60805 Document: 00514819440 Page: 12 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nare indeed entities with responsibility for administering juvenile justice, 13 not\nall entities are “agencies.” There is no shortage of non-adjudicatory entities\nwith responsibility for the administration of juvenile justice—most, if not all,\nof which are more amenable to the ordinary understanding of the word\n“agency” than is a court. It seems quite reasonable to infer that Congress was\nreferring to those non-adjudicatory entities when enacting the phrase\n“governmental agency with responsibility for the administration of juvenile\njustice[,]” and we see little support for the government’s argument that by\nadding such language Congress deviated from the ordinary usage of the term\n“agency.” As such, the government’s invocation of the modifying phrase “with\nresponsibility for the administration of juvenile justice” is weak evidence for\nthe proposition that the word “agency” should be interpreted outside its\nordinary meaning.\n The government also makes the related argument that the phrase\n“governmental agency” should be interpreted to include juvenile courts\nbecause the phrase is modified by the word “any.” Specifically, the government\nappears to argue that by using the phrase “any governmental agency,” what\nCongress intended to say was “all governmental entities.” This argument is\njust like the previous one, but weaker still. “Entity” is still not a synonym for\n“agency.” It is quite reasonable to infer that Congress, by use of the word “any,”\nwas referring to any agency ordinarily referred to as an agency. As such, use\nof the word “any” to modify “governmental agency” is also weak evidence for\nthe proposition that the phrase should be interpreted outside its ordinary\nmeaning.\n\n\n\n\n 13 See Court, Black’s Law Dictionary (6th ed. 1990) (defining “court” as “a body\norganized to administer justice[.]”).\n 12\n\f Case: 17-60805 Document: 00514819440 Page: 13 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\n Finally, we will address the purpose argument. Congress’s stated\npurpose in authorizing the Attorney General to bring lawsuits under Section\n12601 was “to eliminate the pattern or practice” of denying juveniles their\nconstitutional and statutory rights. 34 U.S.C. § 12601(b). The government\nargues that because juvenile courts are a central part of the juvenile justice\nsystem, interpreting Section 12601 to exclude juvenile courts would “effectively\nvitiate” the purpose of the statute. See also Scalia & Garner, Reading Law at\n63 (“A textually permissible interpretation that furthers rather than obstructs\nthe document’s purpose should be favored.”). However, “no law pursues its\npurpose at all costs, and . . . the textual limitations upon a law’s scope are no\nless a part of its ‘purpose’ than its substantive authorizations.” Rapanos v.\nUnited States, 547 U.S. 715, 752 (2006) (plurality op.). 34 U.S.C. § 12601 has\na clear textual limitation in the form of the word “agency.” Moreover, given\nthat the government can presumably still bring Section 12601 lawsuits against\nmany other entities in the juvenile justice system without stretching the\nordinary meaning of any words—including counties, city councils, mayors,\npolice commissioners, correctional facilities, and youth services—we think it\nstrains credulity to say that Congress’s purpose in enacting the statute would\nbe vitiated unless the word “agency” was interpreted outside of its ordinary\nmeaning.\n Therefore, we decline to interpret the word “agency,” as it is used in 34\nU.S.C. § 12601, to encompass the Youth Court. As such, the district court did\nnot err in dismissing the Section 12601 claims brought against the Lauderdale\nCounty Youth Court judges.\n IV.\n We now turn to two residual matters raised by the parties. First, we\nconsider the question of judicial immunity. The parties dedicate considerable\nportions of their briefs disputing whether or not the Youth Court judges should\n 13\n\f Case: 17-60805 Document: 00514819440 Page: 14 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nhave judicial immunity against the specific claims made against them in his\nlawsuit. However, because we hold that the text of 34 U.S.C. § 12601 is not\napplicable to the judges of the Youth Court, we do not reach the question of\njudicial immunity as to any of the specific claims raised in this case. 14\n Second, we consider the question of whether this lawsuit can continue\nagainst Lauderdale County if the Youth Court judges are excluded. Before the\ndistrict court, the government argued that Lauderdale County was\nindependently liable under Section 12601 because of its budgetary authority\nover the Youth Court and its alleged failure to provide indigent juveniles with\nadequate representation. However, on appeal, the government changed course\nand now only argues that dismissal of the County follows dismissal of the\njudges, and that reversing the latter also requires reversing the former. 15\nMoreover, at oral argument, counsel for the government conceded that it did\nnot brief an independent basis for continuing the litigation against the County,\nand stated that if the judges are deemed to be outside of Section 12601 then\nthe claims against the County should also be dismissed. Oral Argument at\n59:00. We take the government at its word.\n Therefore, because we hold that the district court did not err in\ndismissing the lawsuit against the judges on the basis that they are outside\nthe scope of Section 12601, and because the government has affirmatively\n\n\n 14We likewise do not consider the district court’s determinations regarding the\nYounger abstention and Rooker-Feldman arguments.\n\n 15 In a letter filed with the court after oral argument, the government argues that if\nwe interpret Section 12601’s use of the phrase “governmental agency” to exclude the Youth\nCourt, then we should remand to determine whether public defenders and non-judicial court\npersonnel can be held liable under the statute. However, not only did the government fail to\nmake that argument in its briefs, but it has also not named these persons as defendants in\nthis litigation. As such, we decline the government’s invitation to remand for that purpose,\nand leave it be addressed in future cases where the issue is squarely raised and litigated.\nSee, e.g., Sindhi v. Raina, 905 F.3d 327, 334 (5th Cir. 2018) (noting that issues not briefed\nwill not be considered on appeal).\n 14\n\f Case: 17-60805 Document: 00514819440 Page: 15 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nwaived any other argument for continuing the lawsuit against the County, we\naffirm the dismissal of this litigation as it pertains to Lauderdale County. See\nUnited States v. Young, 872 F.3d 742, 747 (5th Cir. 2017) (“Waiver is the\n‘intentional relinquishment or abandonment of a known right.’ ” (quoting\nUnited States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006))).\n The judgment of the district court is AFFIRMED.\n\n\n\n\n 15\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. City of Meridian\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-60805 Document: 00514819440 Page: 1 Date Filed: 02/01/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 17-60805 United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n February 1, 2019\\nUNITED STATES OF AMERICA,\\n Lyle W. Cayce\\n Plaintiff – Appellant, Clerk\\n\\n\\nv.\\n\\nLAUDERDALE COUNTY, MISSISSIPPI; JUDGE VELDORE YOUNG-\\nGRAHAM, In her official capacity; and JUDGE LISA HOWELL, In her\\nofficial capacity,\\n\\n Defendants – Appellees.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Mississippi\\n\\n\\nBefore REAVLEY, ELROD, and HIGGINSON, Circuit Judges.\\nJENNIFER WALKER ELROD, Circuit Judge:\\n This case presents a question of statutory interpretation. The question\\nis whether the phrase “officials or employees of any governmental agency with\\nresponsibility for the administration of juvenile justice,” as it is used in 34\\nU.S.C. § 12601(a), includes the judges of a county youth court. Holding that it\\ndoes not, we AFFIRM the judgment of the district court.\\n I.\\n As this is a question of statutory interpretation, we begin with the text\\nof the statute. In 1994, Congress passed the Violent Crime Control and Law\\n\\f Case: 17-60805 Document: 00514819440 Page: 2 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nEnforcement Act. 1 Relevant to this case are the provisions found in Title XXI,\\n§ 210401, 108 Stat. 2071, now codified at 34 U.S.C. § 12601. That section,\\nenacted under a title heading of “State and Local Law Enforcement,” and a\\nsubtitle heading of “Police Pattern or Practice,” reads as follows:\\n (a) Unlawful conduct\\n It shall be unlawful for any governmental authority, or any agent\\n thereof, or any person acting on behalf of a governmental\\n authority, to engage in a pattern or practice of conduct by law\\n enforcement officers or by officials or employees of any\\n governmental agency with responsibility for the administration of\\n juvenile justice or the incarceration of juveniles that deprives\\n persons of rights, privileges, or immunities secured or protected by\\n the Constitution or laws of the United States.\\n (b) Civil action by Attorney General\\n Whenever the Attorney General has reasonable cause to believe\\n that a violation of paragraph (1) 2 has occurred, the Attorney\\n General, for or in the name of the United States, may in a civil\\n action obtain appropriate equitable and declaratory relief to\\n eliminate the pattern or practice.\\n34 U.S.C. § 12601.\\n\\n\\n\\n\\n 1 Pub. L. No. 103-322, 108 Stat. 1796 (1994).\\n\\n 2 The reference to “paragraph (1)” is presumably a scrivener’s error that should read\\n“paragraph (a)”—as there does not appear to be a paragraph (1) in the associated statutory\\nscheme to which it could plausibly be referring, and it appears quite clear that the intended\\nreference was to paragraph (a). See also Holloway v. United States, 526 U.S. 1, 19 n.2 (1999)\\n(Scalia, J., dissenting) (noting that a scrivener’s error in a statute may only properly be\\ncorrected by a court when the text is devoid of any plausible purpose for being written in that\\nmanner); United States v. X-Citement Video, Inc., 513 U.S. 64, 82 (1994) (Scalia, J.,\\ndissenting) (“[T]he sine qua non of any ‘scrivener’s error’ doctrine . . . is that the meaning\\ngenuinely intended but inadequately expressed must be absolutely clear; otherwise we might\\nbe rewriting the statute rather than correcting a technical mistake.”).\\n\\n 2\\n\\f Case: 17-60805 Document: 00514819440 Page: 3 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\n II.\\n The United States Department of Justice initiated this litigation in\\nOctober 2012. In its complaint, the United States alleged, inter alia, 3 that\\nLauderdale County and its two Youth Court judges 4 operated a “school-to-\\nprison pipeline” and, through their administration of the juvenile justice\\nprocess, were engaged in patterns or practices that denied juveniles their\\nconstitutional rights under the Fourth, Fifth, and Fourteenth Amendments.\\n Before we further address the litigation underlying this appeal, it will be\\nuseful to offer some background on the Lauderdale County Youth Court, its\\njudges, and its procedures. In Mississippi, county youth courts are divisions of\\nthe county courts, and the judges of the county courts are also the judges of the\\nyouth courts. Miss. Code Ann. § 43-21-107. County judges are elected for\\nterms of four years, and the Governor has authority to fill vacancies by\\nappointment. Id. §§ 9-9-5, 9-7-1, 9-1-103. Lauderdale County is authorized\\ntwo county judges. Id. § 9-9-18.3. When a juvenile is charged with offenses\\nunder youth court jurisdiction, he or she is brought before an intake officer of\\nthe court who establishes jurisdiction and recommends whether informal\\nresolution or custody is warranted. Id. § 43-21-357. If the juvenile is placed\\ninto custody, he or she must be brought before a youth court judge within 48\\nhours—excluding weekends and holidays—for a probable cause determination.\\nId. § 43-21-301. If needed, the juvenile is appointed a guardian ad litem and/or\\n\\n\\n\\n 3 In the same complaint, the government also made allegations against the City of\\nMeridian, through the Meridian Police Department, and the state of Mississippi, through its\\nDivision of Youth Services. However, those allegations are not part of the appeal before us.\\n\\n 4 The complaint and initial litigation named Judges Frank Coleman and Veldore\\nYoung-Graham as defendants in their official capacities. During the course of this litigation,\\nJudge Coleman was replaced by Judge Lisa Howell on the Youth Court, and the parties agree\\nthat she should be substituted in as a party to this appeal. We have therefore adjusted the\\nstyle of the case to replace Judge Coleman with Judge Howell.\\n 3\\n\\f Case: 17-60805 Document: 00514819440 Page: 4 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\ndefense counsel. Id. §§ 43-21-121, 43-21-201. If the juvenile is held in custody,\\nan adjudicatory hearing must be held within 21 days, with a few exceptions.\\nId. § 43-21-551. If the juvenile is adjudicated to be delinquent or in need of\\nsupervision, a disposition hearing must then be scheduled within 14 days. Id.\\n§ 43-21-601. If the disposition requires detention, the detention cannot exceed\\n90 days. Id. § 43-21-605(1)(l). To perform the work of the youth courts, the\\nyouth court judges may appoint intake officers, guardians ad litem, defense\\ncounsel, and prosecutors. Id. §§ 43-21-119 (intake officers); 43-21-117\\n(prosecutors); 43-21-121 (guardians ad litem); 43-21-201 (defense counsel).\\nThe county board of supervisors controls the funding and budget for county\\nyouth courts. Id. § 43-21-123.\\n The government brought this action against Lauderdale County and its\\nYouth Court judges under 34 U.S.C. § 12601 (formerly codified at 42 U.S.C.\\n14141). By way of alleged constitutional violations, the government alleges\\nthat the Lauderdale County judges: delay detention hearings for longer than\\n48 hours; do not base their detention determinations on whether probable\\ncause exists; do not consistently provide defense counsel; do not clearly\\narticulate the standards for school suspensions; do not conduct hearings that\\ndetermine whether violations occurred but instead “exist solely to determine\\npunishment[;]” and do not allow juveniles sufficient access to their attorneys. 5\\n By way of relief, the complaint filed by the United States seeks: (1) a\\ndeclaration that constitutional violations are occurring; (2) an injunction\\nagainst said unconstitutional practices; (3) an order requiring the defendants\\n“to promulgate and effectuate” policies more protective of constitutional rights;\\n\\n\\n\\n 5 This list is by no means exclusive of all the alleged constitutional violations pleaded\\nby the government in their complaint, but it summarizes the judges’ alleged constitutional\\nviolations that were briefed by the government on appeal.\\n\\n 4\\n\\f Case: 17-60805 Document: 00514819440 Page: 5 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\n(4) an order directing the creation of “alternatives to detention and juvenile\\njustice processes for children,” as well as the “review and expungement of\\nyouth records[;]” (5) for the court to retain jurisdiction until the defendants\\nfully comply; and (6) “any such additional relief as the interests of justice\\nrequire.” Though not the basis of our decision, we share the concerns expressed\\nby the district court that the government appears to be seeking remedies that\\nwould not only exceed the authority of the Youth Court judges, but also dictate\\nhow the Youth Court judges shall perform their adjudicatory functions when\\nenforcing state law. 6 Accord ODonnell v. Harris Cty, 892 F.3d 147, 155 (5th\\nCir. 2018) (holding that the judge of a county court may be liable under 42\\nU.S.C. § 1983 when acting as a policymaker for the county, but not when\\n“acting in his or her judicial capacity to enforce state law” (quoting Johnson v.\\nMoore, 958 F.2d 92, 94 (5th Cir. 1992))).\\n The litigation underlying this appeal was tied up in motions, discovery,\\nand settlement discussions for years. The judges first moved to dismiss this\\nlitigation on Younger abstention grounds, but that argument was rejected by\\nthe district court. The judges next moved to dismiss on the grounds of the\\nRooker-Feldman doctrine and judicial immunity. In September 2017, the\\ndistrict court rejected the Rooker-Feldman argument, but granted the motion\\nto dismiss on the bases that the plain statutory language of 34 U.S.C. § 12601\\ndid not encompass youth court judges, and also that the judges were entitled\\nto judicial immunity with respect to the claims raised. The government timely\\n\\n\\n\\n\\n 6 At oral argument, the government averred that, at least as applied to the judges, it\\nis only seeking remedies that are “procedural” in nature. Oral Argument at 15:30, 16:10.\\nUnited States v. Lauderdale Cty, (No. 17-60805), http://www.ca5.uscourts.gov/oral-argument-\\ninformation/oral-argument-recordings. However, the government subsequently declined\\nmultiple opportunities to explain, precisely, the nature of the remedies it is seeking against\\nthe judges. See, e.g., id. at 18:30, 19:55, 21:40.\\n\\n 5\\n\\f Case: 17-60805 Document: 00514819440 Page: 6 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nappeals the statutory interpretation and judicial immunity determinations. As\\nfar as we are aware, this is the first—and thus far the only—Section 12601\\nclaim brought against the judges of a youth court (or any court) to be resolved\\nin the federal courts through adjudication.\\n III.\\n The government contends that the district court erred in its conclusion\\nthat 34 U.S.C. § 12601 does not encompass the Lauderdale County Youth\\nCourt judges. 7 Boiled down to its core, the argument between the parties is\\nwhether the phrase “officials or employees of any governmental agency with\\nresponsibility for the administration of juvenile justice,” when viewed in the\\ncontext of 34 U.S.C. § 12601, should include the judges of the Youth Court. To\\nput an even finer point on the argument, the question is whether the Youth\\nCourt should be considered an “agency” under the statute.\\n We review questions of statutory interpretation de novo. Matter of\\nGlenn, 900 F.3d 187, 189 (5th Cir. 2018). “The task of statutory interpretation\\nbegins and, if possible, ends with the language of the statute.” Trout Point\\nLodge, Ltd. v. Handshoe, 729 F.3d 481, 486 (5th Cir. 2013). “When the\\nlanguage is plain, we ‘must enforce the statute’s plain meaning, unless\\nabsurd.’ ” Id. (quoting In re Nowlin, 576 F.3d 258, 261–62 (5th Cir. 2009)); see\\nalso BedRoc Ltd. v. United States, 541 U.S. 176, 183 (2004) (“The preeminent\\ncanon of statutory interpretation requires [the court] to ‘presume that [the]\\n\\n\\n\\n\\n 7We note that the district court framed its analysis by: first holding that the judges\\nhad judicial immunity against the claims made against them in this case; and then holding\\nthat that judicial immunity was not overcome by 34 U.S.C. § 12601, as that statute does not\\napply to the judges. However, the question of judicial immunity as to specific claims need\\nnot be reached if the judges are not proper defendants under the statute to begin with.\\nAccordingly, on appeal, both the government and the judges in this case correctly present the\\nquestion as: first, whether the statute applies to judges; and second, if it does, whether the\\njudges have judicial immunity against the specific claims made.\\n 6\\n\\f Case: 17-60805 Document: 00514819440 Page: 7 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nlegislature says in a statute what it means and means in a statute what it says\\nthere.’ ” (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54 (1992))).\\n Because 34 U.S.C. § 12601 does not define how the term “agency” is used\\nin the statute, we “look first to the word’s ordinary meaning.” Schindler\\nElevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 407 (2011). The\\ngovernment enters this analysis at a disadvantage. The Supreme Court has\\nobserved that “[i]n ordinary parlance, . . . courts are not described as\\n‘departments’ or ‘agencies’ of the Government.” Hubbard v. United States, 514\\nU.S. 695, 699 (1995). In fact, the Supreme Court has noted that “it would be\\nstrange indeed to refer to a court as an ‘agency.’ ” Id. Even setting that\\nprecedent aside, a common sense understanding of the word “agency” would\\nseem to require, at least when the word is used in the ordinary sense, that\\nthere be a principal on behalf of whom the agent acts. See Agency, Black’s Law\\nDictionary (6th ed. 1990). The government does not identify what principal\\nthe Youth Court judges would be acting as agents for.\\n The fact that the word “agency” is not normally understood to include\\nthe courts does not mean that Congress could not have enacted a statute that\\nincludes them in the definition. Indeed, Congress has enacted several other\\nstatutes that do just that. See, e.g., 22 U.S.C. § 6106(1) 8 (defining “agency” for\\nthe purposes of the Mansfield Fellowship Program to include “any court of the\\njudicial branch”); 5 U.S.C. § 3371(3) 9 (defining “[f]ederal agency” for the\\npurposes of a statute governing employee assignments between the federal and\\nstate governments to include “a court of the United States”). But this fact also\\ncuts against the government here. Given that Congress, when it so chooses,\\n\\n\\n 8 Pub. L. 103-236, § 257, 108 Stat. 432 (1994).\\n\\n 9 Pub. L. 91-648, § 402(a), 84 Stat. 1920 (1971), amended by Pub. L. 95-454, § 603(a),\\n92 Stat. 1189 (1978).\\n\\n 7\\n\\f Case: 17-60805 Document: 00514819440 Page: 8 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nknows how to deviate from the ordinary usage of “agency” by expressly defining\\nthe term to include courts, the fact that Congress did not do so in this statute\\nweighs against deviating from the ordinary usage here. 10 Accord Whitfield v.\\nUnited States, 543 U.S. 209, 216 (2005) (noting, in the context of a different\\nstatutory interpretation question, that the inclusion of an overt act\\nrequirement in other statutes clearly demonstrated Congress “knows how to\\nimpose such a requirement when it wishes to do so”); Dole Food Co. v.\\nPatrickson, 538 U.S. 468, 476 (2003) (noting that “[w]here Congress intends to\\nrefer to ownership in other than the formal sense, it knows how to do so”). But\\nsee 5 U.S.C. § 551(1)(B) 11 (defining “agency” for the purposes of the\\nAdministrative Procedure Act to explicitly exclude the courts).\\n Recognizing that the ordinary usage of “agency” will not lead to its\\ndesired outcome, the government maintains that we must view the word in the\\ncontext of the rest of the statute. See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004)\\n(“[W]e construe language in its context and in light of the terms surrounding\\nit”); Deal v. United States, 508 U.S. 129, 132 (1993) (observing the\\n“fundamental principle of statutory construction (and, indeed, of language\\nitself) that the meaning of a word cannot be determined in isolation, but must\\nbe drawn from the context in which it is used”). See also Antonin Scalia &\\nBryan A. Garner, Reading Law: The Interpretation of Legal Texts, 69 (2012)\\n(“Words are to be understood in their ordinary, everyday meanings—unless\\nthe context indicates that they bear a technical sense.”). So we now turn to the\\ncontext.\\n\\n\\n\\n 10 The statute now codified at 22 U.S.C. § 6106(1) (expressly defining “agency” to\\ninclude “any court” for the purposes of that act) and the statute now codified at 34 U.S.C.\\n§ 12601 (not expressly defining “agency” to include courts for the purpose of that act) were\\nboth passed in 1994 by the same Congress.\\n\\n 11 Pub. L. 89–554, 80 Stat. 381 (1966).\\n 8\\n\\f Case: 17-60805 Document: 00514819440 Page: 9 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\n We will begin our contextual analysis by looking at the title and subtitle\\nof the statutory section enacting this text. While section headings are not\\ncontrolling, they can be used as evidence when interpreting the operative text\\nof the statute. See Yates v. United States, 135 S. Ct. 1074, 1083 (2015)\\n(plurality op.); id. at 1089–90 (Alito, J., concurring in the judgment);\\nAlmendarez–Torres v. United States, 523 U.S. 224, 234 (1998) (“the title of a\\nstatute and the heading of a section are tools available for the resolution of a\\ndoubt about the meaning of a statute” (internal quotation marks omitted)). As\\nalready noted, 34 U.S.C. § 12601 was enacted under the title heading of “State\\nand Local Law Enforcement,” and the subtitle heading of “Police Pattern or\\nPractice.” Pub. L. No. 103-322, § 210401, 108 Stat. 2071. Those headings do\\nnot support the government’s argument that the statute is intended to include\\njudges. 12\\n We next address the question of superfluity. “It is ‘a cardinal principle\\nof statutory construction’ that ‘a statute ought, upon the whole, to be so\\nconstrued that, if it can be prevented, no clause, sentence, or word shall be\\nsuperfluous, void, or insignificant.’ ” TRW Inc. v. Andrews, 534 U.S. 19, 31\\n(2001) (quoting Duncan v. Walker, 553 U.S. 167, 174 (2001)). See also Asadi v.\\nG.E. Energy (USA), L.L.C., 720 F.3d 620, 622 (5th Cir. 2013) (“In construing a\\n\\n\\n 12 The government argues that we should disregard those titles based on its assertion\\nthat, after the titles were written, the text was modified by an amendment whose sponsor\\nmade a single statement purportedly suggesting an intent to include juvenile court systems.\\nWe reject this argument. In construing a statute, it is our duty to evaluate the text that was\\nactually enacted into law by both houses of Congress and the President. We will not go down\\nthe rabbit hole of attempting to divine the intent of Congress as a whole based on a single\\nstatement by a single Senator. Accord Blanchard v. Bergeron, 489 U.S. 87, 99 (1989) (Scalia,\\nJ., concurring) (“I decline to participate in this process. It is neither compatible with our\\njudicial responsibility of assuring reasoned, consistent, and effective application of the\\nstatutes of the United States, nor conducive to a genuine effectuation of congressional\\nintent[.]”); Texas v. United States Envtl. Prot. Agency, 829 F.3d 405, 422 n.27 (5th Cir. 2016)\\n(declining to consider a single comment in a House Report because “[w]e do not consider\\npassing commentary in the legislative history . . . when the statutory text itself yields a single\\nmeaning”).\\n 9\\n\\f Case: 17-60805 Document: 00514819440 Page: 10 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nstatute, a court should give effect, if possible, to every word and every provision\\nCongress used.”). 34 U.S.C. § 12601 refers to “pattern[s] or practice[s] of\\nconduct by law enforcement officers or by officials or employees of any\\ngovernmental agency with responsibility for the administration of juvenile\\njustice or the incarceration of juveniles[.]” (emphasis added). The government\\nargues in its opening brief on appeal that the second clause would be rendered\\nsuperfluous if we interpret Section 12601 to encompass only law enforcement\\npersonnel. However, that is not the only alternate reading of the statute. As\\nthe government rightly concedes in its Reply Brief, the second clause would\\nstill encompass more than law enforcement personnel even if not read to\\ninclude youth court judges. The “incarceration of juveniles” language would\\nclearly still include the personnel of the juvenile detention facilities, and, as\\nthe original parties to this litigation demonstrate, the “administration of\\njuvenile justice” language would still include, just to name a few examples,\\nboth Lauderdale County and Mississippi’s Division of Youth Services. Thus,\\nexcluding the judges of the Youth Court from Section 12601 would not render\\nportions of the statute superfluous.\\n The judges, for their part, raise a noscitur a sociis argument. “[W]e rely\\non the principle of noscitur a sociis—a word is known by the company it\\nkeeps—to ‘avoid ascribing to one word a meaning so broad that it is\\ninconsistent with its accompanying words, thus giving unintended breadth to\\nthe Acts of Congress.’ ” Yates, 135 S. Ct. at 1085 (plurality op.) (quoting\\nGustafson v. Alloyd Co., 513 U.S. 561, 575 (1995)). See also Scalia & Garner,\\nReading Law at 195 (“When several [words] are associated in a context\\nsuggesting that the words have something in common, they should be assigned\\na permissible meaning that makes them similar.”). The judges argue that the\\nprinciple of noscitur a sociis weighs towards interpreting the clause “conduct\\nby law enforcement officers” as limiting the meaning of “any governmental\\n 10\\n\\f Case: 17-60805 Document: 00514819440 Page: 11 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nagency” to entities that are similar to law enforcement agencies. However, on\\nthis point the judges’ argument holds little water. As the government correctly\\npoints out, noscitur a sociis “is invoked when a string of statutory terms raises\\nthe implication that the ‘words grouped in a list should be given related\\nmeaning.’ ” S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 378 (2006)\\n(quoting Dole v. Steelworkers, 494 U.S. 26, 36 (1990)). The statutory text\\n“conduct by law enforcement officers or by officials or employees of any\\ngovernmental agency” does not contain a string of terms; rather, it contains\\ntwo independent clauses separated by a disjunctive “or.” See Encino\\nMotorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018) (noting that “or” is\\n“almost always disjunctive” (quoting United States v. Woods, 571 U.S. 31, 45\\n(2013))). As such, the noscitur a sociis argument does not support the judges’\\nargument that Section 12601 should be interpreted to exclude judges—though\\nits rejection does not necessarily lend weight to the government’s counter-\\ncontention that Section 12601 must be interpreted to include them. On net,\\nthis argument is a wash.\\n We now turn to the government’s argument that “governmental agency”\\nshould not be viewed in isolation, but instead should be interpreted as modified\\nby the clause “with responsibility for the administration of juvenile justice.”\\nSee, e.g., Leocal, 543 U.S. at 9 (“we construe language . . . in light of the terms\\nsurrounding it”). See also Scalia & Garner, Reading Law at 167 (noting that\\n“the judicial interpreter [must] consider the entire text, in view of its structure\\nand of the physical and logical relation of its many parts”). The government\\nasserts that the modifying phrase “with responsibility for the administration\\nof juvenile justice” should be interpreted to include juvenile courts within the\\nmeaning of “governmental agency.” However, this argument is weak for the\\nsame reason that the superfluity argument fails. Even though juvenile courts\\n\\n\\n 11\\n\\f Case: 17-60805 Document: 00514819440 Page: 12 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nare indeed entities with responsibility for administering juvenile justice, 13 not\\nall entities are “agencies.” There is no shortage of non-adjudicatory entities\\nwith responsibility for the administration of juvenile justice—most, if not all,\\nof which are more amenable to the ordinary understanding of the word\\n“agency” than is a court. It seems quite reasonable to infer that Congress was\\nreferring to those non-adjudicatory entities when enacting the phrase\\n“governmental agency with responsibility for the administration of juvenile\\njustice[,]” and we see little support for the government’s argument that by\\nadding such language Congress deviated from the ordinary usage of the term\\n“agency.” As such, the government’s invocation of the modifying phrase “with\\nresponsibility for the administration of juvenile justice” is weak evidence for\\nthe proposition that the word “agency” should be interpreted outside its\\nordinary meaning.\\n The government also makes the related argument that the phrase\\n“governmental agency” should be interpreted to include juvenile courts\\nbecause the phrase is modified by the word “any.” Specifically, the government\\nappears to argue that by using the phrase “any governmental agency,” what\\nCongress intended to say was “all governmental entities.” This argument is\\njust like the previous one, but weaker still. “Entity” is still not a synonym for\\n“agency.” It is quite reasonable to infer that Congress, by use of the word “any,”\\nwas referring to any agency ordinarily referred to as an agency. As such, use\\nof the word “any” to modify “governmental agency” is also weak evidence for\\nthe proposition that the phrase should be interpreted outside its ordinary\\nmeaning.\\n\\n\\n\\n\\n 13 See Court, Black’s Law Dictionary (6th ed. 1990) (defining “court” as “a body\\norganized to administer justice[.]”).\\n 12\\n\\f Case: 17-60805 Document: 00514819440 Page: 13 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\n Finally, we will address the purpose argument. Congress’s stated\\npurpose in authorizing the Attorney General to bring lawsuits under Section\\n12601 was “to eliminate the pattern or practice” of denying juveniles their\\nconstitutional and statutory rights. 34 U.S.C. § 12601(b). The government\\nargues that because juvenile courts are a central part of the juvenile justice\\nsystem, interpreting Section 12601 to exclude juvenile courts would “effectively\\nvitiate” the purpose of the statute. See also Scalia & Garner, Reading Law at\\n63 (“A textually permissible interpretation that furthers rather than obstructs\\nthe document’s purpose should be favored.”). However, “no law pursues its\\npurpose at all costs, and . . . the textual limitations upon a law’s scope are no\\nless a part of its ‘purpose’ than its substantive authorizations.” Rapanos v.\\nUnited States, 547 U.S. 715, 752 (2006) (plurality op.). 34 U.S.C. § 12601 has\\na clear textual limitation in the form of the word “agency.” Moreover, given\\nthat the government can presumably still bring Section 12601 lawsuits against\\nmany other entities in the juvenile justice system without stretching the\\nordinary meaning of any words—including counties, city councils, mayors,\\npolice commissioners, correctional facilities, and youth services—we think it\\nstrains credulity to say that Congress’s purpose in enacting the statute would\\nbe vitiated unless the word “agency” was interpreted outside of its ordinary\\nmeaning.\\n Therefore, we decline to interpret the word “agency,” as it is used in 34\\nU.S.C. § 12601, to encompass the Youth Court. As such, the district court did\\nnot err in dismissing the Section 12601 claims brought against the Lauderdale\\nCounty Youth Court judges.\\n IV.\\n We now turn to two residual matters raised by the parties. First, we\\nconsider the question of judicial immunity. The parties dedicate considerable\\nportions of their briefs disputing whether or not the Youth Court judges should\\n 13\\n\\f Case: 17-60805 Document: 00514819440 Page: 14 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nhave judicial immunity against the specific claims made against them in his\\nlawsuit. However, because we hold that the text of 34 U.S.C. § 12601 is not\\napplicable to the judges of the Youth Court, we do not reach the question of\\njudicial immunity as to any of the specific claims raised in this case. 14\\n Second, we consider the question of whether this lawsuit can continue\\nagainst Lauderdale County if the Youth Court judges are excluded. Before the\\ndistrict court, the government argued that Lauderdale County was\\nindependently liable under Section 12601 because of its budgetary authority\\nover the Youth Court and its alleged failure to provide indigent juveniles with\\nadequate representation. However, on appeal, the government changed course\\nand now only argues that dismissal of the County follows dismissal of the\\njudges, and that reversing the latter also requires reversing the former. 15\\nMoreover, at oral argument, counsel for the government conceded that it did\\nnot brief an independent basis for continuing the litigation against the County,\\nand stated that if the judges are deemed to be outside of Section 12601 then\\nthe claims against the County should also be dismissed. Oral Argument at\\n59:00. We take the government at its word.\\n Therefore, because we hold that the district court did not err in\\ndismissing the lawsuit against the judges on the basis that they are outside\\nthe scope of Section 12601, and because the government has affirmatively\\n\\n\\n 14We likewise do not consider the district court’s determinations regarding the\\nYounger abstention and Rooker-Feldman arguments.\\n\\n 15 In a letter filed with the court after oral argument, the government argues that if\\nwe interpret Section 12601’s use of the phrase “governmental agency” to exclude the Youth\\nCourt, then we should remand to determine whether public defenders and non-judicial court\\npersonnel can be held liable under the statute. However, not only did the government fail to\\nmake that argument in its briefs, but it has also not named these persons as defendants in\\nthis litigation. As such, we decline the government’s invitation to remand for that purpose,\\nand leave it be addressed in future cases where the issue is squarely raised and litigated.\\nSee, e.g., Sindhi v. Raina, 905 F.3d 327, 334 (5th Cir. 2018) (noting that issues not briefed\\nwill not be considered on appeal).\\n 14\\n\\f Case: 17-60805 Document: 00514819440 Page: 15 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-60805\\nwaived any other argument for continuing the lawsuit against the County, we\\naffirm the dismissal of this litigation as it pertains to Lauderdale County. See\\nUnited States v. Young, 872 F.3d 742, 747 (5th Cir. 2017) (“Waiver is the\\n‘intentional relinquishment or abandonment of a known right.’ ” (quoting\\nUnited States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006))).\\n The judgment of the district court is AFFIRMED.\\n\\n\\n\\n\\n 15\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":579,"cells":{"id":{"kind":"number","value":4586919,"string":"4,586,919"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Joseph Dacar v. Saybolt L.P."},"decision_date":{"kind":"string","value":"2019-02-01"},"docket_number":{"kind":"string","value":"16-20751"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before DAVIS, JONES, and HIGGINSON, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n February 1, 2019\\n No. 16-20751\\n Lyle W. Cayce\\n Clerk\\nJOSEPH DACAR, individually and for similarly situated people; JASON\\nWHITELAW; DAVID TARDIFF, et al\\n\\n Plaintiffs - Cross-Appellees\\n\\nLYLE DEROCHE; FELTON RAVIA,\\n\\n Plaintiffs - Appellants Cross-Appellees\\nv.\\n\\nSAYBOLT, L.P.,\\n\\n Defendant - Appellee Cross-Appellant\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n ______________________\\n\\n ON PETITION FOR REHEARING and\\n PETITION FOR REHEARING EN BANC\\n\\nBefore DAVIS, JONES, and HIGGINSON, Circuit Judges.\\nPER CURIAM:\\n The petition for panel rehearing filed by Saybolt, L.P., is DENIED, and\\nno member of this panel nor judge in regular active service on the Court having\\nrequested that the Court be polled en banc, Saybolt’s petition for rehearing en\\nbanc is also DENIED.\\n\\n\\n\\n 1\\n\\f No. 16-20751\\n The Court, however, amends its opinion by adding the following footnote\\nat the end of the third paragraph of section IV:\\n Because this damages model has not been adequately briefed, we\\n leave for another day whether such a model, or any other damages\\n model, may be appropriate in cases in which an employer fails to\\n satisfy the requirements allowing use of the FWW method.\\n\\n\\n The Court further substitutes the last footnote of its opinion with the\\nfollowing footnote:\\n As set forth above, a plaintiff is entitled to overtime pay for any\\n week in which he worked in excess of 40 hours. To determine the\\n amount of overtime compensation due, the district court should\\n first determine a plaintiff’s regular hourly rate of pay by dividing\\n the total amount of remuneration paid in a workweek (including\\n incentive payments) by the total number of hours intended to be\\n compensated (which, in this case, is the total number of hours\\n actually worked) in that workweek. See 29 C.F.R. § 778.207(b).\\n The district should then compute the overtime rate by multiplying\\n the regular rate times 1.5. The overtime rate should then be\\n multiplied by the number of overtime hours worked in the\\n workweek to arrive at the total amount of overtime compensation\\n due for that week. Finally, that total amount should be reduced\\n by the amount of overtime pay the plaintiff has already received\\n from Saybolt for that workweek. See 29 U.S.C. § 207(h) (describing\\n which sums may be creditable toward overtime compensation).\\n The remainder is the amount of overtime compensation due to the\\n plaintiff.\\n\\n\\n\\n\\n 2\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4364172/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"DAVIS"},"judge2":{"kind":"string","value":"JONES"},"judge3":{"kind":"string","value":"HIGGINSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"DAVIS\": \", Circuit\", \"JONES\": \", Circuit\", \"HIGGINSON\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4586919/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Joseph Dacar v. Saybolt L.P.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 1, 2019\n No. 16-20751\n Lyle W. Cayce\n Clerk\nJOSEPH DACAR, individually and for similarly situated people; JASON\nWHITELAW; DAVID TARDIFF, et al\n\n Plaintiffs - Cross-Appellees\n\nLYLE DEROCHE; FELTON RAVIA,\n\n Plaintiffs - Appellants Cross-Appellees\nv.\n\nSAYBOLT, L.P.,\n\n Defendant - Appellee Cross-Appellant\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n ______________________\n\n ON PETITION FOR REHEARING and\n PETITION FOR REHEARING EN BANC\n\nBefore DAVIS, JONES, and HIGGINSON, Circuit Judges.\nPER CURIAM:\n The petition for panel rehearing filed by Saybolt, L.P., is DENIED, and\nno member of this panel nor judge in regular active service on the Court having\nrequested that the Court be polled en banc, Saybolt’s petition for rehearing en\nbanc is also DENIED.\n\n\n\n 1\n\f No. 16-20751\n The Court, however, amends its opinion by adding the following footnote\nat the end of the third paragraph of section IV:\n Because this damages model has not been adequately briefed, we\n leave for another day whether such a model, or any other damages\n model, may be appropriate in cases in which an employer fails to\n satisfy the requirements allowing use of the FWW method.\n\n\n The Court further substitutes the last footnote of its opinion with the\nfollowing footnote:\n As set forth above, a plaintiff is entitled to overtime pay for any\n week in which he worked in excess of 40 hours. To determine the\n amount of overtime compensation due, the district court should\n first determine a plaintiff’s regular hourly rate of pay by dividing\n the total amount of remuneration paid in a workweek (including\n incentive payments) by the total number of hours intended to be\n compensated (which, in this case, is the total number of hours\n actually worked) in that workweek. See 29 C.F.R. § 778.207(b).\n The district should then compute the overtime rate by multiplying\n the regular rate times 1.5. The overtime rate should then be\n multiplied by the number of overtime hours worked in the\n workweek to arrive at the total amount of overtime compensation\n due for that week. Finally, that total amount should be reduced\n by the amount of overtime pay the plaintiff has already received\n from Saybolt for that workweek. See 29 U.S.C. § 207(h) (describing\n which sums may be creditable toward overtime compensation).\n The remainder is the amount of overtime compensation due to the\n plaintiff.\n\n\n\n\n 2\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Joseph Dacar v. Saybolt L.P.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nIN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n February 1, 2019\\n No. 16-20751\\n Lyle W. Cayce\\n Clerk\\nJOSEPH DACAR, individually and for similarly situated people; JASON\\nWHITELAW; DAVID TARDIFF, et al\\n\\n Plaintiffs - Cross-Appellees\\n\\nLYLE DEROCHE; FELTON RAVIA,\\n\\n Plaintiffs - Appellants Cross-Appellees\\nv.\\n\\nSAYBOLT, L.P.,\\n\\n Defendant - Appellee Cross-Appellant\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n ______________________\\n\\n ON PETITION FOR REHEARING and\\n PETITION FOR REHEARING EN BANC\\n\\nBefore DAVIS, JONES, and HIGGINSON, Circuit Judges.\\nPER CURIAM:\\n The petition for panel rehearing filed by Saybolt, L.P., is DENIED, and\\nno member of this panel nor judge in regular active service on the Court having\\nrequested that the Court be polled en banc, Saybolt’s petition for rehearing en\\nbanc is also DENIED.\\n\\n\\n\\n 1\\n\\f No. 16-20751\\n The Court, however, amends its opinion by adding the following footnote\\nat the end of the third paragraph of section IV:\\n Because this damages model has not been adequately briefed, we\\n leave for another day whether such a model, or any other damages\\n model, may be appropriate in cases in which an employer fails to\\n satisfy the requirements allowing use of the FWW method.\\n\\n\\n The Court further substitutes the last footnote of its opinion with the\\nfollowing footnote:\\n As set forth above, a plaintiff is entitled to overtime pay for any\\n week in which he worked in excess of 40 hours. To determine the\\n amount of overtime compensation due, the district court should\\n first determine a plaintiff’s regular hourly rate of pay by dividing\\n the total amount of remuneration paid in a workweek (including\\n incentive payments) by the total number of hours intended to be\\n compensated (which, in this case, is the total number of hours\\n actually worked) in that workweek. See 29 C.F.R. § 778.207(b).\\n The district should then compute the overtime rate by multiplying\\n the regular rate times 1.5. The overtime rate should then be\\n multiplied by the number of overtime hours worked in the\\n workweek to arrive at the total amount of overtime compensation\\n due for that week. Finally, that total amount should be reduced\\n by the amount of overtime pay the plaintiff has already received\\n from Saybolt for that workweek. See 29 U.S.C. § 207(h) (describing\\n which sums may be creditable toward overtime compensation).\\n The remainder is the amount of overtime compensation due to the\\n plaintiff.\\n\\n\\n\\n\\n 2\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":580,"cells":{"id":{"kind":"number","value":4586920,"string":"4,586,920"},"name":{"kind":"string","value":"Alexandro PUGA; Norma Puga, Plaintiffs - Appellees v. RCX SOLUTIONS, INCORPORATED, Defendant - Appellant"},"name_abbreviation":{"kind":"string","value":"Alexandro Puga v. About Tyme Transport, Inc"},"decision_date":{"kind":"string","value":"2019-02-01"},"docket_number":{"kind":"string","value":"17-41282"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Stewart, King, Owen\", \"parties\": \"\", \"opinions\": [{\"author\": \"CARL E. STEWART, Chief Judge\", \"type\": \"010combined\", \"text\": \"Case: 17-41282 Document: 00514820085 Page: 1 Date Filed: 02/01/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 17-41282 United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n February 1, 2019\\nALEXANDRO PUGA; NORMA PUGA,\\n Lyle W. Cayce\\n Plaintiffs - Appellees Clerk\\n\\n\\nv.\\n\\nRCX SOLUTIONS, INCORPORATED,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore STEWART, Chief Judge, and KING and OWEN, Circuit Judges.\\nCARL E. STEWART, Chief Judge:\\n RCX Solutions, Incorporated is a licensed motor carrier that contracted\\nwith a driver, Ronald Brown, to transport a load across Texas. During his\\ndrive, Brown crossed the median into oncoming traffic and crashed into\\nAlexandro Puga’s truck, leaving Puga with significant injuries. The Pugas\\nsued. After a week-long trial with expert testimony, a jury found RCX liable\\nfor Brown’s negligence and awarded Mr. Puga a variety of damages and his\\nwife, Norma Puga, loss of consortium damages.\\n RCX now launches a multitude of challenges at the district court’s\\nhandling of the case. RCX claims that the district court wrongly interpreted\\nthe Federal Motor Carrier Safety Regulations because it failed to take account\\n\\f Case: 17-41282 Document: 00514820085 Page: 2 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nof regulatory amendments. RCX contends that this misinterpretation\\nsubjected RCX to liability where none should exist. RCX also argues that the\\ndistrict court used faulty jury instructions, improperly allowed the Pugas’\\nexpert to testify, and upheld an excessive jury award for Mrs. Puga’s loss of\\nconsortium. Finally, RCX claims that the district court erred in not applying\\na settlement credit to the final damages award. After reviewing the record, we\\nAFFIRM the district court’s rulings with respect to all issues except the\\nsettlement credit. We REVERSE and REMAND to the district court for the\\nsole purpose of calculating the appropriate settlement credit amount and\\nmodifying its final judgment accordingly.\\n I.\\n Sunset Transportation entered into a brokerage account with L’Oreal.\\nIn its role as a broker, Sunset was responsible for choosing a motor carrier for\\nindividual L’Oreal shipments on a load-by-load basis. Sunset chose RCX to\\ntransport the L’Oreal load involved in the accident. RCX did not have a\\ncontract with L’Oreal.\\n When it came time for RCX to transport L’Oreal’s load, RCX ran into\\nequipment problems. So RCX contacted Ronald Brown to transport the load.\\nConveniently, Brown already had an RCX trailer in his possession. RCX had\\nleased the trailer from another company, Xtra Lease, and RCX assumed\\nresponsibility for the trailer’s operation under the lease agreement. The bill of\\nlading listed RCX as the carrier for the load. Brown also signed the bill of\\nlading, apparently on behalf of RCX. 1\\n\\n\\n\\n\\n 1 RCX claims, however, that Brown was employed by About Tyme, another carrier.\\nRCX had a trailer interchange agreement with About Tyme, under which they could use the\\nother company’s trailers. And About Tyme’s logo was also on the trailer when the accident\\noccurred. Brown had also listed About Tyme in his logbook.\\n 2\\n\\f Case: 17-41282 Document: 00514820085 Page: 3 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\n While transporting the load, Brown swerved across the median into\\noncoming traffic, hitting Alexandro Puga’s truck. Brown did not survive the\\naccident. Mr. Puga suffered a variety of injuries, including burns on large\\nparts of his body and fractures in his spine, legs, pelvis, and fingers. Mr. Puga\\nwas still undergoing treatment and surgeries two-and-a-half years after the\\naccident.\\n Following the accident, Mr. Puga and his wife, Norma, sued RCX, About\\nTyme, and Xtra Lease, claiming that Brown’s negligent driving caused Mr.\\nPuga’s injuries. Prior to trial, RCX filed a motion under Rule 50(a) of the\\nFederal Rules of Civil Procedure, requesting the court to enter judgment as a\\nmatter of law because the Pugas lacked sufficient evidence for a jury to find\\nthat (1) Brown was employed by RCX and (2) Brown acted negligently when\\nthe crash occurred. The district court denied the motion.\\n At trial, the Pugas designated Trooper Andrew Smith as an expert\\nwitness. Smith was the first responder to the accident and saw the explosion\\nfrom the accident from afar. RCX sought to exclude Smith’s testimony\\nregarding the cause of the accident. The district court denied RCX’s motion.\\n The trial concluded with a jury verdict in favor of the Pugas. The jury\\ndetermined that RCX was “using motor vehicle(s) it did not own to transport\\nproperty under an arrangement with Ronald Brown.” As a result, the jury\\nawarded the Pugas a variety of damages. The jury specifically awarded Mrs.\\nPuga damages for loss of consortium, $1.6 million for past loss of consortium\\nand $1.8 million for future loss of consortium.\\n After the trial, RCX filed a renewed Rule 50(b) motion, again requesting\\njudgment as a matter of law, this time because amendments to Federal Motor\\nCarrier Regulations precluded the jury from finding for the Pugas. The district\\ncourt again denied the motion and entered judgment in favor of the Pugas.\\nRCX now appeals.\\n 3\\n\\f Case: 17-41282 Document: 00514820085 Page: 4 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\n II.\\n RCX first argues that federal law does not allow courts to hold motor\\ncarriers liable for the acts of independent contractors, a concept both parties\\nrefer to as the statutory-employee doctrine. RCX raised this argument for the\\nfirst time in its post-verdict Rule 50(b) motion.\\n Rule 50(a) of the Federal Rules of Civil Procedure allows a party to move\\nfor judgment as a matter of law at trial before the jury renders its verdict.\\nUnder Rule 50(a), the movant must “specify the judgment sought and the law\\nand facts that entitle the movant to the judgment.” Fed. R. Civ. P. 50(a)(2). If\\nthe pre-verdict motion is denied, then the party can renew its motion under\\nRule 50(b). But the renewed Rule 50(b) is “technically only a renewal of the\\n[Rule 50(a) motion for judgment as a matter of law].” Mozingo v. Correct Mfg.\\nCorp., 752 F.2d 168, 172 (5th Cir. 1985) (internal quotation marks and citation\\nomitted). As a result, courts prohibit parties from using a Rule 50(b) motion\\nto “assert a ground that was not included in the [original] motion.” Id.; see also\\nIn re Isbell Records, Inc., 774 F.3d 859, 867 (5th Cir. 2014) (“By not raising this\\nargument at trial or in its Rule 50(a) motion, [the appellant] has waived its\\nright to bring a Rule 50(b) motion on this ground.”); Arsement v. Spinnaker\\nExpl. Co., 400 F.3d 238, 247 (5th Cir. 2005) (“If a party fails to raise an issue\\nin its Rule 50(a)(1) motions at trial, it may not do so in its post-trial Rule 50(b)\\nmotion.”) (citation omitted); 9B Charles Alan Wright & Arthur K. Miller,\\nFederal Practice and Procedure § 2537 (3d ed. 2018) (“[T]he district court only\\ncan grant the Rule 50(b) motion on the grounds advanced in the preverdict\\nmotion, because the former is conceived of as only a renewal of the latter.”).\\n This rule makes sense in light of Rule 50(b)’s purposes. Rule 50(b) is\\ndesigned to prevent a litigant from ambushing both the district court and\\nopposing counsel after trial. See Dimmitt Agri Indus., Inc. v. CPC Int’l. Inc.,\\n679 F.2d 516, 521 (5th Cir. 1982) (“The rationale for the rule that a [Rule 50(b)\\n 4\\n\\f Case: 17-41282 Document: 00514820085 Page: 5 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nmotion] cannot assert a ground not included in a motion for directed verdict is\\nobviously to avoid ‘ambushing’ the trial court and opposing counsel.”) (internal\\nquotation marks and citation omitted); Quinn v. Sw. Wood Prods., Inc., 597\\nF.2d 1018, 1025 (5th Cir. 1979) (“When a claimed deficiency in the evidence is\\ncalled to the attention of the trial judge and of counsel before the jury has\\ncommenced deliberations, counsel still may do whatever can be done to mend\\nhis case. But if the court and counsel learn of such a claim for the first time\\nafter verdict, both are ambushed and nothing can be done except by way of a\\ncomplete new trial. It is contrary to the spirit of our procedures to permit\\ncounsel to be sandbagged by such tactics or the trial court to be so put in\\nerror.”). By requiring a litigant to raise all arguments in its initial Rule 50(a)\\nmotion, the trial court is able to “re-examine the question of evidentiary\\ninsufficiency as a matter of law if the jury returns a verdict contrary to the\\nmovant,” and opposing counsel is alerted to any “insufficiency before the case\\nis submitted to the jury,” giving the opposing party a chance to cure any defects\\nin its legal theories or proof should the motion have merit. Scottish Heritable\\nTr., PLC v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th Cir. 1996) (internal\\nquotation marks and citation omitted).\\n Here, RCX did not argue that the statutory-employee doctrine was\\noverruled in its Rule 50(a) motion, precluding it from raising the argument in\\nits Rule 50(b) motion. In its oral Rule 50(a) motion, RCX argued that judgment\\nas a matter of law was appropriate because the record contained insufficient\\nevidence to determine that (1) Brown was a statutory employee of RCX and (2)\\nBrown acted negligently when the accident occurred. Even in its earlier\\nsummary judgment briefing, RCX only attacked the evidentiary bases for\\ndetermining that Brown was an employee of RCX. At no time prior to its Rule\\n50(b) motion did RCX argue that the entire statutory-employee doctrine is now\\ndefunct. By failing to raise this argument in its initial Rule 50(a) motion, RCX\\n 5\\n\\f Case: 17-41282 Document: 00514820085 Page: 6 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nwaived it. 2 See McCann v. Tex. City Ref., Inc., 984 F.2d 667, 672-73 (5th Cir.\\n1993) (denying a post-judgment challenge when the party’s argument differed\\nfrom its 50(a) motion); Allied Bank-West., N.A. v. Stein, 996 F.2d 111, 115 (5th\\nCir. 1993) (overturning grant of judgment as a matter of law on different\\nground than that in the initial directed verdict); Sulmeyer v. Coca Cola Co.,\\n515 F.2d 835, 846 (5th Cir. 1975) (holding that plaintiff could not receive post-\\njudgment relief on claims it did not raise at trial or in its original Rule 50\\nmotion).\\n Accordingly, we AFFIRM the district court’s decision to deny RCX’s Rule\\n50(b) motion.\\n III.\\n RCX next argues that the district court used improper jury instructions.\\nMore specifically, RCX argues that the district court’s jury instructions were\\nincorrect because they did not require the jury to find that RCX met the\\ndefinition of “motor carrier.”\\n This court reviews jury instructions under a two-prong standard of\\nreview. “First, the challenger must demonstrate that the charge as a whole\\ncreates substantial and ineradicable doubt whether” the instructions “properly\\nguided” the jury “in its deliberations.” Pelt v. U.S. Bank Tr. Nat. Ass’n, 359\\nF.3d 764, 767 (5th Cir. 2004) (quoting Johnson v. Sawyer, 120 F.3d 1307, 1315\\n(5th Cir. 1997)). Second, even if the court finds that the jury instructions were\\n\\n\\n 2 RCX argues that it can raise and appeal a purely legal issue in a Rule 50(b) motion\\neven though it did not raise that issue in its original Rule 50(a) motion. But RCX provides\\nno support for this proposition. In fact, the case it cites cuts the opposite direction. In Feld\\nMotor Sports, this court held that it could only review an appeal of a district court’s purely\\nlegal conclusions if the challenging party “sufficiently preserved [it objections] in a Rule 50\\nmotion.” Feld Motor Sports, Inc. v. Traxxas, L.P., 861 F.3d 591, 596 (5th Cir. 2017). The\\ncourt later reaffirmed the rule that a party only “sufficiently preserve[s]” an argument using\\nRule 50 when it raises the argument in a Rule 50(a) and then renews it in a Rule 50(b) motion.\\nId. Here, as detailed above, RCX did not sufficiently preserve its statutory-employee\\narguments.\\n 6\\n\\f Case: 17-41282 Document: 00514820085 Page: 7 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nerroneous, it will not reverse if it determines, “based upon the entire record,\\nthat the challenged instruction could not have affected the outcome of the\\ncase.” Id. (quoting Sawyer, 120 F.3d at 1315).\\n RCX’s arguments do not raise any doubt about the district court’s jury\\ninstructions. 3 The district court instructed the jury to determine whether RCX\\nwas “using motor vehicle(s) it did not own to transport property under an\\narrangement with Ronald Brown.” RCX correctly points out that this\\ninstruction does not follow the federal definition of motor carrier. The federal\\ndefinition of a motor carrier is “a person providing motor vehicle transportation\\nfor compensation.” 49 U.S.C. § 13102(14). But this definition of motor carrier\\nis overbroad for this case because it does not distinguish between (1) a motor\\ncarrier using its own equipment and (2) a motor carrier using leased\\nequipment. That distinction matters.\\n The relevant federal regulations only apply to motor carriers who use\\nleased equipment. As Section 14102 makes clear, the Secretary of\\nTransportation can only issue regulations requiring a motor carrier to “have\\n\\n\\n\\n 3There are three main statutes at issue here. First, the definition of motor carrier:\\n“The term ‘motor carrier’ means a person providing motor vehicle transportation for\\ncompensation.” 49 U.S.C. § 13102(14). Second, the definition of broker:\\n\\n The term “broker” means a person, other than a motor carrier or an employee\\n or agent of a motor carrier, that as a principal or agent sells, offers for sale,\\n negotiates for, or holds itself out by solicitation, advertisement, or otherwise\\n as selling, providing, or arranging for, transportation by motor carrier for\\n compensation.\\n\\n49 U.S.C. § 13102(2).\\n\\n Third, the statute giving the Secretary of Transportation the power to regulate motor\\ncarriers who lease trucking equipment: “The Secretary may require a motor carrier providing\\ntransportation subject to jurisdiction under subchapter I of chapter 135 that uses motor\\nvehicles not owned by it to transport property under an arrangement with another party.”\\n49 U.S.C. § 14102(a).\\n\\n 7\\n\\f Case: 17-41282 Document: 00514820085 Page: 8 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\ncontrol of and be responsible for” how employees operate equipment if the\\nmotor carrier “uses motor vehicles not owned by it to transport property under\\nan arrangement with another party.” 49 U.S.C. § 14102(a) (emphasis added).\\nThe district court rightly based its jury instructions on this section because it\\nexcludes carriers using their own trucking equipment. Without a finding that\\nthe motor carrier used a leased vehicle, the regulations would not apply.\\n RCX’s arguments to the contrary are unconvincing. RCX first argues\\nthat the instructions did not require the jury to find that RCX was acting as a\\nmotor carrier. Second, and relatedly, RCX argues that the instructions are so\\nbroad that they wrap in brokers, as well as motor carriers. We disagree. The\\nmain difference between a motor carrier and a broker is the actual operation\\nof the leased equipment. This difference stands out when looking at the\\ndefinitions of motor carrier and broker in the Act. While a broker is responsible\\nfor “providing, or arranging for, transportation by motor carrier,” 49 U.S.C. §\\n13102(2), a motor carrier provides “motor vehicle transportation,” 49 U.S.C. §\\n13102(14). Put briefly, a motor carrier transports, and a broker provides a\\nmotor carrier. Because the jury here determined that RCX used motor vehicles\\nto transport property, it necessarily determined that RCX was a motor carrier.\\nConsequently, the jury also necessarily determined that RCX did not act as a\\nbroker who merely provided access to a motor carrier.\\n In sum, the district court did not err. On the contrary, the district court\\nclosely examined the statute, avoided the obvious, overbroad definition of\\nmotor carrier, and picked out the correct, limited definition. We AFFIRM the\\ndistrict court’s jury instructions.\\n IV.\\n RCX next challenges the district court’s decision to admit State Trooper\\nSmith as an expert witness on accident investigation. According to RCX,\\nSmith’s opinion was irrelevant because he testified that he (1) could not find\\n 8\\n\\f Case: 17-41282 Document: 00514820085 Page: 9 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nany defects on the road, (2) could not find any skid marks on the road, (3) did\\nnot determine how fast Brown was driving, and (4) did not know the weight of\\nthe trailer or its contents. 4\\n A trial court’s decision to admit expert evidence is reviewed for abuse of\\ndiscretion. Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir.\\n2007) (citation omitted). The trial judge has “wide latitude in determining the\\nadmissibility of expert testimony, and the discretion of the trial judge and his\\nor her decision will not be disturbed on appeal unless manifestly erroneous.”\\nWatkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997) (internal quotation\\nmarks and citation omitted); see also Whitehouse Hotel Ltd. P’ship v. Comm’r,\\n615 F.3d 321, 330 (5th Cir. 2010). A manifest error is one that “is plain and\\nindisputable, and that amounts to a complete disregard of the controlling law.”\\nGuy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004) (internal\\nquotation marks and citation omitted); see also SEC v. Life Partners Holdings,\\nInc., 854 F.3d 765, 775 (5th Cir. 2017).\\n Rule 702 of the Federal Rules of Evidence governs the admissibility of\\nexpert testimony and reports. When evaluating expert testimony, the\\noverarching concern is generally whether the testimony is relevant and\\nreliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).\\nTo be reliable, expert testimony must “be grounded in the methods and\\nprocedures of science and . . . be more than unsupported speculation or\\nsubjective belief.” 5 Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012)\\n\\n\\n\\n\\n 4 Both parties implicitly assume that an accident investigator can serve as an expert\\nwitness. Because RCX merely attacks Smith’s opinion and does not challenge the idea that\\nan accident investigator can serve as an expert at all, we reserve that more fundamental\\nquestion for a later date.\\n 5 Courts also look to Dabuert’s list of non-exclusive factors when determining whether\\n\\ntestimony is reliable:\\n\\n 9\\n\\f Case: 17-41282 Document: 00514820085 Page: 10 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\n(internal citation omitted). To be relevant, the expert’s “reasoning or\\nmethodology [must] be properly applied to the facts in issue.” Id. (internal\\ncitation omitted).\\n When performing this analysis, the court’s main focus should be on\\ndetermining whether the expert’s opinion will assist the trier of fact. See Peters\\nv. Five Star Marine Serv., 898 F.2d 448, 449 (5th Cir. 1990) (citing Fed. R. Evid.\\n702 advisory committee’s notes (1972)). Assisting the trier of fact means “the\\ntrial judge ought to insist that a proffered expert bring to the jury more than\\nthe lawyers can offer in argument.” Salas v. Carpenter, 980 F.2d 299, 305 (5th\\nCir. 1992) (internal quotation marks and citation omitted). As this court has\\nnoted, however, the “helpfulness threshold is low: it is principally . . . a matter\\nof relevance.” E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d 444, 459 n.14 (5th\\nCir. 2013) (en banc) (internal quotation marks and citations omitted).\\n As a general rule, questions relating to the bases and sources of an\\nexpert’s opinion affect the weight to be assigned that opinion rather than its\\nadmissibility. See Rock v. Arkansas, 483 U.S. 44, 61 (1987). Particularly in a\\njury trial setting, the court’s role under Rule 702 is not to weigh the expert\\ntestimony to the point of supplanting the jury’s fact-finding role—the court’s\\nrole is limited to ensuring that the evidence in dispute is at least sufficiently\\nreliable and relevant to the issue so that it is appropriate for the jury’s\\nconsideration. See Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1391-92\\n(Fed. Cir. 2003). At no point should the trial court replace “the adversary\\n\\n\\n\\n (1) whether the theory or technique has been tested; (2) whether the\\n theory or technique has been subjected to peer review and publication; (3) the\\n known or potential rate of error of the method used and the existence and\\n maintenance of standards controlling the technique’s operation; and (4)\\n whether the theory or method has been generally accepted by the scientific\\n community.\\n\\n Arkema, Inc., 685 F.3d at 459.\\n 10\\n\\f Case: 17-41282 Document: 00514820085 Page: 11 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nsystem.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249-50 (5th Cir. 2002). As\\nthe Supreme Court explained, “[v]igorous cross-examination, presentation of\\ncontrary evidence, and careful instruction on the burden of proof are the\\ntraditional and appropriate means of attacking shaky but admissible\\nevidence.” Daubert, 509 U.S. at 596; see also Mathis v. Exxon Corp., 302 F.3d\\n448, 461 (5th Cir. 2002). While the district court must act as a gatekeeper to\\nexclude all irrelevant and unreliable expert testimony, “the rejection of expert\\ntestimony is the exception rather than the rule.” Fed. R. Evid. 702 advisory\\ncommittee’s notes (2000) (internal citations omitted).\\n Here, RCX only challenges the relevance of Smith’s opinion. 6 But its\\narguments are not persuasive. The district court did not abuse its discretion\\nin allowing Smith to offer an expert opinion on the cause of the accident—\\nSmith considered an appropriate amount of physical evidence at the scene of\\nthe crime to offer his opinion, and RCX had ample opportunity to show the jury\\nany flaws in his opinion.\\n No Fifth Circuit case applies Rule 702 and Daubert to an accident\\ninvestigator. 7 But the majority of in-circuit district courts choose to admit\\n\\n\\n\\n 6RCX does not challenge Smith’s qualifications. Officer Smith has worked on accident\\ninvestigations since he became a Texas State Trooper in 2010. He received training on\\naccident investigation when he became a trooper. He also took an advanced course on\\naccident investigation. He has investigated “[o]ver a hundred” accidents.\\n\\n 7 Smith offered testimony as an accident investigator, not an accident recreator, which\\nrequires additional training and attention to detail. Accident investigation merely consists\\nof “responding to the scene, looking at the evidence, taking statements from witnesses,\\nmaking a preliminary determination about what may have been a contributing factor to the\\ncrash, [and] writing [and] submitting the initial crash report.” Stevens Transp., Inc. v. Glob.\\nTransp., LLC, No. 6:15-CV-552-MHS-JDL, 2016 WL 9244669, at *3 (E.D. Tex. May 24, 2016)\\n(internal citations omitted).\\n\\n While this court has held that an investigating officer may not offer lay testimony on\\ncausation, Duhon v. Marceaux, 33 F. App’x 703 (5th Cir. 2002) (unpublished), lay opinions\\nare analyzed differently than expert opinions. See generally Smith v. Progressive Cty. Mut.\\n 11\\n\\f Case: 17-41282 Document: 00514820085 Page: 12 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\naccident investigators as experts. 8 District courts use a contextual analysis\\nwhen making this determination, looking to see if the investigating officer\\nbases his opinion on a sufficient amount of physical evidence from the accident.\\n For example, in Stevens, the district court allowed an officer to testify\\nbased on “the position of Defendants’ trailer after the accident, the tire marks\\nvisible at the scene, and his conversation at the scene with . . . the driver of\\nPlaintiffs’ tractor-trailer.” Stevens, 2016 WL 9244669, at *4. Another court\\nallowed an expert to testify based on his “his accident report, some photographs\\nand his notes.” Vigil, 2007 WL 2778233, at *4. Yet another court allowed an\\ninvestigating officer to testify as an expert because, even though he “did not\\ntake any measurements or photographs, or speak to any witnesses to the\\naccident, he did personally survey the accident scene, talk to the other officers\\non the scene, and subsequently reviewed photographs of the scene.” Main,\\n2011 WL 11027844, at *4. The only case to exclude an expert involved\\nmarkedly different facts. In that case, the officer could not determine which\\nlane the driver was in, expressed doubts about his qualifications, and could not\\n\\n\\n\\nIns. Co., No. 11-CV-872, 2012 WL 702061, at *2 (E.D. La. Mar. 1, 2012) (discussing the\\ndifferences between lay and expert opinion testimony for investigating officers).\\n\\n 8 See, e.g., Stevens Transport, 2016 WL 9244669, at *2-4 (permitting DPS lead\\ninvestigator to offer expert opinion on the cause of the accident); Cartwright v. Am. Honda\\nMotor Co., Inc., No. 9:09-CV-2015, 2011 WL 3648565, at *4 (E.D. Tex. Aug. 15, 2011)\\n(permitting investigating officer to offer an expert opinion regarding the cause of the\\naccident); Vigil v. Michelin N. Am., Inc., No. EP-05-CV-001-KC, 2007 WL 2778233, at *4\\n(W.D. Tex. Aug. 23, 2007) (permitting the investigating officer to offer expert opinion on the\\ncause of the accident); Martin v. Pride Offshore Co., No. 97-CV-3754, 1999 WL 4921, at *1\\n(E.D. La. Jan. 6, 1999) (permitting an investigating officer to offer expert testimony on the\\ncause of the accident), aff’d, 198 F.3d 241 (5th Cir. 1999); Main v. Eichorn, No. W-10-CV-158,\\n2011 WL 11027844, at *3 (W.D. Tex. Mar. 10, 2011) (allowing an investigating officer to\\ntestify as an expert); but see Koenig v. Beekmans, No. 5:15-CV-00822-RCL-RBF, 2018 WL\\n358307, at *5 (W.D. Tex. Jan. 9, 2018) (excluding an accident investigator who admitted that\\nhe was simply “speculating as to who was in whose lane.”).\\n\\n\\n 12\\n\\f Case: 17-41282 Document: 00514820085 Page: 13 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nsay with any certainty whether the defendant caused the accident. Koenig,\\n2018 WL 358307, at *5.\\n Here, Smith considered numerous facts and did not state that he was\\nspeculating about the cause of the accident. Smith was driving some distance\\nbehind Brown when the accident occurred and saw it happen from afar. He\\nfound wet, dark conditions. He determined which lane Brown was using. He\\ndetermined that Brown was talking on his cell phone. He examined marks in\\nthe median showing the path of Brown’s truck. He took photographs of the\\nscene. He spoke to witnesses. He determined that Brown hydroplaned based\\non skid marks. He determined based on experience and training that Brown\\nmust have been driving too fast or used faulty evasive maneuvers to cross the\\nmedian and end up on the other side of the road. He also relied on an accident\\nreconstruction put together by another expert. Smith also admitted on cross-\\nexamination that he did not examine Brown’s truck, the brakes, the weight of\\nthe truck, or attempt to estimate his speed. But he stuck to his opinion that\\nBrown must have been driving too fast for the conditions or taken a faulty\\nevasive maneuver.\\n In sum, Smith’s opinion was based on a multitude of facts. It did not\\ntake into account every possible explanation for the accident, and some\\nmeasurements were missing. But he was the closest to the scene when the\\naccident happened, observed the conditions on the road, knew Brown was\\ntalking on the phone, and looked at various tire markings in the median and\\non the pavement. Numerous district courts have allowed an investigating\\nofficer to testify as an expert based on less. If Smith missed any important\\nfacts, the oversight should go to the weight of his opinion, not its admissibility.\\nWe AFFIRM the district court’s decision to allow Smith to testify as an expert\\nwitness on causation.\\n\\n\\n 13\\n\\f Case: 17-41282 Document: 00514820085 Page: 14 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\n V.\\n Next, RCX argues that the district court erroneously affirmed the jury’s\\naward of consortium damages to Mrs. Puga.\\n This court reviews the district court’s decision to deny a motion for a new\\ntrial or remittitur for abuse of discretion. 9 Salinas v. O’Neill, 286 F.3d 827,\\n830 (5th Cir. 2002) (“We review denial of remittitur for abuse of discretion”);\\nEiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995) (“The\\ndecision to grant or deny a motion for new trial or remittitur rests in the sound\\ndiscretion of the trial judge; that exercise of discretion can be set aside only\\nupon a clear showing of abuse”); Brooks v. Great Lakes Dredge-Dock Co., 754\\nF.2d 539, 541 (5th Cir. 1985) (“The standard of review of the denial of such a\\nmotion is whether the district court abused its discretion.”).\\n The Supreme Court of Texas defines loss of consortium as the loss of\\ncompanionship, emotional support, love, felicity, and sexual relations\\n\\n\\n\\n 9 This court has not spoken definitively about the appropriate standard of review for\\noverturning a jury’s award of damages. There are three that stand out in the case law. See\\ngenerally Foradori v. Harris, 523 F.3d 477, 504 (5th Cir. 2008) (discussing the three different\\nstandards). The first is abuse of discretion. Salinas, 286 F.3d at 830 (“We review denial of\\nremittitur for abuse of discretion.”) (internal citation omitted); see also Foradori, 523 F.3d at\\n503 (reviewing other cases). The second is the “strongest showing” standard. Lebron v.\\nUnited States, 279 F.3d 321, 325 (5th Cir. 2002) (internal citation omitted); see also Enter.\\nRef. Co. v. Sector Ref. Inc., 781 F.2d 1116, 1118 (5th Cir. 1986); Dixon v. Int’l Harvester Co.,\\n754 F.2d 573, 590 (5th Cir. 1985); Caldarera v. E. Airlines, Inc., 705 F.2d 778, 784 (5th Cir.\\n1983); Shows v. Jamison Bedding, Inc., 671 F.2d 927, 934 (5th Cir. 1982); Bridges v.\\nGroendyke Transp., Inc., 553 F.2d 877, 880 (5th Cir. 1977); Wackman v. Rubasmen, 602 F.3d\\n391, 405 (5th Cir. 2010); Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1378 (5th\\nCir. 1992). The third standard is the “shocks the conscience” standard. Caldarera, 705 F.2d\\nat 784 (internal citation and quotation marks omitted); see also Wackman, 602 F.3d at 404-\\n05; Allen v. Seacoast Prods., Inc., 623 F.2d 355, 364 (5th Cir. 1980); Bridges, 553 F.2d at 880);\\nWilliams v. Chevron U.S.A., Inc., 875 F.2d 501, 506 (5th Cir. 1989) (quoting Caldarera, 705\\nF.2d at 784); see also Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293\\nF.3d 912, 924 (5th Cir. 2002) (citing Caldarera, 705 F.2d at 784).\\n\\n Because RCX challenges the district court’s decision to affirm the jury’s award, as\\nopposed to directly challenging the jury’s award, we apply the abuse of discretion standard.\\nMcCaig v. Wells Fargo Bank (Tex.), N.A., 788 F.3d 463, 482 (5th Cir. 2015).\\n 14\\n\\f Case: 17-41282 Document: 00514820085 Page: 15 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nnecessary to a successful marriage. Glasscock v. Armstrong Cork Co., 946 F.2d\\n1085, 1089 (5th Cir. 1991) (citing Whittlesey v. Miller, 572 S.W.2d 665, 666\\n(Tex. 1978)). Damages for loss of consortium are non-pecuniary damages,\\nwhich “do not require certainty of actual monetized loss.” Waste Mgmt. of Tex.,\\nInc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 153 (Tex. 2014). They\\nare, instead, “measured by an amount that a reasonable person could possibly\\nestimate as fair compensation.” Id. (internal quotation marks and citation\\nomitted).\\n While “translating the subjective nature of this loss into monetary\\nterms” is difficult, Texas courts trust “the ability of the jury to calculate an\\nappropriate award based on the evidence.” Id. at 1089 (citing P.T. & E. Co. v.\\nBeasley, 698 S.W.2d 190, 196 (Tex. App.—Beaumont 1985)); Whittlesey, 572\\nS.W.2d at 667 (“[T]he issue generally must be resolved by the impartial\\nconscience and judgment of jurors who may be expected to act reasonably,\\nintelligently and in harmony with the evidence.” (internal quotation marks and\\ncitation omitted)). Even so, this trust is limited—juries cannot simply pull a\\nnumber out of a hat. All damages must be tied to some evidence. Enright v.\\nGoodman Distrib., Inc., 330 S.W.3d 392, 403 (Tex. App.—Houston [14th Dist.]\\n2010) (citing First State Bank v. Keilman, 851 S.W.2d 914, 930 (Tex. App.—\\nAustin 1993, writ denied)). Direct evidence, however, is not required. A jury\\ncan infer loss of consortium damages “from [indirect] evidence showing the\\nnature and extent of a spouse’s injuries.” Glasscock, 946 F.2d at 1090. 10 When\\nconsidering indirect evidence, juries can rely on “(1) the nature of the marital\\n\\n\\n\\n 10 See also Elizondo v. Krist, 338 S.W.3d 17, 29 (Tex. App.—Houston [14th Dist.] 2010),\\naff’d, 415 S.W.3d 259 (Tex. 2013) (“[T]estimony that the primary victim’s injuries interfere\\nwith family activities is sufficient.”); Wal–Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328\\n(Tex. 1993) (holding that testimony that, as a result of wife’s injuries, couple no longer\\nengages in their former outdoor activities and that travel has become difficult is “at least\\nsome evidence” of loss-of-consortium damages).\\n 15\\n\\f Case: 17-41282 Document: 00514820085 Page: 16 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nrelationship prior to the spouse’s injury, (2) the deterioration of the marital\\nrelationship following the injury, and (3) the extent and duration of the\\nspouse’s injuries.” Id. (citing Whittlesey, 572 S.W.2d at 667; Monsanto Co. v.\\nJohnson, 675 S.W.2d 305, 312 (Tex. App.—Houston [1st Dist.] 1984)).\\n When determining the excessiveness of a jury verdict, courts “must\\nreview each case on its own facts.” Moore v. M/V ANGELA, 353 F.3d 376, 384\\n(5th Cir. 2003) (citing Winbourne v. E. Airlines, Inc., 758 F.2d 1016, 1018 (5th\\nCir. 1984)). Past verdicts can “provide an objective frame of reference, but they\\ndo not control our assessment of individual circumstances.” Wheat v. United\\nStates, 860 F.2d 1256, 1259-60 (5th Cir. 1988). If an award “exceeds the bounds\\nof any reasonable recovery, we must suggest a remittitur ourselves or direct\\nthe district court to do so.” Caldarera, 705 F.2d at 784 (internal citation\\nomitted).\\n This court uses the “maximum recovery rule” to determine whether an\\naward is excessive. Under the maximum recovery rule, this court “will decline\\nto reduce damages where the amount awarded is not disproportionate to at\\nleast one factually similar case from the relevant jurisdiction.” Lebron, 279\\nF.3d at 326 (internal citations and quotations omitted). We measure\\ndisproportionality by applying a percentage enhancement to past similar\\nawards. This enhancement is 50% for jury trials. See Salinas, 286 F.3d at 831\\n& n.6 (noting 50% enhancement has been applied only in jury trials); see also\\nMoore, 353 F.3d at 384. Refusing to overturn jury awards that are within 150%\\nof the highest comparable award prevents the court from substituting its own\\nopinion for that of a jury. The relevant jurisdiction for purposes of the\\nmaximum recovery rule “is the state providing the substantive law for the\\nclaim.” Vogler, 352 F.3d at 156. Here, the relevant jurisdiction consists of\\nTexas loss of consortium cases and “Fifth Circuit cases applying Texas [loss of\\nconsortium] law.” Id.\\n 16\\n\\f Case: 17-41282 Document: 00514820085 Page: 17 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\n The jury awarded Mrs. Puga $1.8 million for her future loss of\\nconsortium and $1.6 million for her past loss of consortium. Applying the\\nmaximum recovery rule, neither award is clearly excessive.\\n The award for future loss of consortium falls within this court’s 50%\\nmultiplier. The highest decision we found awarded a wife $1 million for loss of\\nfuture consortium in a case where the husband did not die. 11 Reeder v. Allport,\\n218 S.W.3d 817, 820 (Tex. App.—Beaumont 2007) (affirming a jury’s award of\\n“$1,000,000 for future loss of consortium.”); accord Lebron v. United States, 279\\nF.3d 321, 327 (5th Cir. 2002) (basing a maximum recovery rule finding in a\\nloss-of-consortium case on the “the highest award” the court could find). That\\nverdict was rendered in 2007 dollars. Accounting for inflation, that award is\\nover $1.2 million in 2018 dollars. 12 Cf. Ledet v. Smith Marine Towing Corp.,\\n455 F. App’x 417, 423 (5th Cir. 2011) (unpublished) (accounting for inflation\\nwhen applying the maximum recovery rule to a prior jury verdict). The jury’s\\n$1.8 million verdict falls within 150% of the prior award over $1.2 million.\\n\\n\\n\\n\\n 11 We found other verdicts that were higher, but we do not rely on these verdicts\\nbecause a higher court reversed them. The higher courts did not reverse because the jury\\nawards were excessive—they reversed for other reasons. See, e.g., U-Haul Int’l, Inc. v.\\nWaldrip, 322 S.W.3d 821, 857 (Tex. App.—Dallas 2010) (affirming the jury’s award of a $1.6\\nmillion future consortium loss), aff’d in part, rev’d in part on other grounds, 380 S.W.3d 118\\n(Tex. 2012); Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 459 (Tex. App.—Dallas 2007) (reversing\\na jury’s $2 million loss of consortium claim, but on other grounds). While this court on one\\nother occasion relied on a partially reversed jury verdict, we specifically affirmed the lower\\ncourt’s loss of spousal consortium ruling, which makes it distinguishable from the cases\\nabove. See Vogler, 352 F.3d at 157 (relying on the jury’s award in Douglass v. Delta Air Lines,\\nInc., 709 F. Supp. 745 (W.D. Tex. 1989), aff’d in part, rev’d in part, 897 F.2d 1336 (5th Cir.\\n1990)).\\n\\n 12We performed this conversion using the Bureau of Labor Statistics’s CPI Inflation\\nCalculator, available at https://data.bls.gov/cgi-bin/cpicalc.pl. See Ledet, 455 F. App’x at 423\\nn.1 (using the Bureau of Labor Statistics’s CPI Inflation Calculator).\\n\\n 17\\n\\f Case: 17-41282 Document: 00514820085 Page: 18 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\n The parties did not point us to a factually similar case that specifically\\ngranted past loss of consortium damages. 13 See Vogler, 352 F.3d at 156-57, 157\\nn.7 (finding that prior cases were not factually similar when they did not\\ndistinguish between past and future loss of consortium). In our own research,\\nhowever, we found a case in which the plaintiff-husband, like here, survived\\nan accident but suffered physically and emotionally from his injuries. See W.\\nStar Transp., Inc. v. Robison, 457 S.W.3d 178, 189 (Tex. App.—Amarillo 2015)\\n(upholding a past loss of consortium award of $250,000 where the husband\\nsuffered a traumatic brain injury that would “significantly affect him for the\\nremainder of his life”). In Robison, the jury awarded the plaintiff’s wife\\n$250,000 for past loss of consortium on January 18, 2013. Adjusting for\\ninflation, that award translates to roughly $272,750.00. And adding our 150%\\nmultiplier to that number, the maximum recovery rule limits Mrs. Puga’s\\nrecovery to $409,125.00.\\n Accordingly, we AFFIRM the district court’s decision to affirm the jury’s\\naward of future consortium damages. However, we REVERSE the district\\ncourt’s decision to affirm the jury’s award of past consortium damages and\\nREMAND for the exact calculation of Mrs. Puga’s maximum recovery in light\\nof West Star Transportation, Inc. v. Robison, 457 S.W.3d 178.\\n\\n\\n\\n\\n 13 The largest award we found for loss of past consortium was $300,000. Douglass,\\n709 F. Supp. at 763 (W.D. Tex. 1989). That award was rendered in 1989. Converted to 2018\\ndollars, $300,000 translates to roughly $625,000. Douglass, however, is not factually similar.\\n\\n The most important reference point for determining factual similarity is whether the\\nprimary victim lived or died. For example, in Lebron, this court merely looked to see whether\\nthe child in past cases had died or lived when determining the correct comparison point for\\nparental loss of consortium. Lebron, 279 F.3d at 327; see also Moore, 353 F.3d at 384\\n(“Poignant factual distinctions are that Plaintiff herein lost no other family member from this\\naccident”). The facts here do not mirror Douglass. In Douglass, the father died in a plane\\ncrash. Mr. Puga lived. The difference between life and death makes the cases meaningfully\\ndifferent.\\n 18\\n\\f Case: 17-41282 Document: 00514820085 Page: 19 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\n VI.\\n Finally, RCX argues that it is entitled to a settlement credit under Texas\\nlaw—an issue the district court did not consider. The Pugas agree that RCX\\nis entitled to a settlement credit. See RSR Corp. v. Int’l Ins. Co., 612 F.3d 851,\\n862 (5th Cir. 2010) (applying a settlement credit in a Texas law diversity case).\\n We, therefore, REVERSE the district court’s decision not to apply a\\nsettlement credit and REMAND for the district court to calculate the\\nappropriate settlement credit amount and modify the final judgment\\naccordingly.\\n VII.\\n For the foregoing reasons, we AFFIRM the district court’s choice of jury\\ninstructions; we AFFIRM that Trooper Smith was properly admitted to testify\\nas an expert on accident investigation; and we AFFIRM the district court’s\\ndecision to uphold the jury’s award for past and future loss of consortium. We\\nalso REMAND to the district court so that it can calculate the settlement credit\\nto which RCX is entitled and modify its final judgment accordingly.\\n\\n\\n\\n\\n 19\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4364173/\", \"author_raw\": \"CARL E. STEWART, Chief Judge\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"KING"},"judge3":{"kind":"string","value":"OWEN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4586920/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Alexandro PUGA; Norma Puga, Plaintiffs - Appellees v. RCX SOLUTIONS, INCORPORATED, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-41282 Document: 00514820085 Page: 1 Date Filed: 02/01/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 17-41282 United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 1, 2019\nALEXANDRO PUGA; NORMA PUGA,\n Lyle W. Cayce\n Plaintiffs - Appellees Clerk\n\n\nv.\n\nRCX SOLUTIONS, INCORPORATED,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore STEWART, Chief Judge, and KING and OWEN, Circuit Judges.\nCARL E. STEWART, Chief Judge:\n RCX Solutions, Incorporated is a licensed motor carrier that contracted\nwith a driver, Ronald Brown, to transport a load across Texas. During his\ndrive, Brown crossed the median into oncoming traffic and crashed into\nAlexandro Puga’s truck, leaving Puga with significant injuries. The Pugas\nsued. After a week-long trial with expert testimony, a jury found RCX liable\nfor Brown’s negligence and awarded Mr. Puga a variety of damages and his\nwife, Norma Puga, loss of consortium damages.\n RCX now launches a multitude of challenges at the district court’s\nhandling of the case. RCX claims that the district court wrongly interpreted\nthe Federal Motor Carrier Safety Regulations because it failed to take account\n\f Case: 17-41282 Document: 00514820085 Page: 2 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nof regulatory amendments. RCX contends that this misinterpretation\nsubjected RCX to liability where none should exist. RCX also argues that the\ndistrict court used faulty jury instructions, improperly allowed the Pugas’\nexpert to testify, and upheld an excessive jury award for Mrs. Puga’s loss of\nconsortium. Finally, RCX claims that the district court erred in not applying\na settlement credit to the final damages award. After reviewing the record, we\nAFFIRM the district court’s rulings with respect to all issues except the\nsettlement credit. We REVERSE and REMAND to the district court for the\nsole purpose of calculating the appropriate settlement credit amount and\nmodifying its final judgment accordingly.\n I.\n Sunset Transportation entered into a brokerage account with L’Oreal.\nIn its role as a broker, Sunset was responsible for choosing a motor carrier for\nindividual L’Oreal shipments on a load-by-load basis. Sunset chose RCX to\ntransport the L’Oreal load involved in the accident. RCX did not have a\ncontract with L’Oreal.\n When it came time for RCX to transport L’Oreal’s load, RCX ran into\nequipment problems. So RCX contacted Ronald Brown to transport the load.\nConveniently, Brown already had an RCX trailer in his possession. RCX had\nleased the trailer from another company, Xtra Lease, and RCX assumed\nresponsibility for the trailer’s operation under the lease agreement. The bill of\nlading listed RCX as the carrier for the load. Brown also signed the bill of\nlading, apparently on behalf of RCX. 1\n\n\n\n\n 1 RCX claims, however, that Brown was employed by About Tyme, another carrier.\nRCX had a trailer interchange agreement with About Tyme, under which they could use the\nother company’s trailers. And About Tyme’s logo was also on the trailer when the accident\noccurred. Brown had also listed About Tyme in his logbook.\n 2\n\f Case: 17-41282 Document: 00514820085 Page: 3 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\n While transporting the load, Brown swerved across the median into\noncoming traffic, hitting Alexandro Puga’s truck. Brown did not survive the\naccident. Mr. Puga suffered a variety of injuries, including burns on large\nparts of his body and fractures in his spine, legs, pelvis, and fingers. Mr. Puga\nwas still undergoing treatment and surgeries two-and-a-half years after the\naccident.\n Following the accident, Mr. Puga and his wife, Norma, sued RCX, About\nTyme, and Xtra Lease, claiming that Brown’s negligent driving caused Mr.\nPuga’s injuries. Prior to trial, RCX filed a motion under Rule 50(a) of the\nFederal Rules of Civil Procedure, requesting the court to enter judgment as a\nmatter of law because the Pugas lacked sufficient evidence for a jury to find\nthat (1) Brown was employed by RCX and (2) Brown acted negligently when\nthe crash occurred. The district court denied the motion.\n At trial, the Pugas designated Trooper Andrew Smith as an expert\nwitness. Smith was the first responder to the accident and saw the explosion\nfrom the accident from afar. RCX sought to exclude Smith’s testimony\nregarding the cause of the accident. The district court denied RCX’s motion.\n The trial concluded with a jury verdict in favor of the Pugas. The jury\ndetermined that RCX was “using motor vehicle(s) it did not own to transport\nproperty under an arrangement with Ronald Brown.” As a result, the jury\nawarded the Pugas a variety of damages. The jury specifically awarded Mrs.\nPuga damages for loss of consortium, $1.6 million for past loss of consortium\nand $1.8 million for future loss of consortium.\n After the trial, RCX filed a renewed Rule 50(b) motion, again requesting\njudgment as a matter of law, this time because amendments to Federal Motor\nCarrier Regulations precluded the jury from finding for the Pugas. The district\ncourt again denied the motion and entered judgment in favor of the Pugas.\nRCX now appeals.\n 3\n\f Case: 17-41282 Document: 00514820085 Page: 4 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\n II.\n RCX first argues that federal law does not allow courts to hold motor\ncarriers liable for the acts of independent contractors, a concept both parties\nrefer to as the statutory-employee doctrine. RCX raised this argument for the\nfirst time in its post-verdict Rule 50(b) motion.\n Rule 50(a) of the Federal Rules of Civil Procedure allows a party to move\nfor judgment as a matter of law at trial before the jury renders its verdict.\nUnder Rule 50(a), the movant must “specify the judgment sought and the law\nand facts that entitle the movant to the judgment.” Fed. R. Civ. P. 50(a)(2). If\nthe pre-verdict motion is denied, then the party can renew its motion under\nRule 50(b). But the renewed Rule 50(b) is “technically only a renewal of the\n[Rule 50(a) motion for judgment as a matter of law].” Mozingo v. Correct Mfg.\nCorp., 752 F.2d 168, 172 (5th Cir. 1985) (internal quotation marks and citation\nomitted). As a result, courts prohibit parties from using a Rule 50(b) motion\nto “assert a ground that was not included in the [original] motion.” Id.; see also\nIn re Isbell Records, Inc., 774 F.3d 859, 867 (5th Cir. 2014) (“By not raising this\nargument at trial or in its Rule 50(a) motion, [the appellant] has waived its\nright to bring a Rule 50(b) motion on this ground.”); Arsement v. Spinnaker\nExpl. Co., 400 F.3d 238, 247 (5th Cir. 2005) (“If a party fails to raise an issue\nin its Rule 50(a)(1) motions at trial, it may not do so in its post-trial Rule 50(b)\nmotion.”) (citation omitted); 9B Charles Alan Wright & Arthur K. Miller,\nFederal Practice and Procedure § 2537 (3d ed. 2018) (“[T]he district court only\ncan grant the Rule 50(b) motion on the grounds advanced in the preverdict\nmotion, because the former is conceived of as only a renewal of the latter.”).\n This rule makes sense in light of Rule 50(b)’s purposes. Rule 50(b) is\ndesigned to prevent a litigant from ambushing both the district court and\nopposing counsel after trial. See Dimmitt Agri Indus., Inc. v. CPC Int’l. Inc.,\n679 F.2d 516, 521 (5th Cir. 1982) (“The rationale for the rule that a [Rule 50(b)\n 4\n\f Case: 17-41282 Document: 00514820085 Page: 5 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nmotion] cannot assert a ground not included in a motion for directed verdict is\nobviously to avoid ‘ambushing’ the trial court and opposing counsel.”) (internal\nquotation marks and citation omitted); Quinn v. Sw. Wood Prods., Inc., 597\nF.2d 1018, 1025 (5th Cir. 1979) (“When a claimed deficiency in the evidence is\ncalled to the attention of the trial judge and of counsel before the jury has\ncommenced deliberations, counsel still may do whatever can be done to mend\nhis case. But if the court and counsel learn of such a claim for the first time\nafter verdict, both are ambushed and nothing can be done except by way of a\ncomplete new trial. It is contrary to the spirit of our procedures to permit\ncounsel to be sandbagged by such tactics or the trial court to be so put in\nerror.”). By requiring a litigant to raise all arguments in its initial Rule 50(a)\nmotion, the trial court is able to “re-examine the question of evidentiary\ninsufficiency as a matter of law if the jury returns a verdict contrary to the\nmovant,” and opposing counsel is alerted to any “insufficiency before the case\nis submitted to the jury,” giving the opposing party a chance to cure any defects\nin its legal theories or proof should the motion have merit. Scottish Heritable\nTr., PLC v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th Cir. 1996) (internal\nquotation marks and citation omitted).\n Here, RCX did not argue that the statutory-employee doctrine was\noverruled in its Rule 50(a) motion, precluding it from raising the argument in\nits Rule 50(b) motion. In its oral Rule 50(a) motion, RCX argued that judgment\nas a matter of law was appropriate because the record contained insufficient\nevidence to determine that (1) Brown was a statutory employee of RCX and (2)\nBrown acted negligently when the accident occurred. Even in its earlier\nsummary judgment briefing, RCX only attacked the evidentiary bases for\ndetermining that Brown was an employee of RCX. At no time prior to its Rule\n50(b) motion did RCX argue that the entire statutory-employee doctrine is now\ndefunct. By failing to raise this argument in its initial Rule 50(a) motion, RCX\n 5\n\f Case: 17-41282 Document: 00514820085 Page: 6 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nwaived it. 2 See McCann v. Tex. City Ref., Inc., 984 F.2d 667, 672-73 (5th Cir.\n1993) (denying a post-judgment challenge when the party’s argument differed\nfrom its 50(a) motion); Allied Bank-West., N.A. v. Stein, 996 F.2d 111, 115 (5th\nCir. 1993) (overturning grant of judgment as a matter of law on different\nground than that in the initial directed verdict); Sulmeyer v. Coca Cola Co.,\n515 F.2d 835, 846 (5th Cir. 1975) (holding that plaintiff could not receive post-\njudgment relief on claims it did not raise at trial or in its original Rule 50\nmotion).\n Accordingly, we AFFIRM the district court’s decision to deny RCX’s Rule\n50(b) motion.\n III.\n RCX next argues that the district court used improper jury instructions.\nMore specifically, RCX argues that the district court’s jury instructions were\nincorrect because they did not require the jury to find that RCX met the\ndefinition of “motor carrier.”\n This court reviews jury instructions under a two-prong standard of\nreview. “First, the challenger must demonstrate that the charge as a whole\ncreates substantial and ineradicable doubt whether” the instructions “properly\nguided” the jury “in its deliberations.” Pelt v. U.S. Bank Tr. Nat. Ass’n, 359\nF.3d 764, 767 (5th Cir. 2004) (quoting Johnson v. Sawyer, 120 F.3d 1307, 1315\n(5th Cir. 1997)). Second, even if the court finds that the jury instructions were\n\n\n 2 RCX argues that it can raise and appeal a purely legal issue in a Rule 50(b) motion\neven though it did not raise that issue in its original Rule 50(a) motion. But RCX provides\nno support for this proposition. In fact, the case it cites cuts the opposite direction. In Feld\nMotor Sports, this court held that it could only review an appeal of a district court’s purely\nlegal conclusions if the challenging party “sufficiently preserved [it objections] in a Rule 50\nmotion.” Feld Motor Sports, Inc. v. Traxxas, L.P., 861 F.3d 591, 596 (5th Cir. 2017). The\ncourt later reaffirmed the rule that a party only “sufficiently preserve[s]” an argument using\nRule 50 when it raises the argument in a Rule 50(a) and then renews it in a Rule 50(b) motion.\nId. Here, as detailed above, RCX did not sufficiently preserve its statutory-employee\narguments.\n 6\n\f Case: 17-41282 Document: 00514820085 Page: 7 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nerroneous, it will not reverse if it determines, “based upon the entire record,\nthat the challenged instruction could not have affected the outcome of the\ncase.” Id. (quoting Sawyer, 120 F.3d at 1315).\n RCX’s arguments do not raise any doubt about the district court’s jury\ninstructions. 3 The district court instructed the jury to determine whether RCX\nwas “using motor vehicle(s) it did not own to transport property under an\narrangement with Ronald Brown.” RCX correctly points out that this\ninstruction does not follow the federal definition of motor carrier. The federal\ndefinition of a motor carrier is “a person providing motor vehicle transportation\nfor compensation.” 49 U.S.C. § 13102(14). But this definition of motor carrier\nis overbroad for this case because it does not distinguish between (1) a motor\ncarrier using its own equipment and (2) a motor carrier using leased\nequipment. That distinction matters.\n The relevant federal regulations only apply to motor carriers who use\nleased equipment. As Section 14102 makes clear, the Secretary of\nTransportation can only issue regulations requiring a motor carrier to “have\n\n\n\n 3There are three main statutes at issue here. First, the definition of motor carrier:\n“The term ‘motor carrier’ means a person providing motor vehicle transportation for\ncompensation.” 49 U.S.C. § 13102(14). Second, the definition of broker:\n\n The term “broker” means a person, other than a motor carrier or an employee\n or agent of a motor carrier, that as a principal or agent sells, offers for sale,\n negotiates for, or holds itself out by solicitation, advertisement, or otherwise\n as selling, providing, or arranging for, transportation by motor carrier for\n compensation.\n\n49 U.S.C. § 13102(2).\n\n Third, the statute giving the Secretary of Transportation the power to regulate motor\ncarriers who lease trucking equipment: “The Secretary may require a motor carrier providing\ntransportation subject to jurisdiction under subchapter I of chapter 135 that uses motor\nvehicles not owned by it to transport property under an arrangement with another party.”\n49 U.S.C. § 14102(a).\n\n 7\n\f Case: 17-41282 Document: 00514820085 Page: 8 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\ncontrol of and be responsible for” how employees operate equipment if the\nmotor carrier “uses motor vehicles not owned by it to transport property under\nan arrangement with another party.” 49 U.S.C. § 14102(a) (emphasis added).\nThe district court rightly based its jury instructions on this section because it\nexcludes carriers using their own trucking equipment. Without a finding that\nthe motor carrier used a leased vehicle, the regulations would not apply.\n RCX’s arguments to the contrary are unconvincing. RCX first argues\nthat the instructions did not require the jury to find that RCX was acting as a\nmotor carrier. Second, and relatedly, RCX argues that the instructions are so\nbroad that they wrap in brokers, as well as motor carriers. We disagree. The\nmain difference between a motor carrier and a broker is the actual operation\nof the leased equipment. This difference stands out when looking at the\ndefinitions of motor carrier and broker in the Act. While a broker is responsible\nfor “providing, or arranging for, transportation by motor carrier,” 49 U.S.C. §\n13102(2), a motor carrier provides “motor vehicle transportation,” 49 U.S.C. §\n13102(14). Put briefly, a motor carrier transports, and a broker provides a\nmotor carrier. Because the jury here determined that RCX used motor vehicles\nto transport property, it necessarily determined that RCX was a motor carrier.\nConsequently, the jury also necessarily determined that RCX did not act as a\nbroker who merely provided access to a motor carrier.\n In sum, the district court did not err. On the contrary, the district court\nclosely examined the statute, avoided the obvious, overbroad definition of\nmotor carrier, and picked out the correct, limited definition. We AFFIRM the\ndistrict court’s jury instructions.\n IV.\n RCX next challenges the district court’s decision to admit State Trooper\nSmith as an expert witness on accident investigation. According to RCX,\nSmith’s opinion was irrelevant because he testified that he (1) could not find\n 8\n\f Case: 17-41282 Document: 00514820085 Page: 9 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nany defects on the road, (2) could not find any skid marks on the road, (3) did\nnot determine how fast Brown was driving, and (4) did not know the weight of\nthe trailer or its contents. 4\n A trial court’s decision to admit expert evidence is reviewed for abuse of\ndiscretion. Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir.\n2007) (citation omitted). The trial judge has “wide latitude in determining the\nadmissibility of expert testimony, and the discretion of the trial judge and his\nor her decision will not be disturbed on appeal unless manifestly erroneous.”\nWatkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997) (internal quotation\nmarks and citation omitted); see also Whitehouse Hotel Ltd. P’ship v. Comm’r,\n615 F.3d 321, 330 (5th Cir. 2010). A manifest error is one that “is plain and\nindisputable, and that amounts to a complete disregard of the controlling law.”\nGuy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004) (internal\nquotation marks and citation omitted); see also SEC v. Life Partners Holdings,\nInc., 854 F.3d 765, 775 (5th Cir. 2017).\n Rule 702 of the Federal Rules of Evidence governs the admissibility of\nexpert testimony and reports. When evaluating expert testimony, the\noverarching concern is generally whether the testimony is relevant and\nreliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).\nTo be reliable, expert testimony must “be grounded in the methods and\nprocedures of science and . . . be more than unsupported speculation or\nsubjective belief.” 5 Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012)\n\n\n\n\n 4 Both parties implicitly assume that an accident investigator can serve as an expert\nwitness. Because RCX merely attacks Smith’s opinion and does not challenge the idea that\nan accident investigator can serve as an expert at all, we reserve that more fundamental\nquestion for a later date.\n 5 Courts also look to Dabuert’s list of non-exclusive factors when determining whether\n\ntestimony is reliable:\n\n 9\n\f Case: 17-41282 Document: 00514820085 Page: 10 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\n(internal citation omitted). To be relevant, the expert’s “reasoning or\nmethodology [must] be properly applied to the facts in issue.” Id. (internal\ncitation omitted).\n When performing this analysis, the court’s main focus should be on\ndetermining whether the expert’s opinion will assist the trier of fact. See Peters\nv. Five Star Marine Serv., 898 F.2d 448, 449 (5th Cir. 1990) (citing Fed. R. Evid.\n702 advisory committee’s notes (1972)). Assisting the trier of fact means “the\ntrial judge ought to insist that a proffered expert bring to the jury more than\nthe lawyers can offer in argument.” Salas v. Carpenter, 980 F.2d 299, 305 (5th\nCir. 1992) (internal quotation marks and citation omitted). As this court has\nnoted, however, the “helpfulness threshold is low: it is principally . . . a matter\nof relevance.” E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d 444, 459 n.14 (5th\nCir. 2013) (en banc) (internal quotation marks and citations omitted).\n As a general rule, questions relating to the bases and sources of an\nexpert’s opinion affect the weight to be assigned that opinion rather than its\nadmissibility. See Rock v. Arkansas, 483 U.S. 44, 61 (1987). Particularly in a\njury trial setting, the court’s role under Rule 702 is not to weigh the expert\ntestimony to the point of supplanting the jury’s fact-finding role—the court’s\nrole is limited to ensuring that the evidence in dispute is at least sufficiently\nreliable and relevant to the issue so that it is appropriate for the jury’s\nconsideration. See Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1391-92\n(Fed. Cir. 2003). At no point should the trial court replace “the adversary\n\n\n\n (1) whether the theory or technique has been tested; (2) whether the\n theory or technique has been subjected to peer review and publication; (3) the\n known or potential rate of error of the method used and the existence and\n maintenance of standards controlling the technique’s operation; and (4)\n whether the theory or method has been generally accepted by the scientific\n community.\n\n Arkema, Inc., 685 F.3d at 459.\n 10\n\f Case: 17-41282 Document: 00514820085 Page: 11 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nsystem.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249-50 (5th Cir. 2002). As\nthe Supreme Court explained, “[v]igorous cross-examination, presentation of\ncontrary evidence, and careful instruction on the burden of proof are the\ntraditional and appropriate means of attacking shaky but admissible\nevidence.” Daubert, 509 U.S. at 596; see also Mathis v. Exxon Corp., 302 F.3d\n448, 461 (5th Cir. 2002). While the district court must act as a gatekeeper to\nexclude all irrelevant and unreliable expert testimony, “the rejection of expert\ntestimony is the exception rather than the rule.” Fed. R. Evid. 702 advisory\ncommittee’s notes (2000) (internal citations omitted).\n Here, RCX only challenges the relevance of Smith’s opinion. 6 But its\narguments are not persuasive. The district court did not abuse its discretion\nin allowing Smith to offer an expert opinion on the cause of the accident—\nSmith considered an appropriate amount of physical evidence at the scene of\nthe crime to offer his opinion, and RCX had ample opportunity to show the jury\nany flaws in his opinion.\n No Fifth Circuit case applies Rule 702 and Daubert to an accident\ninvestigator. 7 But the majority of in-circuit district courts choose to admit\n\n\n\n 6RCX does not challenge Smith’s qualifications. Officer Smith has worked on accident\ninvestigations since he became a Texas State Trooper in 2010. He received training on\naccident investigation when he became a trooper. He also took an advanced course on\naccident investigation. He has investigated “[o]ver a hundred” accidents.\n\n 7 Smith offered testimony as an accident investigator, not an accident recreator, which\nrequires additional training and attention to detail. Accident investigation merely consists\nof “responding to the scene, looking at the evidence, taking statements from witnesses,\nmaking a preliminary determination about what may have been a contributing factor to the\ncrash, [and] writing [and] submitting the initial crash report.” Stevens Transp., Inc. v. Glob.\nTransp., LLC, No. 6:15-CV-552-MHS-JDL, 2016 WL 9244669, at *3 (E.D. Tex. May 24, 2016)\n(internal citations omitted).\n\n While this court has held that an investigating officer may not offer lay testimony on\ncausation, Duhon v. Marceaux, 33 F. App’x 703 (5th Cir. 2002) (unpublished), lay opinions\nare analyzed differently than expert opinions. See generally Smith v. Progressive Cty. Mut.\n 11\n\f Case: 17-41282 Document: 00514820085 Page: 12 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\naccident investigators as experts. 8 District courts use a contextual analysis\nwhen making this determination, looking to see if the investigating officer\nbases his opinion on a sufficient amount of physical evidence from the accident.\n For example, in Stevens, the district court allowed an officer to testify\nbased on “the position of Defendants’ trailer after the accident, the tire marks\nvisible at the scene, and his conversation at the scene with . . . the driver of\nPlaintiffs’ tractor-trailer.” Stevens, 2016 WL 9244669, at *4. Another court\nallowed an expert to testify based on his “his accident report, some photographs\nand his notes.” Vigil, 2007 WL 2778233, at *4. Yet another court allowed an\ninvestigating officer to testify as an expert because, even though he “did not\ntake any measurements or photographs, or speak to any witnesses to the\naccident, he did personally survey the accident scene, talk to the other officers\non the scene, and subsequently reviewed photographs of the scene.” Main,\n2011 WL 11027844, at *4. The only case to exclude an expert involved\nmarkedly different facts. In that case, the officer could not determine which\nlane the driver was in, expressed doubts about his qualifications, and could not\n\n\n\nIns. Co., No. 11-CV-872, 2012 WL 702061, at *2 (E.D. La. Mar. 1, 2012) (discussing the\ndifferences between lay and expert opinion testimony for investigating officers).\n\n 8 See, e.g., Stevens Transport, 2016 WL 9244669, at *2-4 (permitting DPS lead\ninvestigator to offer expert opinion on the cause of the accident); Cartwright v. Am. Honda\nMotor Co., Inc., No. 9:09-CV-2015, 2011 WL 3648565, at *4 (E.D. Tex. Aug. 15, 2011)\n(permitting investigating officer to offer an expert opinion regarding the cause of the\naccident); Vigil v. Michelin N. Am., Inc., No. EP-05-CV-001-KC, 2007 WL 2778233, at *4\n(W.D. Tex. Aug. 23, 2007) (permitting the investigating officer to offer expert opinion on the\ncause of the accident); Martin v. Pride Offshore Co., No. 97-CV-3754, 1999 WL 4921, at *1\n(E.D. La. Jan. 6, 1999) (permitting an investigating officer to offer expert testimony on the\ncause of the accident), aff’d, 198 F.3d 241 (5th Cir. 1999); Main v. Eichorn, No. W-10-CV-158,\n2011 WL 11027844, at *3 (W.D. Tex. Mar. 10, 2011) (allowing an investigating officer to\ntestify as an expert); but see Koenig v. Beekmans, No. 5:15-CV-00822-RCL-RBF, 2018 WL\n358307, at *5 (W.D. Tex. Jan. 9, 2018) (excluding an accident investigator who admitted that\nhe was simply “speculating as to who was in whose lane.”).\n\n\n 12\n\f Case: 17-41282 Document: 00514820085 Page: 13 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nsay with any certainty whether the defendant caused the accident. Koenig,\n2018 WL 358307, at *5.\n Here, Smith considered numerous facts and did not state that he was\nspeculating about the cause of the accident. Smith was driving some distance\nbehind Brown when the accident occurred and saw it happen from afar. He\nfound wet, dark conditions. He determined which lane Brown was using. He\ndetermined that Brown was talking on his cell phone. He examined marks in\nthe median showing the path of Brown’s truck. He took photographs of the\nscene. He spoke to witnesses. He determined that Brown hydroplaned based\non skid marks. He determined based on experience and training that Brown\nmust have been driving too fast or used faulty evasive maneuvers to cross the\nmedian and end up on the other side of the road. He also relied on an accident\nreconstruction put together by another expert. Smith also admitted on cross-\nexamination that he did not examine Brown’s truck, the brakes, the weight of\nthe truck, or attempt to estimate his speed. But he stuck to his opinion that\nBrown must have been driving too fast for the conditions or taken a faulty\nevasive maneuver.\n In sum, Smith’s opinion was based on a multitude of facts. It did not\ntake into account every possible explanation for the accident, and some\nmeasurements were missing. But he was the closest to the scene when the\naccident happened, observed the conditions on the road, knew Brown was\ntalking on the phone, and looked at various tire markings in the median and\non the pavement. Numerous district courts have allowed an investigating\nofficer to testify as an expert based on less. If Smith missed any important\nfacts, the oversight should go to the weight of his opinion, not its admissibility.\nWe AFFIRM the district court’s decision to allow Smith to testify as an expert\nwitness on causation.\n\n\n 13\n\f Case: 17-41282 Document: 00514820085 Page: 14 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\n V.\n Next, RCX argues that the district court erroneously affirmed the jury’s\naward of consortium damages to Mrs. Puga.\n This court reviews the district court’s decision to deny a motion for a new\ntrial or remittitur for abuse of discretion. 9 Salinas v. O’Neill, 286 F.3d 827,\n830 (5th Cir. 2002) (“We review denial of remittitur for abuse of discretion”);\nEiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995) (“The\ndecision to grant or deny a motion for new trial or remittitur rests in the sound\ndiscretion of the trial judge; that exercise of discretion can be set aside only\nupon a clear showing of abuse”); Brooks v. Great Lakes Dredge-Dock Co., 754\nF.2d 539, 541 (5th Cir. 1985) (“The standard of review of the denial of such a\nmotion is whether the district court abused its discretion.”).\n The Supreme Court of Texas defines loss of consortium as the loss of\ncompanionship, emotional support, love, felicity, and sexual relations\n\n\n\n 9 This court has not spoken definitively about the appropriate standard of review for\noverturning a jury’s award of damages. There are three that stand out in the case law. See\ngenerally Foradori v. Harris, 523 F.3d 477, 504 (5th Cir. 2008) (discussing the three different\nstandards). The first is abuse of discretion. Salinas, 286 F.3d at 830 (“We review denial of\nremittitur for abuse of discretion.”) (internal citation omitted); see also Foradori, 523 F.3d at\n503 (reviewing other cases). The second is the “strongest showing” standard. Lebron v.\nUnited States, 279 F.3d 321, 325 (5th Cir. 2002) (internal citation omitted); see also Enter.\nRef. Co. v. Sector Ref. Inc., 781 F.2d 1116, 1118 (5th Cir. 1986); Dixon v. Int’l Harvester Co.,\n754 F.2d 573, 590 (5th Cir. 1985); Caldarera v. E. Airlines, Inc., 705 F.2d 778, 784 (5th Cir.\n1983); Shows v. Jamison Bedding, Inc., 671 F.2d 927, 934 (5th Cir. 1982); Bridges v.\nGroendyke Transp., Inc., 553 F.2d 877, 880 (5th Cir. 1977); Wackman v. Rubasmen, 602 F.3d\n391, 405 (5th Cir. 2010); Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1378 (5th\nCir. 1992). The third standard is the “shocks the conscience” standard. Caldarera, 705 F.2d\nat 784 (internal citation and quotation marks omitted); see also Wackman, 602 F.3d at 404-\n05; Allen v. Seacoast Prods., Inc., 623 F.2d 355, 364 (5th Cir. 1980); Bridges, 553 F.2d at 880);\nWilliams v. Chevron U.S.A., Inc., 875 F.2d 501, 506 (5th Cir. 1989) (quoting Caldarera, 705\nF.2d at 784); see also Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293\nF.3d 912, 924 (5th Cir. 2002) (citing Caldarera, 705 F.2d at 784).\n\n Because RCX challenges the district court’s decision to affirm the jury’s award, as\nopposed to directly challenging the jury’s award, we apply the abuse of discretion standard.\nMcCaig v. Wells Fargo Bank (Tex.), N.A., 788 F.3d 463, 482 (5th Cir. 2015).\n 14\n\f Case: 17-41282 Document: 00514820085 Page: 15 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nnecessary to a successful marriage. Glasscock v. Armstrong Cork Co., 946 F.2d\n1085, 1089 (5th Cir. 1991) (citing Whittlesey v. Miller, 572 S.W.2d 665, 666\n(Tex. 1978)). Damages for loss of consortium are non-pecuniary damages,\nwhich “do not require certainty of actual monetized loss.” Waste Mgmt. of Tex.,\nInc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 153 (Tex. 2014). They\nare, instead, “measured by an amount that a reasonable person could possibly\nestimate as fair compensation.” Id. (internal quotation marks and citation\nomitted).\n While “translating the subjective nature of this loss into monetary\nterms” is difficult, Texas courts trust “the ability of the jury to calculate an\nappropriate award based on the evidence.” Id. at 1089 (citing P.T. & E. Co. v.\nBeasley, 698 S.W.2d 190, 196 (Tex. App.—Beaumont 1985)); Whittlesey, 572\nS.W.2d at 667 (“[T]he issue generally must be resolved by the impartial\nconscience and judgment of jurors who may be expected to act reasonably,\nintelligently and in harmony with the evidence.” (internal quotation marks and\ncitation omitted)). Even so, this trust is limited—juries cannot simply pull a\nnumber out of a hat. All damages must be tied to some evidence. Enright v.\nGoodman Distrib., Inc., 330 S.W.3d 392, 403 (Tex. App.—Houston [14th Dist.]\n2010) (citing First State Bank v. Keilman, 851 S.W.2d 914, 930 (Tex. App.—\nAustin 1993, writ denied)). Direct evidence, however, is not required. A jury\ncan infer loss of consortium damages “from [indirect] evidence showing the\nnature and extent of a spouse’s injuries.” Glasscock, 946 F.2d at 1090. 10 When\nconsidering indirect evidence, juries can rely on “(1) the nature of the marital\n\n\n\n 10 See also Elizondo v. Krist, 338 S.W.3d 17, 29 (Tex. App.—Houston [14th Dist.] 2010),\naff’d, 415 S.W.3d 259 (Tex. 2013) (“[T]estimony that the primary victim’s injuries interfere\nwith family activities is sufficient.”); Wal–Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328\n(Tex. 1993) (holding that testimony that, as a result of wife’s injuries, couple no longer\nengages in their former outdoor activities and that travel has become difficult is “at least\nsome evidence” of loss-of-consortium damages).\n 15\n\f Case: 17-41282 Document: 00514820085 Page: 16 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nrelationship prior to the spouse’s injury, (2) the deterioration of the marital\nrelationship following the injury, and (3) the extent and duration of the\nspouse’s injuries.” Id. (citing Whittlesey, 572 S.W.2d at 667; Monsanto Co. v.\nJohnson, 675 S.W.2d 305, 312 (Tex. App.—Houston [1st Dist.] 1984)).\n When determining the excessiveness of a jury verdict, courts “must\nreview each case on its own facts.” Moore v. M/V ANGELA, 353 F.3d 376, 384\n(5th Cir. 2003) (citing Winbourne v. E. Airlines, Inc., 758 F.2d 1016, 1018 (5th\nCir. 1984)). Past verdicts can “provide an objective frame of reference, but they\ndo not control our assessment of individual circumstances.” Wheat v. United\nStates, 860 F.2d 1256, 1259-60 (5th Cir. 1988). If an award “exceeds the bounds\nof any reasonable recovery, we must suggest a remittitur ourselves or direct\nthe district court to do so.” Caldarera, 705 F.2d at 784 (internal citation\nomitted).\n This court uses the “maximum recovery rule” to determine whether an\naward is excessive. Under the maximum recovery rule, this court “will decline\nto reduce damages where the amount awarded is not disproportionate to at\nleast one factually similar case from the relevant jurisdiction.” Lebron, 279\nF.3d at 326 (internal citations and quotations omitted). We measure\ndisproportionality by applying a percentage enhancement to past similar\nawards. This enhancement is 50% for jury trials. See Salinas, 286 F.3d at 831\n& n.6 (noting 50% enhancement has been applied only in jury trials); see also\nMoore, 353 F.3d at 384. Refusing to overturn jury awards that are within 150%\nof the highest comparable award prevents the court from substituting its own\nopinion for that of a jury. The relevant jurisdiction for purposes of the\nmaximum recovery rule “is the state providing the substantive law for the\nclaim.” Vogler, 352 F.3d at 156. Here, the relevant jurisdiction consists of\nTexas loss of consortium cases and “Fifth Circuit cases applying Texas [loss of\nconsortium] law.” Id.\n 16\n\f Case: 17-41282 Document: 00514820085 Page: 17 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\n The jury awarded Mrs. Puga $1.8 million for her future loss of\nconsortium and $1.6 million for her past loss of consortium. Applying the\nmaximum recovery rule, neither award is clearly excessive.\n The award for future loss of consortium falls within this court’s 50%\nmultiplier. The highest decision we found awarded a wife $1 million for loss of\nfuture consortium in a case where the husband did not die. 11 Reeder v. Allport,\n218 S.W.3d 817, 820 (Tex. App.—Beaumont 2007) (affirming a jury’s award of\n“$1,000,000 for future loss of consortium.”); accord Lebron v. United States, 279\nF.3d 321, 327 (5th Cir. 2002) (basing a maximum recovery rule finding in a\nloss-of-consortium case on the “the highest award” the court could find). That\nverdict was rendered in 2007 dollars. Accounting for inflation, that award is\nover $1.2 million in 2018 dollars. 12 Cf. Ledet v. Smith Marine Towing Corp.,\n455 F. App’x 417, 423 (5th Cir. 2011) (unpublished) (accounting for inflation\nwhen applying the maximum recovery rule to a prior jury verdict). The jury’s\n$1.8 million verdict falls within 150% of the prior award over $1.2 million.\n\n\n\n\n 11 We found other verdicts that were higher, but we do not rely on these verdicts\nbecause a higher court reversed them. The higher courts did not reverse because the jury\nawards were excessive—they reversed for other reasons. See, e.g., U-Haul Int’l, Inc. v.\nWaldrip, 322 S.W.3d 821, 857 (Tex. App.—Dallas 2010) (affirming the jury’s award of a $1.6\nmillion future consortium loss), aff’d in part, rev’d in part on other grounds, 380 S.W.3d 118\n(Tex. 2012); Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 459 (Tex. App.—Dallas 2007) (reversing\na jury’s $2 million loss of consortium claim, but on other grounds). While this court on one\nother occasion relied on a partially reversed jury verdict, we specifically affirmed the lower\ncourt’s loss of spousal consortium ruling, which makes it distinguishable from the cases\nabove. See Vogler, 352 F.3d at 157 (relying on the jury’s award in Douglass v. Delta Air Lines,\nInc., 709 F. Supp. 745 (W.D. Tex. 1989), aff’d in part, rev’d in part, 897 F.2d 1336 (5th Cir.\n1990)).\n\n 12We performed this conversion using the Bureau of Labor Statistics’s CPI Inflation\nCalculator, available at https://data.bls.gov/cgi-bin/cpicalc.pl. See Ledet, 455 F. App’x at 423\nn.1 (using the Bureau of Labor Statistics’s CPI Inflation Calculator).\n\n 17\n\f Case: 17-41282 Document: 00514820085 Page: 18 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\n The parties did not point us to a factually similar case that specifically\ngranted past loss of consortium damages. 13 See Vogler, 352 F.3d at 156-57, 157\nn.7 (finding that prior cases were not factually similar when they did not\ndistinguish between past and future loss of consortium). In our own research,\nhowever, we found a case in which the plaintiff-husband, like here, survived\nan accident but suffered physically and emotionally from his injuries. See W.\nStar Transp., Inc. v. Robison, 457 S.W.3d 178, 189 (Tex. App.—Amarillo 2015)\n(upholding a past loss of consortium award of $250,000 where the husband\nsuffered a traumatic brain injury that would “significantly affect him for the\nremainder of his life”). In Robison, the jury awarded the plaintiff’s wife\n$250,000 for past loss of consortium on January 18, 2013. Adjusting for\ninflation, that award translates to roughly $272,750.00. And adding our 150%\nmultiplier to that number, the maximum recovery rule limits Mrs. Puga’s\nrecovery to $409,125.00.\n Accordingly, we AFFIRM the district court’s decision to affirm the jury’s\naward of future consortium damages. However, we REVERSE the district\ncourt’s decision to affirm the jury’s award of past consortium damages and\nREMAND for the exact calculation of Mrs. Puga’s maximum recovery in light\nof West Star Transportation, Inc. v. Robison, 457 S.W.3d 178.\n\n\n\n\n 13 The largest award we found for loss of past consortium was $300,000. Douglass,\n709 F. Supp. at 763 (W.D. Tex. 1989). That award was rendered in 1989. Converted to 2018\ndollars, $300,000 translates to roughly $625,000. Douglass, however, is not factually similar.\n\n The most important reference point for determining factual similarity is whether the\nprimary victim lived or died. For example, in Lebron, this court merely looked to see whether\nthe child in past cases had died or lived when determining the correct comparison point for\nparental loss of consortium. Lebron, 279 F.3d at 327; see also Moore, 353 F.3d at 384\n(“Poignant factual distinctions are that Plaintiff herein lost no other family member from this\naccident”). The facts here do not mirror Douglass. In Douglass, the father died in a plane\ncrash. Mr. Puga lived. The difference between life and death makes the cases meaningfully\ndifferent.\n 18\n\f Case: 17-41282 Document: 00514820085 Page: 19 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\n VI.\n Finally, RCX argues that it is entitled to a settlement credit under Texas\nlaw—an issue the district court did not consider. The Pugas agree that RCX\nis entitled to a settlement credit. See RSR Corp. v. Int’l Ins. Co., 612 F.3d 851,\n862 (5th Cir. 2010) (applying a settlement credit in a Texas law diversity case).\n We, therefore, REVERSE the district court’s decision not to apply a\nsettlement credit and REMAND for the district court to calculate the\nappropriate settlement credit amount and modify the final judgment\naccordingly.\n VII.\n For the foregoing reasons, we AFFIRM the district court’s choice of jury\ninstructions; we AFFIRM that Trooper Smith was properly admitted to testify\nas an expert on accident investigation; and we AFFIRM the district court’s\ndecision to uphold the jury’s award for past and future loss of consortium. We\nalso REMAND to the district court so that it can calculate the settlement credit\nto which RCX is entitled and modify its final judgment accordingly.\n\n\n\n\n 19\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Alexandro PUGA; Norma Puga, Plaintiffs - Appellees v. RCX SOLUTIONS, INCORPORATED, Defendant - Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-41282 Document: 00514820085 Page: 1 Date Filed: 02/01/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 17-41282 United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n February 1, 2019\\nALEXANDRO PUGA; NORMA PUGA,\\n Lyle W. Cayce\\n Plaintiffs - Appellees Clerk\\n\\n\\nv.\\n\\nRCX SOLUTIONS, INCORPORATED,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore STEWART, Chief Judge, and KING and OWEN, Circuit Judges.\\nCARL E. STEWART, Chief Judge:\\n RCX Solutions, Incorporated is a licensed motor carrier that contracted\\nwith a driver, Ronald Brown, to transport a load across Texas. During his\\ndrive, Brown crossed the median into oncoming traffic and crashed into\\nAlexandro Puga’s truck, leaving Puga with significant injuries. The Pugas\\nsued. After a week-long trial with expert testimony, a jury found RCX liable\\nfor Brown’s negligence and awarded Mr. Puga a variety of damages and his\\nwife, Norma Puga, loss of consortium damages.\\n RCX now launches a multitude of challenges at the district court’s\\nhandling of the case. RCX claims that the district court wrongly interpreted\\nthe Federal Motor Carrier Safety Regulations because it failed to take account\\n\\f Case: 17-41282 Document: 00514820085 Page: 2 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nof regulatory amendments. RCX contends that this misinterpretation\\nsubjected RCX to liability where none should exist. RCX also argues that the\\ndistrict court used faulty jury instructions, improperly allowed the Pugas’\\nexpert to testify, and upheld an excessive jury award for Mrs. Puga’s loss of\\nconsortium. Finally, RCX claims that the district court erred in not applying\\na settlement credit to the final damages award. After reviewing the record, we\\nAFFIRM the district court’s rulings with respect to all issues except the\\nsettlement credit. We REVERSE and REMAND to the district court for the\\nsole purpose of calculating the appropriate settlement credit amount and\\nmodifying its final judgment accordingly.\\n I.\\n Sunset Transportation entered into a brokerage account with L’Oreal.\\nIn its role as a broker, Sunset was responsible for choosing a motor carrier for\\nindividual L’Oreal shipments on a load-by-load basis. Sunset chose RCX to\\ntransport the L’Oreal load involved in the accident. RCX did not have a\\ncontract with L’Oreal.\\n When it came time for RCX to transport L’Oreal’s load, RCX ran into\\nequipment problems. So RCX contacted Ronald Brown to transport the load.\\nConveniently, Brown already had an RCX trailer in his possession. RCX had\\nleased the trailer from another company, Xtra Lease, and RCX assumed\\nresponsibility for the trailer’s operation under the lease agreement. The bill of\\nlading listed RCX as the carrier for the load. Brown also signed the bill of\\nlading, apparently on behalf of RCX. 1\\n\\n\\n\\n\\n 1 RCX claims, however, that Brown was employed by About Tyme, another carrier.\\nRCX had a trailer interchange agreement with About Tyme, under which they could use the\\nother company’s trailers. And About Tyme’s logo was also on the trailer when the accident\\noccurred. Brown had also listed About Tyme in his logbook.\\n 2\\n\\f Case: 17-41282 Document: 00514820085 Page: 3 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\n While transporting the load, Brown swerved across the median into\\noncoming traffic, hitting Alexandro Puga’s truck. Brown did not survive the\\naccident. Mr. Puga suffered a variety of injuries, including burns on large\\nparts of his body and fractures in his spine, legs, pelvis, and fingers. Mr. Puga\\nwas still undergoing treatment and surgeries two-and-a-half years after the\\naccident.\\n Following the accident, Mr. Puga and his wife, Norma, sued RCX, About\\nTyme, and Xtra Lease, claiming that Brown’s negligent driving caused Mr.\\nPuga’s injuries. Prior to trial, RCX filed a motion under Rule 50(a) of the\\nFederal Rules of Civil Procedure, requesting the court to enter judgment as a\\nmatter of law because the Pugas lacked sufficient evidence for a jury to find\\nthat (1) Brown was employed by RCX and (2) Brown acted negligently when\\nthe crash occurred. The district court denied the motion.\\n At trial, the Pugas designated Trooper Andrew Smith as an expert\\nwitness. Smith was the first responder to the accident and saw the explosion\\nfrom the accident from afar. RCX sought to exclude Smith’s testimony\\nregarding the cause of the accident. The district court denied RCX’s motion.\\n The trial concluded with a jury verdict in favor of the Pugas. The jury\\ndetermined that RCX was “using motor vehicle(s) it did not own to transport\\nproperty under an arrangement with Ronald Brown.” As a result, the jury\\nawarded the Pugas a variety of damages. The jury specifically awarded Mrs.\\nPuga damages for loss of consortium, $1.6 million for past loss of consortium\\nand $1.8 million for future loss of consortium.\\n After the trial, RCX filed a renewed Rule 50(b) motion, again requesting\\njudgment as a matter of law, this time because amendments to Federal Motor\\nCarrier Regulations precluded the jury from finding for the Pugas. The district\\ncourt again denied the motion and entered judgment in favor of the Pugas.\\nRCX now appeals.\\n 3\\n\\f Case: 17-41282 Document: 00514820085 Page: 4 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\n II.\\n RCX first argues that federal law does not allow courts to hold motor\\ncarriers liable for the acts of independent contractors, a concept both parties\\nrefer to as the statutory-employee doctrine. RCX raised this argument for the\\nfirst time in its post-verdict Rule 50(b) motion.\\n Rule 50(a) of the Federal Rules of Civil Procedure allows a party to move\\nfor judgment as a matter of law at trial before the jury renders its verdict.\\nUnder Rule 50(a), the movant must “specify the judgment sought and the law\\nand facts that entitle the movant to the judgment.” Fed. R. Civ. P. 50(a)(2). If\\nthe pre-verdict motion is denied, then the party can renew its motion under\\nRule 50(b). But the renewed Rule 50(b) is “technically only a renewal of the\\n[Rule 50(a) motion for judgment as a matter of law].” Mozingo v. Correct Mfg.\\nCorp., 752 F.2d 168, 172 (5th Cir. 1985) (internal quotation marks and citation\\nomitted). As a result, courts prohibit parties from using a Rule 50(b) motion\\nto “assert a ground that was not included in the [original] motion.” Id.; see also\\nIn re Isbell Records, Inc., 774 F.3d 859, 867 (5th Cir. 2014) (“By not raising this\\nargument at trial or in its Rule 50(a) motion, [the appellant] has waived its\\nright to bring a Rule 50(b) motion on this ground.”); Arsement v. Spinnaker\\nExpl. Co., 400 F.3d 238, 247 (5th Cir. 2005) (“If a party fails to raise an issue\\nin its Rule 50(a)(1) motions at trial, it may not do so in its post-trial Rule 50(b)\\nmotion.”) (citation omitted); 9B Charles Alan Wright & Arthur K. Miller,\\nFederal Practice and Procedure § 2537 (3d ed. 2018) (“[T]he district court only\\ncan grant the Rule 50(b) motion on the grounds advanced in the preverdict\\nmotion, because the former is conceived of as only a renewal of the latter.”).\\n This rule makes sense in light of Rule 50(b)’s purposes. Rule 50(b) is\\ndesigned to prevent a litigant from ambushing both the district court and\\nopposing counsel after trial. See Dimmitt Agri Indus., Inc. v. CPC Int’l. Inc.,\\n679 F.2d 516, 521 (5th Cir. 1982) (“The rationale for the rule that a [Rule 50(b)\\n 4\\n\\f Case: 17-41282 Document: 00514820085 Page: 5 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nmotion] cannot assert a ground not included in a motion for directed verdict is\\nobviously to avoid ‘ambushing’ the trial court and opposing counsel.”) (internal\\nquotation marks and citation omitted); Quinn v. Sw. Wood Prods., Inc., 597\\nF.2d 1018, 1025 (5th Cir. 1979) (“When a claimed deficiency in the evidence is\\ncalled to the attention of the trial judge and of counsel before the jury has\\ncommenced deliberations, counsel still may do whatever can be done to mend\\nhis case. But if the court and counsel learn of such a claim for the first time\\nafter verdict, both are ambushed and nothing can be done except by way of a\\ncomplete new trial. It is contrary to the spirit of our procedures to permit\\ncounsel to be sandbagged by such tactics or the trial court to be so put in\\nerror.”). By requiring a litigant to raise all arguments in its initial Rule 50(a)\\nmotion, the trial court is able to “re-examine the question of evidentiary\\ninsufficiency as a matter of law if the jury returns a verdict contrary to the\\nmovant,” and opposing counsel is alerted to any “insufficiency before the case\\nis submitted to the jury,” giving the opposing party a chance to cure any defects\\nin its legal theories or proof should the motion have merit. Scottish Heritable\\nTr., PLC v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th Cir. 1996) (internal\\nquotation marks and citation omitted).\\n Here, RCX did not argue that the statutory-employee doctrine was\\noverruled in its Rule 50(a) motion, precluding it from raising the argument in\\nits Rule 50(b) motion. In its oral Rule 50(a) motion, RCX argued that judgment\\nas a matter of law was appropriate because the record contained insufficient\\nevidence to determine that (1) Brown was a statutory employee of RCX and (2)\\nBrown acted negligently when the accident occurred. Even in its earlier\\nsummary judgment briefing, RCX only attacked the evidentiary bases for\\ndetermining that Brown was an employee of RCX. At no time prior to its Rule\\n50(b) motion did RCX argue that the entire statutory-employee doctrine is now\\ndefunct. By failing to raise this argument in its initial Rule 50(a) motion, RCX\\n 5\\n\\f Case: 17-41282 Document: 00514820085 Page: 6 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nwaived it. 2 See McCann v. Tex. City Ref., Inc., 984 F.2d 667, 672-73 (5th Cir.\\n1993) (denying a post-judgment challenge when the party’s argument differed\\nfrom its 50(a) motion); Allied Bank-West., N.A. v. Stein, 996 F.2d 111, 115 (5th\\nCir. 1993) (overturning grant of judgment as a matter of law on different\\nground than that in the initial directed verdict); Sulmeyer v. Coca Cola Co.,\\n515 F.2d 835, 846 (5th Cir. 1975) (holding that plaintiff could not receive post-\\njudgment relief on claims it did not raise at trial or in its original Rule 50\\nmotion).\\n Accordingly, we AFFIRM the district court’s decision to deny RCX’s Rule\\n50(b) motion.\\n III.\\n RCX next argues that the district court used improper jury instructions.\\nMore specifically, RCX argues that the district court’s jury instructions were\\nincorrect because they did not require the jury to find that RCX met the\\ndefinition of “motor carrier.”\\n This court reviews jury instructions under a two-prong standard of\\nreview. “First, the challenger must demonstrate that the charge as a whole\\ncreates substantial and ineradicable doubt whether” the instructions “properly\\nguided” the jury “in its deliberations.” Pelt v. U.S. Bank Tr. Nat. Ass’n, 359\\nF.3d 764, 767 (5th Cir. 2004) (quoting Johnson v. Sawyer, 120 F.3d 1307, 1315\\n(5th Cir. 1997)). Second, even if the court finds that the jury instructions were\\n\\n\\n 2 RCX argues that it can raise and appeal a purely legal issue in a Rule 50(b) motion\\neven though it did not raise that issue in its original Rule 50(a) motion. But RCX provides\\nno support for this proposition. In fact, the case it cites cuts the opposite direction. In Feld\\nMotor Sports, this court held that it could only review an appeal of a district court’s purely\\nlegal conclusions if the challenging party “sufficiently preserved [it objections] in a Rule 50\\nmotion.” Feld Motor Sports, Inc. v. Traxxas, L.P., 861 F.3d 591, 596 (5th Cir. 2017). The\\ncourt later reaffirmed the rule that a party only “sufficiently preserve[s]” an argument using\\nRule 50 when it raises the argument in a Rule 50(a) and then renews it in a Rule 50(b) motion.\\nId. Here, as detailed above, RCX did not sufficiently preserve its statutory-employee\\narguments.\\n 6\\n\\f Case: 17-41282 Document: 00514820085 Page: 7 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nerroneous, it will not reverse if it determines, “based upon the entire record,\\nthat the challenged instruction could not have affected the outcome of the\\ncase.” Id. (quoting Sawyer, 120 F.3d at 1315).\\n RCX’s arguments do not raise any doubt about the district court’s jury\\ninstructions. 3 The district court instructed the jury to determine whether RCX\\nwas “using motor vehicle(s) it did not own to transport property under an\\narrangement with Ronald Brown.” RCX correctly points out that this\\ninstruction does not follow the federal definition of motor carrier. The federal\\ndefinition of a motor carrier is “a person providing motor vehicle transportation\\nfor compensation.” 49 U.S.C. § 13102(14). But this definition of motor carrier\\nis overbroad for this case because it does not distinguish between (1) a motor\\ncarrier using its own equipment and (2) a motor carrier using leased\\nequipment. That distinction matters.\\n The relevant federal regulations only apply to motor carriers who use\\nleased equipment. As Section 14102 makes clear, the Secretary of\\nTransportation can only issue regulations requiring a motor carrier to “have\\n\\n\\n\\n 3There are three main statutes at issue here. First, the definition of motor carrier:\\n“The term ‘motor carrier’ means a person providing motor vehicle transportation for\\ncompensation.” 49 U.S.C. § 13102(14). Second, the definition of broker:\\n\\n The term “broker” means a person, other than a motor carrier or an employee\\n or agent of a motor carrier, that as a principal or agent sells, offers for sale,\\n negotiates for, or holds itself out by solicitation, advertisement, or otherwise\\n as selling, providing, or arranging for, transportation by motor carrier for\\n compensation.\\n\\n49 U.S.C. § 13102(2).\\n\\n Third, the statute giving the Secretary of Transportation the power to regulate motor\\ncarriers who lease trucking equipment: “The Secretary may require a motor carrier providing\\ntransportation subject to jurisdiction under subchapter I of chapter 135 that uses motor\\nvehicles not owned by it to transport property under an arrangement with another party.”\\n49 U.S.C. § 14102(a).\\n\\n 7\\n\\f Case: 17-41282 Document: 00514820085 Page: 8 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\ncontrol of and be responsible for” how employees operate equipment if the\\nmotor carrier “uses motor vehicles not owned by it to transport property under\\nan arrangement with another party.” 49 U.S.C. § 14102(a) (emphasis added).\\nThe district court rightly based its jury instructions on this section because it\\nexcludes carriers using their own trucking equipment. Without a finding that\\nthe motor carrier used a leased vehicle, the regulations would not apply.\\n RCX’s arguments to the contrary are unconvincing. RCX first argues\\nthat the instructions did not require the jury to find that RCX was acting as a\\nmotor carrier. Second, and relatedly, RCX argues that the instructions are so\\nbroad that they wrap in brokers, as well as motor carriers. We disagree. The\\nmain difference between a motor carrier and a broker is the actual operation\\nof the leased equipment. This difference stands out when looking at the\\ndefinitions of motor carrier and broker in the Act. While a broker is responsible\\nfor “providing, or arranging for, transportation by motor carrier,” 49 U.S.C. §\\n13102(2), a motor carrier provides “motor vehicle transportation,” 49 U.S.C. §\\n13102(14). Put briefly, a motor carrier transports, and a broker provides a\\nmotor carrier. Because the jury here determined that RCX used motor vehicles\\nto transport property, it necessarily determined that RCX was a motor carrier.\\nConsequently, the jury also necessarily determined that RCX did not act as a\\nbroker who merely provided access to a motor carrier.\\n In sum, the district court did not err. On the contrary, the district court\\nclosely examined the statute, avoided the obvious, overbroad definition of\\nmotor carrier, and picked out the correct, limited definition. We AFFIRM the\\ndistrict court’s jury instructions.\\n IV.\\n RCX next challenges the district court’s decision to admit State Trooper\\nSmith as an expert witness on accident investigation. According to RCX,\\nSmith’s opinion was irrelevant because he testified that he (1) could not find\\n 8\\n\\f Case: 17-41282 Document: 00514820085 Page: 9 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nany defects on the road, (2) could not find any skid marks on the road, (3) did\\nnot determine how fast Brown was driving, and (4) did not know the weight of\\nthe trailer or its contents. 4\\n A trial court’s decision to admit expert evidence is reviewed for abuse of\\ndiscretion. Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir.\\n2007) (citation omitted). The trial judge has “wide latitude in determining the\\nadmissibility of expert testimony, and the discretion of the trial judge and his\\nor her decision will not be disturbed on appeal unless manifestly erroneous.”\\nWatkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997) (internal quotation\\nmarks and citation omitted); see also Whitehouse Hotel Ltd. P’ship v. Comm’r,\\n615 F.3d 321, 330 (5th Cir. 2010). A manifest error is one that “is plain and\\nindisputable, and that amounts to a complete disregard of the controlling law.”\\nGuy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004) (internal\\nquotation marks and citation omitted); see also SEC v. Life Partners Holdings,\\nInc., 854 F.3d 765, 775 (5th Cir. 2017).\\n Rule 702 of the Federal Rules of Evidence governs the admissibility of\\nexpert testimony and reports. When evaluating expert testimony, the\\noverarching concern is generally whether the testimony is relevant and\\nreliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).\\nTo be reliable, expert testimony must “be grounded in the methods and\\nprocedures of science and . . . be more than unsupported speculation or\\nsubjective belief.” 5 Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012)\\n\\n\\n\\n\\n 4 Both parties implicitly assume that an accident investigator can serve as an expert\\nwitness. Because RCX merely attacks Smith’s opinion and does not challenge the idea that\\nan accident investigator can serve as an expert at all, we reserve that more fundamental\\nquestion for a later date.\\n 5 Courts also look to Dabuert’s list of non-exclusive factors when determining whether\\n\\ntestimony is reliable:\\n\\n 9\\n\\f Case: 17-41282 Document: 00514820085 Page: 10 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\n(internal citation omitted). To be relevant, the expert’s “reasoning or\\nmethodology [must] be properly applied to the facts in issue.” Id. (internal\\ncitation omitted).\\n When performing this analysis, the court’s main focus should be on\\ndetermining whether the expert’s opinion will assist the trier of fact. See Peters\\nv. Five Star Marine Serv., 898 F.2d 448, 449 (5th Cir. 1990) (citing Fed. R. Evid.\\n702 advisory committee’s notes (1972)). Assisting the trier of fact means “the\\ntrial judge ought to insist that a proffered expert bring to the jury more than\\nthe lawyers can offer in argument.” Salas v. Carpenter, 980 F.2d 299, 305 (5th\\nCir. 1992) (internal quotation marks and citation omitted). As this court has\\nnoted, however, the “helpfulness threshold is low: it is principally . . . a matter\\nof relevance.” E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d 444, 459 n.14 (5th\\nCir. 2013) (en banc) (internal quotation marks and citations omitted).\\n As a general rule, questions relating to the bases and sources of an\\nexpert’s opinion affect the weight to be assigned that opinion rather than its\\nadmissibility. See Rock v. Arkansas, 483 U.S. 44, 61 (1987). Particularly in a\\njury trial setting, the court’s role under Rule 702 is not to weigh the expert\\ntestimony to the point of supplanting the jury’s fact-finding role—the court’s\\nrole is limited to ensuring that the evidence in dispute is at least sufficiently\\nreliable and relevant to the issue so that it is appropriate for the jury’s\\nconsideration. See Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1391-92\\n(Fed. Cir. 2003). At no point should the trial court replace “the adversary\\n\\n\\n\\n (1) whether the theory or technique has been tested; (2) whether the\\n theory or technique has been subjected to peer review and publication; (3) the\\n known or potential rate of error of the method used and the existence and\\n maintenance of standards controlling the technique’s operation; and (4)\\n whether the theory or method has been generally accepted by the scientific\\n community.\\n\\n Arkema, Inc., 685 F.3d at 459.\\n 10\\n\\f Case: 17-41282 Document: 00514820085 Page: 11 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nsystem.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249-50 (5th Cir. 2002). As\\nthe Supreme Court explained, “[v]igorous cross-examination, presentation of\\ncontrary evidence, and careful instruction on the burden of proof are the\\ntraditional and appropriate means of attacking shaky but admissible\\nevidence.” Daubert, 509 U.S. at 596; see also Mathis v. Exxon Corp., 302 F.3d\\n448, 461 (5th Cir. 2002). While the district court must act as a gatekeeper to\\nexclude all irrelevant and unreliable expert testimony, “the rejection of expert\\ntestimony is the exception rather than the rule.” Fed. R. Evid. 702 advisory\\ncommittee’s notes (2000) (internal citations omitted).\\n Here, RCX only challenges the relevance of Smith’s opinion. 6 But its\\narguments are not persuasive. The district court did not abuse its discretion\\nin allowing Smith to offer an expert opinion on the cause of the accident—\\nSmith considered an appropriate amount of physical evidence at the scene of\\nthe crime to offer his opinion, and RCX had ample opportunity to show the jury\\nany flaws in his opinion.\\n No Fifth Circuit case applies Rule 702 and Daubert to an accident\\ninvestigator. 7 But the majority of in-circuit district courts choose to admit\\n\\n\\n\\n 6RCX does not challenge Smith’s qualifications. Officer Smith has worked on accident\\ninvestigations since he became a Texas State Trooper in 2010. He received training on\\naccident investigation when he became a trooper. He also took an advanced course on\\naccident investigation. He has investigated “[o]ver a hundred” accidents.\\n\\n 7 Smith offered testimony as an accident investigator, not an accident recreator, which\\nrequires additional training and attention to detail. Accident investigation merely consists\\nof “responding to the scene, looking at the evidence, taking statements from witnesses,\\nmaking a preliminary determination about what may have been a contributing factor to the\\ncrash, [and] writing [and] submitting the initial crash report.” Stevens Transp., Inc. v. Glob.\\nTransp., LLC, No. 6:15-CV-552-MHS-JDL, 2016 WL 9244669, at *3 (E.D. Tex. May 24, 2016)\\n(internal citations omitted).\\n\\n While this court has held that an investigating officer may not offer lay testimony on\\ncausation, Duhon v. Marceaux, 33 F. App’x 703 (5th Cir. 2002) (unpublished), lay opinions\\nare analyzed differently than expert opinions. See generally Smith v. Progressive Cty. Mut.\\n 11\\n\\f Case: 17-41282 Document: 00514820085 Page: 12 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\naccident investigators as experts. 8 District courts use a contextual analysis\\nwhen making this determination, looking to see if the investigating officer\\nbases his opinion on a sufficient amount of physical evidence from the accident.\\n For example, in Stevens, the district court allowed an officer to testify\\nbased on “the position of Defendants’ trailer after the accident, the tire marks\\nvisible at the scene, and his conversation at the scene with . . . the driver of\\nPlaintiffs’ tractor-trailer.” Stevens, 2016 WL 9244669, at *4. Another court\\nallowed an expert to testify based on his “his accident report, some photographs\\nand his notes.” Vigil, 2007 WL 2778233, at *4. Yet another court allowed an\\ninvestigating officer to testify as an expert because, even though he “did not\\ntake any measurements or photographs, or speak to any witnesses to the\\naccident, he did personally survey the accident scene, talk to the other officers\\non the scene, and subsequently reviewed photographs of the scene.” Main,\\n2011 WL 11027844, at *4. The only case to exclude an expert involved\\nmarkedly different facts. In that case, the officer could not determine which\\nlane the driver was in, expressed doubts about his qualifications, and could not\\n\\n\\n\\nIns. Co., No. 11-CV-872, 2012 WL 702061, at *2 (E.D. La. Mar. 1, 2012) (discussing the\\ndifferences between lay and expert opinion testimony for investigating officers).\\n\\n 8 See, e.g., Stevens Transport, 2016 WL 9244669, at *2-4 (permitting DPS lead\\ninvestigator to offer expert opinion on the cause of the accident); Cartwright v. Am. Honda\\nMotor Co., Inc., No. 9:09-CV-2015, 2011 WL 3648565, at *4 (E.D. Tex. Aug. 15, 2011)\\n(permitting investigating officer to offer an expert opinion regarding the cause of the\\naccident); Vigil v. Michelin N. Am., Inc., No. EP-05-CV-001-KC, 2007 WL 2778233, at *4\\n(W.D. Tex. Aug. 23, 2007) (permitting the investigating officer to offer expert opinion on the\\ncause of the accident); Martin v. Pride Offshore Co., No. 97-CV-3754, 1999 WL 4921, at *1\\n(E.D. La. Jan. 6, 1999) (permitting an investigating officer to offer expert testimony on the\\ncause of the accident), aff’d, 198 F.3d 241 (5th Cir. 1999); Main v. Eichorn, No. W-10-CV-158,\\n2011 WL 11027844, at *3 (W.D. Tex. Mar. 10, 2011) (allowing an investigating officer to\\ntestify as an expert); but see Koenig v. Beekmans, No. 5:15-CV-00822-RCL-RBF, 2018 WL\\n358307, at *5 (W.D. Tex. Jan. 9, 2018) (excluding an accident investigator who admitted that\\nhe was simply “speculating as to who was in whose lane.”).\\n\\n\\n 12\\n\\f Case: 17-41282 Document: 00514820085 Page: 13 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nsay with any certainty whether the defendant caused the accident. Koenig,\\n2018 WL 358307, at *5.\\n Here, Smith considered numerous facts and did not state that he was\\nspeculating about the cause of the accident. Smith was driving some distance\\nbehind Brown when the accident occurred and saw it happen from afar. He\\nfound wet, dark conditions. He determined which lane Brown was using. He\\ndetermined that Brown was talking on his cell phone. He examined marks in\\nthe median showing the path of Brown’s truck. He took photographs of the\\nscene. He spoke to witnesses. He determined that Brown hydroplaned based\\non skid marks. He determined based on experience and training that Brown\\nmust have been driving too fast or used faulty evasive maneuvers to cross the\\nmedian and end up on the other side of the road. He also relied on an accident\\nreconstruction put together by another expert. Smith also admitted on cross-\\nexamination that he did not examine Brown’s truck, the brakes, the weight of\\nthe truck, or attempt to estimate his speed. But he stuck to his opinion that\\nBrown must have been driving too fast for the conditions or taken a faulty\\nevasive maneuver.\\n In sum, Smith’s opinion was based on a multitude of facts. It did not\\ntake into account every possible explanation for the accident, and some\\nmeasurements were missing. But he was the closest to the scene when the\\naccident happened, observed the conditions on the road, knew Brown was\\ntalking on the phone, and looked at various tire markings in the median and\\non the pavement. Numerous district courts have allowed an investigating\\nofficer to testify as an expert based on less. If Smith missed any important\\nfacts, the oversight should go to the weight of his opinion, not its admissibility.\\nWe AFFIRM the district court’s decision to allow Smith to testify as an expert\\nwitness on causation.\\n\\n\\n 13\\n\\f Case: 17-41282 Document: 00514820085 Page: 14 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\n V.\\n Next, RCX argues that the district court erroneously affirmed the jury’s\\naward of consortium damages to Mrs. Puga.\\n This court reviews the district court’s decision to deny a motion for a new\\ntrial or remittitur for abuse of discretion. 9 Salinas v. O’Neill, 286 F.3d 827,\\n830 (5th Cir. 2002) (“We review denial of remittitur for abuse of discretion”);\\nEiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995) (“The\\ndecision to grant or deny a motion for new trial or remittitur rests in the sound\\ndiscretion of the trial judge; that exercise of discretion can be set aside only\\nupon a clear showing of abuse”); Brooks v. Great Lakes Dredge-Dock Co., 754\\nF.2d 539, 541 (5th Cir. 1985) (“The standard of review of the denial of such a\\nmotion is whether the district court abused its discretion.”).\\n The Supreme Court of Texas defines loss of consortium as the loss of\\ncompanionship, emotional support, love, felicity, and sexual relations\\n\\n\\n\\n 9 This court has not spoken definitively about the appropriate standard of review for\\noverturning a jury’s award of damages. There are three that stand out in the case law. See\\ngenerally Foradori v. Harris, 523 F.3d 477, 504 (5th Cir. 2008) (discussing the three different\\nstandards). The first is abuse of discretion. Salinas, 286 F.3d at 830 (“We review denial of\\nremittitur for abuse of discretion.”) (internal citation omitted); see also Foradori, 523 F.3d at\\n503 (reviewing other cases). The second is the “strongest showing” standard. Lebron v.\\nUnited States, 279 F.3d 321, 325 (5th Cir. 2002) (internal citation omitted); see also Enter.\\nRef. Co. v. Sector Ref. Inc., 781 F.2d 1116, 1118 (5th Cir. 1986); Dixon v. Int’l Harvester Co.,\\n754 F.2d 573, 590 (5th Cir. 1985); Caldarera v. E. Airlines, Inc., 705 F.2d 778, 784 (5th Cir.\\n1983); Shows v. Jamison Bedding, Inc., 671 F.2d 927, 934 (5th Cir. 1982); Bridges v.\\nGroendyke Transp., Inc., 553 F.2d 877, 880 (5th Cir. 1977); Wackman v. Rubasmen, 602 F.3d\\n391, 405 (5th Cir. 2010); Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1378 (5th\\nCir. 1992). The third standard is the “shocks the conscience” standard. Caldarera, 705 F.2d\\nat 784 (internal citation and quotation marks omitted); see also Wackman, 602 F.3d at 404-\\n05; Allen v. Seacoast Prods., Inc., 623 F.2d 355, 364 (5th Cir. 1980); Bridges, 553 F.2d at 880);\\nWilliams v. Chevron U.S.A., Inc., 875 F.2d 501, 506 (5th Cir. 1989) (quoting Caldarera, 705\\nF.2d at 784); see also Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293\\nF.3d 912, 924 (5th Cir. 2002) (citing Caldarera, 705 F.2d at 784).\\n\\n Because RCX challenges the district court’s decision to affirm the jury’s award, as\\nopposed to directly challenging the jury’s award, we apply the abuse of discretion standard.\\nMcCaig v. Wells Fargo Bank (Tex.), N.A., 788 F.3d 463, 482 (5th Cir. 2015).\\n 14\\n\\f Case: 17-41282 Document: 00514820085 Page: 15 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nnecessary to a successful marriage. Glasscock v. Armstrong Cork Co., 946 F.2d\\n1085, 1089 (5th Cir. 1991) (citing Whittlesey v. Miller, 572 S.W.2d 665, 666\\n(Tex. 1978)). Damages for loss of consortium are non-pecuniary damages,\\nwhich “do not require certainty of actual monetized loss.” Waste Mgmt. of Tex.,\\nInc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 153 (Tex. 2014). They\\nare, instead, “measured by an amount that a reasonable person could possibly\\nestimate as fair compensation.” Id. (internal quotation marks and citation\\nomitted).\\n While “translating the subjective nature of this loss into monetary\\nterms” is difficult, Texas courts trust “the ability of the jury to calculate an\\nappropriate award based on the evidence.” Id. at 1089 (citing P.T. & E. Co. v.\\nBeasley, 698 S.W.2d 190, 196 (Tex. App.—Beaumont 1985)); Whittlesey, 572\\nS.W.2d at 667 (“[T]he issue generally must be resolved by the impartial\\nconscience and judgment of jurors who may be expected to act reasonably,\\nintelligently and in harmony with the evidence.” (internal quotation marks and\\ncitation omitted)). Even so, this trust is limited—juries cannot simply pull a\\nnumber out of a hat. All damages must be tied to some evidence. Enright v.\\nGoodman Distrib., Inc., 330 S.W.3d 392, 403 (Tex. App.—Houston [14th Dist.]\\n2010) (citing First State Bank v. Keilman, 851 S.W.2d 914, 930 (Tex. App.—\\nAustin 1993, writ denied)). Direct evidence, however, is not required. A jury\\ncan infer loss of consortium damages “from [indirect] evidence showing the\\nnature and extent of a spouse’s injuries.” Glasscock, 946 F.2d at 1090. 10 When\\nconsidering indirect evidence, juries can rely on “(1) the nature of the marital\\n\\n\\n\\n 10 See also Elizondo v. Krist, 338 S.W.3d 17, 29 (Tex. App.—Houston [14th Dist.] 2010),\\naff’d, 415 S.W.3d 259 (Tex. 2013) (“[T]estimony that the primary victim’s injuries interfere\\nwith family activities is sufficient.”); Wal–Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328\\n(Tex. 1993) (holding that testimony that, as a result of wife’s injuries, couple no longer\\nengages in their former outdoor activities and that travel has become difficult is “at least\\nsome evidence” of loss-of-consortium damages).\\n 15\\n\\f Case: 17-41282 Document: 00514820085 Page: 16 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\nrelationship prior to the spouse’s injury, (2) the deterioration of the marital\\nrelationship following the injury, and (3) the extent and duration of the\\nspouse’s injuries.” Id. (citing Whittlesey, 572 S.W.2d at 667; Monsanto Co. v.\\nJohnson, 675 S.W.2d 305, 312 (Tex. App.—Houston [1st Dist.] 1984)).\\n When determining the excessiveness of a jury verdict, courts “must\\nreview each case on its own facts.” Moore v. M/V ANGELA, 353 F.3d 376, 384\\n(5th Cir. 2003) (citing Winbourne v. E. Airlines, Inc., 758 F.2d 1016, 1018 (5th\\nCir. 1984)). Past verdicts can “provide an objective frame of reference, but they\\ndo not control our assessment of individual circumstances.” Wheat v. United\\nStates, 860 F.2d 1256, 1259-60 (5th Cir. 1988). If an award “exceeds the bounds\\nof any reasonable recovery, we must suggest a remittitur ourselves or direct\\nthe district court to do so.” Caldarera, 705 F.2d at 784 (internal citation\\nomitted).\\n This court uses the “maximum recovery rule” to determine whether an\\naward is excessive. Under the maximum recovery rule, this court “will decline\\nto reduce damages where the amount awarded is not disproportionate to at\\nleast one factually similar case from the relevant jurisdiction.” Lebron, 279\\nF.3d at 326 (internal citations and quotations omitted). We measure\\ndisproportionality by applying a percentage enhancement to past similar\\nawards. This enhancement is 50% for jury trials. See Salinas, 286 F.3d at 831\\n& n.6 (noting 50% enhancement has been applied only in jury trials); see also\\nMoore, 353 F.3d at 384. Refusing to overturn jury awards that are within 150%\\nof the highest comparable award prevents the court from substituting its own\\nopinion for that of a jury. The relevant jurisdiction for purposes of the\\nmaximum recovery rule “is the state providing the substantive law for the\\nclaim.” Vogler, 352 F.3d at 156. Here, the relevant jurisdiction consists of\\nTexas loss of consortium cases and “Fifth Circuit cases applying Texas [loss of\\nconsortium] law.” Id.\\n 16\\n\\f Case: 17-41282 Document: 00514820085 Page: 17 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\n The jury awarded Mrs. Puga $1.8 million for her future loss of\\nconsortium and $1.6 million for her past loss of consortium. Applying the\\nmaximum recovery rule, neither award is clearly excessive.\\n The award for future loss of consortium falls within this court’s 50%\\nmultiplier. The highest decision we found awarded a wife $1 million for loss of\\nfuture consortium in a case where the husband did not die. 11 Reeder v. Allport,\\n218 S.W.3d 817, 820 (Tex. App.—Beaumont 2007) (affirming a jury’s award of\\n“$1,000,000 for future loss of consortium.”); accord Lebron v. United States, 279\\nF.3d 321, 327 (5th Cir. 2002) (basing a maximum recovery rule finding in a\\nloss-of-consortium case on the “the highest award” the court could find). That\\nverdict was rendered in 2007 dollars. Accounting for inflation, that award is\\nover $1.2 million in 2018 dollars. 12 Cf. Ledet v. Smith Marine Towing Corp.,\\n455 F. App’x 417, 423 (5th Cir. 2011) (unpublished) (accounting for inflation\\nwhen applying the maximum recovery rule to a prior jury verdict). The jury’s\\n$1.8 million verdict falls within 150% of the prior award over $1.2 million.\\n\\n\\n\\n\\n 11 We found other verdicts that were higher, but we do not rely on these verdicts\\nbecause a higher court reversed them. The higher courts did not reverse because the jury\\nawards were excessive—they reversed for other reasons. See, e.g., U-Haul Int’l, Inc. v.\\nWaldrip, 322 S.W.3d 821, 857 (Tex. App.—Dallas 2010) (affirming the jury’s award of a $1.6\\nmillion future consortium loss), aff’d in part, rev’d in part on other grounds, 380 S.W.3d 118\\n(Tex. 2012); Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 459 (Tex. App.—Dallas 2007) (reversing\\na jury’s $2 million loss of consortium claim, but on other grounds). While this court on one\\nother occasion relied on a partially reversed jury verdict, we specifically affirmed the lower\\ncourt’s loss of spousal consortium ruling, which makes it distinguishable from the cases\\nabove. See Vogler, 352 F.3d at 157 (relying on the jury’s award in Douglass v. Delta Air Lines,\\nInc., 709 F. Supp. 745 (W.D. Tex. 1989), aff’d in part, rev’d in part, 897 F.2d 1336 (5th Cir.\\n1990)).\\n\\n 12We performed this conversion using the Bureau of Labor Statistics’s CPI Inflation\\nCalculator, available at https://data.bls.gov/cgi-bin/cpicalc.pl. See Ledet, 455 F. App’x at 423\\nn.1 (using the Bureau of Labor Statistics’s CPI Inflation Calculator).\\n\\n 17\\n\\f Case: 17-41282 Document: 00514820085 Page: 18 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\n The parties did not point us to a factually similar case that specifically\\ngranted past loss of consortium damages. 13 See Vogler, 352 F.3d at 156-57, 157\\nn.7 (finding that prior cases were not factually similar when they did not\\ndistinguish between past and future loss of consortium). In our own research,\\nhowever, we found a case in which the plaintiff-husband, like here, survived\\nan accident but suffered physically and emotionally from his injuries. See W.\\nStar Transp., Inc. v. Robison, 457 S.W.3d 178, 189 (Tex. App.—Amarillo 2015)\\n(upholding a past loss of consortium award of $250,000 where the husband\\nsuffered a traumatic brain injury that would “significantly affect him for the\\nremainder of his life”). In Robison, the jury awarded the plaintiff’s wife\\n$250,000 for past loss of consortium on January 18, 2013. Adjusting for\\ninflation, that award translates to roughly $272,750.00. And adding our 150%\\nmultiplier to that number, the maximum recovery rule limits Mrs. Puga’s\\nrecovery to $409,125.00.\\n Accordingly, we AFFIRM the district court’s decision to affirm the jury’s\\naward of future consortium damages. However, we REVERSE the district\\ncourt’s decision to affirm the jury’s award of past consortium damages and\\nREMAND for the exact calculation of Mrs. Puga’s maximum recovery in light\\nof West Star Transportation, Inc. v. Robison, 457 S.W.3d 178.\\n\\n\\n\\n\\n 13 The largest award we found for loss of past consortium was $300,000. Douglass,\\n709 F. Supp. at 763 (W.D. Tex. 1989). That award was rendered in 1989. Converted to 2018\\ndollars, $300,000 translates to roughly $625,000. Douglass, however, is not factually similar.\\n\\n The most important reference point for determining factual similarity is whether the\\nprimary victim lived or died. For example, in Lebron, this court merely looked to see whether\\nthe child in past cases had died or lived when determining the correct comparison point for\\nparental loss of consortium. Lebron, 279 F.3d at 327; see also Moore, 353 F.3d at 384\\n(“Poignant factual distinctions are that Plaintiff herein lost no other family member from this\\naccident”). The facts here do not mirror Douglass. In Douglass, the father died in a plane\\ncrash. Mr. Puga lived. The difference between life and death makes the cases meaningfully\\ndifferent.\\n 18\\n\\f Case: 17-41282 Document: 00514820085 Page: 19 Date Filed: 02/01/2019\\n\\n\\n\\n No. 17-41282\\n VI.\\n Finally, RCX argues that it is entitled to a settlement credit under Texas\\nlaw—an issue the district court did not consider. The Pugas agree that RCX\\nis entitled to a settlement credit. See RSR Corp. v. Int’l Ins. Co., 612 F.3d 851,\\n862 (5th Cir. 2010) (applying a settlement credit in a Texas law diversity case).\\n We, therefore, REVERSE the district court’s decision not to apply a\\nsettlement credit and REMAND for the district court to calculate the\\nappropriate settlement credit amount and modify the final judgment\\naccordingly.\\n VII.\\n For the foregoing reasons, we AFFIRM the district court’s choice of jury\\ninstructions; we AFFIRM that Trooper Smith was properly admitted to testify\\nas an expert on accident investigation; and we AFFIRM the district court’s\\ndecision to uphold the jury’s award for past and future loss of consortium. We\\nalso REMAND to the district court so that it can calculate the settlement credit\\nto which RCX is entitled and modify its final judgment accordingly.\\n\\n\\n\\n\\n 19\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":581,"cells":{"id":{"kind":"number","value":8619565,"string":"8,619,565"},"name":{"kind":"string","value":"UNITED STATES of America v. LAUDERDALE COUNTY, MISSISSIPPI Judge Veldore Young-Graham, in Her Official Capacity and Judge Lisa Howell, in Her Official Capacity"},"name_abbreviation":{"kind":"string","value":"United States v. Lauderdale Cnty."},"decision_date":{"kind":"string","value":"2019-02-01"},"docket_number":{"kind":"string","value":"No. 17-60805"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Elrod, Higginson, Reavley\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8598815/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"ELROD"},"judge2":{"kind":"string","value":"HIGGINSON"},"judge3":{"kind":"string","value":"REAVLEY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8619565/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America v. LAUDERDALE COUNTY, MISSISSIPPI Judge Veldore Young-Graham, in Her Official Capacity and Judge Lisa Howell, in Her Official Capacity\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America v. LAUDERDALE COUNTY, MISSISSIPPI Judge Veldore Young-Graham, in Her Official Capacity and Judge Lisa Howell, in Her Official Capacity\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":582,"cells":{"id":{"kind":"number","value":4587291,"string":"4,587,291"},"name":{"kind":"string","value":"In the MATTER OF: ONDOVA LIMITED COMPANY, Debtor Jeffrey Baron, Appellant v. Daniel J. Sherman ; Munsch, Hardt, Kopf & Harr, P.C.; Liberty Mutual Insurance Company, Appellees"},"name_abbreviation":{"kind":"string","value":"Baron v. Sherman (In Re Ondova Ltd. Co.)"},"decision_date":{"kind":"string","value":"2019-02-04"},"docket_number":{"kind":"string","value":"18-10182"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Reavley, Elrod, Willett\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"Case: 18-10182 Document: 00514821265 Page: 1 Date Filed: 02/04/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 18-10182 United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n February 4, 2019\\nIn the Matter of: ONDOVA LIMITED COMPANY\\n Lyle W. Cayce\\n Debtor Clerk\\n\\n\\n-----------------------------------------------\\n\\nJEFFREY BARON,\\n\\n Appellant\\n\\nv.\\n\\nDANIEL J. SHERMAN; MUNSCH, HARDT, KOPF & HARR, P.C.; LIBERTY\\nMUTUAL INSURANCE COMPANY,\\n\\n Appellees\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore REAVLEY, ELROD, and WILLETT, Circuit Judges.\\nPER CURIAM:\\n Jeffrey Baron appeals the district court’s dismissal under Federal Rule\\nof Civil Procedure 12(b)(6) of his bankruptcy “adversary proceeding” against\\nDaniel J. Sherman, the trustee responsible for administering the bankruptcy\\n\\f Case: 18-10182 Document: 00514821265 Page: 2 Date Filed: 02/04/2019\\n\\n\\n\\n No. 18-10182\\nestate of Ondova Limited Company. Baron also appeals the denial of his\\nmotion for leave to amend. We review both de novo. 1\\n To survive a motion to dismiss, a complaint must contain sufficient facts\\nto state a claim for relief that is plausible on its face. 2 And while we must accept\\na plaintiff's factual allegations as true, we are not bound to accept as true “a\\nlegal conclusion couched as a factual allegation.” 3\\n The district court considered and adopted Bankruptcy Judge Jernigan’s\\nmeticulous and well-reasoned 55-page Report and Recommendation. The\\ndistrict court granted Trustee Sherman’s motion to dismiss because—as the\\ncourt-appointed trustee and an arm of the court—Sherman was entitled to\\nabsolute immunity for all actions taken pursuant to a court order, and entitled\\nto qualified immunity for all other acts within the scope of his trustee duties.\\nBaron’s claims against Trustee Sherman’s attorneys (the law firm Munsch\\nHardt Kopf & Harr, P.C.) also failed because the attorneys were covered by\\nboth derivative trustee immunity and independent attorney immunity.\\nBaron’s claim that Trustee Sherman breached his fiduciary duty also failed\\nbecause he did not plausibly plead gross negligence. Finally, the district court\\ndenied Baron’s motion to amend his complaint on futility grounds.\\n We agree with the district court’s analysis of Trustee Sherman’s\\nimmunity. Trustees are entitled to absolute immunity for all actions taken\\npursuant to a court order. 4 And while this circuit does not have controlling\\nprecedent on the issue, numerous sister circuits have held that trustees have\\n\\n\\n\\n 1 While a denial of leave to amend is generally reviewed for abuse of discretion,\\nbecause the district court based its denial for leave to amend solely on futility, review is de\\nnovo. City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010) (“The “de novo\\nstandard of review [is] identical, in practice, to the standard used for reviewing a dismissal\\nunder Rule 12(b)(6).”).\\n 2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).\\n 3 Papasan v. Allain, 478 U.S. 265, 286 (1986).\\n 4 Boullion v. McClanahan, 639 F.2d 213, 214 (5th Cir. 1981).\\n\\n 2\\n\\f Case: 18-10182 Document: 00514821265 Page: 3 Date Filed: 02/04/2019\\n\\n\\n\\n No. 18-10182\\nqualified immunity for personal harms caused by actions taken within the\\nscope of their official duties. 5 Only ultra vires actions—actions that fall outside\\nthe scope of their duties as trustees—are not entitled to immunity. There is no\\ncompelling reason to depart from our sister circuits’ sensible approach. We\\nthus hold that bankruptcy trustees in the Fifth Circuit are entitled to qualified\\nimmunity for personal harms caused by actions that, while not pursuant to a\\ncourt order, fall within the scope of their official duties.\\n Here, Baron has not plausibly alleged any actions not covered by\\nabsolute or qualified immunity, either in his original complaint or in his\\nproposed amended complaint. His factual allegations on appeal are limited to\\nSherman’s decision to seek a receivership over him, alleged falsehoods or\\nmisrepresentations during the receivership process, and subsequent use of the\\nreceivership to liquidate assets. However—as acknowledged by Bankruptcy\\nJudge Jernigan—all property seizures that Baron complains of were done\\nunder the Receivership Order and were actions taken by the receiver rather\\nthan the trustee. As Judge Jernigan also notes, between the date Sherman was\\nappointed trustee and the date Baron filed his adversary proceeding, the\\nbankruptcy court entered approximately 147 orders in the Ondova Bankruptcy\\nCase. Trustee Sherman was acting “under the supervision and subject to the\\norder of the bankruptcy judge”—and thus entitled to absolute immunity 6—for\\nvirtually all of his tenure as trustee.\\n\\n\\n\\n\\n 5 See, e.g., Grant, Konvalinka & Harrison, PC v. Banks (In re McKenzie), 716 F.3d 404,\\n413 (6th Cir.), cert denied, 134 S. Ct. 444 (2013); Sierra v. Seeber, 966 F.2d 1444 (4th Cir.\\n1992); Phoenician Mediterranean Villa, LLC v. Swope (In re J & S Props., LLC), 545 B.R. 91,\\n104 (Bankr. W.D. Pa. 2015) (“When not acting pursuant to an order of court, a bankruptcy\\ntrustee is generally afforded qualified immunity.”), aff’d, 554 B.R. 747 (W.D. Pa. 2016), aff’d,\\n872 F.3d 138 (3d Cir. 2017).\\n 6 Boullion, 639 F.2d at 213\\n\\n\\n 3\\n\\f Case: 18-10182 Document: 00514821265 Page: 4 Date Filed: 02/04/2019\\n\\n\\n\\n No. 18-10182\\n Even when Trustee Sherman was not acting pursuant to a court order,\\nhe was still entitled to qualified immunity for actions taken within the scope\\nof his official duties. Seeking a receivership is sometimes a necessary step in\\nadministering the estate. And we have previously weighed in on this very\\nreceivership. 7 While we found that the receivership was without jurisdiction,\\nwe also held that it was pursued without malice. 8 And we have already\\nawarded a remedy. 9 Baron disagrees with Trustee Sherman’s decision to\\npursue a receivership and alleges that Sherman made misleading statements\\nduring the receivership process, but these allegations—even when assumed to\\nbe true—cannot transform them into ultra vires actions that remove Trustee\\nSherman’s qualified immunity.\\n Second, we agree with the district court that this immunity extends to\\nTrustee Sherman’s attorneys under both a derivative theory of judicial\\nimmunity 10 and under the separate doctrine of attorney immunity 11 for\\nessentially the same reasons articulated by the district court.\\n Third, we agree with the district court’s analysis of Baron’s claims for\\nbreach of fiduciary duty. Baron fails to plausibly allege facts sufficient to\\nsupport a finding of gross negligence, either in his original complaint or in his\\nproposed amended complaint.\\n\\n\\n\\n\\n 7 Netsphere, Inc. v. Baron, 703 F.3d 296 (5th Cir. 2012).\\n 8 Id. at 313 (“[W]e hold . . . that in creating the receivership ‘there was no malice nor\\nwrongful purpose, and only an effort to conserve property in which [the court] believed’ it was\\ninterested in maintaining for unpaid attorney fees and to control Baron's vexatious litigation\\ntactics.” (alteration in original) (quoting W.F. Potts Son & Co. v. Cochrane, 59 F.2d 375, 377–\\n78 (5th Cir. 1932))).\\n 9 Id. at 313–14.\\n 10 See In re DeLorean Motor Co., 991 F.2d 1236, 1241 (6th Cir. 1993).\\n 11 See Troice v. Proskauer Rose, L.L.P., 816 F.3d 341, 349 (5th Cir. 2016) (holding that\\n\\nattorneys are entitled to immunity under Texas law from suit by non-clients, unless the\\nattorney’s conduct “d[oes] not involve the provision of legal services” or is “entirely foreign to\\nthe duties of any attorney”).\\n 4\\n\\f Case: 18-10182 Document: 00514821265 Page: 5 Date Filed: 02/04/2019\\n\\n\\n\\n No. 18-10182\\n Finally, while we review de novo the denial of a motion to amend, Baron\\nhas failed to raise the new causes of action contained within his proposed\\namended complaint in his briefs or argue that the district court erred in finding\\nthese claims unsuccessful. “It is a well worn principle that the failure to raise\\nan issue on appeal constitutes waiver of that argument.” 12 Baron has thus\\nwaived the issue, and we will not disturb the district court’s finding of futility.\\n\\n * * *\\n We AFFIRM both the district court’s dismissal under Rule 12(b)(6) and\\nthe denial of leave to file an amended complaint.\\n\\n\\n\\n\\n United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (citing United States v.\\n 12\\n\\nThibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)).\\n 5\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4364544/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"REAVLEY"},"judge2":{"kind":"string","value":"ELROD"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4587291/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: In the MATTER OF: ONDOVA LIMITED COMPANY, Debtor Jeffrey Baron, Appellant v. Daniel J. Sherman ; Munsch, Hardt, Kopf & Harr, P.C.; Liberty Mutual Insurance Company, Appellees\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-04\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-10182 Document: 00514821265 Page: 1 Date Filed: 02/04/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 18-10182 United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 4, 2019\nIn the Matter of: ONDOVA LIMITED COMPANY\n Lyle W. Cayce\n Debtor Clerk\n\n\n-----------------------------------------------\n\nJEFFREY BARON,\n\n Appellant\n\nv.\n\nDANIEL J. SHERMAN; MUNSCH, HARDT, KOPF & HARR, P.C.; LIBERTY\nMUTUAL INSURANCE COMPANY,\n\n Appellees\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\nBefore REAVLEY, ELROD, and WILLETT, Circuit Judges.\nPER CURIAM:\n Jeffrey Baron appeals the district court’s dismissal under Federal Rule\nof Civil Procedure 12(b)(6) of his bankruptcy “adversary proceeding” against\nDaniel J. Sherman, the trustee responsible for administering the bankruptcy\n\f Case: 18-10182 Document: 00514821265 Page: 2 Date Filed: 02/04/2019\n\n\n\n No. 18-10182\nestate of Ondova Limited Company. Baron also appeals the denial of his\nmotion for leave to amend. We review both de novo. 1\n To survive a motion to dismiss, a complaint must contain sufficient facts\nto state a claim for relief that is plausible on its face. 2 And while we must accept\na plaintiff's factual allegations as true, we are not bound to accept as true “a\nlegal conclusion couched as a factual allegation.” 3\n The district court considered and adopted Bankruptcy Judge Jernigan’s\nmeticulous and well-reasoned 55-page Report and Recommendation. The\ndistrict court granted Trustee Sherman’s motion to dismiss because—as the\ncourt-appointed trustee and an arm of the court—Sherman was entitled to\nabsolute immunity for all actions taken pursuant to a court order, and entitled\nto qualified immunity for all other acts within the scope of his trustee duties.\nBaron’s claims against Trustee Sherman’s attorneys (the law firm Munsch\nHardt Kopf & Harr, P.C.) also failed because the attorneys were covered by\nboth derivative trustee immunity and independent attorney immunity.\nBaron’s claim that Trustee Sherman breached his fiduciary duty also failed\nbecause he did not plausibly plead gross negligence. Finally, the district court\ndenied Baron’s motion to amend his complaint on futility grounds.\n We agree with the district court’s analysis of Trustee Sherman’s\nimmunity. Trustees are entitled to absolute immunity for all actions taken\npursuant to a court order. 4 And while this circuit does not have controlling\nprecedent on the issue, numerous sister circuits have held that trustees have\n\n\n\n 1 While a denial of leave to amend is generally reviewed for abuse of discretion,\nbecause the district court based its denial for leave to amend solely on futility, review is de\nnovo. City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010) (“The “de novo\nstandard of review [is] identical, in practice, to the standard used for reviewing a dismissal\nunder Rule 12(b)(6).”).\n 2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).\n 3 Papasan v. Allain, 478 U.S. 265, 286 (1986).\n 4 Boullion v. McClanahan, 639 F.2d 213, 214 (5th Cir. 1981).\n\n 2\n\f Case: 18-10182 Document: 00514821265 Page: 3 Date Filed: 02/04/2019\n\n\n\n No. 18-10182\nqualified immunity for personal harms caused by actions taken within the\nscope of their official duties. 5 Only ultra vires actions—actions that fall outside\nthe scope of their duties as trustees—are not entitled to immunity. There is no\ncompelling reason to depart from our sister circuits’ sensible approach. We\nthus hold that bankruptcy trustees in the Fifth Circuit are entitled to qualified\nimmunity for personal harms caused by actions that, while not pursuant to a\ncourt order, fall within the scope of their official duties.\n Here, Baron has not plausibly alleged any actions not covered by\nabsolute or qualified immunity, either in his original complaint or in his\nproposed amended complaint. His factual allegations on appeal are limited to\nSherman’s decision to seek a receivership over him, alleged falsehoods or\nmisrepresentations during the receivership process, and subsequent use of the\nreceivership to liquidate assets. However—as acknowledged by Bankruptcy\nJudge Jernigan—all property seizures that Baron complains of were done\nunder the Receivership Order and were actions taken by the receiver rather\nthan the trustee. As Judge Jernigan also notes, between the date Sherman was\nappointed trustee and the date Baron filed his adversary proceeding, the\nbankruptcy court entered approximately 147 orders in the Ondova Bankruptcy\nCase. Trustee Sherman was acting “under the supervision and subject to the\norder of the bankruptcy judge”—and thus entitled to absolute immunity 6—for\nvirtually all of his tenure as trustee.\n\n\n\n\n 5 See, e.g., Grant, Konvalinka & Harrison, PC v. Banks (In re McKenzie), 716 F.3d 404,\n413 (6th Cir.), cert denied, 134 S. Ct. 444 (2013); Sierra v. Seeber, 966 F.2d 1444 (4th Cir.\n1992); Phoenician Mediterranean Villa, LLC v. Swope (In re J & S Props., LLC), 545 B.R. 91,\n104 (Bankr. W.D. Pa. 2015) (“When not acting pursuant to an order of court, a bankruptcy\ntrustee is generally afforded qualified immunity.”), aff’d, 554 B.R. 747 (W.D. Pa. 2016), aff’d,\n872 F.3d 138 (3d Cir. 2017).\n 6 Boullion, 639 F.2d at 213\n\n\n 3\n\f Case: 18-10182 Document: 00514821265 Page: 4 Date Filed: 02/04/2019\n\n\n\n No. 18-10182\n Even when Trustee Sherman was not acting pursuant to a court order,\nhe was still entitled to qualified immunity for actions taken within the scope\nof his official duties. Seeking a receivership is sometimes a necessary step in\nadministering the estate. And we have previously weighed in on this very\nreceivership. 7 While we found that the receivership was without jurisdiction,\nwe also held that it was pursued without malice. 8 And we have already\nawarded a remedy. 9 Baron disagrees with Trustee Sherman’s decision to\npursue a receivership and alleges that Sherman made misleading statements\nduring the receivership process, but these allegations—even when assumed to\nbe true—cannot transform them into ultra vires actions that remove Trustee\nSherman’s qualified immunity.\n Second, we agree with the district court that this immunity extends to\nTrustee Sherman’s attorneys under both a derivative theory of judicial\nimmunity 10 and under the separate doctrine of attorney immunity 11 for\nessentially the same reasons articulated by the district court.\n Third, we agree with the district court’s analysis of Baron’s claims for\nbreach of fiduciary duty. Baron fails to plausibly allege facts sufficient to\nsupport a finding of gross negligence, either in his original complaint or in his\nproposed amended complaint.\n\n\n\n\n 7 Netsphere, Inc. v. Baron, 703 F.3d 296 (5th Cir. 2012).\n 8 Id. at 313 (“[W]e hold . . . that in creating the receivership ‘there was no malice nor\nwrongful purpose, and only an effort to conserve property in which [the court] believed’ it was\ninterested in maintaining for unpaid attorney fees and to control Baron's vexatious litigation\ntactics.” (alteration in original) (quoting W.F. Potts Son & Co. v. Cochrane, 59 F.2d 375, 377–\n78 (5th Cir. 1932))).\n 9 Id. at 313–14.\n 10 See In re DeLorean Motor Co., 991 F.2d 1236, 1241 (6th Cir. 1993).\n 11 See Troice v. Proskauer Rose, L.L.P., 816 F.3d 341, 349 (5th Cir. 2016) (holding that\n\nattorneys are entitled to immunity under Texas law from suit by non-clients, unless the\nattorney’s conduct “d[oes] not involve the provision of legal services” or is “entirely foreign to\nthe duties of any attorney”).\n 4\n\f Case: 18-10182 Document: 00514821265 Page: 5 Date Filed: 02/04/2019\n\n\n\n No. 18-10182\n Finally, while we review de novo the denial of a motion to amend, Baron\nhas failed to raise the new causes of action contained within his proposed\namended complaint in his briefs or argue that the district court erred in finding\nthese claims unsuccessful. “It is a well worn principle that the failure to raise\nan issue on appeal constitutes waiver of that argument.” 12 Baron has thus\nwaived the issue, and we will not disturb the district court’s finding of futility.\n\n * * *\n We AFFIRM both the district court’s dismissal under Rule 12(b)(6) and\nthe denial of leave to file an amended complaint.\n\n\n\n\n United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (citing United States v.\n 12\n\nThibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)).\n 5\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: In the MATTER OF: ONDOVA LIMITED COMPANY, Debtor Jeffrey Baron, Appellant v. Daniel J. Sherman ; Munsch, Hardt, Kopf & Harr, P.C.; Liberty Mutual Insurance Company, Appellees\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-04\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-10182 Document: 00514821265 Page: 1 Date Filed: 02/04/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 18-10182 United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n February 4, 2019\\nIn the Matter of: ONDOVA LIMITED COMPANY\\n Lyle W. Cayce\\n Debtor Clerk\\n\\n\\n-----------------------------------------------\\n\\nJEFFREY BARON,\\n\\n Appellant\\n\\nv.\\n\\nDANIEL J. SHERMAN; MUNSCH, HARDT, KOPF & HARR, P.C.; LIBERTY\\nMUTUAL INSURANCE COMPANY,\\n\\n Appellees\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore REAVLEY, ELROD, and WILLETT, Circuit Judges.\\nPER CURIAM:\\n Jeffrey Baron appeals the district court’s dismissal under Federal Rule\\nof Civil Procedure 12(b)(6) of his bankruptcy “adversary proceeding” against\\nDaniel J. Sherman, the trustee responsible for administering the bankruptcy\\n\\f Case: 18-10182 Document: 00514821265 Page: 2 Date Filed: 02/04/2019\\n\\n\\n\\n No. 18-10182\\nestate of Ondova Limited Company. Baron also appeals the denial of his\\nmotion for leave to amend. We review both de novo. 1\\n To survive a motion to dismiss, a complaint must contain sufficient facts\\nto state a claim for relief that is plausible on its face. 2 And while we must accept\\na plaintiff's factual allegations as true, we are not bound to accept as true “a\\nlegal conclusion couched as a factual allegation.” 3\\n The district court considered and adopted Bankruptcy Judge Jernigan’s\\nmeticulous and well-reasoned 55-page Report and Recommendation. The\\ndistrict court granted Trustee Sherman’s motion to dismiss because—as the\\ncourt-appointed trustee and an arm of the court—Sherman was entitled to\\nabsolute immunity for all actions taken pursuant to a court order, and entitled\\nto qualified immunity for all other acts within the scope of his trustee duties.\\nBaron’s claims against Trustee Sherman’s attorneys (the law firm Munsch\\nHardt Kopf & Harr, P.C.) also failed because the attorneys were covered by\\nboth derivative trustee immunity and independent attorney immunity.\\nBaron’s claim that Trustee Sherman breached his fiduciary duty also failed\\nbecause he did not plausibly plead gross negligence. Finally, the district court\\ndenied Baron’s motion to amend his complaint on futility grounds.\\n We agree with the district court’s analysis of Trustee Sherman’s\\nimmunity. Trustees are entitled to absolute immunity for all actions taken\\npursuant to a court order. 4 And while this circuit does not have controlling\\nprecedent on the issue, numerous sister circuits have held that trustees have\\n\\n\\n\\n 1 While a denial of leave to amend is generally reviewed for abuse of discretion,\\nbecause the district court based its denial for leave to amend solely on futility, review is de\\nnovo. City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010) (“The “de novo\\nstandard of review [is] identical, in practice, to the standard used for reviewing a dismissal\\nunder Rule 12(b)(6).”).\\n 2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).\\n 3 Papasan v. Allain, 478 U.S. 265, 286 (1986).\\n 4 Boullion v. McClanahan, 639 F.2d 213, 214 (5th Cir. 1981).\\n\\n 2\\n\\f Case: 18-10182 Document: 00514821265 Page: 3 Date Filed: 02/04/2019\\n\\n\\n\\n No. 18-10182\\nqualified immunity for personal harms caused by actions taken within the\\nscope of their official duties. 5 Only ultra vires actions—actions that fall outside\\nthe scope of their duties as trustees—are not entitled to immunity. There is no\\ncompelling reason to depart from our sister circuits’ sensible approach. We\\nthus hold that bankruptcy trustees in the Fifth Circuit are entitled to qualified\\nimmunity for personal harms caused by actions that, while not pursuant to a\\ncourt order, fall within the scope of their official duties.\\n Here, Baron has not plausibly alleged any actions not covered by\\nabsolute or qualified immunity, either in his original complaint or in his\\nproposed amended complaint. His factual allegations on appeal are limited to\\nSherman’s decision to seek a receivership over him, alleged falsehoods or\\nmisrepresentations during the receivership process, and subsequent use of the\\nreceivership to liquidate assets. However—as acknowledged by Bankruptcy\\nJudge Jernigan—all property seizures that Baron complains of were done\\nunder the Receivership Order and were actions taken by the receiver rather\\nthan the trustee. As Judge Jernigan also notes, between the date Sherman was\\nappointed trustee and the date Baron filed his adversary proceeding, the\\nbankruptcy court entered approximately 147 orders in the Ondova Bankruptcy\\nCase. Trustee Sherman was acting “under the supervision and subject to the\\norder of the bankruptcy judge”—and thus entitled to absolute immunity 6—for\\nvirtually all of his tenure as trustee.\\n\\n\\n\\n\\n 5 See, e.g., Grant, Konvalinka & Harrison, PC v. Banks (In re McKenzie), 716 F.3d 404,\\n413 (6th Cir.), cert denied, 134 S. Ct. 444 (2013); Sierra v. Seeber, 966 F.2d 1444 (4th Cir.\\n1992); Phoenician Mediterranean Villa, LLC v. Swope (In re J & S Props., LLC), 545 B.R. 91,\\n104 (Bankr. W.D. Pa. 2015) (“When not acting pursuant to an order of court, a bankruptcy\\ntrustee is generally afforded qualified immunity.”), aff’d, 554 B.R. 747 (W.D. Pa. 2016), aff’d,\\n872 F.3d 138 (3d Cir. 2017).\\n 6 Boullion, 639 F.2d at 213\\n\\n\\n 3\\n\\f Case: 18-10182 Document: 00514821265 Page: 4 Date Filed: 02/04/2019\\n\\n\\n\\n No. 18-10182\\n Even when Trustee Sherman was not acting pursuant to a court order,\\nhe was still entitled to qualified immunity for actions taken within the scope\\nof his official duties. Seeking a receivership is sometimes a necessary step in\\nadministering the estate. And we have previously weighed in on this very\\nreceivership. 7 While we found that the receivership was without jurisdiction,\\nwe also held that it was pursued without malice. 8 And we have already\\nawarded a remedy. 9 Baron disagrees with Trustee Sherman’s decision to\\npursue a receivership and alleges that Sherman made misleading statements\\nduring the receivership process, but these allegations—even when assumed to\\nbe true—cannot transform them into ultra vires actions that remove Trustee\\nSherman’s qualified immunity.\\n Second, we agree with the district court that this immunity extends to\\nTrustee Sherman’s attorneys under both a derivative theory of judicial\\nimmunity 10 and under the separate doctrine of attorney immunity 11 for\\nessentially the same reasons articulated by the district court.\\n Third, we agree with the district court’s analysis of Baron’s claims for\\nbreach of fiduciary duty. Baron fails to plausibly allege facts sufficient to\\nsupport a finding of gross negligence, either in his original complaint or in his\\nproposed amended complaint.\\n\\n\\n\\n\\n 7 Netsphere, Inc. v. Baron, 703 F.3d 296 (5th Cir. 2012).\\n 8 Id. at 313 (“[W]e hold . . . that in creating the receivership ‘there was no malice nor\\nwrongful purpose, and only an effort to conserve property in which [the court] believed’ it was\\ninterested in maintaining for unpaid attorney fees and to control Baron's vexatious litigation\\ntactics.” (alteration in original) (quoting W.F. Potts Son & Co. v. Cochrane, 59 F.2d 375, 377–\\n78 (5th Cir. 1932))).\\n 9 Id. at 313–14.\\n 10 See In re DeLorean Motor Co., 991 F.2d 1236, 1241 (6th Cir. 1993).\\n 11 See Troice v. Proskauer Rose, L.L.P., 816 F.3d 341, 349 (5th Cir. 2016) (holding that\\n\\nattorneys are entitled to immunity under Texas law from suit by non-clients, unless the\\nattorney’s conduct “d[oes] not involve the provision of legal services” or is “entirely foreign to\\nthe duties of any attorney”).\\n 4\\n\\f Case: 18-10182 Document: 00514821265 Page: 5 Date Filed: 02/04/2019\\n\\n\\n\\n No. 18-10182\\n Finally, while we review de novo the denial of a motion to amend, Baron\\nhas failed to raise the new causes of action contained within his proposed\\namended complaint in his briefs or argue that the district court erred in finding\\nthese claims unsuccessful. “It is a well worn principle that the failure to raise\\nan issue on appeal constitutes waiver of that argument.” 12 Baron has thus\\nwaived the issue, and we will not disturb the district court’s finding of futility.\\n\\n * * *\\n We AFFIRM both the district court’s dismissal under Rule 12(b)(6) and\\nthe denial of leave to file an amended complaint.\\n\\n\\n\\n\\n United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (citing United States v.\\n 12\\n\\nThibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)).\\n 5\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":583,"cells":{"id":{"kind":"number","value":8443865,"string":"8,443,865"},"name":{"kind":"string","value":"PLANNED PARENTHOOD OF GREATER TEXAS FAMILY PLANNING AND PREVENTATIVE HEALTH SERVICES, INC. Planned Parenthood San Antonio Planned Parenthood Cameron County Planned Parenthood Gulf Coast, Inc Planned Parenthood South Texas Surgical Center Jane Doe 1 Jane Doe 2 Jane Doe 4 Jane Doe 7 Jane Doe 9 Jane Doe 10 Jane Doe 11 v. Charles SMITH, in His Official Capacity as Executive Commissioner of HHSC Sylvia Hernandez Kauffman, in Her Official Capacity as Acting Inspector General of HHSC"},"name_abbreviation":{"kind":"string","value":"Planned Parenthood of Greater Tex. Family Planning & Preventative Health Servs., Inc. v. Smith"},"decision_date":{"kind":"string","value":"2019-02-04"},"docket_number":{"kind":"string","value":"No. 17-50282"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415292/\"}]}"},"judge1":{"kind":"string","value":""},"judge2":{"kind":"string","value":""},"judge3":{"kind":"string","value":""},"exactly_three_caps":{"kind":"number","value":0,"string":"0"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8443865/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: PLANNED PARENTHOOD OF GREATER TEXAS FAMILY PLANNING AND PREVENTATIVE HEALTH SERVICES, INC. Planned Parenthood San Antonio Planned Parenthood Cameron County Planned Parenthood Gulf Coast, Inc Planned Parenthood South Texas Surgical Center Jane Doe 1 Jane Doe 2 Jane Doe 4 Jane Doe 7 Jane Doe 9 Jane Doe 10 Jane Doe 11 v. Charles SMITH, in His Official Capacity as Executive Commissioner of HHSC Sylvia Hernandez Kauffman, in Her Official Capacity as Acting Inspector General of HHSC\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-04\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: PLANNED PARENTHOOD OF GREATER TEXAS FAMILY PLANNING AND PREVENTATIVE HEALTH SERVICES, INC. Planned Parenthood San Antonio Planned Parenthood Cameron County Planned Parenthood Gulf Coast, Inc Planned Parenthood South Texas Surgical Center Jane Doe 1 Jane Doe 2 Jane Doe 4 Jane Doe 7 Jane Doe 9 Jane Doe 10 Jane Doe 11 v. Charles SMITH, in His Official Capacity as Executive Commissioner of HHSC Sylvia Hernandez Kauffman, in Her Official Capacity as Acting Inspector General of HHSC\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-04\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":584,"cells":{"id":{"kind":"number","value":4587545,"string":"4,587,545"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Planned Parenthood of Grt TX v. Charles Smi"},"decision_date":{"kind":"string","value":"2019-02-05"},"docket_number":{"kind":"string","value":"17-50282"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before STEWART, Chief Judge, JONES, SMITH, DENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, and ENGELHARDT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"Judge Oldham is recused and did not participate in this decision\", \"type\": \"010combined\", \"text\": \"IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n _____________________ FILED\\n February 4, 2019\\n No. 17-50282\\n Lyle W. Cayce\\n _____________________ Clerk\\n\\n\\nPLANNED PARENTHOOD OF GREATER TEXAS FAMILY PLANNING\\nAND PREVENTATIVE HEALTH SERVICES, INC; PLANNED\\nPARENTHOOD SAN ANTONIO; PLANNED PARENTHOOD CAMERON\\nCOUNTY; PLANNED PARENTHOOD GULF COAST, INC; PLANNED\\nPARENTHOOD SOUTH TEXAS SURGICAL CENTER; JANE DOE #1;\\nJANE DOE #2; JANE DOE #4; JANE DOE #7;\\nJANE DOE #9; JANE DOE #10; JANE DOE #11,\\n\\n Plaintiffs - Appellees\\nv.\\n\\nCHARLES SMITH, in his official capacity as Executive Commissioner of\\nHHSC; SYLVIA HERNANDEZ KAUFFMAN, in her official capacity as\\nActing Inspector General of HHSC,\\n\\n Defendants - Appellants\\n\\n __________________________\\n\\n Appeal from the United States District Court for the\\n Western District of Texas\\n __________________________\\n\\n (Opinion January 17, 2019, 5 Cir., 2019, ___ F.3d ___)\\n\\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, CLEMENT,\\nOWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON,\\nCOSTA, WILLETT, HO, DUNCAN, and ENGELHARDT, Circuit Judges. 1\\n\\n\\n\\n\\n 1 Judge Oldham is recused and did not participate in this decision.\\n\\fBY THE COURT:\\n\\n A majority of the circuit judges in regular active service and not\\ndisqualified having voted in favor, on the Court’s own motion, to rehear this\\ncase en banc,\\n IT IS ORDERED that this cause shall be reheard by the court en banc\\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\\nbriefing schedule for the filing of supplemental briefs.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4364798/\", \"author_raw\": \"Judge Oldham is recused and did not participate in this decision\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"JONES"},"judge3":{"kind":"string","value":"SMITH"},"exactly_three_caps":{"kind":"number","value":2,"string":"2"},"extra_judges":{"kind":"string","value":"DENNIS; CLEMENT; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; HO; DUNCAN; ENGELHARDT"},"judge_designations":{"kind":"string","value":"{\"STEWART\": \", Chief\", \"JONES\": \", Circuit\", \"SMITH\": \", Circuit\", \"DENNIS\": \", Circuit\", \"CLEMENT\": \", Circuit\", \"OWEN\": \", Circuit\", \"ELROD\": \", Circuit\", \"SOUTHWICK\": \", Circuit\", \"HAYNES\": \", Circuit\", \"GRAVES\": \", Circuit\", \"HIGGINSON\": \", Circuit\", \"COSTA\": \", Circuit\", \"WILLETT\": \", Circuit\", \"HO\": \", Circuit\", \"DUNCAN\": \", Circuit\", \"ENGELHARDT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4587545/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Planned Parenthood of Grt TX v. Charles Smi\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-05\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n _____________________ FILED\n February 4, 2019\n No. 17-50282\n Lyle W. Cayce\n _____________________ Clerk\n\n\nPLANNED PARENTHOOD OF GREATER TEXAS FAMILY PLANNING\nAND PREVENTATIVE HEALTH SERVICES, INC; PLANNED\nPARENTHOOD SAN ANTONIO; PLANNED PARENTHOOD CAMERON\nCOUNTY; PLANNED PARENTHOOD GULF COAST, INC; PLANNED\nPARENTHOOD SOUTH TEXAS SURGICAL CENTER; JANE DOE #1;\nJANE DOE #2; JANE DOE #4; JANE DOE #7;\nJANE DOE #9; JANE DOE #10; JANE DOE #11,\n\n Plaintiffs - Appellees\nv.\n\nCHARLES SMITH, in his official capacity as Executive Commissioner of\nHHSC; SYLVIA HERNANDEZ KAUFFMAN, in her official capacity as\nActing Inspector General of HHSC,\n\n Defendants - Appellants\n\n __________________________\n\n Appeal from the United States District Court for the\n Western District of Texas\n __________________________\n\n (Opinion January 17, 2019, 5 Cir., 2019, ___ F.3d ___)\n\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, CLEMENT,\nOWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON,\nCOSTA, WILLETT, HO, DUNCAN, and ENGELHARDT, Circuit Judges. 1\n\n\n\n\n 1 Judge Oldham is recused and did not participate in this decision.\n\fBY THE COURT:\n\n A majority of the circuit judges in regular active service and not\ndisqualified having voted in favor, on the Court’s own motion, to rehear this\ncase en banc,\n IT IS ORDERED that this cause shall be reheard by the court en banc\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\nbriefing schedule for the filing of supplemental briefs.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Planned Parenthood of Grt TX v. Charles Smi\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-05\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nIN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n _____________________ FILED\\n February 4, 2019\\n No. 17-50282\\n Lyle W. Cayce\\n _____________________ Clerk\\n\\n\\nPLANNED PARENTHOOD OF GREATER TEXAS FAMILY PLANNING\\nAND PREVENTATIVE HEALTH SERVICES, INC; PLANNED\\nPARENTHOOD SAN ANTONIO; PLANNED PARENTHOOD CAMERON\\nCOUNTY; PLANNED PARENTHOOD GULF COAST, INC; PLANNED\\nPARENTHOOD SOUTH TEXAS SURGICAL CENTER; JANE DOE #1;\\nJANE DOE #2; JANE DOE #4; JANE DOE #7;\\nJANE DOE #9; JANE DOE #10; JANE DOE #11,\\n\\n Plaintiffs - Appellees\\nv.\\n\\nCHARLES SMITH, in his official capacity as Executive Commissioner of\\nHHSC; SYLVIA HERNANDEZ KAUFFMAN, in her official capacity as\\nActing Inspector General of HHSC,\\n\\n Defendants - Appellants\\n\\n __________________________\\n\\n Appeal from the United States District Court for the\\n Western District of Texas\\n __________________________\\n\\n (Opinion January 17, 2019, 5 Cir., 2019, ___ F.3d ___)\\n\\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, CLEMENT,\\nOWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON,\\nCOSTA, WILLETT, HO, DUNCAN, and ENGELHARDT, Circuit Judges. 1\\n\\n\\n\\n\\n 1 Judge Oldham is recused and did not participate in this decision.\\n\\fBY THE COURT:\\n\\n A majority of the circuit judges in regular active service and not\\ndisqualified having voted in favor, on the Court’s own motion, to rehear this\\ncase en banc,\\n IT IS ORDERED that this cause shall be reheard by the court en banc\\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\\nbriefing schedule for the filing of supplemental briefs.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":585,"cells":{"id":{"kind":"number","value":4587638,"string":"4,587,638"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee v. Milo EADEN, Defendant-Appellant"},"name_abbreviation":{"kind":"string","value":"United States v. Milo Eaden"},"decision_date":{"kind":"string","value":"2019-02-05"},"docket_number":{"kind":"string","value":"18-50379"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Jolly, Jones, Dennis\", \"parties\": \"\", \"opinions\": [{\"author\": \"E. GRADY JOLLY, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-50379 Document: 00514823508 Page: 1 Date Filed: 02/05/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-50379 FILED\\n February 5, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nMILO EADEN,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore JOLLY, JONES, and DENNIS, Circuit Judges.\\nE. GRADY JOLLY, Circuit Judge:\\n The question of first impression presented in this sentencing appeal\\nconcerns the effect of a defendant’s possession of ammunition alone, as opposed\\nto a firearm, during a drug trafficking offense. Milo Eaden appeals his four-\\nlevel sentencing enhancement pursuant to U.S.S.G. § 2k2.1(b)(6)(B) for using\\nor possessing ammunition in connection with another felony offense. Eaden\\nargues that he did not possess the ammunition “in connection with” his felony\\ndrug trafficking activities. For the reasons that follow, we hold that the district\\ncourt clearly erred in imposing the enhancement under these facts. We\\ntherefore vacate Mr. Eaden’s sentence and remand for resentencing.\\n\\f Case: 18-50379 Document: 00514823508 Page: 2 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-50379\\n I.\\n Police officers executed a search warrant of Eaden’s home after making\\na controlled purchase of crack cocaine from Eaden at his residence. During\\ntheir search, the officers found 5.5 grams of crack cocaine and 19 rounds of\\nammunition. No firearm was found on Eaden’s person or in his home. The\\nammunition was “easily accessible and stored in close proximity to” the\\ncocaine. These words are the only description of how the ammunition was\\nconnected to the drug transaction. The record certainly does not indicate that\\nthe ammunition was in plain sight during the controlled purchase. Eaden\\nactually claimed that he found the ammunition in the dumpster behind his\\nhouse months earlier and brought it home. Eaden had previously been\\nconvicted, in 2003, of delivering cocaine in violation of Texas law and had been\\nsentenced to ten years in Texas prison for this felony offense. As to the present\\noffense, Eaden was charged in federal court with possession of ammunition as\\na felon and he pleaded guilty to this charge. We are now only concerned with\\nhis sentence as enhanced by his possession of the ammunition.\\n The Presentence Report (PSR) assigned a base offense level of fourteen,\\nadded a four-level enhancement pursuant to U.S.S.G. § 2k2.1(b)(6)(B) 1 for\\nusing or possessing the ammunition in connection with another felony offense,\\nand reduced by three levels for acceptance of responsibility, bringing his total\\noffense level to fifteen. Eaden objected to the four-level enhancement, arguing\\nthat his possession of ammunition was not connected with his drug trafficking\\nbecause the ammunition did not facilitate or have the potential to facilitate the\\n\\n\\n\\n\\n 1 U.S.S.G. § 2k2.1(b)(6)(B) reads in relevant part: “If the defendant . . . used or\\npossessed any firearm or ammunition in connection with another felony offense; . . . increase\\nby 4 levels.”\\n\\n 2\\n\\f Case: 18-50379 Document: 00514823508 Page: 3 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-50379\\ndrug trafficking offense nor was the possession of the ammunition and drug\\ntrafficking part of a common scheme or plan.\\n Noting the lack of Fifth Circuit precedent on this point, the PSR rejected\\nEaden’s objections by relying on the text of § 2k2.1(b)(6)(B), the provision’s\\napplication note, and the Sixth Circuit’s opinion in United States v. Coleman,\\n627 F.3d 205 (6th Cir. 2010). Following Coleman, the PSR extended the Sixth\\nCircuit’s “fortress theory”—which traditionally applies only to firearms—to\\nsituations where only ammunition is present. Thus, the PSR found that,\\nbecause the ammunition “potentially emboldened Eaden in the knowledge that\\nhe was one step closer to having a fully-loaded firearm to protect himself and\\nhis illegal drugs, and the ammunition potentially served as notice to potential\\nbuyers that he was one step closer to having a fully-loaded firearm,” the\\npossession alone was connected with the drug trafficking offense.\\n The PSR maintained its recommended final offense level of fifteen which,\\ncoupled with Eaden’s criminal history category of II, resulted in an advisory\\nguidelines range of twenty-one to twenty-seven months of imprisonment. Had\\nthe PSR sustained Eaden’s objection to the four-level enhancement, his total\\noffense level would have been eleven, carrying a guidelines range of ten to\\nsixteen months.\\n At his sentencing hearing, Eaden objected to the PSR’s imposition of the\\nfour-level enhancement for substantially the same reasons—possessing\\nammunition alone does not facilitate drug trafficking absent possession of a\\nfirearm. The government responded by resting on the PSR’s reasoning and\\nhad “no additional information it can provide.” The district court overruled\\nEaden’s objection because it found that his possession of the ammunition was\\n“part of the same course of conduct or common scheme or plan as the\\ndefendant’s possession of the ammunition facilitated or had the potential to\\n\\n\\n 3\\n\\f Case: 18-50379 Document: 00514823508 Page: 4 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-50379\\nfacilitate his drug trafficking crime offense.” Eaden now appeals the district\\ncourt’s application of § 2k2.1(b)(6)(B)’s four-level enhancement.\\n II.\\n On appeal, Eaden argues that the district court erred in holding that his\\npossession of ammunition was “in connection with” his drug trafficking\\nactivities. Although the application notes to the Guidelines provide for a\\npresumption of facilitation when a firearm is possessed in close proximity to a\\ndrug trafficking offense, Eaden contends that the presumption should not\\napply here because his possession of ammunition alone does not have the\\npotential to facilitate trafficking activities. The government argues that we\\nshould adopt the Sixth Circuit’s conclusion in Coleman and effectively hold\\nthat the possession of ammunition alone creates a presumption that it\\nfacilitates or potentially facilitates felony drug trafficking. The government\\nargues that the ammunition brought Eaden “one step closer to possessing a\\nfully-loaded firearm.” The government also argues that the ammunition\\nfacilitated the drug trafficking by serving to intimidate potential threats to his\\ntrafficking operation. Both parties acknowledge that we are presented with a\\nquestion of first impression in this circuit.\\n III.\\n This court reviews a district court’s interpretation or application of the\\nguidelines de novo and its factual findings for clear error. See United States v.\\nCisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The district court’s\\ndetermination of the relationship between ammunition and another offense is\\nmost usually a factual finding. See United States v. Coleman, 609 F.3d 699,\\n708 (5th Cir. 2010). “A factual finding is clearly erroneous when the reviewing\\ncourt on the entire evidence is left with the definite and firm conviction that a\\nmistake has been committed.” Id.\\n\\n\\n 4\\n\\f Case: 18-50379 Document: 00514823508 Page: 5 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-50379\\n This appeal presents three questions that we must address. First,\\nwhether possession of ammunition alone can facilitate drug trafficking for\\npurposes of U.S.S.G. § 2k2.1(b)(6)(B), a question of first impression in this\\ncircuit. Second, whether there is a presumption that the possession of\\nammunition alone facilitates a drug trafficking offense for purposes of U.S.S.G.\\n§ 2k2.1(b)(6)(B), again, a question of first impression in this circuit. Third, in\\nthe light of our answer to the first two questions, whether the four-level\\nenhancement was properly applied to Eaden.\\n A.\\n We first determine if U.S.S.G. § 2k2.1(b)(6)(B)’s four-level enhancement\\ncan be applied to a defendant who possessed only ammunition. Section\\n2k2.1(b)(6)(B) provides for a four-level enhancement if the defendant “used or\\npossessed any firearm or ammunition in connection with another felony\\noffense.” Application Note 14(A) provides that the term “in connection with”\\nmandates that “the firearm or ammunition facilitated, or had the potential of\\nfacilitating, another felony offense.”\\n We hold that possession of ammunition alone, under appropriate\\ncircumstances not present in this case, certainly may be sufficient for the four-\\nlevel enhancement. By using the disjunctive “or,” the guidelines plainly read\\nto allow for the enhancement when the defendant possesses a loaded gun, an\\nunloaded gun, or ammunition alone. That much is clear: ammunition alone\\ncan facilitate a drug offense. The more nuanced question will be under what\\ncircumstances and, absent a presumption, this question necessarily must be\\ndecided on a case by case basis.\\n B.\\n We now turn to the second question of first impression for this court:\\nwhether, as is true with a firearm, there is a presumption of facilitation when\\nammunition alone is present at the time of the drug trafficking offense; or\\n 5\\n\\f Case: 18-50379 Document: 00514823508 Page: 6 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-50379\\nwhether the district court must make an affirmative finding that Eaden’s\\nammunition facilitated his drug trafficking offense. 2\\n In the context of drug offenses, facilitation can be presumed when (1) a\\nfirearm was possessed (2) in close proximity to contraband during a drug\\ntrafficking offense. See, e.g., United States v. Anderson, 559 F.3d 348, 358 (5th\\nCir. 2009) (“When a loaded firearm is found in close physical proximity to\\nnarcotics, readily available to the defendant, a connection will usually be\\nfound.”). However, this presumption is only available when both conditions\\nare present—a firearm and a trafficking offense. This common sense rule is\\nsupported by the text of § 2k2.1(b)(6)(B), its Application Note, and our holding\\nin United States v. Jeffries, 587 F.3d 690 (5th Cir. 2009).\\n The text of § 2k2.1(b)(6)(B) states that the enhancement applies when\\nthe defendant (1) “used or possessed any firearm or ammunition” (2) “in\\nconnection with another felony offense.” As noted above, Application Note\\n14(A) clarifies that “in connection with” means “facilitated, or had the potential\\nof facilitating.” Therefore, for the enhancement to apply, the government must\\nshow evidence of both (1) possession of a firearm or ammunition and (2) that\\nthe firearm or ammunition facilitated or had the potential to facilitate the\\nother offense. Application Note 14(B) instructs us, however, that “in the case\\nof a drug trafficking offense in which a firearm is found in close proximity to\\ndrugs . . . application of subsection[] (b)(6)(B) is warranted because the\\npresence of a firearm has the potential of facilitating another felony offense.”\\nApplication Note 14(B)—addressed specifically to the drug trafficking\\n\\n\\n 2 In this circuit, there is a presumption of facilitation when the defendant possesses a\\nfirearm during a drug trafficking offense and no presumption of facilitation when the\\ndefendant possesses a firearm along with only user amounts of narcotics. See United States\\nv. Jeffries, 587 F.3d 690, 692–93 (5th Cir. 2009). Here we address a third situation—when\\nthe defendant possesses ammunition and no gun during a drug trafficking offense—and hold\\nthat there is no presumption.\\n\\n 6\\n\\f Case: 18-50379 Document: 00514823508 Page: 7 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-50379\\ncontext—states only that “the presence of the firearm” inherently “has the\\npotential of facilitating” and makes no reference to ammunition. 3 We see no\\nreason in the text of the Guideline, or its explanatory notes, to expand this\\npresumption beyond possession of a firearm during a drug trafficking offense.\\n The correctness of this holding is illustrated by our reasoning in Jeffries.\\nThere we considered whether the enhancement presumptively applied to a\\ndefendant who possessed a firearm during a drug possession offense. We noted\\nthat Application Note 14(B) instructs courts to apply the enhancement\\n“automatically” when a “firearm is found in close proximity to drugs” during a\\ntrafficking offense but when drug trafficking is not present, “no presumption\\nis made.” 587 F.3d at 692–93. Therefore, the Jeffries court declined to extend\\nApplication Note 14(B)’s presumption of facilitation to a nontrafficking offense.\\nSee id. at 694 (“[T]he nexus cannot simply be presumed, as appears to have\\nbeen the case here.”). Here, similarly, we see no rationale to extend the\\npresumption of facilitation to situations in which there is a drug transaction\\nbut no firearm—only ammunition. The text of Application Note 14(B) is\\nlimited—it only applies when both trafficking and a firearm are present.\\nEaden did not possess a firearm during his drug trafficking offense and, as in\\nJeffries, we see no reason to judicially expand the scope of Application Note\\n14(B)’s presumption of facilitation.\\n C.\\n Thus far we have held, first, that the possession of ammunition alone\\nmay be connected with a drug trafficking offense, qualifying a defendant for\\nthe four-level sentencing enhancement; and second, that there is no\\n\\n\\n 3 The omission of the term “ammunition” is particularly important considering that\\nApplication Note 14(A)—directly preceding Note 14(B) and containing no presumption—uses\\nthe term “firearm or ammunition,” indicating that the drafters purposefully excluded\\nammunition from Note 14(B)’s presumption of facilitation.\\n\\n 7\\n\\f Case: 18-50379 Document: 00514823508 Page: 8 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-50379\\npresumption of facilitation regarding the possession of only ammunition. Now\\nwe apply these principles to this case.\\n Stripped of a presumption of facilitation, the government must present\\nfacts or circumstances demonstrating that the possession of ammunition\\nfacilitated or had the potential to facilitate the other offense. 4 See Jeffries, 587\\nF.3d at 692, 694–95 & n.9 (the “specific facts of th[e] case” must demonstrate\\nthat the firearm or ammunition in question “emboldened” the offense or served\\nto “protect” contraband to satisfy the “critical step” of establishing a “nexus\\nbetween the firearm possession and the drug possession”). 5 Ammunition has\\nthe potential to facilitate a trafficking operation when it is displayed or\\nbrandished in a manner that has the potential to embolden the trafficker and\\nprotect his operation by implying that he has a gun, thereby deterring buyers,\\nco-conspirators, or competitors from taking adverse action.\\n For ammunition to have such a deterrent effect to potential threats, it\\nwould, inter alia, be necessary that it be in plain sight to purchasers or others\\n\\n\\n 4 Indeed, in its brief, the government purports to agree in principle, saying:\\n When the defendant possesses a firearm in close proximity to drugs,\\n there is a presumption that the firearm has the potential to facilitate\\n his drug trafficking offense. USSG § 2K2.1 (n.14(B)). This presumption\\n likely does not apply when the defendant possesses only ammunition,\\n in which case the district court must make an affirmative finding that\\n the ammunition facilitated the drug trafficking offense. See United\\n States v. Jeffries, 587 F.3d 690, 694 (5th Cir. 2009).\\n 5 Despite conceding that there is no presumption of facilitation for ammunition alone,\\nthe government spends much of its brief arguing that this court should adopt the Sixth\\nCircuit’s rationale in United States v. Coleman, 627 F.3d 205 (6th Cir. 2010). There, the court\\nheld that possession of ammunition alone facilitated a drug trafficking offense because the\\nammunition “emboldened” the defendant “in the knowledge that he was one step closer to\\nhaving a fully-loaded firearm to protect himself and his illegal drugs.” Id. at 212. This\\nrationale establishes the functional equivalent of the presumption we have rejected above\\nand we respectfully decline to import it into this circuit’s jurisprudence. See id. at 216\\n(Gillman, J. concurring in part and dissenting in part) (“Many things could in theory put a\\nperson ‘one step closer’ to having a firearm, such as applying for a firearms permit, having a\\nholster, possessing a laser scope, or earning money to be able to purchase a weapon.”).\\n\\n 8\\n\\f Case: 18-50379 Document: 00514823508 Page: 9 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-50379\\ninvolved in the trafficking. Turning to the facts of the present case, the PSR\\nindicates that its only item of evidence to show facilitation is that the\\nammunition was “easily accessible and stored in close proximity to the illegal\\ndrugs.” The record does not demonstrate that the ammunition was kept in\\nplain sight, either during the controlled purchase or at any other time. In\\nshort, the government has pointed to no facts or circumstances that indicate\\nthat Eaden possessed the ammunition “in connection with” his drug trafficking\\noffense.\\n IV.\\n To sum up: we have held that possession of ammunition alone may,\\nunder appropriate circumstances, be sufficient to show facilitation for purposes\\nof § 2k2.1(b)(6)(B)’s four-level enhancement. But we have further held that\\npossession of ammunition alone does not enjoy a presumption that it was\\nconnected with a drug trafficking offense. In this context, to demonstrate\\nfacilitation, the government must adduce facts tending to show that the\\nammunition facilitated or had the potential to facilitate the drug trafficking\\noffense. We have respectfully declined to adopt the Sixth Circuit’s path to\\nshowing facilitation set out in Coleman for the reasons stated above. Because\\nwe find that the record here shows that the government produced no facts\\ntending to show that Eaden’s mere possession of ammunition alone was\\nconnected with his drug trafficking activities, the application of\\n§ 2k2.1(b)(6)(B)’s four-level enhancement was clear error. Accordingly, we\\nVACATE the district court’s sentence and REMAND for resentencing not\\ninconsistent with this opinion.\\n VACATED AND REMANDED.\\n\\n\\n\\n\\n 9\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4364891/\", \"author_raw\": \"E. GRADY JOLLY, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JOLLY"},"judge2":{"kind":"string","value":"JONES"},"judge3":{"kind":"string","value":"DENNIS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4587638/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee v. Milo EADEN, Defendant-Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-05\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-50379 Document: 00514823508 Page: 1 Date Filed: 02/05/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 18-50379 FILED\n February 5, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n Plaintiff - Appellee\n\nv.\n\nMILO EADEN,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\nBefore JOLLY, JONES, and DENNIS, Circuit Judges.\nE. GRADY JOLLY, Circuit Judge:\n The question of first impression presented in this sentencing appeal\nconcerns the effect of a defendant’s possession of ammunition alone, as opposed\nto a firearm, during a drug trafficking offense. Milo Eaden appeals his four-\nlevel sentencing enhancement pursuant to U.S.S.G. § 2k2.1(b)(6)(B) for using\nor possessing ammunition in connection with another felony offense. Eaden\nargues that he did not possess the ammunition “in connection with” his felony\ndrug trafficking activities. For the reasons that follow, we hold that the district\ncourt clearly erred in imposing the enhancement under these facts. We\ntherefore vacate Mr. Eaden’s sentence and remand for resentencing.\n\f Case: 18-50379 Document: 00514823508 Page: 2 Date Filed: 02/05/2019\n\n\n\n No. 18-50379\n I.\n Police officers executed a search warrant of Eaden’s home after making\na controlled purchase of crack cocaine from Eaden at his residence. During\ntheir search, the officers found 5.5 grams of crack cocaine and 19 rounds of\nammunition. No firearm was found on Eaden’s person or in his home. The\nammunition was “easily accessible and stored in close proximity to” the\ncocaine. These words are the only description of how the ammunition was\nconnected to the drug transaction. The record certainly does not indicate that\nthe ammunition was in plain sight during the controlled purchase. Eaden\nactually claimed that he found the ammunition in the dumpster behind his\nhouse months earlier and brought it home. Eaden had previously been\nconvicted, in 2003, of delivering cocaine in violation of Texas law and had been\nsentenced to ten years in Texas prison for this felony offense. As to the present\noffense, Eaden was charged in federal court with possession of ammunition as\na felon and he pleaded guilty to this charge. We are now only concerned with\nhis sentence as enhanced by his possession of the ammunition.\n The Presentence Report (PSR) assigned a base offense level of fourteen,\nadded a four-level enhancement pursuant to U.S.S.G. § 2k2.1(b)(6)(B) 1 for\nusing or possessing the ammunition in connection with another felony offense,\nand reduced by three levels for acceptance of responsibility, bringing his total\noffense level to fifteen. Eaden objected to the four-level enhancement, arguing\nthat his possession of ammunition was not connected with his drug trafficking\nbecause the ammunition did not facilitate or have the potential to facilitate the\n\n\n\n\n 1 U.S.S.G. § 2k2.1(b)(6)(B) reads in relevant part: “If the defendant . . . used or\npossessed any firearm or ammunition in connection with another felony offense; . . . increase\nby 4 levels.”\n\n 2\n\f Case: 18-50379 Document: 00514823508 Page: 3 Date Filed: 02/05/2019\n\n\n\n No. 18-50379\ndrug trafficking offense nor was the possession of the ammunition and drug\ntrafficking part of a common scheme or plan.\n Noting the lack of Fifth Circuit precedent on this point, the PSR rejected\nEaden’s objections by relying on the text of § 2k2.1(b)(6)(B), the provision’s\napplication note, and the Sixth Circuit’s opinion in United States v. Coleman,\n627 F.3d 205 (6th Cir. 2010). Following Coleman, the PSR extended the Sixth\nCircuit’s “fortress theory”—which traditionally applies only to firearms—to\nsituations where only ammunition is present. Thus, the PSR found that,\nbecause the ammunition “potentially emboldened Eaden in the knowledge that\nhe was one step closer to having a fully-loaded firearm to protect himself and\nhis illegal drugs, and the ammunition potentially served as notice to potential\nbuyers that he was one step closer to having a fully-loaded firearm,” the\npossession alone was connected with the drug trafficking offense.\n The PSR maintained its recommended final offense level of fifteen which,\ncoupled with Eaden’s criminal history category of II, resulted in an advisory\nguidelines range of twenty-one to twenty-seven months of imprisonment. Had\nthe PSR sustained Eaden’s objection to the four-level enhancement, his total\noffense level would have been eleven, carrying a guidelines range of ten to\nsixteen months.\n At his sentencing hearing, Eaden objected to the PSR’s imposition of the\nfour-level enhancement for substantially the same reasons—possessing\nammunition alone does not facilitate drug trafficking absent possession of a\nfirearm. The government responded by resting on the PSR’s reasoning and\nhad “no additional information it can provide.” The district court overruled\nEaden’s objection because it found that his possession of the ammunition was\n“part of the same course of conduct or common scheme or plan as the\ndefendant’s possession of the ammunition facilitated or had the potential to\n\n\n 3\n\f Case: 18-50379 Document: 00514823508 Page: 4 Date Filed: 02/05/2019\n\n\n\n No. 18-50379\nfacilitate his drug trafficking crime offense.” Eaden now appeals the district\ncourt’s application of § 2k2.1(b)(6)(B)’s four-level enhancement.\n II.\n On appeal, Eaden argues that the district court erred in holding that his\npossession of ammunition was “in connection with” his drug trafficking\nactivities. Although the application notes to the Guidelines provide for a\npresumption of facilitation when a firearm is possessed in close proximity to a\ndrug trafficking offense, Eaden contends that the presumption should not\napply here because his possession of ammunition alone does not have the\npotential to facilitate trafficking activities. The government argues that we\nshould adopt the Sixth Circuit’s conclusion in Coleman and effectively hold\nthat the possession of ammunition alone creates a presumption that it\nfacilitates or potentially facilitates felony drug trafficking. The government\nargues that the ammunition brought Eaden “one step closer to possessing a\nfully-loaded firearm.” The government also argues that the ammunition\nfacilitated the drug trafficking by serving to intimidate potential threats to his\ntrafficking operation. Both parties acknowledge that we are presented with a\nquestion of first impression in this circuit.\n III.\n This court reviews a district court’s interpretation or application of the\nguidelines de novo and its factual findings for clear error. See United States v.\nCisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The district court’s\ndetermination of the relationship between ammunition and another offense is\nmost usually a factual finding. See United States v. Coleman, 609 F.3d 699,\n708 (5th Cir. 2010). “A factual finding is clearly erroneous when the reviewing\ncourt on the entire evidence is left with the definite and firm conviction that a\nmistake has been committed.” Id.\n\n\n 4\n\f Case: 18-50379 Document: 00514823508 Page: 5 Date Filed: 02/05/2019\n\n\n\n No. 18-50379\n This appeal presents three questions that we must address. First,\nwhether possession of ammunition alone can facilitate drug trafficking for\npurposes of U.S.S.G. § 2k2.1(b)(6)(B), a question of first impression in this\ncircuit. Second, whether there is a presumption that the possession of\nammunition alone facilitates a drug trafficking offense for purposes of U.S.S.G.\n§ 2k2.1(b)(6)(B), again, a question of first impression in this circuit. Third, in\nthe light of our answer to the first two questions, whether the four-level\nenhancement was properly applied to Eaden.\n A.\n We first determine if U.S.S.G. § 2k2.1(b)(6)(B)’s four-level enhancement\ncan be applied to a defendant who possessed only ammunition. Section\n2k2.1(b)(6)(B) provides for a four-level enhancement if the defendant “used or\npossessed any firearm or ammunition in connection with another felony\noffense.” Application Note 14(A) provides that the term “in connection with”\nmandates that “the firearm or ammunition facilitated, or had the potential of\nfacilitating, another felony offense.”\n We hold that possession of ammunition alone, under appropriate\ncircumstances not present in this case, certainly may be sufficient for the four-\nlevel enhancement. By using the disjunctive “or,” the guidelines plainly read\nto allow for the enhancement when the defendant possesses a loaded gun, an\nunloaded gun, or ammunition alone. That much is clear: ammunition alone\ncan facilitate a drug offense. The more nuanced question will be under what\ncircumstances and, absent a presumption, this question necessarily must be\ndecided on a case by case basis.\n B.\n We now turn to the second question of first impression for this court:\nwhether, as is true with a firearm, there is a presumption of facilitation when\nammunition alone is present at the time of the drug trafficking offense; or\n 5\n\f Case: 18-50379 Document: 00514823508 Page: 6 Date Filed: 02/05/2019\n\n\n\n No. 18-50379\nwhether the district court must make an affirmative finding that Eaden’s\nammunition facilitated his drug trafficking offense. 2\n In the context of drug offenses, facilitation can be presumed when (1) a\nfirearm was possessed (2) in close proximity to contraband during a drug\ntrafficking offense. See, e.g., United States v. Anderson, 559 F.3d 348, 358 (5th\nCir. 2009) (“When a loaded firearm is found in close physical proximity to\nnarcotics, readily available to the defendant, a connection will usually be\nfound.”). However, this presumption is only available when both conditions\nare present—a firearm and a trafficking offense. This common sense rule is\nsupported by the text of § 2k2.1(b)(6)(B), its Application Note, and our holding\nin United States v. Jeffries, 587 F.3d 690 (5th Cir. 2009).\n The text of § 2k2.1(b)(6)(B) states that the enhancement applies when\nthe defendant (1) “used or possessed any firearm or ammunition” (2) “in\nconnection with another felony offense.” As noted above, Application Note\n14(A) clarifies that “in connection with” means “facilitated, or had the potential\nof facilitating.” Therefore, for the enhancement to apply, the government must\nshow evidence of both (1) possession of a firearm or ammunition and (2) that\nthe firearm or ammunition facilitated or had the potential to facilitate the\nother offense. Application Note 14(B) instructs us, however, that “in the case\nof a drug trafficking offense in which a firearm is found in close proximity to\ndrugs . . . application of subsection[] (b)(6)(B) is warranted because the\npresence of a firearm has the potential of facilitating another felony offense.”\nApplication Note 14(B)—addressed specifically to the drug trafficking\n\n\n 2 In this circuit, there is a presumption of facilitation when the defendant possesses a\nfirearm during a drug trafficking offense and no presumption of facilitation when the\ndefendant possesses a firearm along with only user amounts of narcotics. See United States\nv. Jeffries, 587 F.3d 690, 692–93 (5th Cir. 2009). Here we address a third situation—when\nthe defendant possesses ammunition and no gun during a drug trafficking offense—and hold\nthat there is no presumption.\n\n 6\n\f Case: 18-50379 Document: 00514823508 Page: 7 Date Filed: 02/05/2019\n\n\n\n No. 18-50379\ncontext—states only that “the presence of the firearm” inherently “has the\npotential of facilitating” and makes no reference to ammunition. 3 We see no\nreason in the text of the Guideline, or its explanatory notes, to expand this\npresumption beyond possession of a firearm during a drug trafficking offense.\n The correctness of this holding is illustrated by our reasoning in Jeffries.\nThere we considered whether the enhancement presumptively applied to a\ndefendant who possessed a firearm during a drug possession offense. We noted\nthat Application Note 14(B) instructs courts to apply the enhancement\n“automatically” when a “firearm is found in close proximity to drugs” during a\ntrafficking offense but when drug trafficking is not present, “no presumption\nis made.” 587 F.3d at 692–93. Therefore, the Jeffries court declined to extend\nApplication Note 14(B)’s presumption of facilitation to a nontrafficking offense.\nSee id. at 694 (“[T]he nexus cannot simply be presumed, as appears to have\nbeen the case here.”). Here, similarly, we see no rationale to extend the\npresumption of facilitation to situations in which there is a drug transaction\nbut no firearm—only ammunition. The text of Application Note 14(B) is\nlimited—it only applies when both trafficking and a firearm are present.\nEaden did not possess a firearm during his drug trafficking offense and, as in\nJeffries, we see no reason to judicially expand the scope of Application Note\n14(B)’s presumption of facilitation.\n C.\n Thus far we have held, first, that the possession of ammunition alone\nmay be connected with a drug trafficking offense, qualifying a defendant for\nthe four-level sentencing enhancement; and second, that there is no\n\n\n 3 The omission of the term “ammunition” is particularly important considering that\nApplication Note 14(A)—directly preceding Note 14(B) and containing no presumption—uses\nthe term “firearm or ammunition,” indicating that the drafters purposefully excluded\nammunition from Note 14(B)’s presumption of facilitation.\n\n 7\n\f Case: 18-50379 Document: 00514823508 Page: 8 Date Filed: 02/05/2019\n\n\n\n No. 18-50379\npresumption of facilitation regarding the possession of only ammunition. Now\nwe apply these principles to this case.\n Stripped of a presumption of facilitation, the government must present\nfacts or circumstances demonstrating that the possession of ammunition\nfacilitated or had the potential to facilitate the other offense. 4 See Jeffries, 587\nF.3d at 692, 694–95 & n.9 (the “specific facts of th[e] case” must demonstrate\nthat the firearm or ammunition in question “emboldened” the offense or served\nto “protect” contraband to satisfy the “critical step” of establishing a “nexus\nbetween the firearm possession and the drug possession”). 5 Ammunition has\nthe potential to facilitate a trafficking operation when it is displayed or\nbrandished in a manner that has the potential to embolden the trafficker and\nprotect his operation by implying that he has a gun, thereby deterring buyers,\nco-conspirators, or competitors from taking adverse action.\n For ammunition to have such a deterrent effect to potential threats, it\nwould, inter alia, be necessary that it be in plain sight to purchasers or others\n\n\n 4 Indeed, in its brief, the government purports to agree in principle, saying:\n When the defendant possesses a firearm in close proximity to drugs,\n there is a presumption that the firearm has the potential to facilitate\n his drug trafficking offense. USSG § 2K2.1 (n.14(B)). This presumption\n likely does not apply when the defendant possesses only ammunition,\n in which case the district court must make an affirmative finding that\n the ammunition facilitated the drug trafficking offense. See United\n States v. Jeffries, 587 F.3d 690, 694 (5th Cir. 2009).\n 5 Despite conceding that there is no presumption of facilitation for ammunition alone,\nthe government spends much of its brief arguing that this court should adopt the Sixth\nCircuit’s rationale in United States v. Coleman, 627 F.3d 205 (6th Cir. 2010). There, the court\nheld that possession of ammunition alone facilitated a drug trafficking offense because the\nammunition “emboldened” the defendant “in the knowledge that he was one step closer to\nhaving a fully-loaded firearm to protect himself and his illegal drugs.” Id. at 212. This\nrationale establishes the functional equivalent of the presumption we have rejected above\nand we respectfully decline to import it into this circuit’s jurisprudence. See id. at 216\n(Gillman, J. concurring in part and dissenting in part) (“Many things could in theory put a\nperson ‘one step closer’ to having a firearm, such as applying for a firearms permit, having a\nholster, possessing a laser scope, or earning money to be able to purchase a weapon.”).\n\n 8\n\f Case: 18-50379 Document: 00514823508 Page: 9 Date Filed: 02/05/2019\n\n\n\n No. 18-50379\ninvolved in the trafficking. Turning to the facts of the present case, the PSR\nindicates that its only item of evidence to show facilitation is that the\nammunition was “easily accessible and stored in close proximity to the illegal\ndrugs.” The record does not demonstrate that the ammunition was kept in\nplain sight, either during the controlled purchase or at any other time. In\nshort, the government has pointed to no facts or circumstances that indicate\nthat Eaden possessed the ammunition “in connection with” his drug trafficking\noffense.\n IV.\n To sum up: we have held that possession of ammunition alone may,\nunder appropriate circumstances, be sufficient to show facilitation for purposes\nof § 2k2.1(b)(6)(B)’s four-level enhancement. But we have further held that\npossession of ammunition alone does not enjoy a presumption that it was\nconnected with a drug trafficking offense. In this context, to demonstrate\nfacilitation, the government must adduce facts tending to show that the\nammunition facilitated or had the potential to facilitate the drug trafficking\noffense. We have respectfully declined to adopt the Sixth Circuit’s path to\nshowing facilitation set out in Coleman for the reasons stated above. Because\nwe find that the record here shows that the government produced no facts\ntending to show that Eaden’s mere possession of ammunition alone was\nconnected with his drug trafficking activities, the application of\n§ 2k2.1(b)(6)(B)’s four-level enhancement was clear error. Accordingly, we\nVACATE the district court’s sentence and REMAND for resentencing not\ninconsistent with this opinion.\n VACATED AND REMANDED.\n\n\n\n\n 9\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee v. Milo EADEN, Defendant-Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-05\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-50379 Document: 00514823508 Page: 1 Date Filed: 02/05/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-50379 FILED\\n February 5, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nMILO EADEN,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore JOLLY, JONES, and DENNIS, Circuit Judges.\\nE. GRADY JOLLY, Circuit Judge:\\n The question of first impression presented in this sentencing appeal\\nconcerns the effect of a defendant’s possession of ammunition alone, as opposed\\nto a firearm, during a drug trafficking offense. Milo Eaden appeals his four-\\nlevel sentencing enhancement pursuant to U.S.S.G. § 2k2.1(b)(6)(B) for using\\nor possessing ammunition in connection with another felony offense. Eaden\\nargues that he did not possess the ammunition “in connection with” his felony\\ndrug trafficking activities. For the reasons that follow, we hold that the district\\ncourt clearly erred in imposing the enhancement under these facts. We\\ntherefore vacate Mr. Eaden’s sentence and remand for resentencing.\\n\\f Case: 18-50379 Document: 00514823508 Page: 2 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-50379\\n I.\\n Police officers executed a search warrant of Eaden’s home after making\\na controlled purchase of crack cocaine from Eaden at his residence. During\\ntheir search, the officers found 5.5 grams of crack cocaine and 19 rounds of\\nammunition. No firearm was found on Eaden’s person or in his home. The\\nammunition was “easily accessible and stored in close proximity to” the\\ncocaine. These words are the only description of how the ammunition was\\nconnected to the drug transaction. The record certainly does not indicate that\\nthe ammunition was in plain sight during the controlled purchase. Eaden\\nactually claimed that he found the ammunition in the dumpster behind his\\nhouse months earlier and brought it home. Eaden had previously been\\nconvicted, in 2003, of delivering cocaine in violation of Texas law and had been\\nsentenced to ten years in Texas prison for this felony offense. As to the present\\noffense, Eaden was charged in federal court with possession of ammunition as\\na felon and he pleaded guilty to this charge. We are now only concerned with\\nhis sentence as enhanced by his possession of the ammunition.\\n The Presentence Report (PSR) assigned a base offense level of fourteen,\\nadded a four-level enhancement pursuant to U.S.S.G. § 2k2.1(b)(6)(B) 1 for\\nusing or possessing the ammunition in connection with another felony offense,\\nand reduced by three levels for acceptance of responsibility, bringing his total\\noffense level to fifteen. Eaden objected to the four-level enhancement, arguing\\nthat his possession of ammunition was not connected with his drug trafficking\\nbecause the ammunition did not facilitate or have the potential to facilitate the\\n\\n\\n\\n\\n 1 U.S.S.G. § 2k2.1(b)(6)(B) reads in relevant part: “If the defendant . . . used or\\npossessed any firearm or ammunition in connection with another felony offense; . . . increase\\nby 4 levels.”\\n\\n 2\\n\\f Case: 18-50379 Document: 00514823508 Page: 3 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-50379\\ndrug trafficking offense nor was the possession of the ammunition and drug\\ntrafficking part of a common scheme or plan.\\n Noting the lack of Fifth Circuit precedent on this point, the PSR rejected\\nEaden’s objections by relying on the text of § 2k2.1(b)(6)(B), the provision’s\\napplication note, and the Sixth Circuit’s opinion in United States v. Coleman,\\n627 F.3d 205 (6th Cir. 2010). Following Coleman, the PSR extended the Sixth\\nCircuit’s “fortress theory”—which traditionally applies only to firearms—to\\nsituations where only ammunition is present. Thus, the PSR found that,\\nbecause the ammunition “potentially emboldened Eaden in the knowledge that\\nhe was one step closer to having a fully-loaded firearm to protect himself and\\nhis illegal drugs, and the ammunition potentially served as notice to potential\\nbuyers that he was one step closer to having a fully-loaded firearm,” the\\npossession alone was connected with the drug trafficking offense.\\n The PSR maintained its recommended final offense level of fifteen which,\\ncoupled with Eaden’s criminal history category of II, resulted in an advisory\\nguidelines range of twenty-one to twenty-seven months of imprisonment. Had\\nthe PSR sustained Eaden’s objection to the four-level enhancement, his total\\noffense level would have been eleven, carrying a guidelines range of ten to\\nsixteen months.\\n At his sentencing hearing, Eaden objected to the PSR’s imposition of the\\nfour-level enhancement for substantially the same reasons—possessing\\nammunition alone does not facilitate drug trafficking absent possession of a\\nfirearm. The government responded by resting on the PSR’s reasoning and\\nhad “no additional information it can provide.” The district court overruled\\nEaden’s objection because it found that his possession of the ammunition was\\n“part of the same course of conduct or common scheme or plan as the\\ndefendant’s possession of the ammunition facilitated or had the potential to\\n\\n\\n 3\\n\\f Case: 18-50379 Document: 00514823508 Page: 4 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-50379\\nfacilitate his drug trafficking crime offense.” Eaden now appeals the district\\ncourt’s application of § 2k2.1(b)(6)(B)’s four-level enhancement.\\n II.\\n On appeal, Eaden argues that the district court erred in holding that his\\npossession of ammunition was “in connection with” his drug trafficking\\nactivities. Although the application notes to the Guidelines provide for a\\npresumption of facilitation when a firearm is possessed in close proximity to a\\ndrug trafficking offense, Eaden contends that the presumption should not\\napply here because his possession of ammunition alone does not have the\\npotential to facilitate trafficking activities. The government argues that we\\nshould adopt the Sixth Circuit’s conclusion in Coleman and effectively hold\\nthat the possession of ammunition alone creates a presumption that it\\nfacilitates or potentially facilitates felony drug trafficking. The government\\nargues that the ammunition brought Eaden “one step closer to possessing a\\nfully-loaded firearm.” The government also argues that the ammunition\\nfacilitated the drug trafficking by serving to intimidate potential threats to his\\ntrafficking operation. Both parties acknowledge that we are presented with a\\nquestion of first impression in this circuit.\\n III.\\n This court reviews a district court’s interpretation or application of the\\nguidelines de novo and its factual findings for clear error. See United States v.\\nCisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The district court’s\\ndetermination of the relationship between ammunition and another offense is\\nmost usually a factual finding. See United States v. Coleman, 609 F.3d 699,\\n708 (5th Cir. 2010). “A factual finding is clearly erroneous when the reviewing\\ncourt on the entire evidence is left with the definite and firm conviction that a\\nmistake has been committed.” Id.\\n\\n\\n 4\\n\\f Case: 18-50379 Document: 00514823508 Page: 5 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-50379\\n This appeal presents three questions that we must address. First,\\nwhether possession of ammunition alone can facilitate drug trafficking for\\npurposes of U.S.S.G. § 2k2.1(b)(6)(B), a question of first impression in this\\ncircuit. Second, whether there is a presumption that the possession of\\nammunition alone facilitates a drug trafficking offense for purposes of U.S.S.G.\\n§ 2k2.1(b)(6)(B), again, a question of first impression in this circuit. Third, in\\nthe light of our answer to the first two questions, whether the four-level\\nenhancement was properly applied to Eaden.\\n A.\\n We first determine if U.S.S.G. § 2k2.1(b)(6)(B)’s four-level enhancement\\ncan be applied to a defendant who possessed only ammunition. Section\\n2k2.1(b)(6)(B) provides for a four-level enhancement if the defendant “used or\\npossessed any firearm or ammunition in connection with another felony\\noffense.” Application Note 14(A) provides that the term “in connection with”\\nmandates that “the firearm or ammunition facilitated, or had the potential of\\nfacilitating, another felony offense.”\\n We hold that possession of ammunition alone, under appropriate\\ncircumstances not present in this case, certainly may be sufficient for the four-\\nlevel enhancement. By using the disjunctive “or,” the guidelines plainly read\\nto allow for the enhancement when the defendant possesses a loaded gun, an\\nunloaded gun, or ammunition alone. That much is clear: ammunition alone\\ncan facilitate a drug offense. The more nuanced question will be under what\\ncircumstances and, absent a presumption, this question necessarily must be\\ndecided on a case by case basis.\\n B.\\n We now turn to the second question of first impression for this court:\\nwhether, as is true with a firearm, there is a presumption of facilitation when\\nammunition alone is present at the time of the drug trafficking offense; or\\n 5\\n\\f Case: 18-50379 Document: 00514823508 Page: 6 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-50379\\nwhether the district court must make an affirmative finding that Eaden’s\\nammunition facilitated his drug trafficking offense. 2\\n In the context of drug offenses, facilitation can be presumed when (1) a\\nfirearm was possessed (2) in close proximity to contraband during a drug\\ntrafficking offense. See, e.g., United States v. Anderson, 559 F.3d 348, 358 (5th\\nCir. 2009) (“When a loaded firearm is found in close physical proximity to\\nnarcotics, readily available to the defendant, a connection will usually be\\nfound.”). However, this presumption is only available when both conditions\\nare present—a firearm and a trafficking offense. This common sense rule is\\nsupported by the text of § 2k2.1(b)(6)(B), its Application Note, and our holding\\nin United States v. Jeffries, 587 F.3d 690 (5th Cir. 2009).\\n The text of § 2k2.1(b)(6)(B) states that the enhancement applies when\\nthe defendant (1) “used or possessed any firearm or ammunition” (2) “in\\nconnection with another felony offense.” As noted above, Application Note\\n14(A) clarifies that “in connection with” means “facilitated, or had the potential\\nof facilitating.” Therefore, for the enhancement to apply, the government must\\nshow evidence of both (1) possession of a firearm or ammunition and (2) that\\nthe firearm or ammunition facilitated or had the potential to facilitate the\\nother offense. Application Note 14(B) instructs us, however, that “in the case\\nof a drug trafficking offense in which a firearm is found in close proximity to\\ndrugs . . . application of subsection[] (b)(6)(B) is warranted because the\\npresence of a firearm has the potential of facilitating another felony offense.”\\nApplication Note 14(B)—addressed specifically to the drug trafficking\\n\\n\\n 2 In this circuit, there is a presumption of facilitation when the defendant possesses a\\nfirearm during a drug trafficking offense and no presumption of facilitation when the\\ndefendant possesses a firearm along with only user amounts of narcotics. See United States\\nv. Jeffries, 587 F.3d 690, 692–93 (5th Cir. 2009). Here we address a third situation—when\\nthe defendant possesses ammunition and no gun during a drug trafficking offense—and hold\\nthat there is no presumption.\\n\\n 6\\n\\f Case: 18-50379 Document: 00514823508 Page: 7 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-50379\\ncontext—states only that “the presence of the firearm” inherently “has the\\npotential of facilitating” and makes no reference to ammunition. 3 We see no\\nreason in the text of the Guideline, or its explanatory notes, to expand this\\npresumption beyond possession of a firearm during a drug trafficking offense.\\n The correctness of this holding is illustrated by our reasoning in Jeffries.\\nThere we considered whether the enhancement presumptively applied to a\\ndefendant who possessed a firearm during a drug possession offense. We noted\\nthat Application Note 14(B) instructs courts to apply the enhancement\\n“automatically” when a “firearm is found in close proximity to drugs” during a\\ntrafficking offense but when drug trafficking is not present, “no presumption\\nis made.” 587 F.3d at 692–93. Therefore, the Jeffries court declined to extend\\nApplication Note 14(B)’s presumption of facilitation to a nontrafficking offense.\\nSee id. at 694 (“[T]he nexus cannot simply be presumed, as appears to have\\nbeen the case here.”). Here, similarly, we see no rationale to extend the\\npresumption of facilitation to situations in which there is a drug transaction\\nbut no firearm—only ammunition. The text of Application Note 14(B) is\\nlimited—it only applies when both trafficking and a firearm are present.\\nEaden did not possess a firearm during his drug trafficking offense and, as in\\nJeffries, we see no reason to judicially expand the scope of Application Note\\n14(B)’s presumption of facilitation.\\n C.\\n Thus far we have held, first, that the possession of ammunition alone\\nmay be connected with a drug trafficking offense, qualifying a defendant for\\nthe four-level sentencing enhancement; and second, that there is no\\n\\n\\n 3 The omission of the term “ammunition” is particularly important considering that\\nApplication Note 14(A)—directly preceding Note 14(B) and containing no presumption—uses\\nthe term “firearm or ammunition,” indicating that the drafters purposefully excluded\\nammunition from Note 14(B)’s presumption of facilitation.\\n\\n 7\\n\\f Case: 18-50379 Document: 00514823508 Page: 8 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-50379\\npresumption of facilitation regarding the possession of only ammunition. Now\\nwe apply these principles to this case.\\n Stripped of a presumption of facilitation, the government must present\\nfacts or circumstances demonstrating that the possession of ammunition\\nfacilitated or had the potential to facilitate the other offense. 4 See Jeffries, 587\\nF.3d at 692, 694–95 & n.9 (the “specific facts of th[e] case” must demonstrate\\nthat the firearm or ammunition in question “emboldened” the offense or served\\nto “protect” contraband to satisfy the “critical step” of establishing a “nexus\\nbetween the firearm possession and the drug possession”). 5 Ammunition has\\nthe potential to facilitate a trafficking operation when it is displayed or\\nbrandished in a manner that has the potential to embolden the trafficker and\\nprotect his operation by implying that he has a gun, thereby deterring buyers,\\nco-conspirators, or competitors from taking adverse action.\\n For ammunition to have such a deterrent effect to potential threats, it\\nwould, inter alia, be necessary that it be in plain sight to purchasers or others\\n\\n\\n 4 Indeed, in its brief, the government purports to agree in principle, saying:\\n When the defendant possesses a firearm in close proximity to drugs,\\n there is a presumption that the firearm has the potential to facilitate\\n his drug trafficking offense. USSG § 2K2.1 (n.14(B)). This presumption\\n likely does not apply when the defendant possesses only ammunition,\\n in which case the district court must make an affirmative finding that\\n the ammunition facilitated the drug trafficking offense. See United\\n States v. Jeffries, 587 F.3d 690, 694 (5th Cir. 2009).\\n 5 Despite conceding that there is no presumption of facilitation for ammunition alone,\\nthe government spends much of its brief arguing that this court should adopt the Sixth\\nCircuit’s rationale in United States v. Coleman, 627 F.3d 205 (6th Cir. 2010). There, the court\\nheld that possession of ammunition alone facilitated a drug trafficking offense because the\\nammunition “emboldened” the defendant “in the knowledge that he was one step closer to\\nhaving a fully-loaded firearm to protect himself and his illegal drugs.” Id. at 212. This\\nrationale establishes the functional equivalent of the presumption we have rejected above\\nand we respectfully decline to import it into this circuit’s jurisprudence. See id. at 216\\n(Gillman, J. concurring in part and dissenting in part) (“Many things could in theory put a\\nperson ‘one step closer’ to having a firearm, such as applying for a firearms permit, having a\\nholster, possessing a laser scope, or earning money to be able to purchase a weapon.”).\\n\\n 8\\n\\f Case: 18-50379 Document: 00514823508 Page: 9 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-50379\\ninvolved in the trafficking. Turning to the facts of the present case, the PSR\\nindicates that its only item of evidence to show facilitation is that the\\nammunition was “easily accessible and stored in close proximity to the illegal\\ndrugs.” The record does not demonstrate that the ammunition was kept in\\nplain sight, either during the controlled purchase or at any other time. In\\nshort, the government has pointed to no facts or circumstances that indicate\\nthat Eaden possessed the ammunition “in connection with” his drug trafficking\\noffense.\\n IV.\\n To sum up: we have held that possession of ammunition alone may,\\nunder appropriate circumstances, be sufficient to show facilitation for purposes\\nof § 2k2.1(b)(6)(B)’s four-level enhancement. But we have further held that\\npossession of ammunition alone does not enjoy a presumption that it was\\nconnected with a drug trafficking offense. In this context, to demonstrate\\nfacilitation, the government must adduce facts tending to show that the\\nammunition facilitated or had the potential to facilitate the drug trafficking\\noffense. We have respectfully declined to adopt the Sixth Circuit’s path to\\nshowing facilitation set out in Coleman for the reasons stated above. Because\\nwe find that the record here shows that the government produced no facts\\ntending to show that Eaden’s mere possession of ammunition alone was\\nconnected with his drug trafficking activities, the application of\\n§ 2k2.1(b)(6)(B)’s four-level enhancement was clear error. Accordingly, we\\nVACATE the district court’s sentence and REMAND for resentencing not\\ninconsistent with this opinion.\\n VACATED AND REMANDED.\\n\\n\\n\\n\\n 9\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":586,"cells":{"id":{"kind":"number","value":4587643,"string":"4,587,643"},"name":{"kind":"string","value":"Steve Vic PARKER, Also Known as Jerry Wilson, Petitioner-Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee"},"name_abbreviation":{"kind":"string","value":"Steve Parker v. Lorie Davis, Director"},"decision_date":{"kind":"string","value":"2019-02-05"},"docket_number":{"kind":"string","value":"15-20451"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"King, Higginson, Costa\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"Case: 15-20451 Document: 00514823639 Page: 1 Date Filed: 02/05/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 15-20451 February 5, 2019\\n Lyle W. Cayce\\nSTEVE VIC PARKER, also known as Jerry Wilson, Clerk\\n\\n\\n Petitioner - Appellant\\n\\nv.\\n\\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\\n\\n Respondent - Appellee\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore KING, HIGGINSON, and COSTA, Circuit Judges.\\nPER CURIAM:\\n Steve Vic Parker appeals the district court’s dismissal of his habeas\\npetition as successive. Because we find that Parker’s previous habeas petition\\nchallenged a judgment distinct from the one he challenges in the present\\nhabeas petition, we REVERSE and REMAND.\\n I.\\n In 1991, Steve Vic Parker 1 was convicted in a Texas state court of\\nunauthorized use of a motor vehicle (“UUMV”) and sentenced to 20 years in\\n\\n\\n 1 Parker has in various proceedings been referred to as “Jerry Wilson,” his alias.\\nBecause it does not affect the issues on appeal, we use the name “Parker” throughout this\\nopinion.\\n\\f Case: 15-20451 Document: 00514823639 Page: 2 Date Filed: 02/05/2019\\n\\n\\n\\n No. 15-20451\\nthe custody of the Texas Department of Criminal Justice (“TDCJ”) with a\\nmaximum discharge date of March 17, 2016. In the years that followed, Parker\\nwas released to mandatory supervision and returned to prison several times,\\nalthough the record does not reflect that he was convicted of any crimes during\\nthis time period. That is, until 2010, when, while on mandatory supervision,\\nParker was convicted of two counts of theft of less than $1,500, for which he\\nreceived two seven-year sentences to run consecutively with the 20-year\\nUUMV sentence. 2 Following his 2010 conviction, his mandatory supervision on\\nhis 1991 UUMV conviction and sentence was revoked and he returned to\\nprison.\\n In April 2013, Parker filed a 28 U.S.C. § 2254 application (“2013 habeas\\npetition”) arguing that he had accumulated enough time on his 20-year\\nsentence for it to expire and his new seven-year sentence to begin. 3 He also\\nargued that the State violated the Ex Post Facto Clause by refusing to release\\nhim from custody for the 20-year sentence. The district court, considering only\\nParker’s Ex Post Facto argument, concluded that TDCJ’s calculation of his\\nsentence did not violate the Ex Post Facto Clause. It therefore dismissed the\\npetition with prejudice and denied a certificate of appealability (“COA”). This\\ncourt dismissed Parker’s untimely appeal.\\n Shortly after Parker filed his 2013 habeas petition, TDCJ incorrectly\\nrecalculated Parker’s sentence to reflect the seven-year sentences as running\\nconcurrently with the 20-year sentence, rather than consecutively, and\\nreleased Parker to mandatory supervision. Roughly three months later, TDCJ\\n\\n\\n\\n\\n 2 Although not entirely clear from the record, it appears that the two seven-year\\nsentences were to run concurrently with one another.\\n 3 The parties dispute the precise judgment or judgments challenged by Parker’s 2013\\n\\nhabeas petition. We discuss the matter in detail below.\\n 2\\n\\f Case: 15-20451 Document: 00514823639 Page: 3 Date Filed: 02/05/2019\\n\\n\\n\\n No. 15-20451\\ncorrected this error and returned Parker to TDCJ custody via an erroneous-\\nrelease warrant.\\n In 2015, Parker filed the instant habeas petition. The main thrust of\\nParker’s argument was that (1) his two seven-year sentences should have\\nstarted as soon as he returned to prison in 2010 and (for reasons unclear) both\\nhis seven-year sentences had ceased to operate or were otherwise void under\\nvarious clauses of the U.S. Constitution; and (2) his rearrest and reprocessing\\nin 2013, as well as the circumstances surrounding them, violated his right to\\ndue process under the Fourteenth Amendment. Upon TDCJ’s motion for\\nsummary judgment, the district court determined that Parker’s petition was\\nsuccessive and thus required authorization from this court to proceed. The\\ncourt therefore granted TDCJ’s motion for summary judgment and dismissed\\nParker’s petition without prejudice. It also denied a COA. This court thereafter\\ngranted a COA on the issue of “whether Parker’s § 2254 application was\\nsuccessive as to the judgments underlying the seven-year theft sentences.”\\nAfter the COA had been granted and briefing submitted in this appeal, this\\ncourt discovered, and TDCJ confirmed, that Parker had been released to\\nmandatory supervision on his 2010 theft convictions and sentences.\\n II.\\n The district court dismissed Parker’s challenge to his seven-year\\nsentences because it determined that his petition was successive. The\\nAntiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires\\nauthorization from the court of appeals before a habeas petitioner may file an\\napplication that is “second or successive.” 28 U.S.C. § 2244(b)(3). If a second or\\nsuccessive application is filed in a district court without authorization by the\\ncourt of appeals, the district court must dismiss the application. Magwood v.\\nPatterson, 561 U.S. 320, 331 (2010). An application “is not second or successive\\nsimply because it follows an earlier federal petition.” Crone v. Cockrell, 324\\n 3\\n\\f Case: 15-20451 Document: 00514823639 Page: 4 Date Filed: 02/05/2019\\n\\n\\n\\n No. 15-20451\\nF.3d 833, 836 (5th Cir. 2003) (quoting In re Cain, 137 F.3d 234, 235 (5th Cir.\\n1998)). The Supreme Court has explained that “the phrase ‘second or\\nsuccessive’ must be interpreted with respect to the judgment challenged,”\\nrather than the stretch of confinement being served by the petitioner.\\nMagwood, 561 U.S. at 332-33.\\n The parties do not dispute that Parker’s current petition challenges his\\ntwo seven-year sentences. The State argues that the current petition is\\nsuccessive because Parker’s 2013 petition challenged both his 20-year sentence\\nand his two seven-year sentences. Specifically, the State characterizes Parker’s\\n2013 petition as challenging “the stacking order in his seven-year theft\\nsentences.” As the State acknowledges, this analysis is somewhat complicated\\nby the convoluted nature of Parker’s pleadings. Opaque as his pleadings may\\nbe though, the State’s characterization of Parker’s 2013 petition misses the\\nmark. Parker’s 2013 petition contended that his 20-year sentence had expired\\nby the time he filed the petition. 4 Although Parker acknowledges the existence\\nof the 2010 convictions in this 2013 petition, nowhere therein can we discern\\nanything resembling a challenge to the validity of those convictions or the\\nstacking order making the seven-year sentences run consecutively with the 20-\\nyear sentence. Moreover, since we are bound to accord pro se habeas petitions\\nliberal treatment, we will not strain to find a stray pleading of Parker’s to use\\nagainst him. See, e.g., Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th Cir. 1988).\\nAccordingly, we understand Parker’s 2013 petition to challenge only his 20-\\nyear sentence; his current petition challenging his seven-year sentences\\nconcerns a new judgment and is therefore not successive.\\n\\n\\n\\n\\n 4 In relevant part, his 2013 petition states: “The appl. has surpassed the maximum\\nterm of his (20) twenty year sentence under this cause that he is currently serving. In direct\\nviolation of the Ex Post Facto Clause and Due Process of Law.”\\n 4\\n\\f Case: 15-20451 Document: 00514823639 Page: 5 Date Filed: 02/05/2019\\n\\n\\n\\n No. 15-20451\\n This conclusion is not altered by the fact that, as the district court noted,\\nParker “knew the facts necessary to challenge the administration of his\\nconsecutive sentences before he filed his previous federal petition in 2013.” We\\nhave previously considered, and rejected, this approach to successiveness\\nwhere separate judgments are challenged. In Hardemon v. Quarterman, 516\\nF.3d 272 (5th Cir. 2008), the petitioner had been charged in separate\\nindictments of one count of sexual assault of a child and two counts of\\naggravated sexual assault of a child. Id. at 273. He was convicted on all three\\ncounts and given separate sentences for each. Id. In his first federal petition,\\nHardemon challenged his conviction for sexual assault of a child, which the\\ndistrict court rejected on the merits. Id. at 274. In his second petition, he\\nchallenged his conviction of one of the counts of aggravated sexual assault of a\\nchild—undisputedly a separate judgment. Id. The district court rejected the\\npetition as successive and Hardemon appealed. Id.\\n On appeal, we framed the question presented as “whether the\\nprohibition against successive § 2254 petitions requires a prisoner to challenge\\nall judgments from a single court in a single habeas petition.” Id. at 273. Prior\\nto that case, we had held that a habeas petitioner’s second petition was\\nsuccessive because he “knew of all of the facts necessary to raise [the claim\\nraised in his second petition] before he filed his initial federal petition.” Crone,\\n324 F.3d at 837. Seizing on this language, the State in Hardemon argued on\\nappeal that Hardemon’s petition was similarly successive because he knew the\\nfacts necessary to challenge his conviction of aggravated sexual assault of a\\nchild at the time he filed his first petition. 516 F.3d at 275. We rejected this\\nargument, finding that the principle espoused in Crone was inapplicable to\\nHardemon’s case because Crone involved separate petitions challenging the\\nsame judgment. Id. We then concluded that “Hardemon was permitted, but not\\nrequired, to challenge his separate convictions in a single § 2254 petition.” Id.\\n 5\\n\\f Case: 15-20451 Document: 00514823639 Page: 6 Date Filed: 02/05/2019\\n\\n\\n\\n No. 15-20451\\nat 276. Here, as discussed, Parker’s current petition and his 2013 petition\\nchallenge different judgments. The district court therefore erred in concluding\\nthat Parker’s challenge to his 2010 sentence was successive.\\n The remainder of Parker’s claims relate to events that took place after\\nhis 2013 release and rearrest. The district court did not consider these claims\\nin its dismissal of Parker’s petition. Roughly speaking, Parker argues that he\\nwas owed a hearing following his rearrest and that the denial of such a hearing\\nviolated his due-process rights. The State argues that these claims are now\\nmoot because “the only remedy for [such] claims is re-release to mandatory\\nsupervision”—i.e., putting Parker in precisely the position he is in right now.\\n We need not reach the question of mootness, however, for our jurisdiction\\nis otherwise lacking. A COA in this case was granted only as to the\\nsuccessiveness of Parker’s challenge to his seven-year sentence, not his due-\\nprocess challenge related to the circumstances surrounding his rearrest. This\\ncourt has jurisdiction to consider only the issues specified in a COA. See 28\\nU.S.C. § 2253(c)(1)(A); Sixta v. Thaler, 615 F.3d 569, 573 (5th Cir. 2010).\\nParker has not asked this court to expand the scope of the already-granted\\nCOA, and in his prior request to this court for a COA, Parker did not in any\\nway allude to the due-process issues he now raises in his briefing. He has\\ntherefore waived any request for a COA on that issue, and we are without\\njurisdiction to consider his remaining claims. Hughes v. Johnson, 191 F.3d 607,\\n613 (5th Cir. 1999) (“Issues not raised in the brief filed in support of [a] COA\\napplication are waived”).\\n III.\\n For the foregoing reasons, we REVERSE the judgment of the district\\ncourt and REMAND for proceedings consistent with this opinion.\\n\\n\\n\\n\\n 6\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4364896/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"KING"},"judge2":{"kind":"string","value":"HIGGINSON"},"judge3":{"kind":"string","value":"COSTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4587643/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Steve Vic PARKER, Also Known as Jerry Wilson, Petitioner-Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-05\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 15-20451 Document: 00514823639 Page: 1 Date Filed: 02/05/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 15-20451 February 5, 2019\n Lyle W. Cayce\nSTEVE VIC PARKER, also known as Jerry Wilson, Clerk\n\n\n Petitioner - Appellant\n\nv.\n\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\n\n Respondent - Appellee\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore KING, HIGGINSON, and COSTA, Circuit Judges.\nPER CURIAM:\n Steve Vic Parker appeals the district court’s dismissal of his habeas\npetition as successive. Because we find that Parker’s previous habeas petition\nchallenged a judgment distinct from the one he challenges in the present\nhabeas petition, we REVERSE and REMAND.\n I.\n In 1991, Steve Vic Parker 1 was convicted in a Texas state court of\nunauthorized use of a motor vehicle (“UUMV”) and sentenced to 20 years in\n\n\n 1 Parker has in various proceedings been referred to as “Jerry Wilson,” his alias.\nBecause it does not affect the issues on appeal, we use the name “Parker” throughout this\nopinion.\n\f Case: 15-20451 Document: 00514823639 Page: 2 Date Filed: 02/05/2019\n\n\n\n No. 15-20451\nthe custody of the Texas Department of Criminal Justice (“TDCJ”) with a\nmaximum discharge date of March 17, 2016. In the years that followed, Parker\nwas released to mandatory supervision and returned to prison several times,\nalthough the record does not reflect that he was convicted of any crimes during\nthis time period. That is, until 2010, when, while on mandatory supervision,\nParker was convicted of two counts of theft of less than $1,500, for which he\nreceived two seven-year sentences to run consecutively with the 20-year\nUUMV sentence. 2 Following his 2010 conviction, his mandatory supervision on\nhis 1991 UUMV conviction and sentence was revoked and he returned to\nprison.\n In April 2013, Parker filed a 28 U.S.C. § 2254 application (“2013 habeas\npetition”) arguing that he had accumulated enough time on his 20-year\nsentence for it to expire and his new seven-year sentence to begin. 3 He also\nargued that the State violated the Ex Post Facto Clause by refusing to release\nhim from custody for the 20-year sentence. The district court, considering only\nParker’s Ex Post Facto argument, concluded that TDCJ’s calculation of his\nsentence did not violate the Ex Post Facto Clause. It therefore dismissed the\npetition with prejudice and denied a certificate of appealability (“COA”). This\ncourt dismissed Parker’s untimely appeal.\n Shortly after Parker filed his 2013 habeas petition, TDCJ incorrectly\nrecalculated Parker’s sentence to reflect the seven-year sentences as running\nconcurrently with the 20-year sentence, rather than consecutively, and\nreleased Parker to mandatory supervision. Roughly three months later, TDCJ\n\n\n\n\n 2 Although not entirely clear from the record, it appears that the two seven-year\nsentences were to run concurrently with one another.\n 3 The parties dispute the precise judgment or judgments challenged by Parker’s 2013\n\nhabeas petition. We discuss the matter in detail below.\n 2\n\f Case: 15-20451 Document: 00514823639 Page: 3 Date Filed: 02/05/2019\n\n\n\n No. 15-20451\ncorrected this error and returned Parker to TDCJ custody via an erroneous-\nrelease warrant.\n In 2015, Parker filed the instant habeas petition. The main thrust of\nParker’s argument was that (1) his two seven-year sentences should have\nstarted as soon as he returned to prison in 2010 and (for reasons unclear) both\nhis seven-year sentences had ceased to operate or were otherwise void under\nvarious clauses of the U.S. Constitution; and (2) his rearrest and reprocessing\nin 2013, as well as the circumstances surrounding them, violated his right to\ndue process under the Fourteenth Amendment. Upon TDCJ’s motion for\nsummary judgment, the district court determined that Parker’s petition was\nsuccessive and thus required authorization from this court to proceed. The\ncourt therefore granted TDCJ’s motion for summary judgment and dismissed\nParker’s petition without prejudice. It also denied a COA. This court thereafter\ngranted a COA on the issue of “whether Parker’s § 2254 application was\nsuccessive as to the judgments underlying the seven-year theft sentences.”\nAfter the COA had been granted and briefing submitted in this appeal, this\ncourt discovered, and TDCJ confirmed, that Parker had been released to\nmandatory supervision on his 2010 theft convictions and sentences.\n II.\n The district court dismissed Parker’s challenge to his seven-year\nsentences because it determined that his petition was successive. The\nAntiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires\nauthorization from the court of appeals before a habeas petitioner may file an\napplication that is “second or successive.” 28 U.S.C. § 2244(b)(3). If a second or\nsuccessive application is filed in a district court without authorization by the\ncourt of appeals, the district court must dismiss the application. Magwood v.\nPatterson, 561 U.S. 320, 331 (2010). An application “is not second or successive\nsimply because it follows an earlier federal petition.” Crone v. Cockrell, 324\n 3\n\f Case: 15-20451 Document: 00514823639 Page: 4 Date Filed: 02/05/2019\n\n\n\n No. 15-20451\nF.3d 833, 836 (5th Cir. 2003) (quoting In re Cain, 137 F.3d 234, 235 (5th Cir.\n1998)). The Supreme Court has explained that “the phrase ‘second or\nsuccessive’ must be interpreted with respect to the judgment challenged,”\nrather than the stretch of confinement being served by the petitioner.\nMagwood, 561 U.S. at 332-33.\n The parties do not dispute that Parker’s current petition challenges his\ntwo seven-year sentences. The State argues that the current petition is\nsuccessive because Parker’s 2013 petition challenged both his 20-year sentence\nand his two seven-year sentences. Specifically, the State characterizes Parker’s\n2013 petition as challenging “the stacking order in his seven-year theft\nsentences.” As the State acknowledges, this analysis is somewhat complicated\nby the convoluted nature of Parker’s pleadings. Opaque as his pleadings may\nbe though, the State’s characterization of Parker’s 2013 petition misses the\nmark. Parker’s 2013 petition contended that his 20-year sentence had expired\nby the time he filed the petition. 4 Although Parker acknowledges the existence\nof the 2010 convictions in this 2013 petition, nowhere therein can we discern\nanything resembling a challenge to the validity of those convictions or the\nstacking order making the seven-year sentences run consecutively with the 20-\nyear sentence. Moreover, since we are bound to accord pro se habeas petitions\nliberal treatment, we will not strain to find a stray pleading of Parker’s to use\nagainst him. See, e.g., Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th Cir. 1988).\nAccordingly, we understand Parker’s 2013 petition to challenge only his 20-\nyear sentence; his current petition challenging his seven-year sentences\nconcerns a new judgment and is therefore not successive.\n\n\n\n\n 4 In relevant part, his 2013 petition states: “The appl. has surpassed the maximum\nterm of his (20) twenty year sentence under this cause that he is currently serving. In direct\nviolation of the Ex Post Facto Clause and Due Process of Law.”\n 4\n\f Case: 15-20451 Document: 00514823639 Page: 5 Date Filed: 02/05/2019\n\n\n\n No. 15-20451\n This conclusion is not altered by the fact that, as the district court noted,\nParker “knew the facts necessary to challenge the administration of his\nconsecutive sentences before he filed his previous federal petition in 2013.” We\nhave previously considered, and rejected, this approach to successiveness\nwhere separate judgments are challenged. In Hardemon v. Quarterman, 516\nF.3d 272 (5th Cir. 2008), the petitioner had been charged in separate\nindictments of one count of sexual assault of a child and two counts of\naggravated sexual assault of a child. Id. at 273. He was convicted on all three\ncounts and given separate sentences for each. Id. In his first federal petition,\nHardemon challenged his conviction for sexual assault of a child, which the\ndistrict court rejected on the merits. Id. at 274. In his second petition, he\nchallenged his conviction of one of the counts of aggravated sexual assault of a\nchild—undisputedly a separate judgment. Id. The district court rejected the\npetition as successive and Hardemon appealed. Id.\n On appeal, we framed the question presented as “whether the\nprohibition against successive § 2254 petitions requires a prisoner to challenge\nall judgments from a single court in a single habeas petition.” Id. at 273. Prior\nto that case, we had held that a habeas petitioner’s second petition was\nsuccessive because he “knew of all of the facts necessary to raise [the claim\nraised in his second petition] before he filed his initial federal petition.” Crone,\n324 F.3d at 837. Seizing on this language, the State in Hardemon argued on\nappeal that Hardemon’s petition was similarly successive because he knew the\nfacts necessary to challenge his conviction of aggravated sexual assault of a\nchild at the time he filed his first petition. 516 F.3d at 275. We rejected this\nargument, finding that the principle espoused in Crone was inapplicable to\nHardemon’s case because Crone involved separate petitions challenging the\nsame judgment. Id. We then concluded that “Hardemon was permitted, but not\nrequired, to challenge his separate convictions in a single § 2254 petition.” Id.\n 5\n\f Case: 15-20451 Document: 00514823639 Page: 6 Date Filed: 02/05/2019\n\n\n\n No. 15-20451\nat 276. Here, as discussed, Parker’s current petition and his 2013 petition\nchallenge different judgments. The district court therefore erred in concluding\nthat Parker’s challenge to his 2010 sentence was successive.\n The remainder of Parker’s claims relate to events that took place after\nhis 2013 release and rearrest. The district court did not consider these claims\nin its dismissal of Parker’s petition. Roughly speaking, Parker argues that he\nwas owed a hearing following his rearrest and that the denial of such a hearing\nviolated his due-process rights. The State argues that these claims are now\nmoot because “the only remedy for [such] claims is re-release to mandatory\nsupervision”—i.e., putting Parker in precisely the position he is in right now.\n We need not reach the question of mootness, however, for our jurisdiction\nis otherwise lacking. A COA in this case was granted only as to the\nsuccessiveness of Parker’s challenge to his seven-year sentence, not his due-\nprocess challenge related to the circumstances surrounding his rearrest. This\ncourt has jurisdiction to consider only the issues specified in a COA. See 28\nU.S.C. § 2253(c)(1)(A); Sixta v. Thaler, 615 F.3d 569, 573 (5th Cir. 2010).\nParker has not asked this court to expand the scope of the already-granted\nCOA, and in his prior request to this court for a COA, Parker did not in any\nway allude to the due-process issues he now raises in his briefing. He has\ntherefore waived any request for a COA on that issue, and we are without\njurisdiction to consider his remaining claims. Hughes v. Johnson, 191 F.3d 607,\n613 (5th Cir. 1999) (“Issues not raised in the brief filed in support of [a] COA\napplication are waived”).\n III.\n For the foregoing reasons, we REVERSE the judgment of the district\ncourt and REMAND for proceedings consistent with this opinion.\n\n\n\n\n 6\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Steve Vic PARKER, Also Known as Jerry Wilson, Petitioner-Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-05\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 15-20451 Document: 00514823639 Page: 1 Date Filed: 02/05/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 15-20451 February 5, 2019\\n Lyle W. Cayce\\nSTEVE VIC PARKER, also known as Jerry Wilson, Clerk\\n\\n\\n Petitioner - Appellant\\n\\nv.\\n\\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\\n\\n Respondent - Appellee\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore KING, HIGGINSON, and COSTA, Circuit Judges.\\nPER CURIAM:\\n Steve Vic Parker appeals the district court’s dismissal of his habeas\\npetition as successive. Because we find that Parker’s previous habeas petition\\nchallenged a judgment distinct from the one he challenges in the present\\nhabeas petition, we REVERSE and REMAND.\\n I.\\n In 1991, Steve Vic Parker 1 was convicted in a Texas state court of\\nunauthorized use of a motor vehicle (“UUMV”) and sentenced to 20 years in\\n\\n\\n 1 Parker has in various proceedings been referred to as “Jerry Wilson,” his alias.\\nBecause it does not affect the issues on appeal, we use the name “Parker” throughout this\\nopinion.\\n\\f Case: 15-20451 Document: 00514823639 Page: 2 Date Filed: 02/05/2019\\n\\n\\n\\n No. 15-20451\\nthe custody of the Texas Department of Criminal Justice (“TDCJ”) with a\\nmaximum discharge date of March 17, 2016. In the years that followed, Parker\\nwas released to mandatory supervision and returned to prison several times,\\nalthough the record does not reflect that he was convicted of any crimes during\\nthis time period. That is, until 2010, when, while on mandatory supervision,\\nParker was convicted of two counts of theft of less than $1,500, for which he\\nreceived two seven-year sentences to run consecutively with the 20-year\\nUUMV sentence. 2 Following his 2010 conviction, his mandatory supervision on\\nhis 1991 UUMV conviction and sentence was revoked and he returned to\\nprison.\\n In April 2013, Parker filed a 28 U.S.C. § 2254 application (“2013 habeas\\npetition”) arguing that he had accumulated enough time on his 20-year\\nsentence for it to expire and his new seven-year sentence to begin. 3 He also\\nargued that the State violated the Ex Post Facto Clause by refusing to release\\nhim from custody for the 20-year sentence. The district court, considering only\\nParker’s Ex Post Facto argument, concluded that TDCJ’s calculation of his\\nsentence did not violate the Ex Post Facto Clause. It therefore dismissed the\\npetition with prejudice and denied a certificate of appealability (“COA”). This\\ncourt dismissed Parker’s untimely appeal.\\n Shortly after Parker filed his 2013 habeas petition, TDCJ incorrectly\\nrecalculated Parker’s sentence to reflect the seven-year sentences as running\\nconcurrently with the 20-year sentence, rather than consecutively, and\\nreleased Parker to mandatory supervision. Roughly three months later, TDCJ\\n\\n\\n\\n\\n 2 Although not entirely clear from the record, it appears that the two seven-year\\nsentences were to run concurrently with one another.\\n 3 The parties dispute the precise judgment or judgments challenged by Parker’s 2013\\n\\nhabeas petition. We discuss the matter in detail below.\\n 2\\n\\f Case: 15-20451 Document: 00514823639 Page: 3 Date Filed: 02/05/2019\\n\\n\\n\\n No. 15-20451\\ncorrected this error and returned Parker to TDCJ custody via an erroneous-\\nrelease warrant.\\n In 2015, Parker filed the instant habeas petition. The main thrust of\\nParker’s argument was that (1) his two seven-year sentences should have\\nstarted as soon as he returned to prison in 2010 and (for reasons unclear) both\\nhis seven-year sentences had ceased to operate or were otherwise void under\\nvarious clauses of the U.S. Constitution; and (2) his rearrest and reprocessing\\nin 2013, as well as the circumstances surrounding them, violated his right to\\ndue process under the Fourteenth Amendment. Upon TDCJ’s motion for\\nsummary judgment, the district court determined that Parker’s petition was\\nsuccessive and thus required authorization from this court to proceed. The\\ncourt therefore granted TDCJ’s motion for summary judgment and dismissed\\nParker’s petition without prejudice. It also denied a COA. This court thereafter\\ngranted a COA on the issue of “whether Parker’s § 2254 application was\\nsuccessive as to the judgments underlying the seven-year theft sentences.”\\nAfter the COA had been granted and briefing submitted in this appeal, this\\ncourt discovered, and TDCJ confirmed, that Parker had been released to\\nmandatory supervision on his 2010 theft convictions and sentences.\\n II.\\n The district court dismissed Parker’s challenge to his seven-year\\nsentences because it determined that his petition was successive. The\\nAntiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires\\nauthorization from the court of appeals before a habeas petitioner may file an\\napplication that is “second or successive.” 28 U.S.C. § 2244(b)(3). If a second or\\nsuccessive application is filed in a district court without authorization by the\\ncourt of appeals, the district court must dismiss the application. Magwood v.\\nPatterson, 561 U.S. 320, 331 (2010). An application “is not second or successive\\nsimply because it follows an earlier federal petition.” Crone v. Cockrell, 324\\n 3\\n\\f Case: 15-20451 Document: 00514823639 Page: 4 Date Filed: 02/05/2019\\n\\n\\n\\n No. 15-20451\\nF.3d 833, 836 (5th Cir. 2003) (quoting In re Cain, 137 F.3d 234, 235 (5th Cir.\\n1998)). The Supreme Court has explained that “the phrase ‘second or\\nsuccessive’ must be interpreted with respect to the judgment challenged,”\\nrather than the stretch of confinement being served by the petitioner.\\nMagwood, 561 U.S. at 332-33.\\n The parties do not dispute that Parker’s current petition challenges his\\ntwo seven-year sentences. The State argues that the current petition is\\nsuccessive because Parker’s 2013 petition challenged both his 20-year sentence\\nand his two seven-year sentences. Specifically, the State characterizes Parker’s\\n2013 petition as challenging “the stacking order in his seven-year theft\\nsentences.” As the State acknowledges, this analysis is somewhat complicated\\nby the convoluted nature of Parker’s pleadings. Opaque as his pleadings may\\nbe though, the State’s characterization of Parker’s 2013 petition misses the\\nmark. Parker’s 2013 petition contended that his 20-year sentence had expired\\nby the time he filed the petition. 4 Although Parker acknowledges the existence\\nof the 2010 convictions in this 2013 petition, nowhere therein can we discern\\nanything resembling a challenge to the validity of those convictions or the\\nstacking order making the seven-year sentences run consecutively with the 20-\\nyear sentence. Moreover, since we are bound to accord pro se habeas petitions\\nliberal treatment, we will not strain to find a stray pleading of Parker’s to use\\nagainst him. See, e.g., Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th Cir. 1988).\\nAccordingly, we understand Parker’s 2013 petition to challenge only his 20-\\nyear sentence; his current petition challenging his seven-year sentences\\nconcerns a new judgment and is therefore not successive.\\n\\n\\n\\n\\n 4 In relevant part, his 2013 petition states: “The appl. has surpassed the maximum\\nterm of his (20) twenty year sentence under this cause that he is currently serving. In direct\\nviolation of the Ex Post Facto Clause and Due Process of Law.”\\n 4\\n\\f Case: 15-20451 Document: 00514823639 Page: 5 Date Filed: 02/05/2019\\n\\n\\n\\n No. 15-20451\\n This conclusion is not altered by the fact that, as the district court noted,\\nParker “knew the facts necessary to challenge the administration of his\\nconsecutive sentences before he filed his previous federal petition in 2013.” We\\nhave previously considered, and rejected, this approach to successiveness\\nwhere separate judgments are challenged. In Hardemon v. Quarterman, 516\\nF.3d 272 (5th Cir. 2008), the petitioner had been charged in separate\\nindictments of one count of sexual assault of a child and two counts of\\naggravated sexual assault of a child. Id. at 273. He was convicted on all three\\ncounts and given separate sentences for each. Id. In his first federal petition,\\nHardemon challenged his conviction for sexual assault of a child, which the\\ndistrict court rejected on the merits. Id. at 274. In his second petition, he\\nchallenged his conviction of one of the counts of aggravated sexual assault of a\\nchild—undisputedly a separate judgment. Id. The district court rejected the\\npetition as successive and Hardemon appealed. Id.\\n On appeal, we framed the question presented as “whether the\\nprohibition against successive § 2254 petitions requires a prisoner to challenge\\nall judgments from a single court in a single habeas petition.” Id. at 273. Prior\\nto that case, we had held that a habeas petitioner’s second petition was\\nsuccessive because he “knew of all of the facts necessary to raise [the claim\\nraised in his second petition] before he filed his initial federal petition.” Crone,\\n324 F.3d at 837. Seizing on this language, the State in Hardemon argued on\\nappeal that Hardemon’s petition was similarly successive because he knew the\\nfacts necessary to challenge his conviction of aggravated sexual assault of a\\nchild at the time he filed his first petition. 516 F.3d at 275. We rejected this\\nargument, finding that the principle espoused in Crone was inapplicable to\\nHardemon’s case because Crone involved separate petitions challenging the\\nsame judgment. Id. We then concluded that “Hardemon was permitted, but not\\nrequired, to challenge his separate convictions in a single § 2254 petition.” Id.\\n 5\\n\\f Case: 15-20451 Document: 00514823639 Page: 6 Date Filed: 02/05/2019\\n\\n\\n\\n No. 15-20451\\nat 276. Here, as discussed, Parker’s current petition and his 2013 petition\\nchallenge different judgments. The district court therefore erred in concluding\\nthat Parker’s challenge to his 2010 sentence was successive.\\n The remainder of Parker’s claims relate to events that took place after\\nhis 2013 release and rearrest. The district court did not consider these claims\\nin its dismissal of Parker’s petition. Roughly speaking, Parker argues that he\\nwas owed a hearing following his rearrest and that the denial of such a hearing\\nviolated his due-process rights. The State argues that these claims are now\\nmoot because “the only remedy for [such] claims is re-release to mandatory\\nsupervision”—i.e., putting Parker in precisely the position he is in right now.\\n We need not reach the question of mootness, however, for our jurisdiction\\nis otherwise lacking. A COA in this case was granted only as to the\\nsuccessiveness of Parker’s challenge to his seven-year sentence, not his due-\\nprocess challenge related to the circumstances surrounding his rearrest. This\\ncourt has jurisdiction to consider only the issues specified in a COA. See 28\\nU.S.C. § 2253(c)(1)(A); Sixta v. Thaler, 615 F.3d 569, 573 (5th Cir. 2010).\\nParker has not asked this court to expand the scope of the already-granted\\nCOA, and in his prior request to this court for a COA, Parker did not in any\\nway allude to the due-process issues he now raises in his briefing. He has\\ntherefore waived any request for a COA on that issue, and we are without\\njurisdiction to consider his remaining claims. Hughes v. Johnson, 191 F.3d 607,\\n613 (5th Cir. 1999) (“Issues not raised in the brief filed in support of [a] COA\\napplication are waived”).\\n III.\\n For the foregoing reasons, we REVERSE the judgment of the district\\ncourt and REMAND for proceedings consistent with this opinion.\\n\\n\\n\\n\\n 6\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":587,"cells":{"id":{"kind":"number","value":4587644,"string":"4,587,644"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Planned Parenthood of Grt TX v. Charles Smi"},"decision_date":{"kind":"string","value":"2019-02-05"},"docket_number":{"kind":"string","value":"17-50282"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, and ENGELHARDT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"Judge Oldham is recused and did not participate in this decision\", \"type\": \"010combined\", \"text\": \"IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n\\n _____________________\\n Fifth Circuit\\n\\n FILED\\n February 4, 2019\\n No. 17-50282\\n _____________________ Lyle W. Cayce\\n Clerk\\n\\n\\nPLANNED PARENTHOOD OF GREATER TEXAS FAMILY PLANNING\\nAND PREVENTATIVE HEALTH SERVICES, INC; PLANNED\\nPARENTHOOD SAN ANTONIO; PLANNED PARENTHOOD CAMERON\\nCOUNTY; PLANNED PARENTHOOD GULF COAST, INC; PLANNED\\nPARENTHOOD SOUTH TEXAS SURGICAL CENTER; JANE DOE #1;\\nJANE DOE #2; JANE DOE #4; JANE DOE #7;\\nJANE DOE #9; JANE DOE #10; JANE DOE #11,\\n\\n Plaintiffs - Appellees\\nv.\\n\\nCHARLES SMITH, in his official capacity as Executive Commissioner of\\nHHSC; SYLVIA HERNANDEZ KAUFFMAN, in her official capacity as\\nActing Inspector General of HHSC,\\n\\n Defendants - Appellants\\n\\n __________________________\\n\\n Appeal from the United States District Court for the\\n Western District of Texas\\n __________________________\\n\\n (Opinion January 17, 2019, 5 Cir., 2019, ___ F.3d ___)\\n\\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN,\\nELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA,\\nWILLETT, HO, DUNCAN, and ENGELHARDT, Circuit Judges. 1\\n\\n\\n\\n\\n 1 Judge Oldham is recused and did not participate in this decision.\\n\\fBY THE COURT:\\n\\n A majority of the circuit judges in regular active service and not\\ndisqualified having voted in favor, on the Court’s own motion, to rehear this\\ncase en banc,\\n IT IS ORDERED that this cause shall be reheard by the court en banc\\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\\nbriefing schedule for the filing of supplemental briefs.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4364897/\", \"author_raw\": \"Judge Oldham is recused and did not participate in this decision\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"JONES"},"judge3":{"kind":"string","value":"SMITH"},"exactly_three_caps":{"kind":"number","value":2,"string":"2"},"extra_judges":{"kind":"string","value":"DENNIS; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; HO; DUNCAN; ENGELHARDT"},"judge_designations":{"kind":"string","value":"{\"STEWART\": \", Chief\", \"JONES\": \", Circuit\", \"SMITH\": \", Circuit\", \"DENNIS\": \", Circuit\", \"OWEN\": \", Circuit\", \"ELROD\": \", Circuit\", \"SOUTHWICK\": \", Circuit\", \"HAYNES\": \", Circuit\", \"GRAVES\": \", Circuit\", \"HIGGINSON\": \", Circuit\", \"COSTA\": \", Circuit\", \"WILLETT\": \", Circuit\", \"HO\": \", Circuit\", \"DUNCAN\": \", Circuit\", \"ENGELHARDT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4587644/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Planned Parenthood of Grt TX v. Charles Smi\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-05\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n\n _____________________\n Fifth Circuit\n\n FILED\n February 4, 2019\n No. 17-50282\n _____________________ Lyle W. Cayce\n Clerk\n\n\nPLANNED PARENTHOOD OF GREATER TEXAS FAMILY PLANNING\nAND PREVENTATIVE HEALTH SERVICES, INC; PLANNED\nPARENTHOOD SAN ANTONIO; PLANNED PARENTHOOD CAMERON\nCOUNTY; PLANNED PARENTHOOD GULF COAST, INC; PLANNED\nPARENTHOOD SOUTH TEXAS SURGICAL CENTER; JANE DOE #1;\nJANE DOE #2; JANE DOE #4; JANE DOE #7;\nJANE DOE #9; JANE DOE #10; JANE DOE #11,\n\n Plaintiffs - Appellees\nv.\n\nCHARLES SMITH, in his official capacity as Executive Commissioner of\nHHSC; SYLVIA HERNANDEZ KAUFFMAN, in her official capacity as\nActing Inspector General of HHSC,\n\n Defendants - Appellants\n\n __________________________\n\n Appeal from the United States District Court for the\n Western District of Texas\n __________________________\n\n (Opinion January 17, 2019, 5 Cir., 2019, ___ F.3d ___)\n\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN,\nELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA,\nWILLETT, HO, DUNCAN, and ENGELHARDT, Circuit Judges. 1\n\n\n\n\n 1 Judge Oldham is recused and did not participate in this decision.\n\fBY THE COURT:\n\n A majority of the circuit judges in regular active service and not\ndisqualified having voted in favor, on the Court’s own motion, to rehear this\ncase en banc,\n IT IS ORDERED that this cause shall be reheard by the court en banc\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\nbriefing schedule for the filing of supplemental briefs.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Planned Parenthood of Grt TX v. Charles Smi\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-05\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nIN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n\\n _____________________\\n Fifth Circuit\\n\\n FILED\\n February 4, 2019\\n No. 17-50282\\n _____________________ Lyle W. Cayce\\n Clerk\\n\\n\\nPLANNED PARENTHOOD OF GREATER TEXAS FAMILY PLANNING\\nAND PREVENTATIVE HEALTH SERVICES, INC; PLANNED\\nPARENTHOOD SAN ANTONIO; PLANNED PARENTHOOD CAMERON\\nCOUNTY; PLANNED PARENTHOOD GULF COAST, INC; PLANNED\\nPARENTHOOD SOUTH TEXAS SURGICAL CENTER; JANE DOE #1;\\nJANE DOE #2; JANE DOE #4; JANE DOE #7;\\nJANE DOE #9; JANE DOE #10; JANE DOE #11,\\n\\n Plaintiffs - Appellees\\nv.\\n\\nCHARLES SMITH, in his official capacity as Executive Commissioner of\\nHHSC; SYLVIA HERNANDEZ KAUFFMAN, in her official capacity as\\nActing Inspector General of HHSC,\\n\\n Defendants - Appellants\\n\\n __________________________\\n\\n Appeal from the United States District Court for the\\n Western District of Texas\\n __________________________\\n\\n (Opinion January 17, 2019, 5 Cir., 2019, ___ F.3d ___)\\n\\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN,\\nELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA,\\nWILLETT, HO, DUNCAN, and ENGELHARDT, Circuit Judges. 1\\n\\n\\n\\n\\n 1 Judge Oldham is recused and did not participate in this decision.\\n\\fBY THE COURT:\\n\\n A majority of the circuit judges in regular active service and not\\ndisqualified having voted in favor, on the Court’s own motion, to rehear this\\ncase en banc,\\n IT IS ORDERED that this cause shall be reheard by the court en banc\\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\\nbriefing schedule for the filing of supplemental briefs.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":588,"cells":{"id":{"kind":"number","value":4587645,"string":"4,587,645"},"name":{"kind":"string","value":"In the MATTER OF: SNEED SHIPBUILDING, INCORPORATED, Debtor New Industries, Incorporated, Appellant v. Allison D. Byman, Chapter 11 Trustee of Sneed Shipbuilding, Incorporated; Estate of Martin M. Sneed, Sr., Appellees"},"name_abbreviation":{"kind":"string","value":"New Indus., Inc. v. Byman (In Re Sneed Shipbuilding, Inc.)"},"decision_date":{"kind":"string","value":"2019-02-05"},"docket_number":{"kind":"string","value":"18-40350"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before KING, HIGGINSON, and COSTA, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"GREGG COSTA, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-40350 Document: 00514823377 Page: 1 Date Filed: 02/05/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-40350 February 5, 2019\\n Lyle W. Cayce\\nIn The Matter of: SNEED SHIPBUILDING, INCORPORATED, Clerk\\n\\n\\n Debtor\\n\\n\\nNEW INDUSTRIES, INCORPORATED,\\n\\n Appellant\\n\\nv.\\n\\nALLISON D. BYMAN, Chapter 11 Trustee of Sneed Shipbuilding,\\nIncorporated; ESTATE OF MARTIN M. SNEED, SR.,\\n\\n Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore KING, HIGGINSON, and COSTA, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n In bankruptcy, the right to appeal must sometimes give way to a\\nheightened interest in finality. Perhaps the most prominent example is\\nequitable mootness, a judicially created doctrine preventing appeals that\\nthreaten to unravel a particularly interrelated confirmation plan. See In re\\nManges, 29 F.3d 1034, 1038–39 (5th Cir. 1994). Bars on appeals can also be\\n\\f Case: 18-40350 Document: 00514823377 Page: 2 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-40350\\nfound in the Bankruptcy Code, such as the statute that prevents “reversal or\\nmodification on appeal of an authorization . . . of a sale or lease of [estate]\\nproperty” unless that order was stayed pending appeal. 11 U.S.C. § 363(m);\\nsee also In re UNR Indus., Inc., 20 F.3d 766, 769 (7th Cir. 1994) (“Several\\nprovisions of the Bankruptcy Code of 1978 provide that courts should keep\\ntheir hands off consummated transactions.”).\\n The bankruptcy trustee in this case invokes both equitable and statutory\\nmootness to try and block an appeal of a bankruptcy court’s approval of a sale\\nof key estate assets, including a settlement necessary to facilitate the\\ntransaction. Equitable mootness is inappropriate here, but we conclude that\\nsection 363(m) made the bankruptcy court’s approval the final word on the\\nsubject when the objector did not obtain a stay of that ruling.\\n I.\\n Sneed Shipbuilding owned two shipyards in Texas, including one in\\nChannelview. It filed for bankruptcy in 2016 and, after reorganizing turned\\ntumultuous, the court appointed a trustee. The trustee then filed a complaint\\nagainst the probate estate of Sneed Shipbuilding’s longtime principal Martin\\nSneed and several other Sneed family members. The complaint alleged that\\nMartin attempted to fraudulently transfer ownership of the Channelview\\nshipyard to himself, among other fraudulent activities. It sought to avoid\\n(bankruptcy-speak for “undo”) those transactions and have the court declare\\nthat Sneed Shipbuilding was the true titleholder to the Channelview shipyard.\\n While the bankruptcy progressed slowly, operations at the Channelview\\nshipyard ground to a halt as a barebones staff serviced the one remaining\\ncustomer. Conversion to Chapter 7 and liquidation loomed as a real and\\nunpleasant possibility, so the trustee tried to sell the shipyard. San Jac Marine\\nwas interested in purchasing it, but only if the bankruptcy estate and Martin’s\\nprobate estate resolved their dispute over the title. To get clean title, the\\n 2\\n\\f Case: 18-40350 Document: 00514823377 Page: 3 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-40350\\ntrustee had two undesirable options: years of litigation against the probate\\nestate, during which the shipyard would lose much of its value, or settlement\\nwith the probate estate on unfavorable terms. She chose the latter.\\n The sale to San Jac Marine was made conditional on bankruptcy\\napproval of the settlement. The parties structured the settlement and sale\\ntogether along these lines: San Jac Marine paid Sneed Shipbuilding nearly $15\\nmillion and the trustee used those funds to ensure that the title it transferred\\nwas clean; encumbrances from a secured creditor, the debtor-in-possession’s\\nlender, and property taxes were all paid off. In addition, Martin’s probate\\nestate gave up both its claim to the Channelview property and any other claims\\nin the bankruptcy for about $8 million and the trustee’s agreement to release\\nany other avoidance actions. All told the settlement and sale looked something\\nlike this:\\n\\n\\n\\n\\n 3\\n\\f Case: 18-40350 Document: 00514823377 Page: 4 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-40350\\n The bankruptcy court approved the settlement and sale in a single\\norder, finding its provisions “non-severable and mutually dependent.” New\\nIndustries, an unsecured creditor which claimed that Sneed Shipbuilding owed\\nit $550,000 from a construction contract, unsuccessfully objected to the\\ndisbursement of funds to the probate estate. It did not seek a stay of the court’s\\napproval of the transaction.\\n New Industries appealed. The trustee asked the district court to dismiss\\nthe appeal, citing both equitable mootness and 11 U.S.C. § 363(m). The district\\ncourt dismissed the appeal as moot without identifying whether it was\\napplying equitable or statutory mootness.\\n II.\\n The parties focus on whether equitable mootness applies. This doctrine\\nallows courts to abstain from appeals of plan confirmation orders, allowing the\\ninterrelated web of parties to rely on a final decision. See In re Pacific Lumber\\nCo., 584 F.3d 229, 240 (5th Cir. 2009). As many courts have noted, equitable\\nmootness is not constitutional mootness. In a sense, the bankruptcy doctrine\\npresents the opposite concern of Article III mootness. A case is not equitably\\nmoot because an appellate reversal would have no effect; it is equitably moot\\nwhen a reversal might have too much effect. See Pacific Lumber, 584 F.3d at\\n240; In re Continental Airlines, 91 F.3d 553, 569 (3rd Cir. 1996) (Alito, J.,\\ndissenting). Without an express basis in the Bankruptcy Code, equitable\\nmootness is controversial. Compare In re One2One Communications, LLC, 805\\nF.3d 428, 441 (3rd Cir. 2015) (Krause, J., concurring); In re Continental\\nAirlines, 91 F.3d at 569 (Alito, J., dissenting), with In re Tribune Media Co.,\\n799 F.3d 272, 287–88 (3rd Cir. 2015) (Ambro, J., concurring); see also UNR, 20\\nF.3d at 769 (rejecting the “equitable mootness” label as misleading, but\\nagreeing that “a plan of reorganization, once implemented, should be disturbed\\nonly for compelling reasons”).\\n 4\\n\\f Case: 18-40350 Document: 00514823377 Page: 5 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-40350\\n We are more hesitant to invoke equitable mootness than many circuits,\\ntreating it as a “scalpel rather than an axe.” Pacific Lumber, 584 F.3d at 240;\\nsee also 7 COLLIER ON BANKRUPTCY ¶ 1129.09 (16th ed. 2018) (referring to this\\ncircuit’s “willingness to tolerate the possibility that reversal will disrupt the\\nplan” as a “deep divide” between us and other circuits). Equitable mootness\\ntypically requires a reorganization plan that is at least “substantially\\nconsummated.” In re Hilal, 534 F.3d 498, 500 (5th Cir. 2008); see also In re\\nSan Patricio Cnty. Cmty. Action Agency, 575 F.3d 553, 558 (5th Cir. 2009)\\n(declining to find dispute over settlement agreement equitably moot, without\\ndeciding as a categorical matter whether the doctrine could apply in a Chapter\\n7 liquidation). That end stage of the Chapter 11 process must be reached\\nbecause the concern of equitable mootness is that appellate reversal might\\nundermine the plan and the parties’ reliance on it. In re SI Restructuring, Inc.,\\n542 F.3d 131, 135–36 (5th Cir. 2008). But Sneed Shipbuilding’s bankruptcy\\ncase has never reached that stage because no plan has been proposed.\\n We recognize that some courts outside our circuit have employed\\nequitable mootness when reviewing settlement agreements, not just plan\\nconfirmations, in particularly messy cases. See, e.g., In re Delta Airlines, Inc.,\\n374 B.R. 516, 522–525 (S.D.N.Y. 2007). But that just highlights the second\\nreason why equitable mootness should not apply to the order that New\\nIndustries appeals: this settlement and sale were not sufficiently complex.\\nEquitable mootness is aimed at limiting review of complex plans whose\\nimplementation has substantial secondary effects. See, e.g., Tribune, 799 F.3d\\nat 274, 281 (finding moot an appeal of $7.5 billion reorganization involving 243\\ndifferent classes of creditors). Appellate intervention into reorganization plans\\nof such complexity may affect many innocent third parties. See Manges, 29\\nF.3d at 1042–43. Our ability to produce a single graphic to illustrate the\\nChannelview transaction demonstrates that this case does not rise to that level\\n 5\\n\\f Case: 18-40350 Document: 00514823377 Page: 6 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-40350\\nof complexity. Reversal on appeal would only affect a few third parties, all of\\nwhom participated in the bankruptcy court. This does not appear to be the\\ncase to expand equitable mootness into new frontiers.\\n III.\\n That is especially so because the trustee also raised the possibility of\\nmootness under section 363(m). The statute limits the ability of appellate\\ncourts to review the sale of estate property when the order approving the\\ntransaction is not stayed. 11 U.S.C. § 363(m); see also In re Ginther Trusts,\\n238 F.3d 686, 689 (5th Cir. 2001) (holding that section 363(m) even prevented\\nappeals to determine whether the bankruptcy court lacked jurisdiction). A\\ndifferent motivation than complexity motivates section 363(m) mootness: the\\nneed to encourage parties to bid for estate property. See In re Bleaufontaine,\\nInc., 634 F.2d 1383, 1389 n.10 (5th Cir. 1981) (“If deference were not paid to\\nthe policy of speedy and final bankruptcy sales, potential buyers would not\\neven consider purchasing any bankrupt’s property.”). The statute assures\\npurchasers that once the bankruptcy court approves the sale and it is\\nconsummated (that is, the order is not stayed), then no appellate court can\\nlater second-guess the deal. The cost, of course, is disposing of the full judicial\\nreview for legal accuracy that typically follows a trial court’s ruling. But\\nCongress thought that trade was worth making to encourage buyers to come\\nto the table ready to revitalize useful assets, as those buyers might otherwise\\nstay away when a transaction remains shrouded in legal uncertainty. The\\nBankruptcy Code thus entrusts review of a sale solely to the bankruptcy court’s\\nin-the-moment judgment unless a stay is obtained that prevents the sale from\\nclosing prior to appellate review.\\n Recognizing this role of section 363(m), New Industries says it does not\\nchallenge the sale of the property but only challenges the disbursement of cash\\nto the probate estate. But it does not cite any authority that would allow us to\\n 6\\n\\f Case: 18-40350 Document: 00514823377 Page: 7 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-40350\\nperform this isolated analysis. Paying off the probate estate was an essential\\nfeature of the sale. And when creditors have tried to cut off part of a sale and\\nchallenge it elsewhere, courts have found their appeals moot. See In re Trism,\\nInc., 328 F.3d 1003 (8th Cir. 2003) (challenge to release of avoidance action\\nthat was essential to sale of estate assets); In re Ala. Aircraft Indus., Inc., 464\\nB.R. 120 (D. Del. 2012) (dispute over creation of litigation trust with funds from\\nsale of estate assets). Without the more than $8 million payment, the probate\\nestate would not have released its claim that it owned the Channelview\\nshipyard. And without that release, San Jac Marine likely would have walked\\naway from the deal. As the bankruptcy court noted, there is no way to sever\\nthe settlement from the sale; they are mutually dependent. Congress has\\nordered us not to review such decisions by the bankruptcy court when they are\\nnot stayed. This case is moot.\\n ***\\n We AFFIRM the district court’s dismissal of the appeal.\\n\\n\\n\\n\\n 7\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4364898/\", \"author_raw\": \"GREGG COSTA, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"KING"},"judge2":{"kind":"string","value":"HIGGINSON"},"judge3":{"kind":"string","value":"COSTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"KING\": \", Circuit\", \"HIGGINSON\": \", Circuit\", \"COSTA\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4587645/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: In the MATTER OF: SNEED SHIPBUILDING, INCORPORATED, Debtor New Industries, Incorporated, Appellant v. Allison D. Byman, Chapter 11 Trustee of Sneed Shipbuilding, Incorporated; Estate of Martin M. Sneed, Sr., Appellees\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-05\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-40350 Document: 00514823377 Page: 1 Date Filed: 02/05/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-40350 February 5, 2019\n Lyle W. Cayce\nIn The Matter of: SNEED SHIPBUILDING, INCORPORATED, Clerk\n\n\n Debtor\n\n\nNEW INDUSTRIES, INCORPORATED,\n\n Appellant\n\nv.\n\nALLISON D. BYMAN, Chapter 11 Trustee of Sneed Shipbuilding,\nIncorporated; ESTATE OF MARTIN M. SNEED, SR.,\n\n Appellees\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore KING, HIGGINSON, and COSTA, Circuit Judges.\nGREGG COSTA, Circuit Judge:\n In bankruptcy, the right to appeal must sometimes give way to a\nheightened interest in finality. Perhaps the most prominent example is\nequitable mootness, a judicially created doctrine preventing appeals that\nthreaten to unravel a particularly interrelated confirmation plan. See In re\nManges, 29 F.3d 1034, 1038–39 (5th Cir. 1994). Bars on appeals can also be\n\f Case: 18-40350 Document: 00514823377 Page: 2 Date Filed: 02/05/2019\n\n\n\n No. 18-40350\nfound in the Bankruptcy Code, such as the statute that prevents “reversal or\nmodification on appeal of an authorization . . . of a sale or lease of [estate]\nproperty” unless that order was stayed pending appeal. 11 U.S.C. § 363(m);\nsee also In re UNR Indus., Inc., 20 F.3d 766, 769 (7th Cir. 1994) (“Several\nprovisions of the Bankruptcy Code of 1978 provide that courts should keep\ntheir hands off consummated transactions.”).\n The bankruptcy trustee in this case invokes both equitable and statutory\nmootness to try and block an appeal of a bankruptcy court’s approval of a sale\nof key estate assets, including a settlement necessary to facilitate the\ntransaction. Equitable mootness is inappropriate here, but we conclude that\nsection 363(m) made the bankruptcy court’s approval the final word on the\nsubject when the objector did not obtain a stay of that ruling.\n I.\n Sneed Shipbuilding owned two shipyards in Texas, including one in\nChannelview. It filed for bankruptcy in 2016 and, after reorganizing turned\ntumultuous, the court appointed a trustee. The trustee then filed a complaint\nagainst the probate estate of Sneed Shipbuilding’s longtime principal Martin\nSneed and several other Sneed family members. The complaint alleged that\nMartin attempted to fraudulently transfer ownership of the Channelview\nshipyard to himself, among other fraudulent activities. It sought to avoid\n(bankruptcy-speak for “undo”) those transactions and have the court declare\nthat Sneed Shipbuilding was the true titleholder to the Channelview shipyard.\n While the bankruptcy progressed slowly, operations at the Channelview\nshipyard ground to a halt as a barebones staff serviced the one remaining\ncustomer. Conversion to Chapter 7 and liquidation loomed as a real and\nunpleasant possibility, so the trustee tried to sell the shipyard. San Jac Marine\nwas interested in purchasing it, but only if the bankruptcy estate and Martin’s\nprobate estate resolved their dispute over the title. To get clean title, the\n 2\n\f Case: 18-40350 Document: 00514823377 Page: 3 Date Filed: 02/05/2019\n\n\n\n No. 18-40350\ntrustee had two undesirable options: years of litigation against the probate\nestate, during which the shipyard would lose much of its value, or settlement\nwith the probate estate on unfavorable terms. She chose the latter.\n The sale to San Jac Marine was made conditional on bankruptcy\napproval of the settlement. The parties structured the settlement and sale\ntogether along these lines: San Jac Marine paid Sneed Shipbuilding nearly $15\nmillion and the trustee used those funds to ensure that the title it transferred\nwas clean; encumbrances from a secured creditor, the debtor-in-possession’s\nlender, and property taxes were all paid off. In addition, Martin’s probate\nestate gave up both its claim to the Channelview property and any other claims\nin the bankruptcy for about $8 million and the trustee’s agreement to release\nany other avoidance actions. All told the settlement and sale looked something\nlike this:\n\n\n\n\n 3\n\f Case: 18-40350 Document: 00514823377 Page: 4 Date Filed: 02/05/2019\n\n\n\n No. 18-40350\n The bankruptcy court approved the settlement and sale in a single\norder, finding its provisions “non-severable and mutually dependent.” New\nIndustries, an unsecured creditor which claimed that Sneed Shipbuilding owed\nit $550,000 from a construction contract, unsuccessfully objected to the\ndisbursement of funds to the probate estate. It did not seek a stay of the court’s\napproval of the transaction.\n New Industries appealed. The trustee asked the district court to dismiss\nthe appeal, citing both equitable mootness and 11 U.S.C. § 363(m). The district\ncourt dismissed the appeal as moot without identifying whether it was\napplying equitable or statutory mootness.\n II.\n The parties focus on whether equitable mootness applies. This doctrine\nallows courts to abstain from appeals of plan confirmation orders, allowing the\ninterrelated web of parties to rely on a final decision. See In re Pacific Lumber\nCo., 584 F.3d 229, 240 (5th Cir. 2009). As many courts have noted, equitable\nmootness is not constitutional mootness. In a sense, the bankruptcy doctrine\npresents the opposite concern of Article III mootness. A case is not equitably\nmoot because an appellate reversal would have no effect; it is equitably moot\nwhen a reversal might have too much effect. See Pacific Lumber, 584 F.3d at\n240; In re Continental Airlines, 91 F.3d 553, 569 (3rd Cir. 1996) (Alito, J.,\ndissenting). Without an express basis in the Bankruptcy Code, equitable\nmootness is controversial. Compare In re One2One Communications, LLC, 805\nF.3d 428, 441 (3rd Cir. 2015) (Krause, J., concurring); In re Continental\nAirlines, 91 F.3d at 569 (Alito, J., dissenting), with In re Tribune Media Co.,\n799 F.3d 272, 287–88 (3rd Cir. 2015) (Ambro, J., concurring); see also UNR, 20\nF.3d at 769 (rejecting the “equitable mootness” label as misleading, but\nagreeing that “a plan of reorganization, once implemented, should be disturbed\nonly for compelling reasons”).\n 4\n\f Case: 18-40350 Document: 00514823377 Page: 5 Date Filed: 02/05/2019\n\n\n\n No. 18-40350\n We are more hesitant to invoke equitable mootness than many circuits,\ntreating it as a “scalpel rather than an axe.” Pacific Lumber, 584 F.3d at 240;\nsee also 7 COLLIER ON BANKRUPTCY ¶ 1129.09 (16th ed. 2018) (referring to this\ncircuit’s “willingness to tolerate the possibility that reversal will disrupt the\nplan” as a “deep divide” between us and other circuits). Equitable mootness\ntypically requires a reorganization plan that is at least “substantially\nconsummated.” In re Hilal, 534 F.3d 498, 500 (5th Cir. 2008); see also In re\nSan Patricio Cnty. Cmty. Action Agency, 575 F.3d 553, 558 (5th Cir. 2009)\n(declining to find dispute over settlement agreement equitably moot, without\ndeciding as a categorical matter whether the doctrine could apply in a Chapter\n7 liquidation). That end stage of the Chapter 11 process must be reached\nbecause the concern of equitable mootness is that appellate reversal might\nundermine the plan and the parties’ reliance on it. In re SI Restructuring, Inc.,\n542 F.3d 131, 135–36 (5th Cir. 2008). But Sneed Shipbuilding’s bankruptcy\ncase has never reached that stage because no plan has been proposed.\n We recognize that some courts outside our circuit have employed\nequitable mootness when reviewing settlement agreements, not just plan\nconfirmations, in particularly messy cases. See, e.g., In re Delta Airlines, Inc.,\n374 B.R. 516, 522–525 (S.D.N.Y. 2007). But that just highlights the second\nreason why equitable mootness should not apply to the order that New\nIndustries appeals: this settlement and sale were not sufficiently complex.\nEquitable mootness is aimed at limiting review of complex plans whose\nimplementation has substantial secondary effects. See, e.g., Tribune, 799 F.3d\nat 274, 281 (finding moot an appeal of $7.5 billion reorganization involving 243\ndifferent classes of creditors). Appellate intervention into reorganization plans\nof such complexity may affect many innocent third parties. See Manges, 29\nF.3d at 1042–43. Our ability to produce a single graphic to illustrate the\nChannelview transaction demonstrates that this case does not rise to that level\n 5\n\f Case: 18-40350 Document: 00514823377 Page: 6 Date Filed: 02/05/2019\n\n\n\n No. 18-40350\nof complexity. Reversal on appeal would only affect a few third parties, all of\nwhom participated in the bankruptcy court. This does not appear to be the\ncase to expand equitable mootness into new frontiers.\n III.\n That is especially so because the trustee also raised the possibility of\nmootness under section 363(m). The statute limits the ability of appellate\ncourts to review the sale of estate property when the order approving the\ntransaction is not stayed. 11 U.S.C. § 363(m); see also In re Ginther Trusts,\n238 F.3d 686, 689 (5th Cir. 2001) (holding that section 363(m) even prevented\nappeals to determine whether the bankruptcy court lacked jurisdiction). A\ndifferent motivation than complexity motivates section 363(m) mootness: the\nneed to encourage parties to bid for estate property. See In re Bleaufontaine,\nInc., 634 F.2d 1383, 1389 n.10 (5th Cir. 1981) (“If deference were not paid to\nthe policy of speedy and final bankruptcy sales, potential buyers would not\neven consider purchasing any bankrupt’s property.”). The statute assures\npurchasers that once the bankruptcy court approves the sale and it is\nconsummated (that is, the order is not stayed), then no appellate court can\nlater second-guess the deal. The cost, of course, is disposing of the full judicial\nreview for legal accuracy that typically follows a trial court’s ruling. But\nCongress thought that trade was worth making to encourage buyers to come\nto the table ready to revitalize useful assets, as those buyers might otherwise\nstay away when a transaction remains shrouded in legal uncertainty. The\nBankruptcy Code thus entrusts review of a sale solely to the bankruptcy court’s\nin-the-moment judgment unless a stay is obtained that prevents the sale from\nclosing prior to appellate review.\n Recognizing this role of section 363(m), New Industries says it does not\nchallenge the sale of the property but only challenges the disbursement of cash\nto the probate estate. But it does not cite any authority that would allow us to\n 6\n\f Case: 18-40350 Document: 00514823377 Page: 7 Date Filed: 02/05/2019\n\n\n\n No. 18-40350\nperform this isolated analysis. Paying off the probate estate was an essential\nfeature of the sale. And when creditors have tried to cut off part of a sale and\nchallenge it elsewhere, courts have found their appeals moot. See In re Trism,\nInc., 328 F.3d 1003 (8th Cir. 2003) (challenge to release of avoidance action\nthat was essential to sale of estate assets); In re Ala. Aircraft Indus., Inc., 464\nB.R. 120 (D. Del. 2012) (dispute over creation of litigation trust with funds from\nsale of estate assets). Without the more than $8 million payment, the probate\nestate would not have released its claim that it owned the Channelview\nshipyard. And without that release, San Jac Marine likely would have walked\naway from the deal. As the bankruptcy court noted, there is no way to sever\nthe settlement from the sale; they are mutually dependent. Congress has\nordered us not to review such decisions by the bankruptcy court when they are\nnot stayed. This case is moot.\n ***\n We AFFIRM the district court’s dismissal of the appeal.\n\n\n\n\n 7\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: In the MATTER OF: SNEED SHIPBUILDING, INCORPORATED, Debtor New Industries, Incorporated, Appellant v. Allison D. Byman, Chapter 11 Trustee of Sneed Shipbuilding, Incorporated; Estate of Martin M. Sneed, Sr., Appellees\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-05\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-40350 Document: 00514823377 Page: 1 Date Filed: 02/05/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-40350 February 5, 2019\\n Lyle W. Cayce\\nIn The Matter of: SNEED SHIPBUILDING, INCORPORATED, Clerk\\n\\n\\n Debtor\\n\\n\\nNEW INDUSTRIES, INCORPORATED,\\n\\n Appellant\\n\\nv.\\n\\nALLISON D. BYMAN, Chapter 11 Trustee of Sneed Shipbuilding,\\nIncorporated; ESTATE OF MARTIN M. SNEED, SR.,\\n\\n Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore KING, HIGGINSON, and COSTA, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n In bankruptcy, the right to appeal must sometimes give way to a\\nheightened interest in finality. Perhaps the most prominent example is\\nequitable mootness, a judicially created doctrine preventing appeals that\\nthreaten to unravel a particularly interrelated confirmation plan. See In re\\nManges, 29 F.3d 1034, 1038–39 (5th Cir. 1994). Bars on appeals can also be\\n\\f Case: 18-40350 Document: 00514823377 Page: 2 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-40350\\nfound in the Bankruptcy Code, such as the statute that prevents “reversal or\\nmodification on appeal of an authorization . . . of a sale or lease of [estate]\\nproperty” unless that order was stayed pending appeal. 11 U.S.C. § 363(m);\\nsee also In re UNR Indus., Inc., 20 F.3d 766, 769 (7th Cir. 1994) (“Several\\nprovisions of the Bankruptcy Code of 1978 provide that courts should keep\\ntheir hands off consummated transactions.”).\\n The bankruptcy trustee in this case invokes both equitable and statutory\\nmootness to try and block an appeal of a bankruptcy court’s approval of a sale\\nof key estate assets, including a settlement necessary to facilitate the\\ntransaction. Equitable mootness is inappropriate here, but we conclude that\\nsection 363(m) made the bankruptcy court’s approval the final word on the\\nsubject when the objector did not obtain a stay of that ruling.\\n I.\\n Sneed Shipbuilding owned two shipyards in Texas, including one in\\nChannelview. It filed for bankruptcy in 2016 and, after reorganizing turned\\ntumultuous, the court appointed a trustee. The trustee then filed a complaint\\nagainst the probate estate of Sneed Shipbuilding’s longtime principal Martin\\nSneed and several other Sneed family members. The complaint alleged that\\nMartin attempted to fraudulently transfer ownership of the Channelview\\nshipyard to himself, among other fraudulent activities. It sought to avoid\\n(bankruptcy-speak for “undo”) those transactions and have the court declare\\nthat Sneed Shipbuilding was the true titleholder to the Channelview shipyard.\\n While the bankruptcy progressed slowly, operations at the Channelview\\nshipyard ground to a halt as a barebones staff serviced the one remaining\\ncustomer. Conversion to Chapter 7 and liquidation loomed as a real and\\nunpleasant possibility, so the trustee tried to sell the shipyard. San Jac Marine\\nwas interested in purchasing it, but only if the bankruptcy estate and Martin’s\\nprobate estate resolved their dispute over the title. To get clean title, the\\n 2\\n\\f Case: 18-40350 Document: 00514823377 Page: 3 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-40350\\ntrustee had two undesirable options: years of litigation against the probate\\nestate, during which the shipyard would lose much of its value, or settlement\\nwith the probate estate on unfavorable terms. She chose the latter.\\n The sale to San Jac Marine was made conditional on bankruptcy\\napproval of the settlement. The parties structured the settlement and sale\\ntogether along these lines: San Jac Marine paid Sneed Shipbuilding nearly $15\\nmillion and the trustee used those funds to ensure that the title it transferred\\nwas clean; encumbrances from a secured creditor, the debtor-in-possession’s\\nlender, and property taxes were all paid off. In addition, Martin’s probate\\nestate gave up both its claim to the Channelview property and any other claims\\nin the bankruptcy for about $8 million and the trustee’s agreement to release\\nany other avoidance actions. All told the settlement and sale looked something\\nlike this:\\n\\n\\n\\n\\n 3\\n\\f Case: 18-40350 Document: 00514823377 Page: 4 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-40350\\n The bankruptcy court approved the settlement and sale in a single\\norder, finding its provisions “non-severable and mutually dependent.” New\\nIndustries, an unsecured creditor which claimed that Sneed Shipbuilding owed\\nit $550,000 from a construction contract, unsuccessfully objected to the\\ndisbursement of funds to the probate estate. It did not seek a stay of the court’s\\napproval of the transaction.\\n New Industries appealed. The trustee asked the district court to dismiss\\nthe appeal, citing both equitable mootness and 11 U.S.C. § 363(m). The district\\ncourt dismissed the appeal as moot without identifying whether it was\\napplying equitable or statutory mootness.\\n II.\\n The parties focus on whether equitable mootness applies. This doctrine\\nallows courts to abstain from appeals of plan confirmation orders, allowing the\\ninterrelated web of parties to rely on a final decision. See In re Pacific Lumber\\nCo., 584 F.3d 229, 240 (5th Cir. 2009). As many courts have noted, equitable\\nmootness is not constitutional mootness. In a sense, the bankruptcy doctrine\\npresents the opposite concern of Article III mootness. A case is not equitably\\nmoot because an appellate reversal would have no effect; it is equitably moot\\nwhen a reversal might have too much effect. See Pacific Lumber, 584 F.3d at\\n240; In re Continental Airlines, 91 F.3d 553, 569 (3rd Cir. 1996) (Alito, J.,\\ndissenting). Without an express basis in the Bankruptcy Code, equitable\\nmootness is controversial. Compare In re One2One Communications, LLC, 805\\nF.3d 428, 441 (3rd Cir. 2015) (Krause, J., concurring); In re Continental\\nAirlines, 91 F.3d at 569 (Alito, J., dissenting), with In re Tribune Media Co.,\\n799 F.3d 272, 287–88 (3rd Cir. 2015) (Ambro, J., concurring); see also UNR, 20\\nF.3d at 769 (rejecting the “equitable mootness” label as misleading, but\\nagreeing that “a plan of reorganization, once implemented, should be disturbed\\nonly for compelling reasons”).\\n 4\\n\\f Case: 18-40350 Document: 00514823377 Page: 5 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-40350\\n We are more hesitant to invoke equitable mootness than many circuits,\\ntreating it as a “scalpel rather than an axe.” Pacific Lumber, 584 F.3d at 240;\\nsee also 7 COLLIER ON BANKRUPTCY ¶ 1129.09 (16th ed. 2018) (referring to this\\ncircuit’s “willingness to tolerate the possibility that reversal will disrupt the\\nplan” as a “deep divide” between us and other circuits). Equitable mootness\\ntypically requires a reorganization plan that is at least “substantially\\nconsummated.” In re Hilal, 534 F.3d 498, 500 (5th Cir. 2008); see also In re\\nSan Patricio Cnty. Cmty. Action Agency, 575 F.3d 553, 558 (5th Cir. 2009)\\n(declining to find dispute over settlement agreement equitably moot, without\\ndeciding as a categorical matter whether the doctrine could apply in a Chapter\\n7 liquidation). That end stage of the Chapter 11 process must be reached\\nbecause the concern of equitable mootness is that appellate reversal might\\nundermine the plan and the parties’ reliance on it. In re SI Restructuring, Inc.,\\n542 F.3d 131, 135–36 (5th Cir. 2008). But Sneed Shipbuilding’s bankruptcy\\ncase has never reached that stage because no plan has been proposed.\\n We recognize that some courts outside our circuit have employed\\nequitable mootness when reviewing settlement agreements, not just plan\\nconfirmations, in particularly messy cases. See, e.g., In re Delta Airlines, Inc.,\\n374 B.R. 516, 522–525 (S.D.N.Y. 2007). But that just highlights the second\\nreason why equitable mootness should not apply to the order that New\\nIndustries appeals: this settlement and sale were not sufficiently complex.\\nEquitable mootness is aimed at limiting review of complex plans whose\\nimplementation has substantial secondary effects. See, e.g., Tribune, 799 F.3d\\nat 274, 281 (finding moot an appeal of $7.5 billion reorganization involving 243\\ndifferent classes of creditors). Appellate intervention into reorganization plans\\nof such complexity may affect many innocent third parties. See Manges, 29\\nF.3d at 1042–43. Our ability to produce a single graphic to illustrate the\\nChannelview transaction demonstrates that this case does not rise to that level\\n 5\\n\\f Case: 18-40350 Document: 00514823377 Page: 6 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-40350\\nof complexity. Reversal on appeal would only affect a few third parties, all of\\nwhom participated in the bankruptcy court. This does not appear to be the\\ncase to expand equitable mootness into new frontiers.\\n III.\\n That is especially so because the trustee also raised the possibility of\\nmootness under section 363(m). The statute limits the ability of appellate\\ncourts to review the sale of estate property when the order approving the\\ntransaction is not stayed. 11 U.S.C. § 363(m); see also In re Ginther Trusts,\\n238 F.3d 686, 689 (5th Cir. 2001) (holding that section 363(m) even prevented\\nappeals to determine whether the bankruptcy court lacked jurisdiction). A\\ndifferent motivation than complexity motivates section 363(m) mootness: the\\nneed to encourage parties to bid for estate property. See In re Bleaufontaine,\\nInc., 634 F.2d 1383, 1389 n.10 (5th Cir. 1981) (“If deference were not paid to\\nthe policy of speedy and final bankruptcy sales, potential buyers would not\\neven consider purchasing any bankrupt’s property.”). The statute assures\\npurchasers that once the bankruptcy court approves the sale and it is\\nconsummated (that is, the order is not stayed), then no appellate court can\\nlater second-guess the deal. The cost, of course, is disposing of the full judicial\\nreview for legal accuracy that typically follows a trial court’s ruling. But\\nCongress thought that trade was worth making to encourage buyers to come\\nto the table ready to revitalize useful assets, as those buyers might otherwise\\nstay away when a transaction remains shrouded in legal uncertainty. The\\nBankruptcy Code thus entrusts review of a sale solely to the bankruptcy court’s\\nin-the-moment judgment unless a stay is obtained that prevents the sale from\\nclosing prior to appellate review.\\n Recognizing this role of section 363(m), New Industries says it does not\\nchallenge the sale of the property but only challenges the disbursement of cash\\nto the probate estate. But it does not cite any authority that would allow us to\\n 6\\n\\f Case: 18-40350 Document: 00514823377 Page: 7 Date Filed: 02/05/2019\\n\\n\\n\\n No. 18-40350\\nperform this isolated analysis. Paying off the probate estate was an essential\\nfeature of the sale. And when creditors have tried to cut off part of a sale and\\nchallenge it elsewhere, courts have found their appeals moot. See In re Trism,\\nInc., 328 F.3d 1003 (8th Cir. 2003) (challenge to release of avoidance action\\nthat was essential to sale of estate assets); In re Ala. Aircraft Indus., Inc., 464\\nB.R. 120 (D. Del. 2012) (dispute over creation of litigation trust with funds from\\nsale of estate assets). Without the more than $8 million payment, the probate\\nestate would not have released its claim that it owned the Channelview\\nshipyard. And without that release, San Jac Marine likely would have walked\\naway from the deal. As the bankruptcy court noted, there is no way to sever\\nthe settlement from the sale; they are mutually dependent. Congress has\\nordered us not to review such decisions by the bankruptcy court when they are\\nnot stayed. This case is moot.\\n ***\\n We AFFIRM the district court’s dismissal of the appeal.\\n\\n\\n\\n\\n 7\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":589,"cells":{"id":{"kind":"number","value":8443890,"string":"8,443,890"},"name":{"kind":"string","value":"In the MATTER OF: SNEED SHIPBUILDING, INCORPORATED, Debtor New Industries, Incorporated v. Allison D. Byman, Chapter 11 Trustee of Sneed Shipbuilding, Incorporated Estate of Martin M. Sneed, Sr."},"name_abbreviation":{"kind":"string","value":"New Indus., Inc. v. Byman (In re Sneed Shipbuilding, Inc.)"},"decision_date":{"kind":"string","value":"2019-02-05"},"docket_number":{"kind":"string","value":"No. 18-40350"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Costa, Higginson, King\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415320/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"COSTA"},"judge2":{"kind":"string","value":"HIGGINSON"},"judge3":{"kind":"string","value":"KING"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8443890/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: In the MATTER OF: SNEED SHIPBUILDING, INCORPORATED, Debtor New Industries, Incorporated v. Allison D. Byman, Chapter 11 Trustee of Sneed Shipbuilding, Incorporated Estate of Martin M. Sneed, Sr.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-05\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: In the MATTER OF: SNEED SHIPBUILDING, INCORPORATED, Debtor New Industries, Incorporated v. Allison D. Byman, Chapter 11 Trustee of Sneed Shipbuilding, Incorporated Estate of Martin M. Sneed, Sr.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-05\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":590,"cells":{"id":{"kind":"number","value":4588150,"string":"4,588,150"},"name":{"kind":"string","value":"Nicole C. WITTMER, Plaintiff-Appellant v. PHILLIPS 66 COMPANY, Defendant-Appellee"},"name_abbreviation":{"kind":"string","value":"Nicole Wittmer v. Phillips 66 Company"},"decision_date":{"kind":"string","value":"2019-02-06"},"docket_number":{"kind":"string","value":"18-20251"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"James, Higginbotham, Elrod\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9887973/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"030concurrence\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9887974/\", \"author_raw\": \"\"}, {\"author\": \"JAMES C. HO, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-20251 Document: 00514825287 Page: 1 Date Filed: 02/06/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-20251 February 6, 2019\\n Lyle W. Cayce\\nNICOLE C. WITTMER, Clerk\\n\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nPHILLIPS 66 COMPANY,\\n\\n Defendant - Appellee\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\\nJAMES C. HO, Circuit Judge:\\n Over the past two years, three circuits have construed Title VII of the\\nCivil Rights Act of 1964 to prohibit employers from discriminating on the basis\\nof either sexual orientation or transgender status. See Zarda v. Altitude\\nExpress, Inc., 883 F.3d 100 (2nd Cir. 2018) (en banc); EEOC v. R.G. & G.R.\\nHarris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); Hively v. Ivy Tech\\nCmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc).\\n The district court here examined these recent out-of-circuit rulings,\\nfound them “persuasive,” and thus “assume[d]” that Title VII prohibits\\ntransgender discrimination, in a published opinion. Wittmer v. Phillips 66 Co.,\\n304 F. Supp. 3d 627, 634 (S.D. Tex. 2018). In doing so, the district court\\nexpressly stated that “the Fifth Circuit has not yet addressed the issue.” Id.\\n\\n Case: 18-20251 Document: 00514825287 Page: 2 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\n But we have addressed the issue. In Blum v. Gulf Oil Corp., 597 F.2d\\n936 (5th Cir. 1979), we expressly held that Title VII does not prohibit\\ndiscrimination on the basis of sexual orientation. Yet the district court did not\\nmention, let alone distinguish, Blum. Most notably, it did not contend that\\nTitle VII applies to transgender status but not sexual orientation. To the\\ncontrary, the court concluded that the “same” analysis applies to transgender\\nstatus and sexual orientation alike. Wittmer, 304 F. Supp. 3d at 634.\\n Blum remains binding precedent in this circuit to this day. Our sister\\ncircuits—including those favorably quoted in the district court’s published\\nopinion—recognize Blum as our precedent. See Zarda, 883 F.3d at 107–8\\n(recognizing historic “consensus among our sister circuits” foreclosing sexual\\norientation claims under Title VII, including Blum); Hively, 853 F.3d at 341–\\n42 (“recognizing . . . Fifth Circuit’s precedent in Blum”); see also Evans v. Ga.\\nReg’l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017) (Blum is “binding precedent”\\nthat “forecloses” sexual orientation discrimination claims under Title VII).\\n Other district courts within the Fifth Circuit have likewise repeatedly\\nacknowledged that Blum is binding circuit precedent. See, e.g., O’Daniel v.\\nIndus. Serv. Solutions, 2018 WL 265585, *7 (M.D. La. Jan. 2, 2018) (“The Fifth\\nCircuit has specifically held that discharge based upon sexual orientation is\\nnot prohibited by Title VII . . . . Blum is binding precedent”); Berghorn v. Texas\\nWorkforce Comm’n, 2017 WL 5479592, *4 (N.D. Tex. Nov. 15, 2017) (“The\\ncourt . . . is bound by Fifth Circuit precedent, not Seventh Circuit precedent.”).\\n We nevertheless affirm the district court on other grounds. The district\\ncourt correctly granted summary judgment for the employer, because the\\nemployee failed to present sufficient evidence to support a prima facie case of\\ndiscrimination, and because the employee failed to present a genuine issue of\\nmaterial fact concerning pretext.\\n\\n\\n 2\\n\\n Case: 18-20251 Document: 00514825287 Page: 3 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\n I.\\n Nicole Wittmer, a transgender woman, applied for an Instrument and\\nReliability Engineer position with Phillips 66 in 2015. Phillips 66 conducted\\nfour interviews, including an in-person interview on August 3.\\n During these interviews, Phillips 66 asked about Wittmer’s current\\nemployment with Agrium. They discussed on-going projects at Agrium that\\nwould require significant future travel to Canada as the reason Wittmer was\\nlooking for a new job. On August 10, Phillips 66 offered Wittmer the job,\\ncontingent on passing certain background checks.\\n On September 2, Ellen Fulton, Phillips 66’s Human Resources Manager,\\ninformed Wittmer that the background check uncovered a discrepancy:\\nAgrium terminated Wittmer on July 28, with pay continuing through\\nAugust 2.\\n In response, Wittmer acknowledged the discrepancy, but did not think\\n“it was that big of a deal.” Wittmer sent Fulton the July 28 termination letter\\nfrom Agrium, clearly stating that their employment relationship ended on July\\n28.\\n Fulton and several other Phillips 66 executives conferred on\\nSeptember 8. Everyone at the meeting agreed that the offer of employment\\nshould be rescinded due to Wittmer’s misrepresentations.\\n On September 10, Wittmer sent an unsolicited email to Fulton and\\nanother Phillips 66 employee, accusing them of transgender discrimination.\\nFulton responded that Phillips 66 was unaware of Wittmer’s transgender\\nstatus prior to the email, and that in any event, the information would not\\naffect Phillips 66’s decision.\\n On September 14, Fulton formally rescinded the offer of employment.\\nFulton explained that it was due to the discrepancies revealed during the\\nbackground check after the initial conditional offer.\\n 3\\n\\n Case: 18-20251 Document: 00514825287 Page: 4 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\n A year later, in October 2016, Wittmer filed a charge of discrimination\\nwith the EEOC against Phillips 66. Wittmer claimed that Phillips 66 rescinded\\nits offer because of transgender discrimination. The EEOC issued a right-to-\\nsue letter.\\n II.\\n Wittmer sued Phillips 66 under Title VII for discrimination on the basis\\nof transgender status. Without distinguishing or even mentioning Blum,\\nWittmer claimed that Title VII prohibits transgender discrimination.\\n Phillips 66 took no position on whether Title VII prohibits transgender\\ndiscrimination. Instead, Phillips 66 moved for summary judgment on the\\ngrounds that (1) Wittmer failed to state a prima face case of discrimination on\\nthe basis of transgender status, and (2) Wittmer failed to present a genuine\\nissue of material fact that the non-discriminatory reason offered by Phillips 66\\nwas pretextual.\\n The district court granted summary judgment to Phillips 66 on both\\ngrounds. Wittmer appealed.\\n On appeal, Phillips 66 continues to take no position on whether Title VII\\nprohibits discrimination on the basis of transgender status. It instead seeks\\naffirmance on the specific evidentiary grounds on which it prevailed in the\\ndistrict court.\\n This appeal nevertheless attracted substantial amicus attention on the\\nquestion of whether Title VII prohibits transgender discrimination. The EEOC\\nfiled an amicus brief that took no position whether the judgment below should\\nbe affirmed or reversed. The EEOC simply asked this court to hold that Title\\nVII does indeed prohibit discrimination on the basis of transgender status.\\nSimilarly, various organizations, led by the National Center for Lesbian\\nRights, filed an amicus brief that, like EEOC, concluded that Title VII\\nprohibits transgender discrimination, and took no position on the judgment.\\n 4\\n\\n Case: 18-20251 Document: 00514825287 Page: 5 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\n The EEOC requested the opportunity to participate in oral argument.\\nWe granted the request. In addition, we appointed Adam Mortara as amicus\\ncuriae to brief and argue the contrary interpretation of Title VII—just as the\\nSecond Circuit did in Zarda. The EEOC subsequently withdrew its request to\\nparticipate in oral argument, due to the government shutdown. So the\\nNational Center amici asked us if they could take the EEOC’s place at the\\npodium. We granted that request as well. 1\\n III.\\n Summary judgment is appropriate “if the movant shows that there is no\\ngenuine dispute as to any material fact and the movant is entitled to judgment\\nas a matter of law.” FED. R. CIV. P. 56(a).\\n Title VII prohibits employment discrimination against “any individual\\n. . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). To\\nestablish a prima facie case of discrimination, the plaintiff must either present\\ndirect evidence of discrimination or, in the absence of direct evidence, rely on\\ncircumstantial evidence using the McDonnell Douglas burden-shifting\\nanalysis. Under McDonnell Douglas, the plaintiff carries the burden to prove\\nthat (1) he belongs to a protected class; (2) he applied for and was qualified for\\nthe position; (3) he was rejected despite being qualified; and (4) others similarly\\nqualified but outside the protected class were treated more favorably.\\nMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See also Willis v.\\nCoca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006).\\n If a plaintiff establishes a prima facie case, the burden shifts to the\\nemployer to show it had a legitimate, nondiscriminatory reason for rescinding\\n\\n\\n\\n 1We thank Mr. Mortara for his public service in accepting the court’s appointment.\\nWe also thank the National Center amici for participating in oral argument under these\\nunusual circumstances. All of the amici provided the court with excellent legal analysis and\\nadvocacy.\\n 5\\n\\n Case: 18-20251 Document: 00514825287 Page: 6 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\nthe offer. McDonnell Douglas, 411 U.S. at 802. If the employer can show a\\nlegitimate, non-discriminatory reason for not hiring the plaintiff, the\\npresumption of discrimination disappears, and the burden shifts back to the\\nplaintiff to show either that the proffered reason was a pretext for\\ndiscrimination, or that the plaintiff’s protected status was another motivating\\nfactor for the decision. Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir.\\n2007). To overcome a legitimate, nondiscriminatory reason for termination,\\nthe plaintiff must show something beyond disagreement with the employer’s\\ndecision. Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005)\\n(“Disparate treatment of similarly situated employees is one way to\\ndemonstrate unlawful discrimination and retaliation.”).\\n Wittmer’s claim fails at both steps. To begin with, Wittmer failed to\\nestablish a prima facie case of discrimination. Specifically, Wittmer did not\\npresent evidence that any non-transgender applicants were treated better, as\\nrequired under the fourth prong of McDonnell Douglas. See Rogers v. Pearland\\nIndep. Sch. Dist., 827 F.3d 403, 408–09 (5th Cir. 2016) (upholding summary\\njudgment for failing the fourth prong of the prima facie case).\\n In addition, Phillips 66 identified a legitimate, non-discriminatory\\nreason for rescinding the offer—namely, Wittmer’s misrepresentations.\\nWittmer’s own deposition testimony confirms the misrepresentations about\\nmaintaining an on-going employment relationship with Agrium, and\\nvoluntarily departing Agrium to avoid substantial travel to Canada. And\\nPhillips 66 offered evidence that it decided to rescind the offer due to the\\ndiscrepancies uncovered in the background check—and that it did so two days\\nbefore anyone at the company ever learned of Wittmer’s transgender status.\\n So Wittmer’s claim fails for two reasons, separate and apart from our\\nholding in Blum. First, Wittmer failed to satisfy the plaintiff’s burden to\\npresent a prima facie case under the fourth prong of McDonnell Douglas. And\\n 6\\n\\n Case: 18-20251 Document: 00514825287 Page: 7 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\nsecond, Wittmer did not present a genuine issue of material fact that the non-\\ndiscriminatory reason offered by Phillips 66 was pretextual. The district court\\nwas therefore correct to enter summary judgment for Phillips 66.\\n The judgment is affirmed.\\n\\n\\n\\n\\n 7\\n\\n Case: 18-20251 Document: 00514825287 Page: 8 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4365403/\", \"author_raw\": \"JAMES C. HO, Circuit Judge:\"}, {\"author\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:\\n\\n I concur fully in the dismissal of Wittmer’s Title VII claim on the grounds\\nstated in the majority opinion. Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir.\\n1979), was decided decades before Lawrence v. Texas, 539 U.S. 558 (2003),\\ninvalidated laws criminalizing same-sex sexual conduct, and we have never\\nsince relied on Blum for its holding that Title VII does not cover sexual\\norientation discrimination. Neither party, in the district court or this court,\\nrelied on or questioned Blum’s continued vitality—so, wisely I think, we do not\\nreach here to resolve Blum’s endurance or the question of whether Title VII\\ntoday proscribes discrimination against someone because of sexual orientation\\nor transgender status. We do not because we cannot, even with elegant asides.\\n\\n\\n\\n\\n 8\\n\\n Case: 18-20251 Document: 00514825287 Page: 9 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4365403/\", \"author_raw\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring\"}, {\"author\": \"JAMES C. HO, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"JAMES C. HO, Circuit Judge, concurring:\\n\\n For four decades, it has been the uniform law of the land, affirmed in\\neleven circuits, that Title VII of the 1964 Civil Rights Act prohibits sex\\ndiscrimination—not sexual orientation or transgender discrimination.\\n But that uniformity no longer exists today. Three circuits to date have\\nconstrued Title VII to prohibit sexual orientation or transgender\\ndiscrimination. And now a district court in our circuit has issued a published\\nopinion declaring those rulings “persuasive”—and thus the “assume[d]” law of\\nour circuit—without mentioning our own circuit precedent to the contrary.\\nWittmer v. Phillips 66 Co., 304 F. Supp. 3d 627, 634 (S.D. Tex. 2018).\\n The majority opinion makes plain what should go without saying—that\\nour precedent remains binding in this circuit. I write separately to explain\\nwhy our precedent is also correct as a matter of faithful legal interpretation.\\nOnly the Supreme Court can resolve this circuit split, of course. But because\\nthe EEOC has asked us to address this issue—and because the district court\\nputs the law of our circuit into question—further discussion is warranted.\\n I.\\n Since 1964, Title VII has prohibited employers from “discriminat[ing]”\\nagainst any individual with respect to employment “because of such\\nindividual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).\\n Whether this language applies to sexual orientation or transgender\\ndiscrimination is a question of statutory interpretation that has deeply divided\\nrespected jurists in other circuits in recent years. Compare, e.g., Hively v. Ivy\\nTech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc); id. at 352\\n(Posner, J., concurring); id. at 357 (Flaum, J., concurring); Zarda v. Altitude\\nExpress, Inc., 883 F.3d 100 (2nd Cir. 2018) (en banc); id. at 132 (Jacobs, J.,\\nconcurring); id. at 135 (Cabranes, J., concurring); id. at 135 (Sack, J.,\\nconcurring); id. at 136 (Lohier, J., concurring); with Hively, 853 F.3d at 359\\n 9\\n\\n Case: 18-20251 Document: 00514825287 Page: 10 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\n(Sykes, J., dissenting); Zarda, 883 F.3d at 137 (Lynch, J., dissenting); id. at\\n167 (Livingston, J., dissenting); id. at 169 (Raggi, J., dissenting).\\n As a matter of ordinary usage, the term “sex,” of course, does not mean\\n“sexual orientation” or “transgender status.” “In common, ordinary usage in\\n1964—and now, for that matter—the word ‘sex’ means biologically male or\\nfemale . . . . To a fluent speaker of the English language—then and now—the\\nordinary meaning of the word ‘sex’ does not fairly include the concept of ‘sexual\\norientation.’ The two terms are never used interchangeably, and the latter is\\nnot subsumed within the former; there is no overlap in meaning.” Hively, 853\\nF.3d at 362–63 (citations omitted) (Sykes, J., dissenting).\\n But what does it mean to “discriminate because of sex”? There are two\\ncompeting schools of thought. Under the longstanding view, universally\\naccepted by federal circuits for forty years, Title VII prohibits employers from\\nfavoring men over women, or vice versa. By contrast, under the approach\\nrecently adopted in three circuits, Title VII does more than prohibit favoritism\\ntoward men or women—it requires employers to be entirely blind to a person’s\\nsex. See, e.g., Hively, 853 F.3d at 345 (“[H]olding all other things constant and\\nchanging only her sex, [would] she [] have been treated the same way?”).\\n A brief example will illustrate the meaningful difference between these\\ntwo visions. Separate bathrooms for men and women are of course ubiquitous\\nin our society. They are prevalent not because they favor one sex over another,\\nbut because they protect the privacy of both sexes. So separate bathrooms are\\npermitted under the anti-favoritism theory of Title VII. But they are unlawful\\nunder the blindness approach to Title VII, because separate bathrooms are\\nobviously not blind to sex.\\n These competing visions of Title VII similarly diverge on the issue of\\ntransgender and sexual orientation discrimination. Imagine that a company\\ndiscriminates against transgender women. Is that “discrimination because of\\n 10\\n\\n Case: 18-20251 Document: 00514825287 Page: 11 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\nsex”? The anti-favoritism theory would say no, not if the company also\\ndiscriminates against transgender men. After all, that would not be favoring\\nmen over women, or women over men—it would be favoring non-transgender\\npersons over transgender persons. So too as to sexual orientation: A company\\nthat refuses to hire either gay men or lesbian women is not favoring men over\\nwomen, or vice versa—it is favoring straight men and women over gay men\\nand lesbian women. The blindness theory, by contrast, would hold that Title\\nVII prohibits both transgender and sexual orientation discrimination. Because\\nunder that theory, it would not matter that the company isn’t favoring men\\nover women, or women over men. All that matters is that company policy\\ntreats people differently based on their sex: Because only women, not men,\\nmay identify as women—and only women, not men, may marry men—just as\\nonly women, not men, may use women’s bathrooms.\\n Neither of these competing theories appears to be foreclosed under the\\nliteral terms of Title VII. How, then, should a dutiful textualist proceed? When\\nstatutory text permits two very different interpretations, how do you decide?\\nFor a number of reasons, the traditional interpretation should prevail.\\n A.\\n Although judges in other circuits are divided over their interpretation of\\nTitle VII, they are united as to the original public meaning of Title VII.\\n No one seriously contends that, at the time of enactment, the public\\nmeaning and understanding of Title VII included sexual orientation or\\ntransgender discrimination. To the contrary, there is a judicial consensus that\\nthe public meaning of Title VII in 1964 did not include sexual orientation or\\ntransgender discrimination. See, e.g., Hively, 853 F.3d at 345 (adopting\\ninterpretation of Title VII that “the Congress that enacted the Civil Rights Act\\nin 1964 . . . may not have realized or understood”); id. at 355 (Posner, J.,\\nconcurring) (“A broader understanding of the word ‘sex’ in Title VII than the\\n 11\\n\\n Case: 18-20251 Document: 00514825287 Page: 12 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\noriginal understanding is thus required in order to be able to classify the\\ndiscrimination of which Hively complains as a form of sex discrimination.”); id.\\nat 362 (Sykes, J., dissenting) (“Is it even remotely plausible that in 1964, when\\nTitle VII was adopted, a reasonable person competent in the English language\\nwould have understood that a law banning employment discrimination\\n‘because of sex’ also banned discrimination because of sexual orientation? The\\nanswer is no, of course not.”); Zarda, 883 F.3d at 137 (Lynch, J., dissenting)\\n(“Of course, today’s majority does not contend that Congress literally\\nprohibited sexual orientation discrimination in 1964. . . . [A]ny such contention\\nwould be indefensible.”). 1\\n This consensus about the original understanding of Title VII is further\\nbolstered by four decades of case law. During that time, every federal circuit\\nto address the issue—including the First through Eleventh Circuits—rejected\\nattempts to construe Title VII to prohibit discrimination on the basis of either\\nsexual orientation or transgender status. See, e.g., Dillon v. Frank, 952 F.2d\\n403, *4 (6th Cir. 1992) (unpublished table) (“The circuits are unanimous in\\nholding that Title VII does not proscribe discrimination based on sexual\\nactivities or orientation.”); Hively, 853 F.3d at 361 (Sykes, J., dissenting) (“This\\ninterpretation has been stable for many decades and is broadly accepted; all\\n\\n\\n\\n 1 Original public meaning is not to be confused with the subjective intent of legislators.\\nOpponents of the traditional view of Title VII point out that members of Congress in 1964\\nwould not have expected it to prohibit sexual harassment, including same-sex sexual\\nharassment—yet that is how courts have construed it today. See Oncale v. Sundowner\\nOffshore Services, Inc., 523 U.S. 75 (1998). But for originalists, the point is not whether\\nmembers of Congress subjectively intended that result—rather, the point is whether they\\nshould have expected it, in light of the words of the statute as they were generally understood\\nat the time. In short, our lodestar is original public meaning, not original intent. It should\\nsurprise no one that a statute drafted to eradicate sex discrimination in the workplace would\\nlater be unanimously construed by the Supreme Court to reach workplace conduct that\\npressures members of one sex out of the workplace, but not the other. See Meritor Sav. Bank,\\nFSB v. Vinson, 477 U.S. 57 (1986). That of course says nothing about whether Title VII also\\nforbids sexual orientation and transgender discrimination.\\n 12\\n\\n Case: 18-20251 Document: 00514825287 Page: 13 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\ncircuits agree that sexual-orientation discrimination is a distinct form of\\ndiscrimination and is not synonymous with sex discrimination.”). 2\\n It was not until 40 years after Congress enacted Title VII that a federal\\ncourt of appeals first construed it to prohibit transgender discrimination\\n(Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004))—and 53 years after\\nenactment that a federal court of appeals first construed it to prohibit sexual\\norientation discrimination (Hively, 853 F.3d 339).\\n If the first forty years of uniform circuit precedent nationwide somehow\\ngot the original understanding of Title VII wrong, no one has explained how.\\n B.\\n The traditional understanding of Title VII is further bolstered by other\\nestablished principles of statutory interpretation.\\n\\n\\n 2 See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999)\\n(‘‘[W]e regard it as settled law that . . . Title VII does not proscribe harassment simply\\nbecause of sexual orientation.’’); Simonton v. Runyon, 232 F.3d 33, 35 (2nd Cir. 2000) (‘‘The\\nlaw is well-settled in this circuit and in all others to have reached the question that . . . Title\\nVII does not prohibit harassment or discrimination because of sexual orientation.”); Bibby v.\\nPhila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3rd Cir. 2001) (“It is clear . . . that Title VII\\ndoes not prohibit discrimination based on sexual orientation.”); Wrightson v. Pizza Hut of\\nAm., 99 F.3d 138, 143 (4th Cir. 1996) (‘‘Title VII does not afford a cause of action for\\ndiscrimination based upon sexual orientation.’’), abrogated on other grounds by Oncale, 523\\nU.S. 75; Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (“Discharge for\\nhomosexuality is not prohibited by Title VII.”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757,\\n762 (6th Cir. 2006) (‘‘[S]exual orientation is not a prohibited basis for discriminatory acts\\nunder Title VII.’’); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984) (“While\\nwe recognize distinctions among homosexuals, transvestites, and transsexuals, we believe\\nthat the same reasons for holding that the first two groups do not enjoy Title VII coverage\\napply with equal force to deny protection for transsexuals.”); Williamson v. A.G. Edwards &\\nSons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (‘‘Title VII does not prohibit discrimination against\\nhomosexuals.’’); Sommers v. Budget Mktg, Inc., 667 F.2d 748, 750 (8th Cir. 1982)\\n(“[D]iscrimination based on one’s transsexualism does not fall within the protective purview\\nof [Title VII].”); DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 329–30 (9th Cir. 1979) (“Title\\nVII’s prohibition of ‘sex’ discrimination applies only to discrimination on the basis of gender\\nand should not be judicially extended to include sexual preference such as homosexuality.”);\\nHolloway v. Arthur Andersen & Co., 566 F.2d 659, 661 (9th Cir. 1977) (“Title VII does not\\nembrace transsexual discrimination.”); Medina v. Income Support Div., 413 F.3d 1131, 1135\\n(10th Cir. 2005) (‘‘Title VII’s protections . . . do not extend to harassment due to a person’s\\nsexuality.”); Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017) (following Blum).\\n 13\\n\\n Case: 18-20251 Document: 00514825287 Page: 14 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\n As the Supreme Court has repeatedly observed, Congress “does not alter\\nthe fundamental details of a regulatory scheme in vague or ancillary\\nprovisions—it does not, one might say, hide elephants in mouseholes.”\\nWhitman v. Am. Trucking Ass’n, 531 U.S. 457, 468 (2001). See also, e.g.,\\nGonzales v. Oregon, 546 U.S. 243, 267 (2006) (same).\\n The Court typically invokes the “elephants” canon when it is asked to\\nconstrue an ambiguous statute to reach a matter of great policy consequence.\\nAs the Court explained, Congress at times drafts statutes that are “susceptible\\nto more precise definition and open to varying constructions, and thus\\nambiguous in the relevant sense.” Id. at 258. When faced with such ambiguous\\nprovisions, “our inquiry into whether Congress has directly spoken to the\\nprecise question at issue is shaped, at least in some measure, by the nature of\\nthe question presented.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S.\\n120, 159 (2000) (emphasis added). “Congress is more likely to have focused\\nupon, and answered, major questions, while leaving interstitial matters to\\nanswer themselves in the course of the statute’s daily administration.” Id.\\n For example, in Gonzales v. Oregon, the Court rejected an interpretation\\nof the Controlled Substances Act that would have given the Attorney General\\nthe power to regulate drugs used in physician-assisted suicide. The Court\\nnoted that “[t]he importance of the issue of physician-assisted suicide, which\\nhas been the subject of an ‘earnest and profound debate’ across the country,\\nmakes the oblique form of the claimed delegation all the more suspect.” 546\\nU.S. at 267 (quoting Washington v. Glucksberg, 521 U.S. 702, 735 (1997)).\\n Similarly, in FDA v. Brown & Williamson, the Court rejected a reading\\nof the Food, Drug, and Cosmetic Act that would have given the FDA the power\\nto regulate tobacco. The Court said that “we are confident that Congress could\\nnot have intended to delegate a decision of such economic and political\\nsignificance to an agency in so cryptic a fashion.” 529 U.S. at 160. See also\\n 14\\n\\n Case: 18-20251 Document: 00514825287 Page: 15 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\nMCI v. AT&T, 512 U.S. 218, 231 (1994) (“It is highly unlikely that Congress\\nwould leave the determination of whether an industry will be entirely, or even\\nsubstantially, rate-regulated to agency discretion—and even more unlikely\\nthat it would achieve that through such a subtle device as permission to\\n‘modify’ rate-filing requirements.”); Brannan v. Stark, 342 U.S. 451, 463 (1952)\\n(“We do not think it likely that Congress, in fashioning this intricate . . .\\nmachinery, would thus hang one of the main gears on the tail pipe.”).\\n The elephants canon easily applies here. No one could seriously dispute\\nthe importance of the issues presented in this case, as reflected by the amicus\\nand en banc attention these issues have attracted in other circuits.\\n What’s more, this case is about more than sexual orientation or\\ntransgender discrimination. If we accept the blindness theory of Title VII,\\nwhat else are employers prohibited from doing?\\n As I noted earlier, employers would also be forbidden from maintaining\\nseparate bathrooms and changing rooms for men and women—even though the\\npurpose of separate bathrooms and changing rooms is not favoritism toward\\neither sex, but respect for the privacy of employees and customers of both sexes.\\nNo one to my knowledge has suggested how the blindness theory of Title VII\\ncould prohibit transgender and sexual orientation discrimination, while still\\nallowing employers to maintain separate bathrooms for men and women. That\\nis presumably because no such limiting principle exists.\\n In Zarda, for example, Judge Lynch stated that surely “Title VII . . . does\\nnot prohibit an employer from having separate men’s and women’s toilet\\nfacilities.” 883 F.3d at 150 (Lynch, J., dissenting). Indeed, it was precisely for\\nthat reason that he rejected the blindness view of Title VII. See id. at 151 (“it\\nis not the case that any employment practice that can only be applied by\\nidentifying an employee’s sex is prohibited,” including separate bathrooms).\\n\\n\\n 15\\n\\n Case: 18-20251 Document: 00514825287 Page: 16 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\n Notably, the majority in Zarda responded to Judge Lynch by conceding\\nthat, under their view of Title VII, “employer policies regarding sex-segregated\\nbathrooms” would indeed “discriminate[] because of sex.” Id. at 118. The\\nmajority tried to avoid employer liability for separate bathrooms by suggesting\\nthat bathroom assignments are not significant enough to constitute terms and\\nconditions of employment protected under Title VII. Id. at 118–19. But that\\nonly begs the question: What if an employee is fired for using the wrong\\nbathroom or changing room? The majority does not say.\\n To their credit, the National Center amici conceded during oral\\nargument that, under their theory of Title VII, employers would indeed be\\nforbidden from maintaining separate bathrooms and changing rooms for men\\nand women. Oral Arg. 27:40–28:17.\\n So this case does not simply concern sexual orientation and transgender\\ndiscrimination. It affects every American who uses the restroom at any\\nrestaurant, buys clothes at any department store, or exercises at any gym.\\nWhat’s more, because federal statutes governing educational institutions\\nemploy language indistinguishable from Title VII, this debate also affects\\nvirtually every school, college, dormitory, athletic activity, and locker room in\\nAmerica. See, e.g., Title IX of the Education Amendments Act of 1972, 20\\nU.S.C. § 1681(a) (“No person in the United States shall, on the basis of sex, be\\nexcluded from participation in, be denied the benefits of, or be subjected to\\ndiscrimination under any education program or activity receiving Federal\\nfinancial assistance.”).\\n Under the elephants canon, significant policy issues must be decided by\\nthe people, through their elected representatives in Congress, using clearly\\nunderstood text—not by judges, using “oblique,” “cryptic,” or “subtle” statutory\\nparsing. Gonzales, 546 U.S. at 267; Brown & Williamson, 529 U.S. at 160;\\nMCI, 512 U.S. at 231. That principle surely applies here, considering the\\n 16\\n\\n Case: 18-20251 Document: 00514825287 Page: 17 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\nrevolutionary social change that would be brought about under the blindness\\napproach to Title VII.\\n C.\\n The traditional interpretation of Title VII is also the only reading that\\ncomports with common usage.\\n When construing statutes, courts presume that lawmakers use words in\\nlight of their natural and ordinary meaning, rather than resort to more cryptic\\nformulations. See, e.g., Smith v. United States, 508 U.S. 223, 228 (1993)\\n(“When a word is not defined by statute, we normally construe it in accord with\\nits ordinary or natural meaning.”).\\n If Congress had meant to prohibit sexual orientation or transgender\\ndiscrimination, surely the most straightforward way to do so would have been\\nto say so—to add “sexual orientation” or “transgender status” or “gender\\nidentity” to the list of classifications protected under Title VII. It would defy\\ncommon sense to imagine that lawmakers labored to assemble a majority\\ncoalition to eradicate sexual orientation and transgender discrimination from\\nthe workplace—only to select the most oblique formulation they could think of\\n(“because of sex”) and then hope for the best that courts would understand\\nwhat they meant.\\n By the same token, any legitimate theory of interpretation must account\\nfor the possibility that lawmakers might ultimately decide to prohibit sex\\ndiscrimination, but not sexual orientation or transgender discrimination. And\\nthe most obvious way to implement that policy judgment is to do exactly what\\nCongress did in 1964: prohibit discrimination on the basis of sex, without the\\nneed for an exemption for, or any other reference to, sexual orientation or\\ntransgender status.\\n This is not just common usage in 1964—it is common usage today.\\nCounsel for the National Center amici acknowledged as much during oral\\n 17\\n\\n Case: 18-20251 Document: 00514825287 Page: 18 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\nargument. When asked about a hypothetical company that hires equally\\nbetween men and women, but refuses to hire any transgender men or women,\\ncounsel agreed that, as a matter of common parlance, we would call that\\ncompany today transphobic, not sexist. Oral Arg. 25:10–25:35.\\n Similarly, both Congress and various state legislatures have expressly\\nprohibited sexual orientation and gender identity discrimination by using the\\nterms “sexual orientation” and “gender identity,” as Judge Sykes cataloged in\\nHively. 853 F.3d at 363–64 (Sykes, J., dissenting). “This uniformity of usage\\nis powerful objective evidence that sexual-orientation discrimination is broadly\\nrecognized as an independent category of discrimination and is not\\nsynonymous with sex discrimination.” Id. at 364–65. 3\\n II.\\n Opponents of the traditional approach to Title VII nevertheless contend\\nthat their position is compelled by the Supreme Court’s decision in Price\\nWaterhouse v. Hopkins, 490 U.S. 228 (1989). See, e.g., Hively, 853 F.3d at 342.\\n Under this theory, sex stereotyping is per se unlawful under Price\\nWaterhouse, regardless of whether it is ultimately used to favor one sex over\\nanother. Accordingly, transgender discrimination must now be treated as per\\nse unlawful under Title VII as well. After all, transgender discrimination\\ntargets transgender men and women precisely because they do not conform\\nwith sex stereotypes as to how they should identify themselves. And so too\\nwith sexual orientation discrimination, which likewise targets gay men and\\n\\n\\n\\n\\n 3 See, e.g., Violence Against Women Act, 34 U.S.C. § 2291(b)(13)(A) (prohibits federally\\nfunded programs and activities from discriminating “on the basis of actual or perceived race,\\ncolor, religion, national origin, sex, gender identity, . . . sexual orientation, or disability”);\\nMatthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 18 U.S.C. § 249(a)(2)(A)\\n(imposes heightened punishment for causing or attempting to cause bodily injury “to any\\nperson, because of the actual or perceived religion, national origin, gender, sexual orientation,\\ngender identity, or disability of any person”).\\n 18\\n\\n Case: 18-20251 Document: 00514825287 Page: 19 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\nlesbian women because they do not conform with sex stereotypes. See, e.g., id.\\n(“[A]ll gay, lesbian and bisexual persons fail to comply with the sine qua non\\nof gender stereotypes—that all men should form intimate relationships only\\nwith women, and all women should form intimate relationships only with\\nmen.”).\\n But here’s the problem with this theory: Price Waterhouse doesn’t make\\nsex stereotyping per se unlawful under Title VII. To the contrary, under Price\\nWaterhouse, sex stereotyping is actionable only to the extent it provides\\nevidence of favoritism of one sex over the other.\\n The plurality opinion of Justice Brennan, for example, spoke of\\nprohibiting not all sex stereotypes per se, but only “disparate treatment of men\\nand women resulting from sex stereotypes.” Id. at 251 (emphasis added). See\\nalso id. (“An employer who objects to aggressiveness in women but whose\\npositions require this trait places women in an intolerable and impermissible\\ncatch 22: out of a job if they behave aggressively and out of a job if they do not.\\nTitle VII lifts women out of this bind.”) (citations and quotations omitted).\\n Similarly, the concurring opinion of Justice O’Connor observed that sex\\nis a “human characteristic[] of which decisionmakers are aware and about\\nwhich they may comment in a perfectly neutral and nondiscriminatory\\nfashion.” Id. at 277 (emphasis added). “What is required is . . . direct evidence\\nthat decisionmakers placed substantial negative reliance on an illegitimate\\ncriterion in reaching their decision.” Id.\\n And Justice Kennedy noted on behalf of three dissenting justices that\\n“Title VII creates no independent cause of action for sex stereotyping.\\nEvidence of use by decisionmakers of sex stereotypes is, of course, quite\\nrelevant to the question of discriminatory intent. The ultimate question,\\nhowever, is whether discrimination caused the plaintiff’s harm.” Id. at 294.\\n\\n\\n 19\\n\\n Case: 18-20251 Document: 00514825287 Page: 20 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\n III.\\n Opponents of the traditional view of Title VII also claim their position is\\ncompelled by an analogy to race, and specifically, to interracial marriage.\\n Put simply, their point is this: Title VII requires blindness to race—so\\nwhy doesn’t it also require blindness to sex? For example, courts have\\nconstrued Title VII to forbid employers from discriminating against employees\\nfor being in an interracial marriage. See, e.g., Holcomb v. Iona College, 521\\nF.3d 130 (2nd Cir. 2008); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d\\n888 (11th Cir. 1986). Why, then, doesn’t Title VII also require employers to be\\nblind to sex as well—which would prohibit discrimination on the basis of same-\\nsex marriage, sexual orientation, and transgender status? See, e.g., Hively,\\n853 F.3d at 342 (alleging “sharp tension” between lack of Title VII protection\\nfor sexual orientation and legal protection for interracial marriage).\\n But the analogy fails for one simple reason: The Supreme Court has\\nanalyzed interracial marriage differently from same sex marriage.\\n The Court has condemned laws against interracial marriage, not only\\nbecause of our constitutional commitment to color blindness, but because\\nprohibitions on interracial marriage are racist, pure and simple. As the Court\\nput it, “[t]here is patently no legitimate overriding purpose independent of\\ninvidious racial discrimination which justifies this classification.” Loving v.\\nVirginia, 388 U.S. 1, 11 (1967) (emphasis added). See also Hively, 853 F.3d at\\n348 (“[M]iscegenation laws . . . are (and always were) inherently racist.”); id.\\nat 368 (Sykes, J., dissenting) (“[M]iscegenation laws are inherently racist.”).\\n By contrast, the Court did not establish a right to same-sex marriage\\nbased on sex discrimination at all, let alone based on blindness to sex. To be\\nsure, the plaintiffs in Obergefell made the argument—indeed, they devoted an\\nentire subsection of their brief to the argument that traditional marriage laws\\nare not blind to sex. Brief for Petitioners, Obergefell v. Hodges, 135 S. Ct. 2584\\n 20\\n\\n Case: 18-20251 Document: 00514825287 Page: 21 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\n(2015), available at 2015 WL 860738, *48. Yet not a single justice endorsed\\nthat theory. Instead, the Supreme Court held that traditional marriage laws\\ndiscriminate on the basis of sexual orientation, not sex. As Judge Sykes put it\\nin Hively, “far from collapsing the well-understood distinction between sex\\ndiscrimination and sexual-orientation discrimination, the Court actually\\npreserved it.” 853 F.3d at 372 (Sykes, J., dissenting).\\n IV.\\n It took an act of Congress to prohibit race and sex discrimination in\\nprivate employment nationwide—a landmark achievement in our nation’s\\nhistory. So too it will take an act of Congress if the people wish to prohibit\\ntransgender and sexual orientation discrimination across the country as well.\\nSee, e.g., Zarda, 883 F.3d at 166 (Lynch, J., dissenting) (“[I]t is the prerogative\\nof Congress or a state legislature to decide whether private employers may\\n[discriminate].”).\\n Running the gauntlet of Article I, Section 7 of the Constitution is arduous\\nwork, to be sure. But it is necessary for the people to ensure that the\\nprotections sought in this case are not just legitimate, but lasting.\\n Moreover, it is worth remembering what Congress has already achieved\\nby enacting the 1964 Civil Rights Act. As the court-appointed amici reminds\\nus: Title VII protects every American, regardless of sexual orientation or\\ntransgender status. It simply requires proof of sex discrimination, as distinct\\nfrom sexual orientation or transgender discrimination. If you can demonstrate\\nthat your employer will hire transgender men but not transgender women, or\\ngay men but not lesbian women, or vice versa, you may well have a claim of\\nsex discrimination.\\n In sum, Title VII prohibits sex discrimination, full stop. And it applies\\nthe same rules to everyone, without regard to sexual orientation or\\ntransgender status. For example, in O’Daniel v. Industrial Service Solutions,\\n 21\\n\\n Case: 18-20251 Document: 00514825287 Page: 22 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\n2018 WL 265585, *7 (M.D. La. Jan. 2, 2018) (appeal pending), the district court\\nheld that a straight employee has no Title VII claim for sexual orientation\\ndiscrimination by a lesbian supervisor. See also Medina, 413 F.3d at 1133–35\\n(same). The same rules apply to Bonnie O’Daniel as to Nicole Wittmer.\\n ***\\n Under our Constitution, contentious policy disputes are resolved by the\\npeople, through their elected representatives in Congress. And when a\\nparticular policy position garners enough support to leap the hurdles of Article\\nI, Section 7, it becomes the law of the land.\\n For our system to work, however, we must share a common language.\\nWhen the American people come to a consensus, there must be a way to reduce\\nthe agreement to words that we can all understand and accept—both today\\nand in the years to come. We must have confidence that our words will be\\nfaithfully construed in the future, consistent with our common understanding.\\n That confidence is lost if the people undertake to debate difficult issues,\\naccept the daunting task of forging compromise, and then reduce that\\ncompromise to legislation—only to have courts surprise the people with rulings\\nthat bear no resemblance to our common language. I agree with Judge Lynch\\nthat “we need to respect the choices made by Congress about which social\\nproblems to address, and how to address them.” Zarda, 883 F.3d at 166\\n(Lynch, J., dissenting). We should not “impos[e] on a half-century-old statute\\na meaning of ‘sex discrimination’ that the Congress that enacted it would not\\nhave accepted.” Hively, 853 F.3d at 357 (Posner, J., concurring).\\n I join in the decision to affirm the district court. But I do so with concern\\nthat the people are losing faith in their institutions—and that our courts are\\ngiving the people reason to do so.\\n\\n\\n\\n\\n 22\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4365403/\", \"author_raw\": \"JAMES C. HO, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"JAMES"},"judge2":{"kind":"string","value":"HIGGINBOTHAM"},"judge3":{"kind":"string","value":"ELROD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":5,"string":"5"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":3,"string":"3"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4588150/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":1,"string":"1"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Nicole C. WITTMER, Plaintiff-Appellant v. PHILLIPS 66 COMPANY, Defendant-Appellee\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-06\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-20251 Document: 00514825287 Page: 1 Date Filed: 02/06/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-20251 February 6, 2019\n Lyle W. Cayce\nNICOLE C. WITTMER, Clerk\n\n\n Plaintiff - Appellant\n\nv.\n\nPHILLIPS 66 COMPANY,\n\n Defendant - Appellee\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\nJAMES C. HO, Circuit Judge:\n Over the past two years, three circuits have construed Title VII of the\nCivil Rights Act of 1964 to prohibit employers from discriminating on the basis\nof either sexual orientation or transgender status. See Zarda v. Altitude\nExpress, Inc., 883 F.3d 100 (2nd Cir. 2018) (en banc); EEOC v. R.G. & G.R.\nHarris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); Hively v. Ivy Tech\nCmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc).\n The district court here examined these recent out-of-circuit rulings,\nfound them “persuasive,” and thus “assume[d]” that Title VII prohibits\ntransgender discrimination, in a published opinion. Wittmer v. Phillips 66 Co.,\n304 F. Supp. 3d 627, 634 (S.D. Tex. 2018). In doing so, the district court\nexpressly stated that “the Fifth Circuit has not yet addressed the issue.” Id.\n\n Case: 18-20251 Document: 00514825287 Page: 2 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\n But we have addressed the issue. In Blum v. Gulf Oil Corp., 597 F.2d\n936 (5th Cir. 1979), we expressly held that Title VII does not prohibit\ndiscrimination on the basis of sexual orientation. Yet the district court did not\nmention, let alone distinguish, Blum. Most notably, it did not contend that\nTitle VII applies to transgender status but not sexual orientation. To the\ncontrary, the court concluded that the “same” analysis applies to transgender\nstatus and sexual orientation alike. Wittmer, 304 F. Supp. 3d at 634.\n Blum remains binding precedent in this circuit to this day. Our sister\ncircuits—including those favorably quoted in the district court’s published\nopinion—recognize Blum as our precedent. See Zarda, 883 F.3d at 107–8\n(recognizing historic “consensus among our sister circuits” foreclosing sexual\norientation claims under Title VII, including Blum); Hively, 853 F.3d at 341–\n42 (“recognizing . . . Fifth Circuit’s precedent in Blum”); see also Evans v. Ga.\nReg’l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017) (Blum is “binding precedent”\nthat “forecloses” sexual orientation discrimination claims under Title VII).\n Other district courts within the Fifth Circuit have likewise repeatedly\nacknowledged that Blum is binding circuit precedent. See, e.g., O’Daniel v.\nIndus. Serv. Solutions, 2018 WL 265585, *7 (M.D. La. Jan. 2, 2018) (“The Fifth\nCircuit has specifically held that discharge based upon sexual orientation is\nnot prohibited by Title VII . . . . Blum is binding precedent”); Berghorn v. Texas\nWorkforce Comm’n, 2017 WL 5479592, *4 (N.D. Tex. Nov. 15, 2017) (“The\ncourt . . . is bound by Fifth Circuit precedent, not Seventh Circuit precedent.”).\n We nevertheless affirm the district court on other grounds. The district\ncourt correctly granted summary judgment for the employer, because the\nemployee failed to present sufficient evidence to support a prima facie case of\ndiscrimination, and because the employee failed to present a genuine issue of\nmaterial fact concerning pretext.\n\n\n 2\n\n Case: 18-20251 Document: 00514825287 Page: 3 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\n I.\n Nicole Wittmer, a transgender woman, applied for an Instrument and\nReliability Engineer position with Phillips 66 in 2015. Phillips 66 conducted\nfour interviews, including an in-person interview on August 3.\n During these interviews, Phillips 66 asked about Wittmer’s current\nemployment with Agrium. They discussed on-going projects at Agrium that\nwould require significant future travel to Canada as the reason Wittmer was\nlooking for a new job. On August 10, Phillips 66 offered Wittmer the job,\ncontingent on passing certain background checks.\n On September 2, Ellen Fulton, Phillips 66’s Human Resources Manager,\ninformed Wittmer that the background check uncovered a discrepancy:\nAgrium terminated Wittmer on July 28, with pay continuing through\nAugust 2.\n In response, Wittmer acknowledged the discrepancy, but did not think\n“it was that big of a deal.” Wittmer sent Fulton the July 28 termination letter\nfrom Agrium, clearly stating that their employment relationship ended on July\n28.\n Fulton and several other Phillips 66 executives conferred on\nSeptember 8. Everyone at the meeting agreed that the offer of employment\nshould be rescinded due to Wittmer’s misrepresentations.\n On September 10, Wittmer sent an unsolicited email to Fulton and\nanother Phillips 66 employee, accusing them of transgender discrimination.\nFulton responded that Phillips 66 was unaware of Wittmer’s transgender\nstatus prior to the email, and that in any event, the information would not\naffect Phillips 66’s decision.\n On September 14, Fulton formally rescinded the offer of employment.\nFulton explained that it was due to the discrepancies revealed during the\nbackground check after the initial conditional offer.\n 3\n\n Case: 18-20251 Document: 00514825287 Page: 4 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\n A year later, in October 2016, Wittmer filed a charge of discrimination\nwith the EEOC against Phillips 66. Wittmer claimed that Phillips 66 rescinded\nits offer because of transgender discrimination. The EEOC issued a right-to-\nsue letter.\n II.\n Wittmer sued Phillips 66 under Title VII for discrimination on the basis\nof transgender status. Without distinguishing or even mentioning Blum,\nWittmer claimed that Title VII prohibits transgender discrimination.\n Phillips 66 took no position on whether Title VII prohibits transgender\ndiscrimination. Instead, Phillips 66 moved for summary judgment on the\ngrounds that (1) Wittmer failed to state a prima face case of discrimination on\nthe basis of transgender status, and (2) Wittmer failed to present a genuine\nissue of material fact that the non-discriminatory reason offered by Phillips 66\nwas pretextual.\n The district court granted summary judgment to Phillips 66 on both\ngrounds. Wittmer appealed.\n On appeal, Phillips 66 continues to take no position on whether Title VII\nprohibits discrimination on the basis of transgender status. It instead seeks\naffirmance on the specific evidentiary grounds on which it prevailed in the\ndistrict court.\n This appeal nevertheless attracted substantial amicus attention on the\nquestion of whether Title VII prohibits transgender discrimination. The EEOC\nfiled an amicus brief that took no position whether the judgment below should\nbe affirmed or reversed. The EEOC simply asked this court to hold that Title\nVII does indeed prohibit discrimination on the basis of transgender status.\nSimilarly, various organizations, led by the National Center for Lesbian\nRights, filed an amicus brief that, like EEOC, concluded that Title VII\nprohibits transgender discrimination, and took no position on the judgment.\n 4\n\n Case: 18-20251 Document: 00514825287 Page: 5 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\n The EEOC requested the opportunity to participate in oral argument.\nWe granted the request. In addition, we appointed Adam Mortara as amicus\ncuriae to brief and argue the contrary interpretation of Title VII—just as the\nSecond Circuit did in Zarda. The EEOC subsequently withdrew its request to\nparticipate in oral argument, due to the government shutdown. So the\nNational Center amici asked us if they could take the EEOC’s place at the\npodium. We granted that request as well. 1\n III.\n Summary judgment is appropriate “if the movant shows that there is no\ngenuine dispute as to any material fact and the movant is entitled to judgment\nas a matter of law.” FED. R. CIV. P. 56(a).\n Title VII prohibits employment discrimination against “any individual\n. . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). To\nestablish a prima facie case of discrimination, the plaintiff must either present\ndirect evidence of discrimination or, in the absence of direct evidence, rely on\ncircumstantial evidence using the McDonnell Douglas burden-shifting\nanalysis. Under McDonnell Douglas, the plaintiff carries the burden to prove\nthat (1) he belongs to a protected class; (2) he applied for and was qualified for\nthe position; (3) he was rejected despite being qualified; and (4) others similarly\nqualified but outside the protected class were treated more favorably.\nMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See also Willis v.\nCoca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006).\n If a plaintiff establishes a prima facie case, the burden shifts to the\nemployer to show it had a legitimate, nondiscriminatory reason for rescinding\n\n\n\n 1We thank Mr. Mortara for his public service in accepting the court’s appointment.\nWe also thank the National Center amici for participating in oral argument under these\nunusual circumstances. All of the amici provided the court with excellent legal analysis and\nadvocacy.\n 5\n\n Case: 18-20251 Document: 00514825287 Page: 6 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\nthe offer. McDonnell Douglas, 411 U.S. at 802. If the employer can show a\nlegitimate, non-discriminatory reason for not hiring the plaintiff, the\npresumption of discrimination disappears, and the burden shifts back to the\nplaintiff to show either that the proffered reason was a pretext for\ndiscrimination, or that the plaintiff’s protected status was another motivating\nfactor for the decision. Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir.\n2007). To overcome a legitimate, nondiscriminatory reason for termination,\nthe plaintiff must show something beyond disagreement with the employer’s\ndecision. Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005)\n(“Disparate treatment of similarly situated employees is one way to\ndemonstrate unlawful discrimination and retaliation.”).\n Wittmer’s claim fails at both steps. To begin with, Wittmer failed to\nestablish a prima facie case of discrimination. Specifically, Wittmer did not\npresent evidence that any non-transgender applicants were treated better, as\nrequired under the fourth prong of McDonnell Douglas. See Rogers v. Pearland\nIndep. Sch. Dist., 827 F.3d 403, 408–09 (5th Cir. 2016) (upholding summary\njudgment for failing the fourth prong of the prima facie case).\n In addition, Phillips 66 identified a legitimate, non-discriminatory\nreason for rescinding the offer—namely, Wittmer’s misrepresentations.\nWittmer’s own deposition testimony confirms the misrepresentations about\nmaintaining an on-going employment relationship with Agrium, and\nvoluntarily departing Agrium to avoid substantial travel to Canada. And\nPhillips 66 offered evidence that it decided to rescind the offer due to the\ndiscrepancies uncovered in the background check—and that it did so two days\nbefore anyone at the company ever learned of Wittmer’s transgender status.\n So Wittmer’s claim fails for two reasons, separate and apart from our\nholding in Blum. First, Wittmer failed to satisfy the plaintiff’s burden to\npresent a prima facie case under the fourth prong of McDonnell Douglas. And\n 6\n\n Case: 18-20251 Document: 00514825287 Page: 7 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\nsecond, Wittmer did not present a genuine issue of material fact that the non-\ndiscriminatory reason offered by Phillips 66 was pretextual. The district court\nwas therefore correct to enter summary judgment for Phillips 66.\n The judgment is affirmed.\n\n\n\n\n 7\n\n Case: 18-20251 Document: 00514825287 Page: 8 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Nicole C. WITTMER, Plaintiff-Appellant v. PHILLIPS 66 COMPANY, Defendant-Appellee\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-06\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-20251 Document: 00514825287 Page: 1 Date Filed: 02/06/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-20251 February 6, 2019\\n Lyle W. Cayce\\nNICOLE C. WITTMER, Clerk\\n\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nPHILLIPS 66 COMPANY,\\n\\n Defendant - Appellee\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\\nJAMES C. HO, Circuit Judge:\\n Over the past two years, three circuits have construed Title VII of the\\nCivil Rights Act of 1964 to prohibit employers from discriminating on the basis\\nof either sexual orientation or transgender status. See Zarda v. Altitude\\nExpress, Inc., 883 F.3d 100 (2nd Cir. 2018) (en banc); EEOC v. R.G. & G.R.\\nHarris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); Hively v. Ivy Tech\\nCmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc).\\n The district court here examined these recent out-of-circuit rulings,\\nfound them “persuasive,” and thus “assume[d]” that Title VII prohibits\\ntransgender discrimination, in a published opinion. Wittmer v. Phillips 66 Co.,\\n304 F. Supp. 3d 627, 634 (S.D. Tex. 2018). In doing so, the district court\\nexpressly stated that “the Fifth Circuit has not yet addressed the issue.” Id.\\n\\n Case: 18-20251 Document: 00514825287 Page: 2 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\n But we have addressed the issue. In Blum v. Gulf Oil Corp., 597 F.2d\\n936 (5th Cir. 1979), we expressly held that Title VII does not prohibit\\ndiscrimination on the basis of sexual orientation. Yet the district court did not\\nmention, let alone distinguish, Blum. Most notably, it did not contend that\\nTitle VII applies to transgender status but not sexual orientation. To the\\ncontrary, the court concluded that the “same” analysis applies to transgender\\nstatus and sexual orientation alike. Wittmer, 304 F. Supp. 3d at 634.\\n Blum remains binding precedent in this circuit to this day. Our sister\\ncircuits—including those favorably quoted in the district court’s published\\nopinion—recognize Blum as our precedent. See Zarda, 883 F.3d at 107–8\\n(recognizing historic “consensus among our sister circuits” foreclosing sexual\\norientation claims under Title VII, including Blum); Hively, 853 F.3d at 341–\\n42 (“recognizing . . . Fifth Circuit’s precedent in Blum”); see also Evans v. Ga.\\nReg’l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017) (Blum is “binding precedent”\\nthat “forecloses” sexual orientation discrimination claims under Title VII).\\n Other district courts within the Fifth Circuit have likewise repeatedly\\nacknowledged that Blum is binding circuit precedent. See, e.g., O’Daniel v.\\nIndus. Serv. Solutions, 2018 WL 265585, *7 (M.D. La. Jan. 2, 2018) (“The Fifth\\nCircuit has specifically held that discharge based upon sexual orientation is\\nnot prohibited by Title VII . . . . Blum is binding precedent”); Berghorn v. Texas\\nWorkforce Comm’n, 2017 WL 5479592, *4 (N.D. Tex. Nov. 15, 2017) (“The\\ncourt . . . is bound by Fifth Circuit precedent, not Seventh Circuit precedent.”).\\n We nevertheless affirm the district court on other grounds. The district\\ncourt correctly granted summary judgment for the employer, because the\\nemployee failed to present sufficient evidence to support a prima facie case of\\ndiscrimination, and because the employee failed to present a genuine issue of\\nmaterial fact concerning pretext.\\n\\n\\n 2\\n\\n Case: 18-20251 Document: 00514825287 Page: 3 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\n I.\\n Nicole Wittmer, a transgender woman, applied for an Instrument and\\nReliability Engineer position with Phillips 66 in 2015. Phillips 66 conducted\\nfour interviews, including an in-person interview on August 3.\\n During these interviews, Phillips 66 asked about Wittmer’s current\\nemployment with Agrium. They discussed on-going projects at Agrium that\\nwould require significant future travel to Canada as the reason Wittmer was\\nlooking for a new job. On August 10, Phillips 66 offered Wittmer the job,\\ncontingent on passing certain background checks.\\n On September 2, Ellen Fulton, Phillips 66’s Human Resources Manager,\\ninformed Wittmer that the background check uncovered a discrepancy:\\nAgrium terminated Wittmer on July 28, with pay continuing through\\nAugust 2.\\n In response, Wittmer acknowledged the discrepancy, but did not think\\n“it was that big of a deal.” Wittmer sent Fulton the July 28 termination letter\\nfrom Agrium, clearly stating that their employment relationship ended on July\\n28.\\n Fulton and several other Phillips 66 executives conferred on\\nSeptember 8. Everyone at the meeting agreed that the offer of employment\\nshould be rescinded due to Wittmer’s misrepresentations.\\n On September 10, Wittmer sent an unsolicited email to Fulton and\\nanother Phillips 66 employee, accusing them of transgender discrimination.\\nFulton responded that Phillips 66 was unaware of Wittmer’s transgender\\nstatus prior to the email, and that in any event, the information would not\\naffect Phillips 66’s decision.\\n On September 14, Fulton formally rescinded the offer of employment.\\nFulton explained that it was due to the discrepancies revealed during the\\nbackground check after the initial conditional offer.\\n 3\\n\\n Case: 18-20251 Document: 00514825287 Page: 4 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\n A year later, in October 2016, Wittmer filed a charge of discrimination\\nwith the EEOC against Phillips 66. Wittmer claimed that Phillips 66 rescinded\\nits offer because of transgender discrimination. The EEOC issued a right-to-\\nsue letter.\\n II.\\n Wittmer sued Phillips 66 under Title VII for discrimination on the basis\\nof transgender status. Without distinguishing or even mentioning Blum,\\nWittmer claimed that Title VII prohibits transgender discrimination.\\n Phillips 66 took no position on whether Title VII prohibits transgender\\ndiscrimination. Instead, Phillips 66 moved for summary judgment on the\\ngrounds that (1) Wittmer failed to state a prima face case of discrimination on\\nthe basis of transgender status, and (2) Wittmer failed to present a genuine\\nissue of material fact that the non-discriminatory reason offered by Phillips 66\\nwas pretextual.\\n The district court granted summary judgment to Phillips 66 on both\\ngrounds. Wittmer appealed.\\n On appeal, Phillips 66 continues to take no position on whether Title VII\\nprohibits discrimination on the basis of transgender status. It instead seeks\\naffirmance on the specific evidentiary grounds on which it prevailed in the\\ndistrict court.\\n This appeal nevertheless attracted substantial amicus attention on the\\nquestion of whether Title VII prohibits transgender discrimination. The EEOC\\nfiled an amicus brief that took no position whether the judgment below should\\nbe affirmed or reversed. The EEOC simply asked this court to hold that Title\\nVII does indeed prohibit discrimination on the basis of transgender status.\\nSimilarly, various organizations, led by the National Center for Lesbian\\nRights, filed an amicus brief that, like EEOC, concluded that Title VII\\nprohibits transgender discrimination, and took no position on the judgment.\\n 4\\n\\n Case: 18-20251 Document: 00514825287 Page: 5 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\n The EEOC requested the opportunity to participate in oral argument.\\nWe granted the request. In addition, we appointed Adam Mortara as amicus\\ncuriae to brief and argue the contrary interpretation of Title VII—just as the\\nSecond Circuit did in Zarda. The EEOC subsequently withdrew its request to\\nparticipate in oral argument, due to the government shutdown. So the\\nNational Center amici asked us if they could take the EEOC’s place at the\\npodium. We granted that request as well. 1\\n III.\\n Summary judgment is appropriate “if the movant shows that there is no\\ngenuine dispute as to any material fact and the movant is entitled to judgment\\nas a matter of law.” FED. R. CIV. P. 56(a).\\n Title VII prohibits employment discrimination against “any individual\\n. . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). To\\nestablish a prima facie case of discrimination, the plaintiff must either present\\ndirect evidence of discrimination or, in the absence of direct evidence, rely on\\ncircumstantial evidence using the McDonnell Douglas burden-shifting\\nanalysis. Under McDonnell Douglas, the plaintiff carries the burden to prove\\nthat (1) he belongs to a protected class; (2) he applied for and was qualified for\\nthe position; (3) he was rejected despite being qualified; and (4) others similarly\\nqualified but outside the protected class were treated more favorably.\\nMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See also Willis v.\\nCoca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006).\\n If a plaintiff establishes a prima facie case, the burden shifts to the\\nemployer to show it had a legitimate, nondiscriminatory reason for rescinding\\n\\n\\n\\n 1We thank Mr. Mortara for his public service in accepting the court’s appointment.\\nWe also thank the National Center amici for participating in oral argument under these\\nunusual circumstances. All of the amici provided the court with excellent legal analysis and\\nadvocacy.\\n 5\\n\\n Case: 18-20251 Document: 00514825287 Page: 6 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\nthe offer. McDonnell Douglas, 411 U.S. at 802. If the employer can show a\\nlegitimate, non-discriminatory reason for not hiring the plaintiff, the\\npresumption of discrimination disappears, and the burden shifts back to the\\nplaintiff to show either that the proffered reason was a pretext for\\ndiscrimination, or that the plaintiff’s protected status was another motivating\\nfactor for the decision. Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir.\\n2007). To overcome a legitimate, nondiscriminatory reason for termination,\\nthe plaintiff must show something beyond disagreement with the employer’s\\ndecision. Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005)\\n(“Disparate treatment of similarly situated employees is one way to\\ndemonstrate unlawful discrimination and retaliation.”).\\n Wittmer’s claim fails at both steps. To begin with, Wittmer failed to\\nestablish a prima facie case of discrimination. Specifically, Wittmer did not\\npresent evidence that any non-transgender applicants were treated better, as\\nrequired under the fourth prong of McDonnell Douglas. See Rogers v. Pearland\\nIndep. Sch. Dist., 827 F.3d 403, 408–09 (5th Cir. 2016) (upholding summary\\njudgment for failing the fourth prong of the prima facie case).\\n In addition, Phillips 66 identified a legitimate, non-discriminatory\\nreason for rescinding the offer—namely, Wittmer’s misrepresentations.\\nWittmer’s own deposition testimony confirms the misrepresentations about\\nmaintaining an on-going employment relationship with Agrium, and\\nvoluntarily departing Agrium to avoid substantial travel to Canada. And\\nPhillips 66 offered evidence that it decided to rescind the offer due to the\\ndiscrepancies uncovered in the background check—and that it did so two days\\nbefore anyone at the company ever learned of Wittmer’s transgender status.\\n So Wittmer’s claim fails for two reasons, separate and apart from our\\nholding in Blum. First, Wittmer failed to satisfy the plaintiff’s burden to\\npresent a prima facie case under the fourth prong of McDonnell Douglas. And\\n 6\\n\\n Case: 18-20251 Document: 00514825287 Page: 7 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\nsecond, Wittmer did not present a genuine issue of material fact that the non-\\ndiscriminatory reason offered by Phillips 66 was pretextual. The district court\\nwas therefore correct to enter summary judgment for Phillips 66.\\n The judgment is affirmed.\\n\\n\\n\\n\\n 7\\n\\n Case: 18-20251 Document: 00514825287 Page: 8 Date Filed: 02/06/2019\\n\\n\\n\\n No. 18-20251\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":591,"cells":{"id":{"kind":"number","value":4588151,"string":"4,588,151"},"name":{"kind":"string","value":"Kymberli GARDNER, Plaintiff - Appellant v. CLC OF PASCAGOULA, L.L.C., Doing Business as Plaza Community Living Center, Defendant - Appellee"},"name_abbreviation":{"kind":"string","value":"Kymberli Gardner v. CLC of Pascagoula, L.L.C."},"decision_date":{"kind":"string","value":"2019-02-06"},"docket_number":{"kind":"string","value":"17-60072"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"King, Dennis, Costa\", \"parties\": \"\", \"opinions\": [{\"author\": \"GREGG COSTA, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-60072 Document: 00514825674 Page: 1 Date Filed: 02/06/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-60072 February 6, 2019\\n Lyle W. Cayce\\nKYMBERLI GARDNER, Clerk\\n\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nCLC OF PASCAGOULA, L.L.C., doing business as Plaza Community Living\\nCenter,\\n\\n Defendant - Appellee\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Mississippi\\n\\n\\nBefore KING, DENNIS, and COSTA, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n The opinion previously issued in this case is withdrawn, and the\\nfollowing opinion is substituted in its place.\\n Claims of sexual harassment typically involve the behavior of fellow\\nemployees. But not always. Because the ultimate focus of Title VII liability is\\non the employer’s conduct—unless a supervisor is the harasser, a plaintiff\\nneeds to show that the employer knew or should have known about the hostile\\nwork environment yet allowed it to persist, see Vance v. Ball State Univ., 570\\nU.S. 421, 427 (2013) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 789\\n\\f Case: 17-60072 Document: 00514825674 Page: 2 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\n(1998)) 1—nonemployees can be the source of the harassment. See 29 C.F.R.\\n§ 1604.11(e) (“An employer may . . . be responsible for the acts of non-\\nemployees, with respect to sexual harassment of employees in the workplace,\\nwhere the employer (or its agents or supervisory employees) knows or should\\nhave known of the conduct and fails to take immediate and appropriate\\ncorrective action.”).\\n Customers are one example of third-party harassers. See generally Lori\\nA. Tetreault, Liability of Employer, Under Title VII of Civil Rights Act of 1964\\n(42 U.S.C.A. §§ 2000e et seq.) for Sexual Harassment of Employee by Customer,\\nClient, or Patron, 163 A.L.R. FED. 445 (2000). A leading case on third-party\\nharassment addressed whether Pizza Hut could be liable for customers’\\nharassment of a waitress. Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1067,\\n1072 (10th Cir. 1998). Casinos seem especially susceptible to these claims, as\\none case addresses a high roller’s harassment of a cocktail waitress and\\nanother a card player’s harassment of a blackjack dealer. See generally Oliver\\nv. Sheraton Tunica Corp., 2000 WL 303444 (N.D. Miss. Mar. 8, 2000) (former);\\nPowell v. Las Vegas Hilton Corp., 841 F. Supp. 1024 (D. Nev. 1992) (latter).\\n This case presents one of the more challenging situations in which to\\napply this principle that an employer can be liable for a hostile work\\nenvironment created by nonemployees: a nurse alleges that an assisted living\\nfacility allowed such an environment to continue by not preventing a resident’s\\n\\n\\n 1 Even when a supervisor is the harasser, liability flows from agency principles that\\nrender the employer liable. Vance, 570 U.S. at 428–29. One of those situations is when a\\nsupervisor’s harassing behavior resulted in an adverse “tangible employment decision.” Id.\\nLiability attaches in that situation because that injury “requires an official act of the\\nenterprise” that will usually be “documented in official company records” and often “subject\\nto review by higher level supervisors.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761–\\n62 (1998). Absent that type of employment consequence, the company will be liable for a\\nsupervisor’s harassment only “if the employer is unable to establish an affirmative defense”\\nthat considers whether the employer took preventative or corrective measures to combat the\\nharassment. Vance, 570 U.S. at 429–30 (citing Ellerth and Faragher).\\n 2\\n\\f Case: 17-60072 Document: 00514825674 Page: 3 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\nrepetitive harassment. The unique nature of that workplace is an important\\nconsideration. As we and other courts have recognized, the diminished\\ncapacity of patients influences whether the harassment should be perceived as\\naffecting the terms and conditions of employment. We must decide when the\\nallegations of harassment nonetheless become so severe or pervasive that fact\\nissues exist requiring a jury to decide the question.\\n I.\\n Kymberli Gardner worked as a Certified Nursing Assistant at an\\nassisted living facility operated by CLC of Pascagoula, d/b/a Plaza Community\\nLiving Center, from 2012 until she was fired in 2015. 2 Gardner is an\\nexperienced health aide. Before working for CLC, she was a caregiver for\\nseveral facilities and in-home care providers, two of which specialized in care\\nfor the mentally disabled. Gardner was trained in defensive and de-escalation\\ntactics for aggressive patients. As one might expect, during her years as a\\ncaregiver she often worked with patients who were “either physically\\ncombative or sexually aggressive.”\\n But what she experienced with one patient at the CLC facility rose to a\\nnew level. J.S. was an elderly resident who lived at Plaza between 2006 and\\n2014. He had a reputation for groping female employees and becoming\\nphysically aggressive when reprimanded. J.S. had been diagnosed with a\\nvariety of physical and mental illnesses including dementia, traumatic brain\\ninjury, personality disorder with aggressive behavior, and Parkinson’s\\nDisease. J.S.’s long history of violent and sexual behavior toward both patients\\nand staff included the following:\\n\\n\\n\\n\\n In light of the summary judgment posture, we recite these facts taking competing\\n 2\\n\\nevidence in the light most favorable to Gardner.\\n 3\\n\\f Case: 17-60072 Document: 00514825674 Page: 4 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\n • J.S. had to be transferred from his initial residence wing because he\\n had become “combative” and had physically assaulted his bedridden\\n roommate during a dispute over a television.\\n • J.S. was much more aggressive and sexually inappropriate towards\\n his female caregivers than even other problematic nursing home\\n residents; he would sexually assault them by grabbing their\\n “breast[s], butts, thighs, and try[ing] to grab [their] private areas.”\\n • J.S. asked for explicit sexual acts on a regular basis and made lewd\\n sexual comments toward female staff. He asked female employees to\\n engage in sexual activity with him “[a]ll the time.”\\n Gardner, who became responsible for J.S.’s care, experienced these types\\nof inappropriate behavior from J.S. “[e]very day.” Gardner reported that J.S.\\nwould physically grab her and make repeated sexual comments and requests.\\nShe and other CLC employees documented J.S.’s behavior by routinely\\nrecording it on his chart and making complaints to supervisors.\\n As a result, J.S.’s behavior was not a secret to those who ran the assisted\\nliving facility. Brandy Gregg, Gardner’s former supervisor and now the\\ndirector of nursing, had witnessed J.S.’s behaving in a sexually inappropriate\\nmanner and also received complaints from nurses to that effect. These\\nconcerns led administrators to transfer J.S. to a new wing. But they were not\\nalways responsive to the complaints. They declined, for example, to have him\\nundergo a psychiatric evaluation after he assaulted his roommate. J.S. later\\nassaulted a CLC employee and was sent for evaluation, but subsequently\\nreturned to CLC. And when Gardner attempted to discuss her concerns about\\nJ.S.’s behavior, Gregg laughed, and Administrator Teri Reynolds told Gardner\\nto “put [her] big girl panties on and go back to work.”\\n So Gardner continued to care for J.S., which ultimately resulted in the\\nincident that led to her termination. It began when Gardner was trying to help\\nJ.S. attend a therapy session. As she was assisting J.S. out of bed, he began\\ntrying “to grope” her and then tried to touch Gardner’s left breast while she\\nwas bent over. When she tried to move out of the way, J.S. punched her on the\\n 4\\n\\f Case: 17-60072 Document: 00514825674 Page: 5 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\nside of her breast. Gardner then laid him down on the bed and left the room\\nto get help. Janice Watkins, another nursing assistant, joined Gardner and\\nthe two again attempted to help J.S. out of bed and into a chair. At this point\\nJ.S. punched Gardner a second time. Gardner removed herself from J.S’s\\nimmediate area at which point he began to grab Watkins’ “private area.”\\nGardner sought help from the nurse on duty, Judy Toche. Gardner, Toche, and\\nWatkins were able to get J.S. into his wheelchair. Gardner then moved to\\nmake the bed, but J.S. punched her a third time.\\n What Gardner did in response is disputed. Gregg’s typed summary of\\nevents, as well as the deposition testimony of Toche, and Toche’s “nurse’s\\nnotes” from the day of the incident claim that Gardner “swung her own fist\\nover [J.S.’s] head” and that her arm “brushed the top of his head.” Watkins,\\non the other hand, asserts in both her deposition and her written witness\\ninterview statement that Gardner “[went] up with her hand as if she was going\\nto hit [patient]” but “didn’t hit [patient] at all.” Gardner says she did not swing\\nat J.S. during the incident. Gardner also reportedly made two statements as\\nshe was leaving J.S.’s room. Watkins testifies Gardner said, “I am not doing\\nshit else for [patient] at all.” Gardner also reportedly said, “I guess I’m not the\\nright color,” presumably because Toche, a white nurse, was able to calm J.S.\\nwhereas Gardner, a black nursing assistant, could not. After the incident,\\nGardner spoke with both Toche and Teri Reynolds, then the facility\\nadministrator, about her assignment to care for J.S. Gardner refused to care\\nfor him due to the continued harassment and asked to be reassigned. Her\\nrequest was denied.\\n Gardner then left work and went to the emergency room that evening\\ndue to injuries she sustained. She did not return to work for three months\\n\\n\\n\\n\\n 5\\n\\f Case: 17-60072 Document: 00514825674 Page: 6 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\nduring which time she received workers’ compensation. 3 Shortly after\\nreturning from leave, Gardner was fired. Gregg, Gardner’s supervisor at the\\ntime, says Gardner was fired for three reasons: (1) insubordination (refusing\\nto care for J.S.); (2) violating J.S.’s resident rights (by swearing in front of him\\nand making a “racist type statement[],” apparently the one about her not being\\nthe “right color”); and (3) attacking J.S. (swinging over his head).\\n As for J.S., nothing happened to him immediately after the incident with\\nGardner. But another altercation later that same day with a resident resulted\\nin his being sent for a psychiatric evaluation and then moved to an all-male\\n“lockdown” unit in nearby Biloxi.\\n Gardner sued, asserting multiple claims under Title VII. CLC moved for\\nsummary judgment and to strike certain affidavit testimony. Gardner also\\nmoved to strike portions of affidavit and deposition testimony. The district\\ncourt denied Gardner’s motion to strike, and denied in part and granted in part\\nCLC’s motion to strike. 4 The lower court then granted summary judgment in\\nfavor of CLC on all claims. Gardner’s appeal pursues only her claims of hostile\\nwork environment and retaliation. 5\\n\\n\\n\\n\\n 3 Gregg and the contemporaneous incident report say that Gardner had been\\nsuspended. But the report from CLC’s internal investigation contradicts that claim as it says\\nthat Gardner’s “separation from her employment was held pending her completion of her\\nworkmen’s compensation.” Gardner’s affidavit also asserts she was never informed she had\\nbeen suspended. We assume for purposes of summary judgment that Gardner was not\\nsuspended and was on workers’ compensation during her three-month absence.\\n 4 Gardner appeals some of those evidentiary rulings. We conclude that the district\\n\\ncourt did not abuse its discretion striking portions of her affidavit as speculative. And we\\nneed not decide whether the district court erred in considering Gregg’s testimony about the\\nreasons for the termination as that issue does not affect our ruling.\\n 5 While Gardner purports to appeal her sex discrimination claim based on disparate\\n\\ntreatment in addition to the one alleging hostile work environment, she has not sufficiently\\nbriefed that claim.\\n 6\\n\\f Case: 17-60072 Document: 00514825674 Page: 7 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\n II.\\n The district court concluded that a hostile workplace did not exist. It\\nexplained that it was “not clear to the Court that the harassing comments and\\nattempts to grope and hit are beyond what a person in Gardner’s position\\nshould expect of patients in a nursing home.” CLC defends the grant of\\nsummary judgment on that ground as well as on one the district court did not\\nreach: whether the company knew about the harassment and failed to take\\nremedial action. The other elements of a Title VII hostile work environment\\nclaim—that Gardner is a member of a protected class who was subject to some\\nharassment on the basis of her sex—are not disputed. Royal v. CCC & R Tres\\nArboles, L.L.C., 736 F.3d 396, 401 (5th Cir. 2013).\\n A.\\n Our de novo review of the grant of summary judgment leads us to a\\ndifferent conclusion given that all inferences must be viewed in Gardner’s favor\\nat this stage. See Williams v. Hampton, 797 F.3d 276, 282 (5th Cir. 2015);\\nBurnett Ranches, Ltd. v. United States, 753 F.3d 143, 146 (5th Cir. 2014). To\\nget past summary judgment, Gardner need not make it “clear” that she was\\nsubject to actionable harassment; she of course only needs to show that a jury\\ncould reach that conclusion based on its view of the evidence.\\n Title VII does not prohibit all harassment. Meritor Sav. Bank, FSB v.\\nVinson, 477 U.S. 57, 67 (1986). It makes harassing conduct unlawful when it\\nresults in the employer “discriminat[ing] against any individual with respect\\nto his compensation, terms, conditions, or privileges of employment, because of\\nsuch individual’s race, color, religion, sex, or national origin.” 42 U.S.C.\\n§ 2000e–2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–23 (1993); Meritor,\\n477 U.S. at 64–67. This statutory language “is not limited to ‘economic’ or\\n‘tangible’ discrimination.” Id. at 64. Instead, “the phrase ‘terms, conditions,\\nor privileges of employment’ evinces a congressional intent ‘to strike at the\\n 7\\n\\f Case: 17-60072 Document: 00514825674 Page: 8 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\nentire spectrum of disparate treatment of men and women’ in employment,\\nwhich includes requiring people to work in a discriminatorily hostile or abusive\\nenvironment.” Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 64). Title\\nVII is violated “when the workplace is permeated with ‘discriminatory\\nintimidation, ridicule, and insult,’ . . . that is ‘sufficiently severe or pervasive\\nto alter the conditions of the victim’s employment and create an abusive\\nworking environment. Id.; Shepherd v. Comptroller of Pub. Accounts, 168 F.3d\\n871, 874 (5th Cir. 1999). The Supreme Court set the “severe or pervasive”\\nstandard as a “middle path between making actionable any conduct that is\\nmerely offensive and requiring the conduct to cause a tangible psychological\\ninjury.” Harris, 510 U.S. at 21. A plaintiff “must subjectively perceive the\\nharassment as sufficiently severe or pervasive, and this subjective perception\\nmust be objectively reasonable.” Frank v. Xerox Corp., 347 F.3d 130, 138 (5th\\nCir. 2003).\\n As a starting point, the multiple years of unwanted sexual grabbing and\\nexplicit comments Gardner endured could certainly be deemed severe and\\npervasive harassment—only one of those is necessary, Lauderdale v. Tex. Dep’t\\nof Criminal Justice, 512 F.3d 157, 163 (5th Cir. 2007)—if the harasser were\\nsomeone without any mental impairments. Cherry v. Shaw Coastal, Inc., 668\\nF.3d 182, 189 (5th Cir. 2012) (hostile work environment when plaintiff was\\nsubject to multiple months of unwanted sexual grabbing and explicit\\ncomments); Harvill, v. Westward Commc’ns, L.L.C., 433 F.3d 428, 435 (5th Cir.\\n2005) (finding severe or pervasive harassment when, over seven months, a\\ncoworker grabbed a female employee, fondled her breasts and patted her\\nbuttocks “numerous times,” and rubbed his body against the plaintiff).\\n The complication is the one we have already mentioned: the source of the\\nharassment is the resident of an assisted living facility who suffers from\\ndementia. We have twice confronted hostile work environment claims based\\n 8\\n\\f Case: 17-60072 Document: 00514825674 Page: 9 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\non the behavior of patients towards caregivers. The first case involved home\\nhealth services. We held that the verbal harassment, which included the\\npatient repeatedly propositioning the plaintiff for sex and calling her\\ndisparaging names, was not sufficiently severe or pervasive. Cain v. Blackwell,\\n246 F.3d 758, 760–61 (5th Cir. 2001). We reached the same conclusion in the\\nnext case when a nursing home patient repeatedly directed racial slurs at a\\nnurse’s assistant. E.E.O.C. v. Nexion Health at Broadway, Inc., 199 F. App’x\\n351, 353 (5th Cir. 2006). 6 Although the verbal harassment was “quite\\noffensive,” the comments did not rise to the level of actionable conduct because\\nthey were not “physically threatening or humiliating” and did not “pervade the\\nwork experience of a reasonable nursing home employee, especially\\nconsidering their source.” Id. at 353–54. We recognized, however, that there\\nis not a categorical bar on hostile environment claims arising from harassment\\nby patients. See id. at 353 (“Cain does not establish a bright-line rule that\\nemployees who care for disabled, elderly patients can never succeed on a Title\\nVII claim.”). 7 The “specific circumstances” of such claims “must be judged to\\ndetermine whether a reasonable person would find the work environment\\nhostile or abusive” taking due account of the “unique circumstances involved\\nin caring for mentally diseased elderly patients.” Id.\\n Other circuits have found triable hostile work environment claims when\\npatients engaged in the physical harassment absent in Nexion and Cain. The\\n\\n\\n 6 Although Nexion is not binding, we address it because the district court relied on it\\nin granting summary judgment, and it illustrates the range of conduct courts have considered\\nin this area.\\n 7 The district court thought Nexion “indicates that the default is no viable Title VII\\n\\nclaim in such situations.” Nexion did not create a default presumption against Title VII\\nliability when the harasser is suffering from mental disability. Its statement that there is no\\n“bright-line rule” does the opposite of setting any hard and fast rule. The Nexion language\\nemphasizes what is true of most areas of the law—the outcome will depend on the facts of\\nindividual cases. So while a diminished mental condition of the harasser is an important\\nconsideration, it does not preclude liability.\\n 9\\n\\f Case: 17-60072 Document: 00514825674 Page: 10 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\nEighth Circuit reversed a grant of summary judgment when a mentally\\nhandicapped, teenage resident of a care facility “pushed [a female caregiver]\\nagainst a door, forced her right hand above her head, pulled open her jeans and\\nher blouse, grabbed her left breast, and pushed his weight and erect penis\\nagainst her stomach.” Crist v. Focus Homes, Inc., 122 F.3d 1107, 1108 (8th Cir.\\n1997). The Tenth Circuit also rejected a district court’s granting judgment as\\na matter of law for the hospital when a patient “knocked [a psychologist] to the\\nground, undressed her and digitally penetrated her, bit and choked her, and\\nrepeatedly threatened to kill her.” Turnbull v. Topeka State Hosp., 255 F.3d\\n1238, 1242–43 (10th Cir. 2001).\\n J.S.’s conduct is more severe than the nonphysical harassment held to\\nbe insufficient in Cain and Nexion 8 but not as severe as the potentially life-\\nthreatening sexual assaults in Crist or Turnbull. But the latter situation does\\nnot set a floor for actionable conduct. Harris, 510 U.S. at 22 (explaining that\\nTitle VII does not require harassment to “seriously affect employees’\\npsychological well-being”). So the question remains whether the conduct here,\\nwhich falls in the middle of this continuum, is enough. And that, as we have\\nsaid, involves the difficult line-drawing problem of what separates legally\\nactionable harassment from conduct that one should reasonably expect when\\nassisting people suffering from dementia.\\n We conclude that the evidence of persistent and often physical\\nharassment by J.S. is enough to allow a jury to decide whether a reasonable\\n\\n\\n\\n\\n 8 It is also more severe and pervasive than the conduct in an Illinois federal case the\\ndistrict court relied on. Pickett v. Sheridan Health Care Ctr., 2008 WL 719224, at *4 (N.D.\\nIll. Mar. 14, 2008), aff’d, 610 F.3d 434 (7th Cir. 2010). Pickett considered conduct from a\\nresident that happened three times over eight months. More importantly, Pickett refrained\\nfrom deciding whether the conduct was severe or pervasive, and instead granted summary\\njudgment in favor of the defendant because it took several steps to mitigate the harassing\\nbehavior. Id. at *5. As will be discussed, CLC did not take those measures.\\n 10\\n\\f Case: 17-60072 Document: 00514825674 Page: 11 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\ncaregiver on the receiving end of the harassment would have viewed it as\\nsufficiently severe or pervasive even considering the medical condition of the\\nharasser. The frequency and nature of the conduct, along with its effect on\\nGardner’s employment, would allow (but not require) that finding. Id. at 23\\n(finding that “the frequency of the discriminatory conduct; its severity;\\nwhether it is physically threatening or humiliating, or a mere offensive\\nutterance; and whether it unreasonably interferes with an employee’s work\\nperformance” are factors that influence whether harassment can be described\\nas “hostile” or “abusive”); see also Turner v. Baylor Richardson Med. Ctr., 476\\nF.3d 337, 347–48 (5th Cir. 2007). J.S.’s inappropriate conduct occurred daily.\\nHis conduct was far more severe than other residents’ and consisted of physical\\nsexual assault and violent outbursts. J.S.’s physical assault on Gardner took\\nhis behavior outside the realm of a “mere offensive utterance.” And his actions\\ninterfered with her work performance, leaving Gardner unable to work for\\nthree months. A jury could conclude that an objectively reasonable caregiver\\nwould not expect a patient to grope her daily, injure her so badly she could not\\nwork for three months, and have her complaints met with laughter and\\ndismissal by the administration. Cf. Aguiar v. Bartlesville Care Ctr., 2011 WL\\n1461541, at *5 (10th Cir. Apr. 18, 2011) (finding sufficient severity when a\\npatient repeatedly engaged in unwanted touching of a nurse assistant,\\n“interfered with her work, and eventually assaulted her” with a medicine cart).\\n It is important to note that a finding that a patient’s harassment rises to\\na level of severity or pervasiveness that affects the terms and conditions of\\nemployment does not alone render the nursing home liable. As we mentioned\\nat the outset, liability when such a claim is based on the behavior of someone\\nother than a supervisor requires showing that the employer knew or should\\nhave known of the hostile work environment but failed to take reasonable\\nmeasures to try and stop it. Royal, 736 F.3d at 401. CLC did not argue in its\\n 11\\n\\f Case: 17-60072 Document: 00514825674 Page: 12 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\nsummary judgment motion that it was entitled to judgment as a matter of law\\non this element of Gardner’s claim. We thus have no occasion to consider it.\\n We reverse the entry of summary judgment on Gardner’s harassment\\nclaim.\\n III.\\n Gardner also appeals the grant of summary judgment on her retaliation\\nclaim. It requires her to show that “(1) she engaged in activity protected under\\nTitle VII, (2) an adverse employment action occurred, and (3) there was a\\ncausal connection between her protected activity and the adverse employment\\ndecision.” Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992).\\n The district court analyzed the retaliation issue under the McDonnell-\\nDouglas burden shifting framework used for cases relying on circumstantial\\nevidence. Gardner does not contest that ruling, so it is affirmed.\\n Her position all along, however, has been that she can prove retaliation\\nvia direct evidence. As the district court did not consider her argument based\\non direct evidence, we will allow it to consider that argument in the first\\ninstance on remand.\\n * * *\\n\\n REVERSED IN PART, AFFIRMED IN PART, and REMANDED for\\nfurther proceedings consistent with this opinion.\\n\\n\\n\\n\\n 12\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4365404/\", \"author_raw\": \"GREGG COSTA, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"KING"},"judge2":{"kind":"string","value":"DENNIS"},"judge3":{"kind":"string","value":"COSTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4588151/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Kymberli GARDNER, Plaintiff - Appellant v. CLC OF PASCAGOULA, L.L.C., Doing Business as Plaza Community Living Center, Defendant - Appellee\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-06\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-60072 Document: 00514825674 Page: 1 Date Filed: 02/06/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-60072 February 6, 2019\n Lyle W. Cayce\nKYMBERLI GARDNER, Clerk\n\n\n Plaintiff - Appellant\n\nv.\n\nCLC OF PASCAGOULA, L.L.C., doing business as Plaza Community Living\nCenter,\n\n Defendant - Appellee\n\n\n\n Appeal from the United States District Court\n for the Southern District of Mississippi\n\n\nBefore KING, DENNIS, and COSTA, Circuit Judges.\nGREGG COSTA, Circuit Judge:\n The opinion previously issued in this case is withdrawn, and the\nfollowing opinion is substituted in its place.\n Claims of sexual harassment typically involve the behavior of fellow\nemployees. But not always. Because the ultimate focus of Title VII liability is\non the employer’s conduct—unless a supervisor is the harasser, a plaintiff\nneeds to show that the employer knew or should have known about the hostile\nwork environment yet allowed it to persist, see Vance v. Ball State Univ., 570\nU.S. 421, 427 (2013) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 789\n\f Case: 17-60072 Document: 00514825674 Page: 2 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\n(1998)) 1—nonemployees can be the source of the harassment. See 29 C.F.R.\n§ 1604.11(e) (“An employer may . . . be responsible for the acts of non-\nemployees, with respect to sexual harassment of employees in the workplace,\nwhere the employer (or its agents or supervisory employees) knows or should\nhave known of the conduct and fails to take immediate and appropriate\ncorrective action.”).\n Customers are one example of third-party harassers. See generally Lori\nA. Tetreault, Liability of Employer, Under Title VII of Civil Rights Act of 1964\n(42 U.S.C.A. §§ 2000e et seq.) for Sexual Harassment of Employee by Customer,\nClient, or Patron, 163 A.L.R. FED. 445 (2000). A leading case on third-party\nharassment addressed whether Pizza Hut could be liable for customers’\nharassment of a waitress. Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1067,\n1072 (10th Cir. 1998). Casinos seem especially susceptible to these claims, as\none case addresses a high roller’s harassment of a cocktail waitress and\nanother a card player’s harassment of a blackjack dealer. See generally Oliver\nv. Sheraton Tunica Corp., 2000 WL 303444 (N.D. Miss. Mar. 8, 2000) (former);\nPowell v. Las Vegas Hilton Corp., 841 F. Supp. 1024 (D. Nev. 1992) (latter).\n This case presents one of the more challenging situations in which to\napply this principle that an employer can be liable for a hostile work\nenvironment created by nonemployees: a nurse alleges that an assisted living\nfacility allowed such an environment to continue by not preventing a resident’s\n\n\n 1 Even when a supervisor is the harasser, liability flows from agency principles that\nrender the employer liable. Vance, 570 U.S. at 428–29. One of those situations is when a\nsupervisor’s harassing behavior resulted in an adverse “tangible employment decision.” Id.\nLiability attaches in that situation because that injury “requires an official act of the\nenterprise” that will usually be “documented in official company records” and often “subject\nto review by higher level supervisors.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761–\n62 (1998). Absent that type of employment consequence, the company will be liable for a\nsupervisor’s harassment only “if the employer is unable to establish an affirmative defense”\nthat considers whether the employer took preventative or corrective measures to combat the\nharassment. Vance, 570 U.S. at 429–30 (citing Ellerth and Faragher).\n 2\n\f Case: 17-60072 Document: 00514825674 Page: 3 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\nrepetitive harassment. The unique nature of that workplace is an important\nconsideration. As we and other courts have recognized, the diminished\ncapacity of patients influences whether the harassment should be perceived as\naffecting the terms and conditions of employment. We must decide when the\nallegations of harassment nonetheless become so severe or pervasive that fact\nissues exist requiring a jury to decide the question.\n I.\n Kymberli Gardner worked as a Certified Nursing Assistant at an\nassisted living facility operated by CLC of Pascagoula, d/b/a Plaza Community\nLiving Center, from 2012 until she was fired in 2015. 2 Gardner is an\nexperienced health aide. Before working for CLC, she was a caregiver for\nseveral facilities and in-home care providers, two of which specialized in care\nfor the mentally disabled. Gardner was trained in defensive and de-escalation\ntactics for aggressive patients. As one might expect, during her years as a\ncaregiver she often worked with patients who were “either physically\ncombative or sexually aggressive.”\n But what she experienced with one patient at the CLC facility rose to a\nnew level. J.S. was an elderly resident who lived at Plaza between 2006 and\n2014. He had a reputation for groping female employees and becoming\nphysically aggressive when reprimanded. J.S. had been diagnosed with a\nvariety of physical and mental illnesses including dementia, traumatic brain\ninjury, personality disorder with aggressive behavior, and Parkinson’s\nDisease. J.S.’s long history of violent and sexual behavior toward both patients\nand staff included the following:\n\n\n\n\n In light of the summary judgment posture, we recite these facts taking competing\n 2\n\nevidence in the light most favorable to Gardner.\n 3\n\f Case: 17-60072 Document: 00514825674 Page: 4 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\n • J.S. had to be transferred from his initial residence wing because he\n had become “combative” and had physically assaulted his bedridden\n roommate during a dispute over a television.\n • J.S. was much more aggressive and sexually inappropriate towards\n his female caregivers than even other problematic nursing home\n residents; he would sexually assault them by grabbing their\n “breast[s], butts, thighs, and try[ing] to grab [their] private areas.”\n • J.S. asked for explicit sexual acts on a regular basis and made lewd\n sexual comments toward female staff. He asked female employees to\n engage in sexual activity with him “[a]ll the time.”\n Gardner, who became responsible for J.S.’s care, experienced these types\nof inappropriate behavior from J.S. “[e]very day.” Gardner reported that J.S.\nwould physically grab her and make repeated sexual comments and requests.\nShe and other CLC employees documented J.S.’s behavior by routinely\nrecording it on his chart and making complaints to supervisors.\n As a result, J.S.’s behavior was not a secret to those who ran the assisted\nliving facility. Brandy Gregg, Gardner’s former supervisor and now the\ndirector of nursing, had witnessed J.S.’s behaving in a sexually inappropriate\nmanner and also received complaints from nurses to that effect. These\nconcerns led administrators to transfer J.S. to a new wing. But they were not\nalways responsive to the complaints. They declined, for example, to have him\nundergo a psychiatric evaluation after he assaulted his roommate. J.S. later\nassaulted a CLC employee and was sent for evaluation, but subsequently\nreturned to CLC. And when Gardner attempted to discuss her concerns about\nJ.S.’s behavior, Gregg laughed, and Administrator Teri Reynolds told Gardner\nto “put [her] big girl panties on and go back to work.”\n So Gardner continued to care for J.S., which ultimately resulted in the\nincident that led to her termination. It began when Gardner was trying to help\nJ.S. attend a therapy session. As she was assisting J.S. out of bed, he began\ntrying “to grope” her and then tried to touch Gardner’s left breast while she\nwas bent over. When she tried to move out of the way, J.S. punched her on the\n 4\n\f Case: 17-60072 Document: 00514825674 Page: 5 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\nside of her breast. Gardner then laid him down on the bed and left the room\nto get help. Janice Watkins, another nursing assistant, joined Gardner and\nthe two again attempted to help J.S. out of bed and into a chair. At this point\nJ.S. punched Gardner a second time. Gardner removed herself from J.S’s\nimmediate area at which point he began to grab Watkins’ “private area.”\nGardner sought help from the nurse on duty, Judy Toche. Gardner, Toche, and\nWatkins were able to get J.S. into his wheelchair. Gardner then moved to\nmake the bed, but J.S. punched her a third time.\n What Gardner did in response is disputed. Gregg’s typed summary of\nevents, as well as the deposition testimony of Toche, and Toche’s “nurse’s\nnotes” from the day of the incident claim that Gardner “swung her own fist\nover [J.S.’s] head” and that her arm “brushed the top of his head.” Watkins,\non the other hand, asserts in both her deposition and her written witness\ninterview statement that Gardner “[went] up with her hand as if she was going\nto hit [patient]” but “didn’t hit [patient] at all.” Gardner says she did not swing\nat J.S. during the incident. Gardner also reportedly made two statements as\nshe was leaving J.S.’s room. Watkins testifies Gardner said, “I am not doing\nshit else for [patient] at all.” Gardner also reportedly said, “I guess I’m not the\nright color,” presumably because Toche, a white nurse, was able to calm J.S.\nwhereas Gardner, a black nursing assistant, could not. After the incident,\nGardner spoke with both Toche and Teri Reynolds, then the facility\nadministrator, about her assignment to care for J.S. Gardner refused to care\nfor him due to the continued harassment and asked to be reassigned. Her\nrequest was denied.\n Gardner then left work and went to the emergency room that evening\ndue to injuries she sustained. She did not return to work for three months\n\n\n\n\n 5\n\f Case: 17-60072 Document: 00514825674 Page: 6 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\nduring which time she received workers’ compensation. 3 Shortly after\nreturning from leave, Gardner was fired. Gregg, Gardner’s supervisor at the\ntime, says Gardner was fired for three reasons: (1) insubordination (refusing\nto care for J.S.); (2) violating J.S.’s resident rights (by swearing in front of him\nand making a “racist type statement[],” apparently the one about her not being\nthe “right color”); and (3) attacking J.S. (swinging over his head).\n As for J.S., nothing happened to him immediately after the incident with\nGardner. But another altercation later that same day with a resident resulted\nin his being sent for a psychiatric evaluation and then moved to an all-male\n“lockdown” unit in nearby Biloxi.\n Gardner sued, asserting multiple claims under Title VII. CLC moved for\nsummary judgment and to strike certain affidavit testimony. Gardner also\nmoved to strike portions of affidavit and deposition testimony. The district\ncourt denied Gardner’s motion to strike, and denied in part and granted in part\nCLC’s motion to strike. 4 The lower court then granted summary judgment in\nfavor of CLC on all claims. Gardner’s appeal pursues only her claims of hostile\nwork environment and retaliation. 5\n\n\n\n\n 3 Gregg and the contemporaneous incident report say that Gardner had been\nsuspended. But the report from CLC’s internal investigation contradicts that claim as it says\nthat Gardner’s “separation from her employment was held pending her completion of her\nworkmen’s compensation.” Gardner’s affidavit also asserts she was never informed she had\nbeen suspended. We assume for purposes of summary judgment that Gardner was not\nsuspended and was on workers’ compensation during her three-month absence.\n 4 Gardner appeals some of those evidentiary rulings. We conclude that the district\n\ncourt did not abuse its discretion striking portions of her affidavit as speculative. And we\nneed not decide whether the district court erred in considering Gregg’s testimony about the\nreasons for the termination as that issue does not affect our ruling.\n 5 While Gardner purports to appeal her sex discrimination claim based on disparate\n\ntreatment in addition to the one alleging hostile work environment, she has not sufficiently\nbriefed that claim.\n 6\n\f Case: 17-60072 Document: 00514825674 Page: 7 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\n II.\n The district court concluded that a hostile workplace did not exist. It\nexplained that it was “not clear to the Court that the harassing comments and\nattempts to grope and hit are beyond what a person in Gardner’s position\nshould expect of patients in a nursing home.” CLC defends the grant of\nsummary judgment on that ground as well as on one the district court did not\nreach: whether the company knew about the harassment and failed to take\nremedial action. The other elements of a Title VII hostile work environment\nclaim—that Gardner is a member of a protected class who was subject to some\nharassment on the basis of her sex—are not disputed. Royal v. CCC & R Tres\nArboles, L.L.C., 736 F.3d 396, 401 (5th Cir. 2013).\n A.\n Our de novo review of the grant of summary judgment leads us to a\ndifferent conclusion given that all inferences must be viewed in Gardner’s favor\nat this stage. See Williams v. Hampton, 797 F.3d 276, 282 (5th Cir. 2015);\nBurnett Ranches, Ltd. v. United States, 753 F.3d 143, 146 (5th Cir. 2014). To\nget past summary judgment, Gardner need not make it “clear” that she was\nsubject to actionable harassment; she of course only needs to show that a jury\ncould reach that conclusion based on its view of the evidence.\n Title VII does not prohibit all harassment. Meritor Sav. Bank, FSB v.\nVinson, 477 U.S. 57, 67 (1986). It makes harassing conduct unlawful when it\nresults in the employer “discriminat[ing] against any individual with respect\nto his compensation, terms, conditions, or privileges of employment, because of\nsuch individual’s race, color, religion, sex, or national origin.” 42 U.S.C.\n§ 2000e–2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–23 (1993); Meritor,\n477 U.S. at 64–67. This statutory language “is not limited to ‘economic’ or\n‘tangible’ discrimination.” Id. at 64. Instead, “the phrase ‘terms, conditions,\nor privileges of employment’ evinces a congressional intent ‘to strike at the\n 7\n\f Case: 17-60072 Document: 00514825674 Page: 8 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\nentire spectrum of disparate treatment of men and women’ in employment,\nwhich includes requiring people to work in a discriminatorily hostile or abusive\nenvironment.” Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 64). Title\nVII is violated “when the workplace is permeated with ‘discriminatory\nintimidation, ridicule, and insult,’ . . . that is ‘sufficiently severe or pervasive\nto alter the conditions of the victim’s employment and create an abusive\nworking environment. Id.; Shepherd v. Comptroller of Pub. Accounts, 168 F.3d\n871, 874 (5th Cir. 1999). The Supreme Court set the “severe or pervasive”\nstandard as a “middle path between making actionable any conduct that is\nmerely offensive and requiring the conduct to cause a tangible psychological\ninjury.” Harris, 510 U.S. at 21. A plaintiff “must subjectively perceive the\nharassment as sufficiently severe or pervasive, and this subjective perception\nmust be objectively reasonable.” Frank v. Xerox Corp., 347 F.3d 130, 138 (5th\nCir. 2003).\n As a starting point, the multiple years of unwanted sexual grabbing and\nexplicit comments Gardner endured could certainly be deemed severe and\npervasive harassment—only one of those is necessary, Lauderdale v. Tex. Dep’t\nof Criminal Justice, 512 F.3d 157, 163 (5th Cir. 2007)—if the harasser were\nsomeone without any mental impairments. Cherry v. Shaw Coastal, Inc., 668\nF.3d 182, 189 (5th Cir. 2012) (hostile work environment when plaintiff was\nsubject to multiple months of unwanted sexual grabbing and explicit\ncomments); Harvill, v. Westward Commc’ns, L.L.C., 433 F.3d 428, 435 (5th Cir.\n2005) (finding severe or pervasive harassment when, over seven months, a\ncoworker grabbed a female employee, fondled her breasts and patted her\nbuttocks “numerous times,” and rubbed his body against the plaintiff).\n The complication is the one we have already mentioned: the source of the\nharassment is the resident of an assisted living facility who suffers from\ndementia. We have twice confronted hostile work environment claims based\n 8\n\f Case: 17-60072 Document: 00514825674 Page: 9 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\non the behavior of patients towards caregivers. The first case involved home\nhealth services. We held that the verbal harassment, which included the\npatient repeatedly propositioning the plaintiff for sex and calling her\ndisparaging names, was not sufficiently severe or pervasive. Cain v. Blackwell,\n246 F.3d 758, 760–61 (5th Cir. 2001). We reached the same conclusion in the\nnext case when a nursing home patient repeatedly directed racial slurs at a\nnurse’s assistant. E.E.O.C. v. Nexion Health at Broadway, Inc., 199 F. App’x\n351, 353 (5th Cir. 2006). 6 Although the verbal harassment was “quite\noffensive,” the comments did not rise to the level of actionable conduct because\nthey were not “physically threatening or humiliating” and did not “pervade the\nwork experience of a reasonable nursing home employee, especially\nconsidering their source.” Id. at 353–54. We recognized, however, that there\nis not a categorical bar on hostile environment claims arising from harassment\nby patients. See id. at 353 (“Cain does not establish a bright-line rule that\nemployees who care for disabled, elderly patients can never succeed on a Title\nVII claim.”). 7 The “specific circumstances” of such claims “must be judged to\ndetermine whether a reasonable person would find the work environment\nhostile or abusive” taking due account of the “unique circumstances involved\nin caring for mentally diseased elderly patients.” Id.\n Other circuits have found triable hostile work environment claims when\npatients engaged in the physical harassment absent in Nexion and Cain. The\n\n\n 6 Although Nexion is not binding, we address it because the district court relied on it\nin granting summary judgment, and it illustrates the range of conduct courts have considered\nin this area.\n 7 The district court thought Nexion “indicates that the default is no viable Title VII\n\nclaim in such situations.” Nexion did not create a default presumption against Title VII\nliability when the harasser is suffering from mental disability. Its statement that there is no\n“bright-line rule” does the opposite of setting any hard and fast rule. The Nexion language\nemphasizes what is true of most areas of the law—the outcome will depend on the facts of\nindividual cases. So while a diminished mental condition of the harasser is an important\nconsideration, it does not preclude liability.\n 9\n\f Case: 17-60072 Document: 00514825674 Page: 10 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\nEighth Circuit reversed a grant of summary judgment when a mentally\nhandicapped, teenage resident of a care facility “pushed [a female caregiver]\nagainst a door, forced her right hand above her head, pulled open her jeans and\nher blouse, grabbed her left breast, and pushed his weight and erect penis\nagainst her stomach.” Crist v. Focus Homes, Inc., 122 F.3d 1107, 1108 (8th Cir.\n1997). The Tenth Circuit also rejected a district court’s granting judgment as\na matter of law for the hospital when a patient “knocked [a psychologist] to the\nground, undressed her and digitally penetrated her, bit and choked her, and\nrepeatedly threatened to kill her.” Turnbull v. Topeka State Hosp., 255 F.3d\n1238, 1242–43 (10th Cir. 2001).\n J.S.’s conduct is more severe than the nonphysical harassment held to\nbe insufficient in Cain and Nexion 8 but not as severe as the potentially life-\nthreatening sexual assaults in Crist or Turnbull. But the latter situation does\nnot set a floor for actionable conduct. Harris, 510 U.S. at 22 (explaining that\nTitle VII does not require harassment to “seriously affect employees’\npsychological well-being”). So the question remains whether the conduct here,\nwhich falls in the middle of this continuum, is enough. And that, as we have\nsaid, involves the difficult line-drawing problem of what separates legally\nactionable harassment from conduct that one should reasonably expect when\nassisting people suffering from dementia.\n We conclude that the evidence of persistent and often physical\nharassment by J.S. is enough to allow a jury to decide whether a reasonable\n\n\n\n\n 8 It is also more severe and pervasive than the conduct in an Illinois federal case the\ndistrict court relied on. Pickett v. Sheridan Health Care Ctr., 2008 WL 719224, at *4 (N.D.\nIll. Mar. 14, 2008), aff’d, 610 F.3d 434 (7th Cir. 2010). Pickett considered conduct from a\nresident that happened three times over eight months. More importantly, Pickett refrained\nfrom deciding whether the conduct was severe or pervasive, and instead granted summary\njudgment in favor of the defendant because it took several steps to mitigate the harassing\nbehavior. Id. at *5. As will be discussed, CLC did not take those measures.\n 10\n\f Case: 17-60072 Document: 00514825674 Page: 11 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\ncaregiver on the receiving end of the harassment would have viewed it as\nsufficiently severe or pervasive even considering the medical condition of the\nharasser. The frequency and nature of the conduct, along with its effect on\nGardner’s employment, would allow (but not require) that finding. Id. at 23\n(finding that “the frequency of the discriminatory conduct; its severity;\nwhether it is physically threatening or humiliating, or a mere offensive\nutterance; and whether it unreasonably interferes with an employee’s work\nperformance” are factors that influence whether harassment can be described\nas “hostile” or “abusive”); see also Turner v. Baylor Richardson Med. Ctr., 476\nF.3d 337, 347–48 (5th Cir. 2007). J.S.’s inappropriate conduct occurred daily.\nHis conduct was far more severe than other residents’ and consisted of physical\nsexual assault and violent outbursts. J.S.’s physical assault on Gardner took\nhis behavior outside the realm of a “mere offensive utterance.” And his actions\ninterfered with her work performance, leaving Gardner unable to work for\nthree months. A jury could conclude that an objectively reasonable caregiver\nwould not expect a patient to grope her daily, injure her so badly she could not\nwork for three months, and have her complaints met with laughter and\ndismissal by the administration. Cf. Aguiar v. Bartlesville Care Ctr., 2011 WL\n1461541, at *5 (10th Cir. Apr. 18, 2011) (finding sufficient severity when a\npatient repeatedly engaged in unwanted touching of a nurse assistant,\n“interfered with her work, and eventually assaulted her” with a medicine cart).\n It is important to note that a finding that a patient’s harassment rises to\na level of severity or pervasiveness that affects the terms and conditions of\nemployment does not alone render the nursing home liable. As we mentioned\nat the outset, liability when such a claim is based on the behavior of someone\nother than a supervisor requires showing that the employer knew or should\nhave known of the hostile work environment but failed to take reasonable\nmeasures to try and stop it. Royal, 736 F.3d at 401. CLC did not argue in its\n 11\n\f Case: 17-60072 Document: 00514825674 Page: 12 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\nsummary judgment motion that it was entitled to judgment as a matter of law\non this element of Gardner’s claim. We thus have no occasion to consider it.\n We reverse the entry of summary judgment on Gardner’s harassment\nclaim.\n III.\n Gardner also appeals the grant of summary judgment on her retaliation\nclaim. It requires her to show that “(1) she engaged in activity protected under\nTitle VII, (2) an adverse employment action occurred, and (3) there was a\ncausal connection between her protected activity and the adverse employment\ndecision.” Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992).\n The district court analyzed the retaliation issue under the McDonnell-\nDouglas burden shifting framework used for cases relying on circumstantial\nevidence. Gardner does not contest that ruling, so it is affirmed.\n Her position all along, however, has been that she can prove retaliation\nvia direct evidence. As the district court did not consider her argument based\non direct evidence, we will allow it to consider that argument in the first\ninstance on remand.\n * * *\n\n REVERSED IN PART, AFFIRMED IN PART, and REMANDED for\nfurther proceedings consistent with this opinion.\n\n\n\n\n 12\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Kymberli GARDNER, Plaintiff - Appellant v. CLC OF PASCAGOULA, L.L.C., Doing Business as Plaza Community Living Center, Defendant - Appellee\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-06\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-60072 Document: 00514825674 Page: 1 Date Filed: 02/06/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-60072 February 6, 2019\\n Lyle W. Cayce\\nKYMBERLI GARDNER, Clerk\\n\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nCLC OF PASCAGOULA, L.L.C., doing business as Plaza Community Living\\nCenter,\\n\\n Defendant - Appellee\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Mississippi\\n\\n\\nBefore KING, DENNIS, and COSTA, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n The opinion previously issued in this case is withdrawn, and the\\nfollowing opinion is substituted in its place.\\n Claims of sexual harassment typically involve the behavior of fellow\\nemployees. But not always. Because the ultimate focus of Title VII liability is\\non the employer’s conduct—unless a supervisor is the harasser, a plaintiff\\nneeds to show that the employer knew or should have known about the hostile\\nwork environment yet allowed it to persist, see Vance v. Ball State Univ., 570\\nU.S. 421, 427 (2013) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 789\\n\\f Case: 17-60072 Document: 00514825674 Page: 2 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\n(1998)) 1—nonemployees can be the source of the harassment. See 29 C.F.R.\\n§ 1604.11(e) (“An employer may . . . be responsible for the acts of non-\\nemployees, with respect to sexual harassment of employees in the workplace,\\nwhere the employer (or its agents or supervisory employees) knows or should\\nhave known of the conduct and fails to take immediate and appropriate\\ncorrective action.”).\\n Customers are one example of third-party harassers. See generally Lori\\nA. Tetreault, Liability of Employer, Under Title VII of Civil Rights Act of 1964\\n(42 U.S.C.A. §§ 2000e et seq.) for Sexual Harassment of Employee by Customer,\\nClient, or Patron, 163 A.L.R. FED. 445 (2000). A leading case on third-party\\nharassment addressed whether Pizza Hut could be liable for customers’\\nharassment of a waitress. Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1067,\\n1072 (10th Cir. 1998). Casinos seem especially susceptible to these claims, as\\none case addresses a high roller’s harassment of a cocktail waitress and\\nanother a card player’s harassment of a blackjack dealer. See generally Oliver\\nv. Sheraton Tunica Corp., 2000 WL 303444 (N.D. Miss. Mar. 8, 2000) (former);\\nPowell v. Las Vegas Hilton Corp., 841 F. Supp. 1024 (D. Nev. 1992) (latter).\\n This case presents one of the more challenging situations in which to\\napply this principle that an employer can be liable for a hostile work\\nenvironment created by nonemployees: a nurse alleges that an assisted living\\nfacility allowed such an environment to continue by not preventing a resident’s\\n\\n\\n 1 Even when a supervisor is the harasser, liability flows from agency principles that\\nrender the employer liable. Vance, 570 U.S. at 428–29. One of those situations is when a\\nsupervisor’s harassing behavior resulted in an adverse “tangible employment decision.” Id.\\nLiability attaches in that situation because that injury “requires an official act of the\\nenterprise” that will usually be “documented in official company records” and often “subject\\nto review by higher level supervisors.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761–\\n62 (1998). Absent that type of employment consequence, the company will be liable for a\\nsupervisor’s harassment only “if the employer is unable to establish an affirmative defense”\\nthat considers whether the employer took preventative or corrective measures to combat the\\nharassment. Vance, 570 U.S. at 429–30 (citing Ellerth and Faragher).\\n 2\\n\\f Case: 17-60072 Document: 00514825674 Page: 3 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\nrepetitive harassment. The unique nature of that workplace is an important\\nconsideration. As we and other courts have recognized, the diminished\\ncapacity of patients influences whether the harassment should be perceived as\\naffecting the terms and conditions of employment. We must decide when the\\nallegations of harassment nonetheless become so severe or pervasive that fact\\nissues exist requiring a jury to decide the question.\\n I.\\n Kymberli Gardner worked as a Certified Nursing Assistant at an\\nassisted living facility operated by CLC of Pascagoula, d/b/a Plaza Community\\nLiving Center, from 2012 until she was fired in 2015. 2 Gardner is an\\nexperienced health aide. Before working for CLC, she was a caregiver for\\nseveral facilities and in-home care providers, two of which specialized in care\\nfor the mentally disabled. Gardner was trained in defensive and de-escalation\\ntactics for aggressive patients. As one might expect, during her years as a\\ncaregiver she often worked with patients who were “either physically\\ncombative or sexually aggressive.”\\n But what she experienced with one patient at the CLC facility rose to a\\nnew level. J.S. was an elderly resident who lived at Plaza between 2006 and\\n2014. He had a reputation for groping female employees and becoming\\nphysically aggressive when reprimanded. J.S. had been diagnosed with a\\nvariety of physical and mental illnesses including dementia, traumatic brain\\ninjury, personality disorder with aggressive behavior, and Parkinson’s\\nDisease. J.S.’s long history of violent and sexual behavior toward both patients\\nand staff included the following:\\n\\n\\n\\n\\n In light of the summary judgment posture, we recite these facts taking competing\\n 2\\n\\nevidence in the light most favorable to Gardner.\\n 3\\n\\f Case: 17-60072 Document: 00514825674 Page: 4 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\n • J.S. had to be transferred from his initial residence wing because he\\n had become “combative” and had physically assaulted his bedridden\\n roommate during a dispute over a television.\\n • J.S. was much more aggressive and sexually inappropriate towards\\n his female caregivers than even other problematic nursing home\\n residents; he would sexually assault them by grabbing their\\n “breast[s], butts, thighs, and try[ing] to grab [their] private areas.”\\n • J.S. asked for explicit sexual acts on a regular basis and made lewd\\n sexual comments toward female staff. He asked female employees to\\n engage in sexual activity with him “[a]ll the time.”\\n Gardner, who became responsible for J.S.’s care, experienced these types\\nof inappropriate behavior from J.S. “[e]very day.” Gardner reported that J.S.\\nwould physically grab her and make repeated sexual comments and requests.\\nShe and other CLC employees documented J.S.’s behavior by routinely\\nrecording it on his chart and making complaints to supervisors.\\n As a result, J.S.’s behavior was not a secret to those who ran the assisted\\nliving facility. Brandy Gregg, Gardner’s former supervisor and now the\\ndirector of nursing, had witnessed J.S.’s behaving in a sexually inappropriate\\nmanner and also received complaints from nurses to that effect. These\\nconcerns led administrators to transfer J.S. to a new wing. But they were not\\nalways responsive to the complaints. They declined, for example, to have him\\nundergo a psychiatric evaluation after he assaulted his roommate. J.S. later\\nassaulted a CLC employee and was sent for evaluation, but subsequently\\nreturned to CLC. And when Gardner attempted to discuss her concerns about\\nJ.S.’s behavior, Gregg laughed, and Administrator Teri Reynolds told Gardner\\nto “put [her] big girl panties on and go back to work.”\\n So Gardner continued to care for J.S., which ultimately resulted in the\\nincident that led to her termination. It began when Gardner was trying to help\\nJ.S. attend a therapy session. As she was assisting J.S. out of bed, he began\\ntrying “to grope” her and then tried to touch Gardner’s left breast while she\\nwas bent over. When she tried to move out of the way, J.S. punched her on the\\n 4\\n\\f Case: 17-60072 Document: 00514825674 Page: 5 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\nside of her breast. Gardner then laid him down on the bed and left the room\\nto get help. Janice Watkins, another nursing assistant, joined Gardner and\\nthe two again attempted to help J.S. out of bed and into a chair. At this point\\nJ.S. punched Gardner a second time. Gardner removed herself from J.S’s\\nimmediate area at which point he began to grab Watkins’ “private area.”\\nGardner sought help from the nurse on duty, Judy Toche. Gardner, Toche, and\\nWatkins were able to get J.S. into his wheelchair. Gardner then moved to\\nmake the bed, but J.S. punched her a third time.\\n What Gardner did in response is disputed. Gregg’s typed summary of\\nevents, as well as the deposition testimony of Toche, and Toche’s “nurse’s\\nnotes” from the day of the incident claim that Gardner “swung her own fist\\nover [J.S.’s] head” and that her arm “brushed the top of his head.” Watkins,\\non the other hand, asserts in both her deposition and her written witness\\ninterview statement that Gardner “[went] up with her hand as if she was going\\nto hit [patient]” but “didn’t hit [patient] at all.” Gardner says she did not swing\\nat J.S. during the incident. Gardner also reportedly made two statements as\\nshe was leaving J.S.’s room. Watkins testifies Gardner said, “I am not doing\\nshit else for [patient] at all.” Gardner also reportedly said, “I guess I’m not the\\nright color,” presumably because Toche, a white nurse, was able to calm J.S.\\nwhereas Gardner, a black nursing assistant, could not. After the incident,\\nGardner spoke with both Toche and Teri Reynolds, then the facility\\nadministrator, about her assignment to care for J.S. Gardner refused to care\\nfor him due to the continued harassment and asked to be reassigned. Her\\nrequest was denied.\\n Gardner then left work and went to the emergency room that evening\\ndue to injuries she sustained. She did not return to work for three months\\n\\n\\n\\n\\n 5\\n\\f Case: 17-60072 Document: 00514825674 Page: 6 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\nduring which time she received workers’ compensation. 3 Shortly after\\nreturning from leave, Gardner was fired. Gregg, Gardner’s supervisor at the\\ntime, says Gardner was fired for three reasons: (1) insubordination (refusing\\nto care for J.S.); (2) violating J.S.’s resident rights (by swearing in front of him\\nand making a “racist type statement[],” apparently the one about her not being\\nthe “right color”); and (3) attacking J.S. (swinging over his head).\\n As for J.S., nothing happened to him immediately after the incident with\\nGardner. But another altercation later that same day with a resident resulted\\nin his being sent for a psychiatric evaluation and then moved to an all-male\\n“lockdown” unit in nearby Biloxi.\\n Gardner sued, asserting multiple claims under Title VII. CLC moved for\\nsummary judgment and to strike certain affidavit testimony. Gardner also\\nmoved to strike portions of affidavit and deposition testimony. The district\\ncourt denied Gardner’s motion to strike, and denied in part and granted in part\\nCLC’s motion to strike. 4 The lower court then granted summary judgment in\\nfavor of CLC on all claims. Gardner’s appeal pursues only her claims of hostile\\nwork environment and retaliation. 5\\n\\n\\n\\n\\n 3 Gregg and the contemporaneous incident report say that Gardner had been\\nsuspended. But the report from CLC’s internal investigation contradicts that claim as it says\\nthat Gardner’s “separation from her employment was held pending her completion of her\\nworkmen’s compensation.” Gardner’s affidavit also asserts she was never informed she had\\nbeen suspended. We assume for purposes of summary judgment that Gardner was not\\nsuspended and was on workers’ compensation during her three-month absence.\\n 4 Gardner appeals some of those evidentiary rulings. We conclude that the district\\n\\ncourt did not abuse its discretion striking portions of her affidavit as speculative. And we\\nneed not decide whether the district court erred in considering Gregg’s testimony about the\\nreasons for the termination as that issue does not affect our ruling.\\n 5 While Gardner purports to appeal her sex discrimination claim based on disparate\\n\\ntreatment in addition to the one alleging hostile work environment, she has not sufficiently\\nbriefed that claim.\\n 6\\n\\f Case: 17-60072 Document: 00514825674 Page: 7 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\n II.\\n The district court concluded that a hostile workplace did not exist. It\\nexplained that it was “not clear to the Court that the harassing comments and\\nattempts to grope and hit are beyond what a person in Gardner’s position\\nshould expect of patients in a nursing home.” CLC defends the grant of\\nsummary judgment on that ground as well as on one the district court did not\\nreach: whether the company knew about the harassment and failed to take\\nremedial action. The other elements of a Title VII hostile work environment\\nclaim—that Gardner is a member of a protected class who was subject to some\\nharassment on the basis of her sex—are not disputed. Royal v. CCC & R Tres\\nArboles, L.L.C., 736 F.3d 396, 401 (5th Cir. 2013).\\n A.\\n Our de novo review of the grant of summary judgment leads us to a\\ndifferent conclusion given that all inferences must be viewed in Gardner’s favor\\nat this stage. See Williams v. Hampton, 797 F.3d 276, 282 (5th Cir. 2015);\\nBurnett Ranches, Ltd. v. United States, 753 F.3d 143, 146 (5th Cir. 2014). To\\nget past summary judgment, Gardner need not make it “clear” that she was\\nsubject to actionable harassment; she of course only needs to show that a jury\\ncould reach that conclusion based on its view of the evidence.\\n Title VII does not prohibit all harassment. Meritor Sav. Bank, FSB v.\\nVinson, 477 U.S. 57, 67 (1986). It makes harassing conduct unlawful when it\\nresults in the employer “discriminat[ing] against any individual with respect\\nto his compensation, terms, conditions, or privileges of employment, because of\\nsuch individual’s race, color, religion, sex, or national origin.” 42 U.S.C.\\n§ 2000e–2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–23 (1993); Meritor,\\n477 U.S. at 64–67. This statutory language “is not limited to ‘economic’ or\\n‘tangible’ discrimination.” Id. at 64. Instead, “the phrase ‘terms, conditions,\\nor privileges of employment’ evinces a congressional intent ‘to strike at the\\n 7\\n\\f Case: 17-60072 Document: 00514825674 Page: 8 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\nentire spectrum of disparate treatment of men and women’ in employment,\\nwhich includes requiring people to work in a discriminatorily hostile or abusive\\nenvironment.” Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 64). Title\\nVII is violated “when the workplace is permeated with ‘discriminatory\\nintimidation, ridicule, and insult,’ . . . that is ‘sufficiently severe or pervasive\\nto alter the conditions of the victim’s employment and create an abusive\\nworking environment. Id.; Shepherd v. Comptroller of Pub. Accounts, 168 F.3d\\n871, 874 (5th Cir. 1999). The Supreme Court set the “severe or pervasive”\\nstandard as a “middle path between making actionable any conduct that is\\nmerely offensive and requiring the conduct to cause a tangible psychological\\ninjury.” Harris, 510 U.S. at 21. A plaintiff “must subjectively perceive the\\nharassment as sufficiently severe or pervasive, and this subjective perception\\nmust be objectively reasonable.” Frank v. Xerox Corp., 347 F.3d 130, 138 (5th\\nCir. 2003).\\n As a starting point, the multiple years of unwanted sexual grabbing and\\nexplicit comments Gardner endured could certainly be deemed severe and\\npervasive harassment—only one of those is necessary, Lauderdale v. Tex. Dep’t\\nof Criminal Justice, 512 F.3d 157, 163 (5th Cir. 2007)—if the harasser were\\nsomeone without any mental impairments. Cherry v. Shaw Coastal, Inc., 668\\nF.3d 182, 189 (5th Cir. 2012) (hostile work environment when plaintiff was\\nsubject to multiple months of unwanted sexual grabbing and explicit\\ncomments); Harvill, v. Westward Commc’ns, L.L.C., 433 F.3d 428, 435 (5th Cir.\\n2005) (finding severe or pervasive harassment when, over seven months, a\\ncoworker grabbed a female employee, fondled her breasts and patted her\\nbuttocks “numerous times,” and rubbed his body against the plaintiff).\\n The complication is the one we have already mentioned: the source of the\\nharassment is the resident of an assisted living facility who suffers from\\ndementia. We have twice confronted hostile work environment claims based\\n 8\\n\\f Case: 17-60072 Document: 00514825674 Page: 9 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\non the behavior of patients towards caregivers. The first case involved home\\nhealth services. We held that the verbal harassment, which included the\\npatient repeatedly propositioning the plaintiff for sex and calling her\\ndisparaging names, was not sufficiently severe or pervasive. Cain v. Blackwell,\\n246 F.3d 758, 760–61 (5th Cir. 2001). We reached the same conclusion in the\\nnext case when a nursing home patient repeatedly directed racial slurs at a\\nnurse’s assistant. E.E.O.C. v. Nexion Health at Broadway, Inc., 199 F. App’x\\n351, 353 (5th Cir. 2006). 6 Although the verbal harassment was “quite\\noffensive,” the comments did not rise to the level of actionable conduct because\\nthey were not “physically threatening or humiliating” and did not “pervade the\\nwork experience of a reasonable nursing home employee, especially\\nconsidering their source.” Id. at 353–54. We recognized, however, that there\\nis not a categorical bar on hostile environment claims arising from harassment\\nby patients. See id. at 353 (“Cain does not establish a bright-line rule that\\nemployees who care for disabled, elderly patients can never succeed on a Title\\nVII claim.”). 7 The “specific circumstances” of such claims “must be judged to\\ndetermine whether a reasonable person would find the work environment\\nhostile or abusive” taking due account of the “unique circumstances involved\\nin caring for mentally diseased elderly patients.” Id.\\n Other circuits have found triable hostile work environment claims when\\npatients engaged in the physical harassment absent in Nexion and Cain. The\\n\\n\\n 6 Although Nexion is not binding, we address it because the district court relied on it\\nin granting summary judgment, and it illustrates the range of conduct courts have considered\\nin this area.\\n 7 The district court thought Nexion “indicates that the default is no viable Title VII\\n\\nclaim in such situations.” Nexion did not create a default presumption against Title VII\\nliability when the harasser is suffering from mental disability. Its statement that there is no\\n“bright-line rule” does the opposite of setting any hard and fast rule. The Nexion language\\nemphasizes what is true of most areas of the law—the outcome will depend on the facts of\\nindividual cases. So while a diminished mental condition of the harasser is an important\\nconsideration, it does not preclude liability.\\n 9\\n\\f Case: 17-60072 Document: 00514825674 Page: 10 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\nEighth Circuit reversed a grant of summary judgment when a mentally\\nhandicapped, teenage resident of a care facility “pushed [a female caregiver]\\nagainst a door, forced her right hand above her head, pulled open her jeans and\\nher blouse, grabbed her left breast, and pushed his weight and erect penis\\nagainst her stomach.” Crist v. Focus Homes, Inc., 122 F.3d 1107, 1108 (8th Cir.\\n1997). The Tenth Circuit also rejected a district court’s granting judgment as\\na matter of law for the hospital when a patient “knocked [a psychologist] to the\\nground, undressed her and digitally penetrated her, bit and choked her, and\\nrepeatedly threatened to kill her.” Turnbull v. Topeka State Hosp., 255 F.3d\\n1238, 1242–43 (10th Cir. 2001).\\n J.S.’s conduct is more severe than the nonphysical harassment held to\\nbe insufficient in Cain and Nexion 8 but not as severe as the potentially life-\\nthreatening sexual assaults in Crist or Turnbull. But the latter situation does\\nnot set a floor for actionable conduct. Harris, 510 U.S. at 22 (explaining that\\nTitle VII does not require harassment to “seriously affect employees’\\npsychological well-being”). So the question remains whether the conduct here,\\nwhich falls in the middle of this continuum, is enough. And that, as we have\\nsaid, involves the difficult line-drawing problem of what separates legally\\nactionable harassment from conduct that one should reasonably expect when\\nassisting people suffering from dementia.\\n We conclude that the evidence of persistent and often physical\\nharassment by J.S. is enough to allow a jury to decide whether a reasonable\\n\\n\\n\\n\\n 8 It is also more severe and pervasive than the conduct in an Illinois federal case the\\ndistrict court relied on. Pickett v. Sheridan Health Care Ctr., 2008 WL 719224, at *4 (N.D.\\nIll. Mar. 14, 2008), aff’d, 610 F.3d 434 (7th Cir. 2010). Pickett considered conduct from a\\nresident that happened three times over eight months. More importantly, Pickett refrained\\nfrom deciding whether the conduct was severe or pervasive, and instead granted summary\\njudgment in favor of the defendant because it took several steps to mitigate the harassing\\nbehavior. Id. at *5. As will be discussed, CLC did not take those measures.\\n 10\\n\\f Case: 17-60072 Document: 00514825674 Page: 11 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\ncaregiver on the receiving end of the harassment would have viewed it as\\nsufficiently severe or pervasive even considering the medical condition of the\\nharasser. The frequency and nature of the conduct, along with its effect on\\nGardner’s employment, would allow (but not require) that finding. Id. at 23\\n(finding that “the frequency of the discriminatory conduct; its severity;\\nwhether it is physically threatening or humiliating, or a mere offensive\\nutterance; and whether it unreasonably interferes with an employee’s work\\nperformance” are factors that influence whether harassment can be described\\nas “hostile” or “abusive”); see also Turner v. Baylor Richardson Med. Ctr., 476\\nF.3d 337, 347–48 (5th Cir. 2007). J.S.’s inappropriate conduct occurred daily.\\nHis conduct was far more severe than other residents’ and consisted of physical\\nsexual assault and violent outbursts. J.S.’s physical assault on Gardner took\\nhis behavior outside the realm of a “mere offensive utterance.” And his actions\\ninterfered with her work performance, leaving Gardner unable to work for\\nthree months. A jury could conclude that an objectively reasonable caregiver\\nwould not expect a patient to grope her daily, injure her so badly she could not\\nwork for three months, and have her complaints met with laughter and\\ndismissal by the administration. Cf. Aguiar v. Bartlesville Care Ctr., 2011 WL\\n1461541, at *5 (10th Cir. Apr. 18, 2011) (finding sufficient severity when a\\npatient repeatedly engaged in unwanted touching of a nurse assistant,\\n“interfered with her work, and eventually assaulted her” with a medicine cart).\\n It is important to note that a finding that a patient’s harassment rises to\\na level of severity or pervasiveness that affects the terms and conditions of\\nemployment does not alone render the nursing home liable. As we mentioned\\nat the outset, liability when such a claim is based on the behavior of someone\\nother than a supervisor requires showing that the employer knew or should\\nhave known of the hostile work environment but failed to take reasonable\\nmeasures to try and stop it. Royal, 736 F.3d at 401. CLC did not argue in its\\n 11\\n\\f Case: 17-60072 Document: 00514825674 Page: 12 Date Filed: 02/06/2019\\n\\n\\n\\n No. 17-60072\\nsummary judgment motion that it was entitled to judgment as a matter of law\\non this element of Gardner’s claim. We thus have no occasion to consider it.\\n We reverse the entry of summary judgment on Gardner’s harassment\\nclaim.\\n III.\\n Gardner also appeals the grant of summary judgment on her retaliation\\nclaim. It requires her to show that “(1) she engaged in activity protected under\\nTitle VII, (2) an adverse employment action occurred, and (3) there was a\\ncausal connection between her protected activity and the adverse employment\\ndecision.” Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992).\\n The district court analyzed the retaliation issue under the McDonnell-\\nDouglas burden shifting framework used for cases relying on circumstantial\\nevidence. Gardner does not contest that ruling, so it is affirmed.\\n Her position all along, however, has been that she can prove retaliation\\nvia direct evidence. As the district court did not consider her argument based\\non direct evidence, we will allow it to consider that argument in the first\\ninstance on remand.\\n * * *\\n\\n REVERSED IN PART, AFFIRMED IN PART, and REMANDED for\\nfurther proceedings consistent with this opinion.\\n\\n\\n\\n\\n 12\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":592,"cells":{"id":{"kind":"number","value":4588549,"string":"4,588,549"},"name":{"kind":"string","value":"Lonnie Kade WELSH, Plaintiff - Appellant v. CORRECT CARE, L.L.C. ; Marsha McLane, TCCO Executive Director; Michael Searcy; Bill Vanier; Janie Salazar ; Mary Leaks; Brian Thomas, in His Individual Capacity as Director of TCCC; Amy Goldstein, in Her Individual Capacity as Head of Clinical Operations at TCCC; Christopher Woods, in His Individual Capacity as Security Director at TCCC, Defendants - Appellees"},"name_abbreviation":{"kind":"string","value":"Lonnie Welsh v. Correct Care. L.L.C."},"decision_date":{"kind":"string","value":"2019-02-07"},"docket_number":{"kind":"string","value":"17-11522"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Davis, Dennis, Jones\", \"parties\": \"\", \"opinions\": [{\"author\": \"JAMES L. DENNIS, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-11522 Document: 00514827110 Page: 1 Date Filed: 02/07/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 17-11522 FILED\\n February 7, 2019\\n Lyle W. Cayce\\nLONNIE KADE WELSH, Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nCORRECT CARE. L.L.C.; MARSHA MCLANE, TCCO Executive Director;\\nMICHAEL SEARCY; BILL VANIER; JANIE SALAZAR; MARY LEAKS;\\nBRIAN THOMAS, in his Individual Capacity as Director of TCCC; AMY\\nGOLDSTEIN, in her Individual Capacity as Head of Clinical Operations at\\nTCCC; CHRISTOPHER WOODS, in his Individual Capacity as Security\\nDirector at TCCC,\\n\\n Defendants - Appellees\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore DAVIS, JONES, and DENNIS, Circuit Judges.\\nJAMES L. DENNIS, Circuit Judge:\\n Lonnie Kade Welsh appeals from an order dismissing his case with\\nprejudice after his attempt to dismiss unilaterally without prejudice. Because\\nthe dismissal with prejudice was erroneous, we VACATE and REMAND.\\n I.\\n Welsh filed a state court action against Correct Care, L.L.C., Marsha\\nMcLane, Michael Searcy, and others, in which he alleged constitutional\\nviolations and other wrongs inflicted on him while he was in the custody of the\\n\\f Case: 17-11522 Document: 00514827110 Page: 2 Date Filed: 02/07/2019\\n\\n\\n No. 17-11522\\n\\nTexas Civil Commitment Office. After removing the case to federal court,\\ndefendants McLane and Searcy filed a partial motion to dismiss. McLane also\\nfiled an answer. Welsh then filed an amended complaint, which no defendant\\nanswered.\\n Months later, Welsh moved to dismiss his action without prejudice.\\nAfter a clerical error, the court entered a nunc pro tunc 1 order dismissing the\\ncase “with prejudice” on the ground that at least one defendant—McLane—\\nhad answered. Welsh appeals, arguing that he was entitled to voluntary\\ndismissal without prejudice and without a court order.\\n II.\\n A plaintiff may unilaterally dismiss his action without prejudice by filing\\na “notice of dismissal before the opposing party serves either an answer or a\\nmotion for summary judgment.” FED. R. CIV. P. 41(a)(1)(A)(i). If the defendant\\nhas filed an answer or a motion for summary judgment, however, Rule 41(a)(2)\\npermits dismissal at the plaintiff’s request “only by court order, on terms that\\nthe court considers proper.” Id. 41(a)(2). Unless otherwise stated in the order,\\na dismissal under either subsection is without prejudice. Id. 41(a)(1)(B),\\n41(a)(2). We review the district court’s decision for abuse of discretion. See\\nElbaor v. Tripath Imaging, Inc., 279 F.3d 314, 318 (5th Cir. 2002).\\n A.\\n Federal Rule of Civil Procedure 41(a)(1)(A)(i) grants Welsh an absolute\\nright to dismiss his lawsuit before the defendant has filed an answer or a\\nsummary judgment motion. Defendant McLane filed an answer to Welsh’s\\nearlier complaint, 2 but he did not answer Welsh’s later-filed amended\\n\\n 1 “Nunc pro tunc” translates literally to “now for then” and “denotes an order having\\nretroactive legal effect through a court’s inherent power.” 60 C.J.S. Motions and Orders § 52,\\nat 61 (2012).\\n 2 Welsh filed an original petition and an amended petition in state court. McLane\\n\\nanswered the amended petition, which will be referred to as the “earlier complaint.”\\n\\n\\n 2\\n\\f Case: 17-11522 Document: 00514827110 Page: 3 Date Filed: 02/07/2019\\n\\n\\n No. 17-11522\\n\\ncomplaint. We must, therefore, determine whether filing an answer to the\\nearlier complaint, but not to the amended complaint, is sufficient to preclude\\nthe plaintiff from voluntarily dismissing his claim as a matter of right under\\nRule 41(a)(1)(A)(i).\\n The Fourth Circuit addressed this issue in Armstrong v. Frostie Co. and\\ndetermined that a plaintiff was barred from unilaterally dismissing his\\ncomplaint under Rule 41(a)(1)(A)(i) where a defendant filed an answer to the\\nplaintiff’s original complaint but not to his amended complaint. 453 F.2d 914,\\n916 (4th Cir. 1971). The court reasoned that Rule 41(a)(1)(A)(i) “is designed to\\npermit a disengagement of the parties at the behest of the plaintiff only in the\\nearly stages of a suit, before the defendant has expended time and effort in the\\npreparation of his case” and the filing of an amended complaint “increased\\nrather than nullified [the defendant’s] burden.” Id. Others have agreed. See\\nUniversidad Cent. Del Caribe, Inc. v. Liaison Comm. on Med. Educ., 760 F.2d\\n14, 18 (1st Cir. 1985) (noting that Armstrong stands for the proposition that “a\\nplaintiff cannot supersede the cutting off of its right to give notice of voluntary\\ndismissal by filing an amended complaint after an answer or motion for\\nsummary judgment has been filed by the defendant”); Baiul v. NBC Sports,\\n708 F. App’x 710, 713 (2d Cir. 2017) (“[N]o new right of dismissal is created by\\nthe filing of an amended complaint, even one with substantially new\\nallegations.”); see also 9 WRIGHT & MILLER, FEDERAL PRACTICE AND\\nPROCEDURE § 2363, at 122 (3d ed. Supp. 2018) (“Multiple courts have held that\\nan answer to the plaintiff’s original complaint is sufficient to preclude\\ndismissal by notice even though the defendant has not submitted an answer to\\nthe plaintiff’s amended complaint.”); cf. Van-S-Aviation Corp. v. Piper Aircraft\\nCorp., 551 F.2d 213, 220 (8th Cir. 1977) (“The purpose of Rule 41(a)(1)[(A)](i)\\nis to fix the point at which the resources of the court and the defendant are so\\n\\n\\n\\n 3\\n\\f Case: 17-11522 Document: 00514827110 Page: 4 Date Filed: 02/07/2019\\n\\n\\n No. 17-11522\\n\\ncommitted that dismissal without preclusive consequences can no longer be\\nhad as of right.”).\\n We agree with the Fourth Circuit’s reasoning and hold that the filing of\\nan amended complaint does not revive the plaintiff’s absolute right to dismissal\\nunder Rule 41(a)(1)(A)(i). See Armstrong, 453 F.2d at 916. Because McLane\\nfiled an answer to Welsh’s earlier complaint, Welsh cannot utilize Rule\\n41(a)(1)(A)(i)’s voluntary dismissal without a court order as to that defendant.\\nHowever, the Rules permit voluntary dismissal by notice and without a court\\norder of any defendant who has not served an answer, which in this case is all\\ndefendants except McLane. See FED. R. CIV. P. 41(a)(1)(a)(i); Plains Growers\\nBy & Through Florists’ Mut. Ins. Co. v. Ickes-Braun Glasshouses, Inc., 474 F.2d\\n250, 255 (5th Cir. 1973). Therefore, Welsh is entitled to dismissal by notice\\nunder Rule 41(a)(1)(A)(i) without prejudice and without a court order against\\nall defendants other than McLane.\\n B.\\n Because McLane filed an answer, the district court’s dismissal of Welsh’s\\nclaim against him falls under Rule 41(a)(2), which allows the court to impose\\nconditions on the dismissal. The district court dismissed Welsh’s claim with\\nprejudice. A plaintiff typically “has the option to refuse a Rule 41(a)(2)\\nvoluntary dismissal and to proceed with its case if the conditions imposed by\\nthe court are too onerous.” Mortgage Guar. Ins. Corp. v. Richard Carlyon Co.,\\n904 F.2d 298, 301 (5th Cir. 1990). Thus, “before requiring a Rule 41(a)(2)\\ndismissal to be with prejudice, a court must allow a plaintiff the opportunity\\nto retract his motion to dismiss” rather than accept the dismissal with\\nprejudice. Bell v. Keystone RV Co., 628 F.3d 157, 163 n.4 (5th Cir. 2010).\\nWhere, as here, the plaintiff was not given the chance to withdraw the motion\\nand reject the condition of dismissal with prejudice, a remand is in order. See\\n\\n\\n\\n 4\\n\\f Case: 17-11522 Document: 00514827110 Page: 5 Date Filed: 02/07/2019\\n\\n\\n No. 17-11522\\n\\nMortgage Guar., 904 F.2d at 301 (citing Lau v. Glendora Unified School\\nDistrict, 792 F.2d 929, 931 (9th Cir. 1986)). Therefore, we find that the district\\ncourt abused its discretion when it dismissed Welsh’s case with prejudice\\nwithout giving him the chance to reject or accept the dismissal. See id.\\n ***\\n To summarize, as to all non-answering defendants, Welsh is entitled to\\nunconditional dismissal by notice under Rule 41(a)(1)(A)(i) without prejudice\\nand without a court order. See FED. R. CIV. P. 41(a)(1)(A)(i); Plains Growers,\\n474 F.2d at 255. As to defendant McLane, Welsh is entitled to dismissal by\\nmotion under Rule 41(a)(2) “on terms that the court considers proper” with the\\nopportunity to retract his motion to dismiss if he finds the court’s conditions\\ntoo onerous. See FED. R. CIV. P. 41(a)(2); Mortgage Guar., 904 F.2d at 301.\\nAccordingly, we VACATE the district court’s order and REMAND for further\\nproceedings consistent with this opinion.\\n\\n\\n\\n\\n 5\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4365802/\", \"author_raw\": \"JAMES L. DENNIS, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"DAVIS"},"judge2":{"kind":"string","value":"DENNIS"},"judge3":{"kind":"string","value":"JONES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4588549/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Lonnie Kade WELSH, Plaintiff - Appellant v. CORRECT CARE, L.L.C. ; Marsha McLane, TCCO Executive Director; Michael Searcy; Bill Vanier; Janie Salazar ; Mary Leaks; Brian Thomas, in His Individual Capacity as Director of TCCC; Amy Goldstein, in Her Individual Capacity as Head of Clinical Operations at TCCC; Christopher Woods, in His Individual Capacity as Security Director at TCCC, Defendants - Appellees\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-07\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-11522 Document: 00514827110 Page: 1 Date Filed: 02/07/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 17-11522 FILED\n February 7, 2019\n Lyle W. Cayce\nLONNIE KADE WELSH, Clerk\n\n Plaintiff - Appellant\n\nv.\n\nCORRECT CARE. L.L.C.; MARSHA MCLANE, TCCO Executive Director;\nMICHAEL SEARCY; BILL VANIER; JANIE SALAZAR; MARY LEAKS;\nBRIAN THOMAS, in his Individual Capacity as Director of TCCC; AMY\nGOLDSTEIN, in her Individual Capacity as Head of Clinical Operations at\nTCCC; CHRISTOPHER WOODS, in his Individual Capacity as Security\nDirector at TCCC,\n\n Defendants - Appellees\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\nBefore DAVIS, JONES, and DENNIS, Circuit Judges.\nJAMES L. DENNIS, Circuit Judge:\n Lonnie Kade Welsh appeals from an order dismissing his case with\nprejudice after his attempt to dismiss unilaterally without prejudice. Because\nthe dismissal with prejudice was erroneous, we VACATE and REMAND.\n I.\n Welsh filed a state court action against Correct Care, L.L.C., Marsha\nMcLane, Michael Searcy, and others, in which he alleged constitutional\nviolations and other wrongs inflicted on him while he was in the custody of the\n\f Case: 17-11522 Document: 00514827110 Page: 2 Date Filed: 02/07/2019\n\n\n No. 17-11522\n\nTexas Civil Commitment Office. After removing the case to federal court,\ndefendants McLane and Searcy filed a partial motion to dismiss. McLane also\nfiled an answer. Welsh then filed an amended complaint, which no defendant\nanswered.\n Months later, Welsh moved to dismiss his action without prejudice.\nAfter a clerical error, the court entered a nunc pro tunc 1 order dismissing the\ncase “with prejudice” on the ground that at least one defendant—McLane—\nhad answered. Welsh appeals, arguing that he was entitled to voluntary\ndismissal without prejudice and without a court order.\n II.\n A plaintiff may unilaterally dismiss his action without prejudice by filing\na “notice of dismissal before the opposing party serves either an answer or a\nmotion for summary judgment.” FED. R. CIV. P. 41(a)(1)(A)(i). If the defendant\nhas filed an answer or a motion for summary judgment, however, Rule 41(a)(2)\npermits dismissal at the plaintiff’s request “only by court order, on terms that\nthe court considers proper.” Id. 41(a)(2). Unless otherwise stated in the order,\na dismissal under either subsection is without prejudice. Id. 41(a)(1)(B),\n41(a)(2). We review the district court’s decision for abuse of discretion. See\nElbaor v. Tripath Imaging, Inc., 279 F.3d 314, 318 (5th Cir. 2002).\n A.\n Federal Rule of Civil Procedure 41(a)(1)(A)(i) grants Welsh an absolute\nright to dismiss his lawsuit before the defendant has filed an answer or a\nsummary judgment motion. Defendant McLane filed an answer to Welsh’s\nearlier complaint, 2 but he did not answer Welsh’s later-filed amended\n\n 1 “Nunc pro tunc” translates literally to “now for then” and “denotes an order having\nretroactive legal effect through a court’s inherent power.” 60 C.J.S. Motions and Orders § 52,\nat 61 (2012).\n 2 Welsh filed an original petition and an amended petition in state court. McLane\n\nanswered the amended petition, which will be referred to as the “earlier complaint.”\n\n\n 2\n\f Case: 17-11522 Document: 00514827110 Page: 3 Date Filed: 02/07/2019\n\n\n No. 17-11522\n\ncomplaint. We must, therefore, determine whether filing an answer to the\nearlier complaint, but not to the amended complaint, is sufficient to preclude\nthe plaintiff from voluntarily dismissing his claim as a matter of right under\nRule 41(a)(1)(A)(i).\n The Fourth Circuit addressed this issue in Armstrong v. Frostie Co. and\ndetermined that a plaintiff was barred from unilaterally dismissing his\ncomplaint under Rule 41(a)(1)(A)(i) where a defendant filed an answer to the\nplaintiff’s original complaint but not to his amended complaint. 453 F.2d 914,\n916 (4th Cir. 1971). The court reasoned that Rule 41(a)(1)(A)(i) “is designed to\npermit a disengagement of the parties at the behest of the plaintiff only in the\nearly stages of a suit, before the defendant has expended time and effort in the\npreparation of his case” and the filing of an amended complaint “increased\nrather than nullified [the defendant’s] burden.” Id. Others have agreed. See\nUniversidad Cent. Del Caribe, Inc. v. Liaison Comm. on Med. Educ., 760 F.2d\n14, 18 (1st Cir. 1985) (noting that Armstrong stands for the proposition that “a\nplaintiff cannot supersede the cutting off of its right to give notice of voluntary\ndismissal by filing an amended complaint after an answer or motion for\nsummary judgment has been filed by the defendant”); Baiul v. NBC Sports,\n708 F. App’x 710, 713 (2d Cir. 2017) (“[N]o new right of dismissal is created by\nthe filing of an amended complaint, even one with substantially new\nallegations.”); see also 9 WRIGHT & MILLER, FEDERAL PRACTICE AND\nPROCEDURE § 2363, at 122 (3d ed. Supp. 2018) (“Multiple courts have held that\nan answer to the plaintiff’s original complaint is sufficient to preclude\ndismissal by notice even though the defendant has not submitted an answer to\nthe plaintiff’s amended complaint.”); cf. Van-S-Aviation Corp. v. Piper Aircraft\nCorp., 551 F.2d 213, 220 (8th Cir. 1977) (“The purpose of Rule 41(a)(1)[(A)](i)\nis to fix the point at which the resources of the court and the defendant are so\n\n\n\n 3\n\f Case: 17-11522 Document: 00514827110 Page: 4 Date Filed: 02/07/2019\n\n\n No. 17-11522\n\ncommitted that dismissal without preclusive consequences can no longer be\nhad as of right.”).\n We agree with the Fourth Circuit’s reasoning and hold that the filing of\nan amended complaint does not revive the plaintiff’s absolute right to dismissal\nunder Rule 41(a)(1)(A)(i). See Armstrong, 453 F.2d at 916. Because McLane\nfiled an answer to Welsh’s earlier complaint, Welsh cannot utilize Rule\n41(a)(1)(A)(i)’s voluntary dismissal without a court order as to that defendant.\nHowever, the Rules permit voluntary dismissal by notice and without a court\norder of any defendant who has not served an answer, which in this case is all\ndefendants except McLane. See FED. R. CIV. P. 41(a)(1)(a)(i); Plains Growers\nBy & Through Florists’ Mut. Ins. Co. v. Ickes-Braun Glasshouses, Inc., 474 F.2d\n250, 255 (5th Cir. 1973). Therefore, Welsh is entitled to dismissal by notice\nunder Rule 41(a)(1)(A)(i) without prejudice and without a court order against\nall defendants other than McLane.\n B.\n Because McLane filed an answer, the district court’s dismissal of Welsh’s\nclaim against him falls under Rule 41(a)(2), which allows the court to impose\nconditions on the dismissal. The district court dismissed Welsh’s claim with\nprejudice. A plaintiff typically “has the option to refuse a Rule 41(a)(2)\nvoluntary dismissal and to proceed with its case if the conditions imposed by\nthe court are too onerous.” Mortgage Guar. Ins. Corp. v. Richard Carlyon Co.,\n904 F.2d 298, 301 (5th Cir. 1990). Thus, “before requiring a Rule 41(a)(2)\ndismissal to be with prejudice, a court must allow a plaintiff the opportunity\nto retract his motion to dismiss” rather than accept the dismissal with\nprejudice. Bell v. Keystone RV Co., 628 F.3d 157, 163 n.4 (5th Cir. 2010).\nWhere, as here, the plaintiff was not given the chance to withdraw the motion\nand reject the condition of dismissal with prejudice, a remand is in order. See\n\n\n\n 4\n\f Case: 17-11522 Document: 00514827110 Page: 5 Date Filed: 02/07/2019\n\n\n No. 17-11522\n\nMortgage Guar., 904 F.2d at 301 (citing Lau v. Glendora Unified School\nDistrict, 792 F.2d 929, 931 (9th Cir. 1986)). Therefore, we find that the district\ncourt abused its discretion when it dismissed Welsh’s case with prejudice\nwithout giving him the chance to reject or accept the dismissal. See id.\n ***\n To summarize, as to all non-answering defendants, Welsh is entitled to\nunconditional dismissal by notice under Rule 41(a)(1)(A)(i) without prejudice\nand without a court order. See FED. R. CIV. P. 41(a)(1)(A)(i); Plains Growers,\n474 F.2d at 255. As to defendant McLane, Welsh is entitled to dismissal by\nmotion under Rule 41(a)(2) “on terms that the court considers proper” with the\nopportunity to retract his motion to dismiss if he finds the court’s conditions\ntoo onerous. See FED. R. CIV. P. 41(a)(2); Mortgage Guar., 904 F.2d at 301.\nAccordingly, we VACATE the district court’s order and REMAND for further\nproceedings consistent with this opinion.\n\n\n\n\n 5\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Lonnie Kade WELSH, Plaintiff - Appellant v. CORRECT CARE, L.L.C. ; Marsha McLane, TCCO Executive Director; Michael Searcy; Bill Vanier; Janie Salazar ; Mary Leaks; Brian Thomas, in His Individual Capacity as Director of TCCC; Amy Goldstein, in Her Individual Capacity as Head of Clinical Operations at TCCC; Christopher Woods, in His Individual Capacity as Security Director at TCCC, Defendants - Appellees\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-07\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-11522 Document: 00514827110 Page: 1 Date Filed: 02/07/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 17-11522 FILED\\n February 7, 2019\\n Lyle W. Cayce\\nLONNIE KADE WELSH, Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nCORRECT CARE. L.L.C.; MARSHA MCLANE, TCCO Executive Director;\\nMICHAEL SEARCY; BILL VANIER; JANIE SALAZAR; MARY LEAKS;\\nBRIAN THOMAS, in his Individual Capacity as Director of TCCC; AMY\\nGOLDSTEIN, in her Individual Capacity as Head of Clinical Operations at\\nTCCC; CHRISTOPHER WOODS, in his Individual Capacity as Security\\nDirector at TCCC,\\n\\n Defendants - Appellees\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore DAVIS, JONES, and DENNIS, Circuit Judges.\\nJAMES L. DENNIS, Circuit Judge:\\n Lonnie Kade Welsh appeals from an order dismissing his case with\\nprejudice after his attempt to dismiss unilaterally without prejudice. Because\\nthe dismissal with prejudice was erroneous, we VACATE and REMAND.\\n I.\\n Welsh filed a state court action against Correct Care, L.L.C., Marsha\\nMcLane, Michael Searcy, and others, in which he alleged constitutional\\nviolations and other wrongs inflicted on him while he was in the custody of the\\n\\f Case: 17-11522 Document: 00514827110 Page: 2 Date Filed: 02/07/2019\\n\\n\\n No. 17-11522\\n\\nTexas Civil Commitment Office. After removing the case to federal court,\\ndefendants McLane and Searcy filed a partial motion to dismiss. McLane also\\nfiled an answer. Welsh then filed an amended complaint, which no defendant\\nanswered.\\n Months later, Welsh moved to dismiss his action without prejudice.\\nAfter a clerical error, the court entered a nunc pro tunc 1 order dismissing the\\ncase “with prejudice” on the ground that at least one defendant—McLane—\\nhad answered. Welsh appeals, arguing that he was entitled to voluntary\\ndismissal without prejudice and without a court order.\\n II.\\n A plaintiff may unilaterally dismiss his action without prejudice by filing\\na “notice of dismissal before the opposing party serves either an answer or a\\nmotion for summary judgment.” FED. R. CIV. P. 41(a)(1)(A)(i). If the defendant\\nhas filed an answer or a motion for summary judgment, however, Rule 41(a)(2)\\npermits dismissal at the plaintiff’s request “only by court order, on terms that\\nthe court considers proper.” Id. 41(a)(2). Unless otherwise stated in the order,\\na dismissal under either subsection is without prejudice. Id. 41(a)(1)(B),\\n41(a)(2). We review the district court’s decision for abuse of discretion. See\\nElbaor v. Tripath Imaging, Inc., 279 F.3d 314, 318 (5th Cir. 2002).\\n A.\\n Federal Rule of Civil Procedure 41(a)(1)(A)(i) grants Welsh an absolute\\nright to dismiss his lawsuit before the defendant has filed an answer or a\\nsummary judgment motion. Defendant McLane filed an answer to Welsh’s\\nearlier complaint, 2 but he did not answer Welsh’s later-filed amended\\n\\n 1 “Nunc pro tunc” translates literally to “now for then” and “denotes an order having\\nretroactive legal effect through a court’s inherent power.” 60 C.J.S. Motions and Orders § 52,\\nat 61 (2012).\\n 2 Welsh filed an original petition and an amended petition in state court. McLane\\n\\nanswered the amended petition, which will be referred to as the “earlier complaint.”\\n\\n\\n 2\\n\\f Case: 17-11522 Document: 00514827110 Page: 3 Date Filed: 02/07/2019\\n\\n\\n No. 17-11522\\n\\ncomplaint. We must, therefore, determine whether filing an answer to the\\nearlier complaint, but not to the amended complaint, is sufficient to preclude\\nthe plaintiff from voluntarily dismissing his claim as a matter of right under\\nRule 41(a)(1)(A)(i).\\n The Fourth Circuit addressed this issue in Armstrong v. Frostie Co. and\\ndetermined that a plaintiff was barred from unilaterally dismissing his\\ncomplaint under Rule 41(a)(1)(A)(i) where a defendant filed an answer to the\\nplaintiff’s original complaint but not to his amended complaint. 453 F.2d 914,\\n916 (4th Cir. 1971). The court reasoned that Rule 41(a)(1)(A)(i) “is designed to\\npermit a disengagement of the parties at the behest of the plaintiff only in the\\nearly stages of a suit, before the defendant has expended time and effort in the\\npreparation of his case” and the filing of an amended complaint “increased\\nrather than nullified [the defendant’s] burden.” Id. Others have agreed. See\\nUniversidad Cent. Del Caribe, Inc. v. Liaison Comm. on Med. Educ., 760 F.2d\\n14, 18 (1st Cir. 1985) (noting that Armstrong stands for the proposition that “a\\nplaintiff cannot supersede the cutting off of its right to give notice of voluntary\\ndismissal by filing an amended complaint after an answer or motion for\\nsummary judgment has been filed by the defendant”); Baiul v. NBC Sports,\\n708 F. App’x 710, 713 (2d Cir. 2017) (“[N]o new right of dismissal is created by\\nthe filing of an amended complaint, even one with substantially new\\nallegations.”); see also 9 WRIGHT & MILLER, FEDERAL PRACTICE AND\\nPROCEDURE § 2363, at 122 (3d ed. Supp. 2018) (“Multiple courts have held that\\nan answer to the plaintiff’s original complaint is sufficient to preclude\\ndismissal by notice even though the defendant has not submitted an answer to\\nthe plaintiff’s amended complaint.”); cf. Van-S-Aviation Corp. v. Piper Aircraft\\nCorp., 551 F.2d 213, 220 (8th Cir. 1977) (“The purpose of Rule 41(a)(1)[(A)](i)\\nis to fix the point at which the resources of the court and the defendant are so\\n\\n\\n\\n 3\\n\\f Case: 17-11522 Document: 00514827110 Page: 4 Date Filed: 02/07/2019\\n\\n\\n No. 17-11522\\n\\ncommitted that dismissal without preclusive consequences can no longer be\\nhad as of right.”).\\n We agree with the Fourth Circuit’s reasoning and hold that the filing of\\nan amended complaint does not revive the plaintiff’s absolute right to dismissal\\nunder Rule 41(a)(1)(A)(i). See Armstrong, 453 F.2d at 916. Because McLane\\nfiled an answer to Welsh’s earlier complaint, Welsh cannot utilize Rule\\n41(a)(1)(A)(i)’s voluntary dismissal without a court order as to that defendant.\\nHowever, the Rules permit voluntary dismissal by notice and without a court\\norder of any defendant who has not served an answer, which in this case is all\\ndefendants except McLane. See FED. R. CIV. P. 41(a)(1)(a)(i); Plains Growers\\nBy & Through Florists’ Mut. Ins. Co. v. Ickes-Braun Glasshouses, Inc., 474 F.2d\\n250, 255 (5th Cir. 1973). Therefore, Welsh is entitled to dismissal by notice\\nunder Rule 41(a)(1)(A)(i) without prejudice and without a court order against\\nall defendants other than McLane.\\n B.\\n Because McLane filed an answer, the district court’s dismissal of Welsh’s\\nclaim against him falls under Rule 41(a)(2), which allows the court to impose\\nconditions on the dismissal. The district court dismissed Welsh’s claim with\\nprejudice. A plaintiff typically “has the option to refuse a Rule 41(a)(2)\\nvoluntary dismissal and to proceed with its case if the conditions imposed by\\nthe court are too onerous.” Mortgage Guar. Ins. Corp. v. Richard Carlyon Co.,\\n904 F.2d 298, 301 (5th Cir. 1990). Thus, “before requiring a Rule 41(a)(2)\\ndismissal to be with prejudice, a court must allow a plaintiff the opportunity\\nto retract his motion to dismiss” rather than accept the dismissal with\\nprejudice. Bell v. Keystone RV Co., 628 F.3d 157, 163 n.4 (5th Cir. 2010).\\nWhere, as here, the plaintiff was not given the chance to withdraw the motion\\nand reject the condition of dismissal with prejudice, a remand is in order. See\\n\\n\\n\\n 4\\n\\f Case: 17-11522 Document: 00514827110 Page: 5 Date Filed: 02/07/2019\\n\\n\\n No. 17-11522\\n\\nMortgage Guar., 904 F.2d at 301 (citing Lau v. Glendora Unified School\\nDistrict, 792 F.2d 929, 931 (9th Cir. 1986)). Therefore, we find that the district\\ncourt abused its discretion when it dismissed Welsh’s case with prejudice\\nwithout giving him the chance to reject or accept the dismissal. See id.\\n ***\\n To summarize, as to all non-answering defendants, Welsh is entitled to\\nunconditional dismissal by notice under Rule 41(a)(1)(A)(i) without prejudice\\nand without a court order. See FED. R. CIV. P. 41(a)(1)(A)(i); Plains Growers,\\n474 F.2d at 255. As to defendant McLane, Welsh is entitled to dismissal by\\nmotion under Rule 41(a)(2) “on terms that the court considers proper” with the\\nopportunity to retract his motion to dismiss if he finds the court’s conditions\\ntoo onerous. See FED. R. CIV. P. 41(a)(2); Mortgage Guar., 904 F.2d at 301.\\nAccordingly, we VACATE the district court’s order and REMAND for further\\nproceedings consistent with this opinion.\\n\\n\\n\\n\\n 5\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":593,"cells":{"id":{"kind":"number","value":4588550,"string":"4,588,550"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Kymberli Gardner v. CLC of Pascagoula, L.L.C."},"decision_date":{"kind":"string","value":"2019-02-07"},"docket_number":{"kind":"string","value":"17-60072"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before KING, DENNIS, and COSTA, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"GREGG COSTA, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-60072 Document: 00514827002 Page: 1 Date Filed: 02/07/2019\\n\\n\\n\\n\\n REVISED February 7, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-60072 FILED\\n February 6, 2019\\n Lyle W. Cayce\\nKYMBERLI GARDNER, Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nCLC OF PASCAGOULA, L.L.C., doing business as Plaza Community Living\\nCenter,\\n\\n Defendant - Appellee\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Mississippi\\n\\n\\nBefore KING, DENNIS, and COSTA, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n The opinion previously issued in this case is withdrawn, and the\\nfollowing opinion is substituted in its place.\\n Claims of sexual harassment typically involve the behavior of fellow\\nemployees. But not always. Because the ultimate focus of Title VII liability is\\non the employer’s conduct—unless a supervisor is the harasser, a plaintiff\\nneeds to show that the employer knew or should have known about the hostile\\nwork environment yet allowed it to persist, see Vance v. Ball State Univ., 570\\nU.S. 421, 427 (2013) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 789\\n\\f Case: 17-60072 Document: 00514827002 Page: 2 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\n(1998)) 1—nonemployees can be the source of the harassment. See 29 C.F.R.\\n§ 1604.11(e) (“An employer may . . . be responsible for the acts of non-\\nemployees, with respect to sexual harassment of employees in the workplace,\\nwhere the employer (or its agents or supervisory employees) knows or should\\nhave known of the conduct and fails to take immediate and appropriate\\ncorrective action.”).\\n Customers are one example of third-party harassers. See generally Lori\\nA. Tetreault, Liability of Employer, Under Title VII of Civil Rights Act of 1964\\n(42 U.S.C.A. §§ 2000e et seq.) for Sexual Harassment of Employee by Customer,\\nClient, or Patron, 163 A.L.R. FED. 445 (2000). A leading case on third-party\\nharassment addressed whether Pizza Hut could be liable for customers’\\nharassment of a waitress. Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1067,\\n1072 (10th Cir. 1998). Casinos seem especially susceptible to these claims, as\\none case addresses a high roller’s harassment of a cocktail waitress and\\nanother a card player’s harassment of a blackjack dealer. See generally Oliver\\nv. Sheraton Tunica Corp., 2000 WL 303444 (N.D. Miss. Mar. 8, 2000) (former);\\nPowell v. Las Vegas Hilton Corp., 841 F. Supp. 1024 (D. Nev. 1992) (latter).\\n This case presents one of the more challenging situations in which to\\napply this principle that an employer can be liable for a hostile work\\nenvironment created by nonemployees: a nurse alleges that an assisted living\\nfacility allowed such an environment to continue by not preventing a resident’s\\n\\n\\n 1 Even when a supervisor is the harasser, liability flows from agency principles that\\nrender the employer liable. Vance, 570 U.S. at 428–29. One of those situations is when a\\nsupervisor’s harassing behavior resulted in an adverse “tangible employment decision.” Id.\\nLiability attaches in that situation because that injury “requires an official act of the\\nenterprise” that will usually be “documented in official company records” and often “subject\\nto review by higher level supervisors.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761–\\n62 (1998). Absent that type of employment consequence, the company will be liable for a\\nsupervisor’s harassment only “if the employer is unable to establish an affirmative defense”\\nthat considers whether the employer took preventative or corrective measures to combat the\\nharassment. Vance, 570 U.S. at 429–30 (citing Ellerth and Faragher).\\n 2\\n\\f Case: 17-60072 Document: 00514827002 Page: 3 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\nrepetitive harassment. The unique nature of that workplace is an important\\nconsideration. As we and other courts have recognized, the diminished\\ncapacity of patients influences whether the harassment should be perceived as\\naffecting the terms and conditions of employment. We must decide when the\\nallegations of harassment nonetheless become so severe or pervasive that fact\\nissues exist requiring a jury to decide the question.\\n I.\\n Kymberli Gardner worked as a Certified Nursing Assistant at an\\nassisted living facility operated by CLC of Pascagoula, d/b/a Plaza Community\\nLiving Center, from 2012 until she was fired in 2015. 2 Gardner is an\\nexperienced health aide. Before working for CLC, she was a caregiver for\\nseveral facilities and in-home care providers, two of which specialized in care\\nfor the mentally disabled. Gardner was trained in defensive and de-escalation\\ntactics for aggressive patients. As one might expect, during her years as a\\ncaregiver she often worked with patients who were “either physically\\ncombative or sexually aggressive.”\\n But what she experienced with one patient at the CLC facility rose to a\\nnew level. J.S. was an elderly resident who lived at Plaza between 2006 and\\n2014. He had a reputation for groping female employees and becoming\\nphysically aggressive when reprimanded. J.S. had been diagnosed with a\\nvariety of physical and mental illnesses including dementia, traumatic brain\\ninjury, personality disorder with aggressive behavior, and Parkinson’s\\nDisease. J.S.’s long history of violent and sexual behavior toward both patients\\nand staff included the following:\\n\\n\\n\\n\\n In light of the summary judgment posture, we recite these facts taking competing\\n 2\\n\\nevidence in the light most favorable to Gardner.\\n 3\\n\\f Case: 17-60072 Document: 00514827002 Page: 4 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\n • J.S. had to be transferred from his initial residence wing because he\\n had become “combative” and had physically assaulted his bedridden\\n roommate during a dispute over a television.\\n • J.S. was much more aggressive and sexually inappropriate towards\\n his female caregivers than even other problematic nursing home\\n residents; he would sexually assault them by grabbing their\\n “breast[s], butts, thighs, and try[ing] to grab [their] private areas.”\\n • J.S. asked for explicit sexual acts on a regular basis and made lewd\\n sexual comments toward female staff. He asked female employees to\\n engage in sexual activity with him “[a]ll the time.”\\n Gardner, who became responsible for J.S.’s care, experienced these types\\nof inappropriate behavior from J.S. “[e]very day.” Gardner reported that J.S.\\nwould physically grab her and make repeated sexual comments and requests.\\nShe and other CLC employees documented J.S.’s behavior by routinely\\nrecording it on his chart and making complaints to supervisors.\\n As a result, J.S.’s behavior was not a secret to those who ran the assisted\\nliving facility. Brandy Gregg, Gardner’s former supervisor and now the\\ndirector of nursing, had witnessed J.S.’s behaving in a sexually inappropriate\\nmanner and also received complaints from nurses to that effect. These\\nconcerns led administrators to transfer J.S. to a new wing. But they were not\\nalways responsive to the complaints. They declined, for example, to have him\\nundergo a psychiatric evaluation after he assaulted his roommate. J.S. later\\nassaulted a CLC employee and was sent for evaluation, but subsequently\\nreturned to CLC. And when Gardner attempted to discuss her concerns about\\nJ.S.’s behavior, Gregg laughed, and Administrator Teri Reynolds told Gardner\\nto “put [her] big girl panties on and go back to work.”\\n So Gardner continued to care for J.S., which ultimately resulted in the\\nincident that led to her termination. It began when Gardner was trying to help\\nJ.S. attend a therapy session. As she was assisting J.S. out of bed, he began\\ntrying “to grope” her and then tried to touch Gardner’s left breast while she\\nwas bent over. When she tried to move out of the way, J.S. punched her on the\\n 4\\n\\f Case: 17-60072 Document: 00514827002 Page: 5 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\nside of her breast. Gardner then laid him down on the bed and left the room\\nto get help. Janice Watkins, another nursing assistant, joined Gardner and\\nthe two again attempted to help J.S. out of bed and into a chair. At this point\\nJ.S. punched Gardner a second time. Gardner removed herself from J.S’s\\nimmediate area at which point he began to grab Watkins’ “private area.”\\nGardner sought help from the nurse on duty, Judy Toche. Gardner, Toche, and\\nWatkins were able to get J.S. into his wheelchair. Gardner then moved to\\nmake the bed, but J.S. punched her a third time.\\n What Gardner did in response is disputed. Gregg’s typed summary of\\nevents, as well as the deposition testimony of Toche, and Toche’s “nurse’s\\nnotes” from the day of the incident claim that Gardner “swung her own fist\\nover [J.S.’s] head” and that her arm “brushed the top of his head.” Watkins,\\non the other hand, asserts in both her deposition and her written witness\\ninterview statement that Gardner “[went] up with her hand as if she was going\\nto hit [patient]” but “didn’t hit [patient] at all.” Gardner says she did not swing\\nat J.S. during the incident. Gardner also reportedly made two statements as\\nshe was leaving J.S.’s room. Watkins testifies Gardner said, “I am not doing\\nshit else for [patient] at all.” Gardner also reportedly said, “I guess I’m not the\\nright color,” presumably because Toche, a white nurse, was able to calm J.S.\\nwhereas Gardner, a black nursing assistant, could not. After the incident,\\nGardner spoke with both Toche and Teri Reynolds, then the facility\\nadministrator, about her assignment to care for J.S. Gardner refused to care\\nfor him due to the continued harassment and asked to be reassigned. Her\\nrequest was denied.\\n Gardner then left work and went to the emergency room that evening\\ndue to injuries she sustained. She did not return to work for three months\\n\\n\\n\\n\\n 5\\n\\f Case: 17-60072 Document: 00514827002 Page: 6 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\nduring which time she received workers’ compensation. 3 Shortly after\\nreturning from leave, Gardner was fired. Gregg, Gardner’s supervisor at the\\ntime, says Gardner was fired for three reasons: (1) insubordination (refusing\\nto care for J.S.); (2) violating J.S.’s resident rights (by swearing in front of him\\nand making a “racist type statement[],” apparently the one about her not being\\nthe “right color”); and (3) attacking J.S. (swinging over his head).\\n As for J.S., nothing happened to him immediately after the incident with\\nGardner. But another altercation later that same day with a resident resulted\\nin his being sent for a psychiatric evaluation and then moved to an all-male\\n“lockdown” unit in nearby Biloxi.\\n Gardner sued, asserting multiple claims under Title VII. CLC moved for\\nsummary judgment and to strike certain affidavit testimony. Gardner also\\nmoved to strike portions of affidavit and deposition testimony. The district\\ncourt denied Gardner’s motion to strike, and denied in part and granted in part\\nCLC’s motion to strike. 4 The lower court then granted summary judgment in\\nfavor of CLC on all claims. Gardner’s appeal pursues only her claims of hostile\\nwork environment and retaliation. 5\\n\\n\\n\\n\\n 3 Gregg and the contemporaneous incident report say that Gardner had been\\nsuspended. But the report from CLC’s internal investigation contradicts that claim as it says\\nthat Gardner’s “separation from her employment was held pending her completion of her\\nworkmen’s compensation.” Gardner’s affidavit also asserts she was never informed she had\\nbeen suspended. We assume for purposes of summary judgment that Gardner was not\\nsuspended and was on workers’ compensation during her three-month absence.\\n 4 Gardner appeals some of those evidentiary rulings. We conclude that the district\\n\\ncourt did not abuse its discretion striking portions of her affidavit as speculative. And we\\nneed not decide whether the district court erred in considering Gregg’s testimony about the\\nreasons for the termination as that issue does not affect our ruling.\\n 5 While Gardner purports to appeal her sex discrimination claim based on disparate\\n\\ntreatment in addition to the one alleging hostile work environment, she has not sufficiently\\nbriefed that claim.\\n 6\\n\\f Case: 17-60072 Document: 00514827002 Page: 7 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\n II.\\n The district court concluded that a hostile workplace did not exist. It\\nexplained that it was “not clear to the Court that the harassing comments and\\nattempts to grope and hit are beyond what a person in Gardner’s position\\nshould expect of patients in a nursing home.” CLC defends the grant of\\nsummary judgment on that ground as well as on one the district court did not\\nreach: whether the company knew about the harassment and failed to take\\nremedial action. The other elements of a Title VII hostile work environment\\nclaim—that Gardner is a member of a protected class who was subject to some\\nharassment on the basis of her sex—are not disputed. Royal v. CCC & R Tres\\nArboles, L.L.C., 736 F.3d 396, 401 (5th Cir. 2013).\\n A.\\n Our de novo review of the grant of summary judgment leads us to a\\ndifferent conclusion given that all inferences must be viewed in Gardner’s favor\\nat this stage. See Williams v. Hampton, 797 F.3d 276, 282 (5th Cir. 2015);\\nBurnett Ranches, Ltd. v. United States, 753 F.3d 143, 146 (5th Cir. 2014). To\\nget past summary judgment, Gardner need not make it “clear” that she was\\nsubject to actionable harassment; she of course only needs to show that a jury\\ncould reach that conclusion based on its view of the evidence.\\n Title VII does not prohibit all harassment. Meritor Sav. Bank, FSB v.\\nVinson, 477 U.S. 57, 67 (1986). It makes harassing conduct unlawful when it\\nresults in the employer “discriminat[ing] against any individual with respect\\nto his compensation, terms, conditions, or privileges of employment, because of\\nsuch individual’s race, color, religion, sex, or national origin.” 42 U.S.C.\\n§ 2000e–2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–23 (1993); Meritor,\\n477 U.S. at 64–67. This statutory language “is not limited to ‘economic’ or\\n‘tangible’ discrimination.” Id. at 64. Instead, “the phrase ‘terms, conditions,\\nor privileges of employment’ evinces a congressional intent ‘to strike at the\\n 7\\n\\f Case: 17-60072 Document: 00514827002 Page: 8 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\nentire spectrum of disparate treatment of men and women’ in employment,\\nwhich includes requiring people to work in a discriminatorily hostile or abusive\\nenvironment.” Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 64). Title\\nVII is violated “when the workplace is permeated with ‘discriminatory\\nintimidation, ridicule, and insult,’ . . . that is ‘sufficiently severe or pervasive\\nto alter the conditions of the victim’s employment and create an abusive\\nworking environment. Id.; Shepherd v. Comptroller of Pub. Accounts, 168 F.3d\\n871, 874 (5th Cir. 1999). The Supreme Court set the “severe or pervasive”\\nstandard as a “middle path between making actionable any conduct that is\\nmerely offensive and requiring the conduct to cause a tangible psychological\\ninjury.” Harris, 510 U.S. at 21. A plaintiff “must subjectively perceive the\\nharassment as sufficiently severe or pervasive, and this subjective perception\\nmust be objectively reasonable.” Frank v. Xerox Corp., 347 F.3d 130, 138 (5th\\nCir. 2003).\\n As a starting point, the multiple years of unwanted sexual grabbing and\\nexplicit comments Gardner endured could certainly be deemed severe and\\npervasive harassment—only one of those is necessary, Lauderdale v. Tex. Dep’t\\nof Criminal Justice, 512 F.3d 157, 163 (5th Cir. 2007)—if the harasser were\\nsomeone without any mental impairments. Cherry v. Shaw Coastal, Inc., 668\\nF.3d 182, 189 (5th Cir. 2012) (hostile work environment when plaintiff was\\nsubject to multiple months of unwanted sexual grabbing and explicit\\ncomments); Harvill, v. Westward Commc’ns, L.L.C., 433 F.3d 428, 435 (5th Cir.\\n2005) (finding severe or pervasive harassment when, over seven months, a\\ncoworker grabbed a female employee, fondled her breasts and patted her\\nbuttocks “numerous times,” and rubbed his body against the plaintiff).\\n The complication is the one we have already mentioned: the source of the\\nharassment is the resident of an assisted living facility who suffers from\\ndementia. We have twice confronted hostile work environment claims based\\n 8\\n\\f Case: 17-60072 Document: 00514827002 Page: 9 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\non the behavior of patients towards caregivers. The first case involved home\\nhealth services. We held that the verbal harassment, which included the\\npatient repeatedly propositioning the plaintiff for sex and calling her\\ndisparaging names, was not sufficiently severe or pervasive. Cain v. Blackwell,\\n246 F.3d 758, 760–61 (5th Cir. 2001). We reached the same conclusion in the\\nnext case when a nursing home patient repeatedly directed racial slurs at a\\nnurse’s assistant. E.E.O.C. v. Nexion Health at Broadway, Inc., 199 F. App’x\\n351, 353 (5th Cir. 2006). 6 Although the verbal harassment was “quite\\noffensive,” the comments did not rise to the level of actionable conduct because\\nthey were not “physically threatening or humiliating” and did not “pervade the\\nwork experience of a reasonable nursing home employee, especially\\nconsidering their source.” Id. at 353–54. We recognized, however, that there\\nis not a categorical bar on hostile environment claims arising from harassment\\nby patients. See id. at 353 (“Cain does not establish a bright-line rule that\\nemployees who care for disabled, elderly patients can never succeed on a Title\\nVII claim.”). 7 The “specific circumstances” of such claims “must be judged to\\ndetermine whether a reasonable person would find the work environment\\nhostile or abusive” taking due account of the “unique circumstances involved\\nin caring for mentally diseased elderly patients.” Id.\\n Other circuits have found triable hostile work environment claims when\\npatients engaged in the physical harassment absent in Nexion and Cain. The\\n\\n\\n 6 Although Nexion is not binding, we address it because the district court relied on it\\nin granting summary judgment, and it illustrates the range of conduct courts have considered\\nin this area.\\n 7 The district court thought Nexion “indicates that the default is no viable Title VII\\n\\nclaim in such situations.” Nexion did not create a default presumption against Title VII\\nliability when the harasser is suffering from mental disability. Its statement that there is no\\n“bright-line rule” does the opposite of setting any hard and fast rule. The Nexion language\\nemphasizes what is true of most areas of the law—the outcome will depend on the facts of\\nindividual cases. So while a diminished mental condition of the harasser is an important\\nconsideration, it does not preclude liability.\\n 9\\n\\f Case: 17-60072 Document: 00514827002 Page: 10 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\nEighth Circuit reversed a grant of summary judgment when a mentally\\nhandicapped, teenage resident of a care facility “pushed [a female caregiver]\\nagainst a door, forced her right hand above her head, pulled open her jeans and\\nher blouse, grabbed her left breast, and pushed his weight and erect penis\\nagainst her stomach.” Crist v. Focus Homes, Inc., 122 F.3d 1107, 1108 (8th Cir.\\n1997). The Tenth Circuit also rejected a district court’s granting judgment as\\na matter of law for the hospital when a patient “knocked [a psychologist] to the\\nground, undressed her and digitally penetrated her, bit and choked her, and\\nrepeatedly threatened to kill her.” Turnbull v. Topeka State Hosp., 255 F.3d\\n1238, 1242–43 (10th Cir. 2001).\\n J.S.’s conduct is more severe than the nonphysical harassment held to\\nbe insufficient in Cain and Nexion 8 but not as severe as the potentially life-\\nthreatening sexual assaults in Crist or Turnbull. But the latter situation does\\nnot set a floor for actionable conduct. Harris, 510 U.S. at 22 (explaining that\\nTitle VII does not require harassment to “seriously affect employees’\\npsychological well-being”). So the question remains whether the conduct here,\\nwhich falls in the middle of this continuum, is enough. And that, as we have\\nsaid, involves the difficult line-drawing problem of what separates legally\\nactionable harassment from conduct that one should reasonably expect when\\nassisting people suffering from dementia.\\n We conclude that the evidence of persistent and often physical\\nharassment by J.S. is enough to allow a jury to decide whether a reasonable\\n\\n\\n\\n\\n 8 It is also more severe and pervasive than the conduct in an Illinois federal case the\\ndistrict court relied on. Pickett v. Sheridan Health Care Ctr., 2008 WL 719224, at *4 (N.D.\\nIll. Mar. 14, 2008), aff’d, 610 F.3d 434 (7th Cir. 2010). Pickett considered conduct from a\\nresident that happened three times over eight months. More importantly, Pickett refrained\\nfrom deciding whether the conduct was severe or pervasive, and instead granted summary\\njudgment in favor of the defendant because it took several steps to mitigate the harassing\\nbehavior. Id. at *5.\\n 10\\n\\f Case: 17-60072 Document: 00514827002 Page: 11 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\ncaregiver on the receiving end of the harassment would have viewed it as\\nsufficiently severe or pervasive even considering the medical condition of the\\nharasser. The frequency and nature of the conduct, along with its effect on\\nGardner’s employment, would allow (but not require) that finding. Id. at 23\\n(finding that “the frequency of the discriminatory conduct; its severity;\\nwhether it is physically threatening or humiliating, or a mere offensive\\nutterance; and whether it unreasonably interferes with an employee’s work\\nperformance” are factors that influence whether harassment can be described\\nas “hostile” or “abusive”); see also Turner v. Baylor Richardson Med. Ctr., 476\\nF.3d 337, 347–48 (5th Cir. 2007). J.S.’s inappropriate conduct occurred daily.\\nHis conduct was far more severe than other residents’ and consisted of physical\\nsexual assault and violent outbursts. J.S.’s physical assault on Gardner took\\nhis behavior outside the realm of a “mere offensive utterance.” And his actions\\ninterfered with her work performance, leaving Gardner unable to work for\\nthree months. A jury could conclude that an objectively reasonable caregiver\\nwould not expect a patient to grope her daily, injure her so badly she could not\\nwork for three months, and have her complaints met with laughter and\\ndismissal by the administration. Cf. Aguiar v. Bartlesville Care Ctr., 2011 WL\\n1461541, at *5 (10th Cir. Apr. 18, 2011) (finding sufficient severity when a\\npatient repeatedly engaged in unwanted touching of a nurse assistant,\\n“interfered with her work, and eventually assaulted her” with a medicine cart).\\n It is important to note that a finding that a patient’s harassment rises to\\na level of severity or pervasiveness that affects the terms and conditions of\\nemployment does not alone render the nursing home liable. As we mentioned\\nat the outset, liability when such a claim is based on the behavior of someone\\nother than a supervisor requires showing that the employer knew or should\\nhave known of the hostile work environment but failed to take reasonable\\nmeasures to try and stop it. Royal, 736 F.3d at 401. CLC did not argue in its\\n 11\\n\\f Case: 17-60072 Document: 00514827002 Page: 12 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\nsummary judgment motion that it was entitled to judgment as a matter of law\\non this element of Gardner’s claim. We thus have no occasion to consider it.\\n We reverse the entry of summary judgment on Gardner’s harassment\\nclaim.\\n III.\\n Gardner also appeals the grant of summary judgment on her retaliation\\nclaim. It requires her to show that “(1) she engaged in activity protected under\\nTitle VII, (2) an adverse employment action occurred, and (3) there was a\\ncausal connection between her protected activity and the adverse employment\\ndecision.” Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992).\\n The district court analyzed the retaliation issue under the McDonnell-\\nDouglas burden shifting framework used for cases relying on circumstantial\\nevidence. Gardner does not contest that ruling, so it is affirmed.\\n Her position all along, however, has been that she can prove retaliation\\nvia direct evidence. As the district court did not consider her argument based\\non direct evidence, we will allow it to consider that argument in the first\\ninstance on remand.\\n * * *\\n\\n REVERSED IN PART, AFFIRMED IN PART, and REMANDED for\\nfurther proceedings consistent with this opinion.\\n\\n\\n\\n\\n 12\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4365803/\", \"author_raw\": \"GREGG COSTA, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"KING"},"judge2":{"kind":"string","value":"DENNIS"},"judge3":{"kind":"string","value":"COSTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"KING\": \", Circuit\", \"DENNIS\": \", Circuit\", \"COSTA\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4588550/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Kymberli Gardner v. CLC of Pascagoula, L.L.C.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-07\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-60072 Document: 00514827002 Page: 1 Date Filed: 02/07/2019\n\n\n\n\n REVISED February 7, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 17-60072 FILED\n February 6, 2019\n Lyle W. Cayce\nKYMBERLI GARDNER, Clerk\n\n Plaintiff - Appellant\n\nv.\n\nCLC OF PASCAGOULA, L.L.C., doing business as Plaza Community Living\nCenter,\n\n Defendant - Appellee\n\n\n\n Appeal from the United States District Court\n for the Southern District of Mississippi\n\n\nBefore KING, DENNIS, and COSTA, Circuit Judges.\nGREGG COSTA, Circuit Judge:\n The opinion previously issued in this case is withdrawn, and the\nfollowing opinion is substituted in its place.\n Claims of sexual harassment typically involve the behavior of fellow\nemployees. But not always. Because the ultimate focus of Title VII liability is\non the employer’s conduct—unless a supervisor is the harasser, a plaintiff\nneeds to show that the employer knew or should have known about the hostile\nwork environment yet allowed it to persist, see Vance v. Ball State Univ., 570\nU.S. 421, 427 (2013) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 789\n\f Case: 17-60072 Document: 00514827002 Page: 2 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\n(1998)) 1—nonemployees can be the source of the harassment. See 29 C.F.R.\n§ 1604.11(e) (“An employer may . . . be responsible for the acts of non-\nemployees, with respect to sexual harassment of employees in the workplace,\nwhere the employer (or its agents or supervisory employees) knows or should\nhave known of the conduct and fails to take immediate and appropriate\ncorrective action.”).\n Customers are one example of third-party harassers. See generally Lori\nA. Tetreault, Liability of Employer, Under Title VII of Civil Rights Act of 1964\n(42 U.S.C.A. §§ 2000e et seq.) for Sexual Harassment of Employee by Customer,\nClient, or Patron, 163 A.L.R. FED. 445 (2000). A leading case on third-party\nharassment addressed whether Pizza Hut could be liable for customers’\nharassment of a waitress. Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1067,\n1072 (10th Cir. 1998). Casinos seem especially susceptible to these claims, as\none case addresses a high roller’s harassment of a cocktail waitress and\nanother a card player’s harassment of a blackjack dealer. See generally Oliver\nv. Sheraton Tunica Corp., 2000 WL 303444 (N.D. Miss. Mar. 8, 2000) (former);\nPowell v. Las Vegas Hilton Corp., 841 F. Supp. 1024 (D. Nev. 1992) (latter).\n This case presents one of the more challenging situations in which to\napply this principle that an employer can be liable for a hostile work\nenvironment created by nonemployees: a nurse alleges that an assisted living\nfacility allowed such an environment to continue by not preventing a resident’s\n\n\n 1 Even when a supervisor is the harasser, liability flows from agency principles that\nrender the employer liable. Vance, 570 U.S. at 428–29. One of those situations is when a\nsupervisor’s harassing behavior resulted in an adverse “tangible employment decision.” Id.\nLiability attaches in that situation because that injury “requires an official act of the\nenterprise” that will usually be “documented in official company records” and often “subject\nto review by higher level supervisors.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761–\n62 (1998). Absent that type of employment consequence, the company will be liable for a\nsupervisor’s harassment only “if the employer is unable to establish an affirmative defense”\nthat considers whether the employer took preventative or corrective measures to combat the\nharassment. Vance, 570 U.S. at 429–30 (citing Ellerth and Faragher).\n 2\n\f Case: 17-60072 Document: 00514827002 Page: 3 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\nrepetitive harassment. The unique nature of that workplace is an important\nconsideration. As we and other courts have recognized, the diminished\ncapacity of patients influences whether the harassment should be perceived as\naffecting the terms and conditions of employment. We must decide when the\nallegations of harassment nonetheless become so severe or pervasive that fact\nissues exist requiring a jury to decide the question.\n I.\n Kymberli Gardner worked as a Certified Nursing Assistant at an\nassisted living facility operated by CLC of Pascagoula, d/b/a Plaza Community\nLiving Center, from 2012 until she was fired in 2015. 2 Gardner is an\nexperienced health aide. Before working for CLC, she was a caregiver for\nseveral facilities and in-home care providers, two of which specialized in care\nfor the mentally disabled. Gardner was trained in defensive and de-escalation\ntactics for aggressive patients. As one might expect, during her years as a\ncaregiver she often worked with patients who were “either physically\ncombative or sexually aggressive.”\n But what she experienced with one patient at the CLC facility rose to a\nnew level. J.S. was an elderly resident who lived at Plaza between 2006 and\n2014. He had a reputation for groping female employees and becoming\nphysically aggressive when reprimanded. J.S. had been diagnosed with a\nvariety of physical and mental illnesses including dementia, traumatic brain\ninjury, personality disorder with aggressive behavior, and Parkinson’s\nDisease. J.S.’s long history of violent and sexual behavior toward both patients\nand staff included the following:\n\n\n\n\n In light of the summary judgment posture, we recite these facts taking competing\n 2\n\nevidence in the light most favorable to Gardner.\n 3\n\f Case: 17-60072 Document: 00514827002 Page: 4 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\n • J.S. had to be transferred from his initial residence wing because he\n had become “combative” and had physically assaulted his bedridden\n roommate during a dispute over a television.\n • J.S. was much more aggressive and sexually inappropriate towards\n his female caregivers than even other problematic nursing home\n residents; he would sexually assault them by grabbing their\n “breast[s], butts, thighs, and try[ing] to grab [their] private areas.”\n • J.S. asked for explicit sexual acts on a regular basis and made lewd\n sexual comments toward female staff. He asked female employees to\n engage in sexual activity with him “[a]ll the time.”\n Gardner, who became responsible for J.S.’s care, experienced these types\nof inappropriate behavior from J.S. “[e]very day.” Gardner reported that J.S.\nwould physically grab her and make repeated sexual comments and requests.\nShe and other CLC employees documented J.S.’s behavior by routinely\nrecording it on his chart and making complaints to supervisors.\n As a result, J.S.’s behavior was not a secret to those who ran the assisted\nliving facility. Brandy Gregg, Gardner’s former supervisor and now the\ndirector of nursing, had witnessed J.S.’s behaving in a sexually inappropriate\nmanner and also received complaints from nurses to that effect. These\nconcerns led administrators to transfer J.S. to a new wing. But they were not\nalways responsive to the complaints. They declined, for example, to have him\nundergo a psychiatric evaluation after he assaulted his roommate. J.S. later\nassaulted a CLC employee and was sent for evaluation, but subsequently\nreturned to CLC. And when Gardner attempted to discuss her concerns about\nJ.S.’s behavior, Gregg laughed, and Administrator Teri Reynolds told Gardner\nto “put [her] big girl panties on and go back to work.”\n So Gardner continued to care for J.S., which ultimately resulted in the\nincident that led to her termination. It began when Gardner was trying to help\nJ.S. attend a therapy session. As she was assisting J.S. out of bed, he began\ntrying “to grope” her and then tried to touch Gardner’s left breast while she\nwas bent over. When she tried to move out of the way, J.S. punched her on the\n 4\n\f Case: 17-60072 Document: 00514827002 Page: 5 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\nside of her breast. Gardner then laid him down on the bed and left the room\nto get help. Janice Watkins, another nursing assistant, joined Gardner and\nthe two again attempted to help J.S. out of bed and into a chair. At this point\nJ.S. punched Gardner a second time. Gardner removed herself from J.S’s\nimmediate area at which point he began to grab Watkins’ “private area.”\nGardner sought help from the nurse on duty, Judy Toche. Gardner, Toche, and\nWatkins were able to get J.S. into his wheelchair. Gardner then moved to\nmake the bed, but J.S. punched her a third time.\n What Gardner did in response is disputed. Gregg’s typed summary of\nevents, as well as the deposition testimony of Toche, and Toche’s “nurse’s\nnotes” from the day of the incident claim that Gardner “swung her own fist\nover [J.S.’s] head” and that her arm “brushed the top of his head.” Watkins,\non the other hand, asserts in both her deposition and her written witness\ninterview statement that Gardner “[went] up with her hand as if she was going\nto hit [patient]” but “didn’t hit [patient] at all.” Gardner says she did not swing\nat J.S. during the incident. Gardner also reportedly made two statements as\nshe was leaving J.S.’s room. Watkins testifies Gardner said, “I am not doing\nshit else for [patient] at all.” Gardner also reportedly said, “I guess I’m not the\nright color,” presumably because Toche, a white nurse, was able to calm J.S.\nwhereas Gardner, a black nursing assistant, could not. After the incident,\nGardner spoke with both Toche and Teri Reynolds, then the facility\nadministrator, about her assignment to care for J.S. Gardner refused to care\nfor him due to the continued harassment and asked to be reassigned. Her\nrequest was denied.\n Gardner then left work and went to the emergency room that evening\ndue to injuries she sustained. She did not return to work for three months\n\n\n\n\n 5\n\f Case: 17-60072 Document: 00514827002 Page: 6 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\nduring which time she received workers’ compensation. 3 Shortly after\nreturning from leave, Gardner was fired. Gregg, Gardner’s supervisor at the\ntime, says Gardner was fired for three reasons: (1) insubordination (refusing\nto care for J.S.); (2) violating J.S.’s resident rights (by swearing in front of him\nand making a “racist type statement[],” apparently the one about her not being\nthe “right color”); and (3) attacking J.S. (swinging over his head).\n As for J.S., nothing happened to him immediately after the incident with\nGardner. But another altercation later that same day with a resident resulted\nin his being sent for a psychiatric evaluation and then moved to an all-male\n“lockdown” unit in nearby Biloxi.\n Gardner sued, asserting multiple claims under Title VII. CLC moved for\nsummary judgment and to strike certain affidavit testimony. Gardner also\nmoved to strike portions of affidavit and deposition testimony. The district\ncourt denied Gardner’s motion to strike, and denied in part and granted in part\nCLC’s motion to strike. 4 The lower court then granted summary judgment in\nfavor of CLC on all claims. Gardner’s appeal pursues only her claims of hostile\nwork environment and retaliation. 5\n\n\n\n\n 3 Gregg and the contemporaneous incident report say that Gardner had been\nsuspended. But the report from CLC’s internal investigation contradicts that claim as it says\nthat Gardner’s “separation from her employment was held pending her completion of her\nworkmen’s compensation.” Gardner’s affidavit also asserts she was never informed she had\nbeen suspended. We assume for purposes of summary judgment that Gardner was not\nsuspended and was on workers’ compensation during her three-month absence.\n 4 Gardner appeals some of those evidentiary rulings. We conclude that the district\n\ncourt did not abuse its discretion striking portions of her affidavit as speculative. And we\nneed not decide whether the district court erred in considering Gregg’s testimony about the\nreasons for the termination as that issue does not affect our ruling.\n 5 While Gardner purports to appeal her sex discrimination claim based on disparate\n\ntreatment in addition to the one alleging hostile work environment, she has not sufficiently\nbriefed that claim.\n 6\n\f Case: 17-60072 Document: 00514827002 Page: 7 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\n II.\n The district court concluded that a hostile workplace did not exist. It\nexplained that it was “not clear to the Court that the harassing comments and\nattempts to grope and hit are beyond what a person in Gardner’s position\nshould expect of patients in a nursing home.” CLC defends the grant of\nsummary judgment on that ground as well as on one the district court did not\nreach: whether the company knew about the harassment and failed to take\nremedial action. The other elements of a Title VII hostile work environment\nclaim—that Gardner is a member of a protected class who was subject to some\nharassment on the basis of her sex—are not disputed. Royal v. CCC & R Tres\nArboles, L.L.C., 736 F.3d 396, 401 (5th Cir. 2013).\n A.\n Our de novo review of the grant of summary judgment leads us to a\ndifferent conclusion given that all inferences must be viewed in Gardner’s favor\nat this stage. See Williams v. Hampton, 797 F.3d 276, 282 (5th Cir. 2015);\nBurnett Ranches, Ltd. v. United States, 753 F.3d 143, 146 (5th Cir. 2014). To\nget past summary judgment, Gardner need not make it “clear” that she was\nsubject to actionable harassment; she of course only needs to show that a jury\ncould reach that conclusion based on its view of the evidence.\n Title VII does not prohibit all harassment. Meritor Sav. Bank, FSB v.\nVinson, 477 U.S. 57, 67 (1986). It makes harassing conduct unlawful when it\nresults in the employer “discriminat[ing] against any individual with respect\nto his compensation, terms, conditions, or privileges of employment, because of\nsuch individual’s race, color, religion, sex, or national origin.” 42 U.S.C.\n§ 2000e–2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–23 (1993); Meritor,\n477 U.S. at 64–67. This statutory language “is not limited to ‘economic’ or\n‘tangible’ discrimination.” Id. at 64. Instead, “the phrase ‘terms, conditions,\nor privileges of employment’ evinces a congressional intent ‘to strike at the\n 7\n\f Case: 17-60072 Document: 00514827002 Page: 8 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\nentire spectrum of disparate treatment of men and women’ in employment,\nwhich includes requiring people to work in a discriminatorily hostile or abusive\nenvironment.” Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 64). Title\nVII is violated “when the workplace is permeated with ‘discriminatory\nintimidation, ridicule, and insult,’ . . . that is ‘sufficiently severe or pervasive\nto alter the conditions of the victim’s employment and create an abusive\nworking environment. Id.; Shepherd v. Comptroller of Pub. Accounts, 168 F.3d\n871, 874 (5th Cir. 1999). The Supreme Court set the “severe or pervasive”\nstandard as a “middle path between making actionable any conduct that is\nmerely offensive and requiring the conduct to cause a tangible psychological\ninjury.” Harris, 510 U.S. at 21. A plaintiff “must subjectively perceive the\nharassment as sufficiently severe or pervasive, and this subjective perception\nmust be objectively reasonable.” Frank v. Xerox Corp., 347 F.3d 130, 138 (5th\nCir. 2003).\n As a starting point, the multiple years of unwanted sexual grabbing and\nexplicit comments Gardner endured could certainly be deemed severe and\npervasive harassment—only one of those is necessary, Lauderdale v. Tex. Dep’t\nof Criminal Justice, 512 F.3d 157, 163 (5th Cir. 2007)—if the harasser were\nsomeone without any mental impairments. Cherry v. Shaw Coastal, Inc., 668\nF.3d 182, 189 (5th Cir. 2012) (hostile work environment when plaintiff was\nsubject to multiple months of unwanted sexual grabbing and explicit\ncomments); Harvill, v. Westward Commc’ns, L.L.C., 433 F.3d 428, 435 (5th Cir.\n2005) (finding severe or pervasive harassment when, over seven months, a\ncoworker grabbed a female employee, fondled her breasts and patted her\nbuttocks “numerous times,” and rubbed his body against the plaintiff).\n The complication is the one we have already mentioned: the source of the\nharassment is the resident of an assisted living facility who suffers from\ndementia. We have twice confronted hostile work environment claims based\n 8\n\f Case: 17-60072 Document: 00514827002 Page: 9 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\non the behavior of patients towards caregivers. The first case involved home\nhealth services. We held that the verbal harassment, which included the\npatient repeatedly propositioning the plaintiff for sex and calling her\ndisparaging names, was not sufficiently severe or pervasive. Cain v. Blackwell,\n246 F.3d 758, 760–61 (5th Cir. 2001). We reached the same conclusion in the\nnext case when a nursing home patient repeatedly directed racial slurs at a\nnurse’s assistant. E.E.O.C. v. Nexion Health at Broadway, Inc., 199 F. App’x\n351, 353 (5th Cir. 2006). 6 Although the verbal harassment was “quite\noffensive,” the comments did not rise to the level of actionable conduct because\nthey were not “physically threatening or humiliating” and did not “pervade the\nwork experience of a reasonable nursing home employee, especially\nconsidering their source.” Id. at 353–54. We recognized, however, that there\nis not a categorical bar on hostile environment claims arising from harassment\nby patients. See id. at 353 (“Cain does not establish a bright-line rule that\nemployees who care for disabled, elderly patients can never succeed on a Title\nVII claim.”). 7 The “specific circumstances” of such claims “must be judged to\ndetermine whether a reasonable person would find the work environment\nhostile or abusive” taking due account of the “unique circumstances involved\nin caring for mentally diseased elderly patients.” Id.\n Other circuits have found triable hostile work environment claims when\npatients engaged in the physical harassment absent in Nexion and Cain. The\n\n\n 6 Although Nexion is not binding, we address it because the district court relied on it\nin granting summary judgment, and it illustrates the range of conduct courts have considered\nin this area.\n 7 The district court thought Nexion “indicates that the default is no viable Title VII\n\nclaim in such situations.” Nexion did not create a default presumption against Title VII\nliability when the harasser is suffering from mental disability. Its statement that there is no\n“bright-line rule” does the opposite of setting any hard and fast rule. The Nexion language\nemphasizes what is true of most areas of the law—the outcome will depend on the facts of\nindividual cases. So while a diminished mental condition of the harasser is an important\nconsideration, it does not preclude liability.\n 9\n\f Case: 17-60072 Document: 00514827002 Page: 10 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\nEighth Circuit reversed a grant of summary judgment when a mentally\nhandicapped, teenage resident of a care facility “pushed [a female caregiver]\nagainst a door, forced her right hand above her head, pulled open her jeans and\nher blouse, grabbed her left breast, and pushed his weight and erect penis\nagainst her stomach.” Crist v. Focus Homes, Inc., 122 F.3d 1107, 1108 (8th Cir.\n1997). The Tenth Circuit also rejected a district court’s granting judgment as\na matter of law for the hospital when a patient “knocked [a psychologist] to the\nground, undressed her and digitally penetrated her, bit and choked her, and\nrepeatedly threatened to kill her.” Turnbull v. Topeka State Hosp., 255 F.3d\n1238, 1242–43 (10th Cir. 2001).\n J.S.’s conduct is more severe than the nonphysical harassment held to\nbe insufficient in Cain and Nexion 8 but not as severe as the potentially life-\nthreatening sexual assaults in Crist or Turnbull. But the latter situation does\nnot set a floor for actionable conduct. Harris, 510 U.S. at 22 (explaining that\nTitle VII does not require harassment to “seriously affect employees’\npsychological well-being”). So the question remains whether the conduct here,\nwhich falls in the middle of this continuum, is enough. And that, as we have\nsaid, involves the difficult line-drawing problem of what separates legally\nactionable harassment from conduct that one should reasonably expect when\nassisting people suffering from dementia.\n We conclude that the evidence of persistent and often physical\nharassment by J.S. is enough to allow a jury to decide whether a reasonable\n\n\n\n\n 8 It is also more severe and pervasive than the conduct in an Illinois federal case the\ndistrict court relied on. Pickett v. Sheridan Health Care Ctr., 2008 WL 719224, at *4 (N.D.\nIll. Mar. 14, 2008), aff’d, 610 F.3d 434 (7th Cir. 2010). Pickett considered conduct from a\nresident that happened three times over eight months. More importantly, Pickett refrained\nfrom deciding whether the conduct was severe or pervasive, and instead granted summary\njudgment in favor of the defendant because it took several steps to mitigate the harassing\nbehavior. Id. at *5.\n 10\n\f Case: 17-60072 Document: 00514827002 Page: 11 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\ncaregiver on the receiving end of the harassment would have viewed it as\nsufficiently severe or pervasive even considering the medical condition of the\nharasser. The frequency and nature of the conduct, along with its effect on\nGardner’s employment, would allow (but not require) that finding. Id. at 23\n(finding that “the frequency of the discriminatory conduct; its severity;\nwhether it is physically threatening or humiliating, or a mere offensive\nutterance; and whether it unreasonably interferes with an employee’s work\nperformance” are factors that influence whether harassment can be described\nas “hostile” or “abusive”); see also Turner v. Baylor Richardson Med. Ctr., 476\nF.3d 337, 347–48 (5th Cir. 2007). J.S.’s inappropriate conduct occurred daily.\nHis conduct was far more severe than other residents’ and consisted of physical\nsexual assault and violent outbursts. J.S.’s physical assault on Gardner took\nhis behavior outside the realm of a “mere offensive utterance.” And his actions\ninterfered with her work performance, leaving Gardner unable to work for\nthree months. A jury could conclude that an objectively reasonable caregiver\nwould not expect a patient to grope her daily, injure her so badly she could not\nwork for three months, and have her complaints met with laughter and\ndismissal by the administration. Cf. Aguiar v. Bartlesville Care Ctr., 2011 WL\n1461541, at *5 (10th Cir. Apr. 18, 2011) (finding sufficient severity when a\npatient repeatedly engaged in unwanted touching of a nurse assistant,\n“interfered with her work, and eventually assaulted her” with a medicine cart).\n It is important to note that a finding that a patient’s harassment rises to\na level of severity or pervasiveness that affects the terms and conditions of\nemployment does not alone render the nursing home liable. As we mentioned\nat the outset, liability when such a claim is based on the behavior of someone\nother than a supervisor requires showing that the employer knew or should\nhave known of the hostile work environment but failed to take reasonable\nmeasures to try and stop it. Royal, 736 F.3d at 401. CLC did not argue in its\n 11\n\f Case: 17-60072 Document: 00514827002 Page: 12 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\nsummary judgment motion that it was entitled to judgment as a matter of law\non this element of Gardner’s claim. We thus have no occasion to consider it.\n We reverse the entry of summary judgment on Gardner’s harassment\nclaim.\n III.\n Gardner also appeals the grant of summary judgment on her retaliation\nclaim. It requires her to show that “(1) she engaged in activity protected under\nTitle VII, (2) an adverse employment action occurred, and (3) there was a\ncausal connection between her protected activity and the adverse employment\ndecision.” Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992).\n The district court analyzed the retaliation issue under the McDonnell-\nDouglas burden shifting framework used for cases relying on circumstantial\nevidence. Gardner does not contest that ruling, so it is affirmed.\n Her position all along, however, has been that she can prove retaliation\nvia direct evidence. As the district court did not consider her argument based\non direct evidence, we will allow it to consider that argument in the first\ninstance on remand.\n * * *\n\n REVERSED IN PART, AFFIRMED IN PART, and REMANDED for\nfurther proceedings consistent with this opinion.\n\n\n\n\n 12\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Kymberli Gardner v. CLC of Pascagoula, L.L.C.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-07\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-60072 Document: 00514827002 Page: 1 Date Filed: 02/07/2019\\n\\n\\n\\n\\n REVISED February 7, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-60072 FILED\\n February 6, 2019\\n Lyle W. Cayce\\nKYMBERLI GARDNER, Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nCLC OF PASCAGOULA, L.L.C., doing business as Plaza Community Living\\nCenter,\\n\\n Defendant - Appellee\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Mississippi\\n\\n\\nBefore KING, DENNIS, and COSTA, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n The opinion previously issued in this case is withdrawn, and the\\nfollowing opinion is substituted in its place.\\n Claims of sexual harassment typically involve the behavior of fellow\\nemployees. But not always. Because the ultimate focus of Title VII liability is\\non the employer’s conduct—unless a supervisor is the harasser, a plaintiff\\nneeds to show that the employer knew or should have known about the hostile\\nwork environment yet allowed it to persist, see Vance v. Ball State Univ., 570\\nU.S. 421, 427 (2013) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 789\\n\\f Case: 17-60072 Document: 00514827002 Page: 2 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\n(1998)) 1—nonemployees can be the source of the harassment. See 29 C.F.R.\\n§ 1604.11(e) (“An employer may . . . be responsible for the acts of non-\\nemployees, with respect to sexual harassment of employees in the workplace,\\nwhere the employer (or its agents or supervisory employees) knows or should\\nhave known of the conduct and fails to take immediate and appropriate\\ncorrective action.”).\\n Customers are one example of third-party harassers. See generally Lori\\nA. Tetreault, Liability of Employer, Under Title VII of Civil Rights Act of 1964\\n(42 U.S.C.A. §§ 2000e et seq.) for Sexual Harassment of Employee by Customer,\\nClient, or Patron, 163 A.L.R. FED. 445 (2000). A leading case on third-party\\nharassment addressed whether Pizza Hut could be liable for customers’\\nharassment of a waitress. Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1067,\\n1072 (10th Cir. 1998). Casinos seem especially susceptible to these claims, as\\none case addresses a high roller’s harassment of a cocktail waitress and\\nanother a card player’s harassment of a blackjack dealer. See generally Oliver\\nv. Sheraton Tunica Corp., 2000 WL 303444 (N.D. Miss. Mar. 8, 2000) (former);\\nPowell v. Las Vegas Hilton Corp., 841 F. Supp. 1024 (D. Nev. 1992) (latter).\\n This case presents one of the more challenging situations in which to\\napply this principle that an employer can be liable for a hostile work\\nenvironment created by nonemployees: a nurse alleges that an assisted living\\nfacility allowed such an environment to continue by not preventing a resident’s\\n\\n\\n 1 Even when a supervisor is the harasser, liability flows from agency principles that\\nrender the employer liable. Vance, 570 U.S. at 428–29. One of those situations is when a\\nsupervisor’s harassing behavior resulted in an adverse “tangible employment decision.” Id.\\nLiability attaches in that situation because that injury “requires an official act of the\\nenterprise” that will usually be “documented in official company records” and often “subject\\nto review by higher level supervisors.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761–\\n62 (1998). Absent that type of employment consequence, the company will be liable for a\\nsupervisor’s harassment only “if the employer is unable to establish an affirmative defense”\\nthat considers whether the employer took preventative or corrective measures to combat the\\nharassment. Vance, 570 U.S. at 429–30 (citing Ellerth and Faragher).\\n 2\\n\\f Case: 17-60072 Document: 00514827002 Page: 3 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\nrepetitive harassment. The unique nature of that workplace is an important\\nconsideration. As we and other courts have recognized, the diminished\\ncapacity of patients influences whether the harassment should be perceived as\\naffecting the terms and conditions of employment. We must decide when the\\nallegations of harassment nonetheless become so severe or pervasive that fact\\nissues exist requiring a jury to decide the question.\\n I.\\n Kymberli Gardner worked as a Certified Nursing Assistant at an\\nassisted living facility operated by CLC of Pascagoula, d/b/a Plaza Community\\nLiving Center, from 2012 until she was fired in 2015. 2 Gardner is an\\nexperienced health aide. Before working for CLC, she was a caregiver for\\nseveral facilities and in-home care providers, two of which specialized in care\\nfor the mentally disabled. Gardner was trained in defensive and de-escalation\\ntactics for aggressive patients. As one might expect, during her years as a\\ncaregiver she often worked with patients who were “either physically\\ncombative or sexually aggressive.”\\n But what she experienced with one patient at the CLC facility rose to a\\nnew level. J.S. was an elderly resident who lived at Plaza between 2006 and\\n2014. He had a reputation for groping female employees and becoming\\nphysically aggressive when reprimanded. J.S. had been diagnosed with a\\nvariety of physical and mental illnesses including dementia, traumatic brain\\ninjury, personality disorder with aggressive behavior, and Parkinson’s\\nDisease. J.S.’s long history of violent and sexual behavior toward both patients\\nand staff included the following:\\n\\n\\n\\n\\n In light of the summary judgment posture, we recite these facts taking competing\\n 2\\n\\nevidence in the light most favorable to Gardner.\\n 3\\n\\f Case: 17-60072 Document: 00514827002 Page: 4 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\n • J.S. had to be transferred from his initial residence wing because he\\n had become “combative” and had physically assaulted his bedridden\\n roommate during a dispute over a television.\\n • J.S. was much more aggressive and sexually inappropriate towards\\n his female caregivers than even other problematic nursing home\\n residents; he would sexually assault them by grabbing their\\n “breast[s], butts, thighs, and try[ing] to grab [their] private areas.”\\n • J.S. asked for explicit sexual acts on a regular basis and made lewd\\n sexual comments toward female staff. He asked female employees to\\n engage in sexual activity with him “[a]ll the time.”\\n Gardner, who became responsible for J.S.’s care, experienced these types\\nof inappropriate behavior from J.S. “[e]very day.” Gardner reported that J.S.\\nwould physically grab her and make repeated sexual comments and requests.\\nShe and other CLC employees documented J.S.’s behavior by routinely\\nrecording it on his chart and making complaints to supervisors.\\n As a result, J.S.’s behavior was not a secret to those who ran the assisted\\nliving facility. Brandy Gregg, Gardner’s former supervisor and now the\\ndirector of nursing, had witnessed J.S.’s behaving in a sexually inappropriate\\nmanner and also received complaints from nurses to that effect. These\\nconcerns led administrators to transfer J.S. to a new wing. But they were not\\nalways responsive to the complaints. They declined, for example, to have him\\nundergo a psychiatric evaluation after he assaulted his roommate. J.S. later\\nassaulted a CLC employee and was sent for evaluation, but subsequently\\nreturned to CLC. And when Gardner attempted to discuss her concerns about\\nJ.S.’s behavior, Gregg laughed, and Administrator Teri Reynolds told Gardner\\nto “put [her] big girl panties on and go back to work.”\\n So Gardner continued to care for J.S., which ultimately resulted in the\\nincident that led to her termination. It began when Gardner was trying to help\\nJ.S. attend a therapy session. As she was assisting J.S. out of bed, he began\\ntrying “to grope” her and then tried to touch Gardner’s left breast while she\\nwas bent over. When she tried to move out of the way, J.S. punched her on the\\n 4\\n\\f Case: 17-60072 Document: 00514827002 Page: 5 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\nside of her breast. Gardner then laid him down on the bed and left the room\\nto get help. Janice Watkins, another nursing assistant, joined Gardner and\\nthe two again attempted to help J.S. out of bed and into a chair. At this point\\nJ.S. punched Gardner a second time. Gardner removed herself from J.S’s\\nimmediate area at which point he began to grab Watkins’ “private area.”\\nGardner sought help from the nurse on duty, Judy Toche. Gardner, Toche, and\\nWatkins were able to get J.S. into his wheelchair. Gardner then moved to\\nmake the bed, but J.S. punched her a third time.\\n What Gardner did in response is disputed. Gregg’s typed summary of\\nevents, as well as the deposition testimony of Toche, and Toche’s “nurse’s\\nnotes” from the day of the incident claim that Gardner “swung her own fist\\nover [J.S.’s] head” and that her arm “brushed the top of his head.” Watkins,\\non the other hand, asserts in both her deposition and her written witness\\ninterview statement that Gardner “[went] up with her hand as if she was going\\nto hit [patient]” but “didn’t hit [patient] at all.” Gardner says she did not swing\\nat J.S. during the incident. Gardner also reportedly made two statements as\\nshe was leaving J.S.’s room. Watkins testifies Gardner said, “I am not doing\\nshit else for [patient] at all.” Gardner also reportedly said, “I guess I’m not the\\nright color,” presumably because Toche, a white nurse, was able to calm J.S.\\nwhereas Gardner, a black nursing assistant, could not. After the incident,\\nGardner spoke with both Toche and Teri Reynolds, then the facility\\nadministrator, about her assignment to care for J.S. Gardner refused to care\\nfor him due to the continued harassment and asked to be reassigned. Her\\nrequest was denied.\\n Gardner then left work and went to the emergency room that evening\\ndue to injuries she sustained. She did not return to work for three months\\n\\n\\n\\n\\n 5\\n\\f Case: 17-60072 Document: 00514827002 Page: 6 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\nduring which time she received workers’ compensation. 3 Shortly after\\nreturning from leave, Gardner was fired. Gregg, Gardner’s supervisor at the\\ntime, says Gardner was fired for three reasons: (1) insubordination (refusing\\nto care for J.S.); (2) violating J.S.’s resident rights (by swearing in front of him\\nand making a “racist type statement[],” apparently the one about her not being\\nthe “right color”); and (3) attacking J.S. (swinging over his head).\\n As for J.S., nothing happened to him immediately after the incident with\\nGardner. But another altercation later that same day with a resident resulted\\nin his being sent for a psychiatric evaluation and then moved to an all-male\\n“lockdown” unit in nearby Biloxi.\\n Gardner sued, asserting multiple claims under Title VII. CLC moved for\\nsummary judgment and to strike certain affidavit testimony. Gardner also\\nmoved to strike portions of affidavit and deposition testimony. The district\\ncourt denied Gardner’s motion to strike, and denied in part and granted in part\\nCLC’s motion to strike. 4 The lower court then granted summary judgment in\\nfavor of CLC on all claims. Gardner’s appeal pursues only her claims of hostile\\nwork environment and retaliation. 5\\n\\n\\n\\n\\n 3 Gregg and the contemporaneous incident report say that Gardner had been\\nsuspended. But the report from CLC’s internal investigation contradicts that claim as it says\\nthat Gardner’s “separation from her employment was held pending her completion of her\\nworkmen’s compensation.” Gardner’s affidavit also asserts she was never informed she had\\nbeen suspended. We assume for purposes of summary judgment that Gardner was not\\nsuspended and was on workers’ compensation during her three-month absence.\\n 4 Gardner appeals some of those evidentiary rulings. We conclude that the district\\n\\ncourt did not abuse its discretion striking portions of her affidavit as speculative. And we\\nneed not decide whether the district court erred in considering Gregg’s testimony about the\\nreasons for the termination as that issue does not affect our ruling.\\n 5 While Gardner purports to appeal her sex discrimination claim based on disparate\\n\\ntreatment in addition to the one alleging hostile work environment, she has not sufficiently\\nbriefed that claim.\\n 6\\n\\f Case: 17-60072 Document: 00514827002 Page: 7 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\n II.\\n The district court concluded that a hostile workplace did not exist. It\\nexplained that it was “not clear to the Court that the harassing comments and\\nattempts to grope and hit are beyond what a person in Gardner’s position\\nshould expect of patients in a nursing home.” CLC defends the grant of\\nsummary judgment on that ground as well as on one the district court did not\\nreach: whether the company knew about the harassment and failed to take\\nremedial action. The other elements of a Title VII hostile work environment\\nclaim—that Gardner is a member of a protected class who was subject to some\\nharassment on the basis of her sex—are not disputed. Royal v. CCC & R Tres\\nArboles, L.L.C., 736 F.3d 396, 401 (5th Cir. 2013).\\n A.\\n Our de novo review of the grant of summary judgment leads us to a\\ndifferent conclusion given that all inferences must be viewed in Gardner’s favor\\nat this stage. See Williams v. Hampton, 797 F.3d 276, 282 (5th Cir. 2015);\\nBurnett Ranches, Ltd. v. United States, 753 F.3d 143, 146 (5th Cir. 2014). To\\nget past summary judgment, Gardner need not make it “clear” that she was\\nsubject to actionable harassment; she of course only needs to show that a jury\\ncould reach that conclusion based on its view of the evidence.\\n Title VII does not prohibit all harassment. Meritor Sav. Bank, FSB v.\\nVinson, 477 U.S. 57, 67 (1986). It makes harassing conduct unlawful when it\\nresults in the employer “discriminat[ing] against any individual with respect\\nto his compensation, terms, conditions, or privileges of employment, because of\\nsuch individual’s race, color, religion, sex, or national origin.” 42 U.S.C.\\n§ 2000e–2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–23 (1993); Meritor,\\n477 U.S. at 64–67. This statutory language “is not limited to ‘economic’ or\\n‘tangible’ discrimination.” Id. at 64. Instead, “the phrase ‘terms, conditions,\\nor privileges of employment’ evinces a congressional intent ‘to strike at the\\n 7\\n\\f Case: 17-60072 Document: 00514827002 Page: 8 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\nentire spectrum of disparate treatment of men and women’ in employment,\\nwhich includes requiring people to work in a discriminatorily hostile or abusive\\nenvironment.” Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 64). Title\\nVII is violated “when the workplace is permeated with ‘discriminatory\\nintimidation, ridicule, and insult,’ . . . that is ‘sufficiently severe or pervasive\\nto alter the conditions of the victim’s employment and create an abusive\\nworking environment. Id.; Shepherd v. Comptroller of Pub. Accounts, 168 F.3d\\n871, 874 (5th Cir. 1999). The Supreme Court set the “severe or pervasive”\\nstandard as a “middle path between making actionable any conduct that is\\nmerely offensive and requiring the conduct to cause a tangible psychological\\ninjury.” Harris, 510 U.S. at 21. A plaintiff “must subjectively perceive the\\nharassment as sufficiently severe or pervasive, and this subjective perception\\nmust be objectively reasonable.” Frank v. Xerox Corp., 347 F.3d 130, 138 (5th\\nCir. 2003).\\n As a starting point, the multiple years of unwanted sexual grabbing and\\nexplicit comments Gardner endured could certainly be deemed severe and\\npervasive harassment—only one of those is necessary, Lauderdale v. Tex. Dep’t\\nof Criminal Justice, 512 F.3d 157, 163 (5th Cir. 2007)—if the harasser were\\nsomeone without any mental impairments. Cherry v. Shaw Coastal, Inc., 668\\nF.3d 182, 189 (5th Cir. 2012) (hostile work environment when plaintiff was\\nsubject to multiple months of unwanted sexual grabbing and explicit\\ncomments); Harvill, v. Westward Commc’ns, L.L.C., 433 F.3d 428, 435 (5th Cir.\\n2005) (finding severe or pervasive harassment when, over seven months, a\\ncoworker grabbed a female employee, fondled her breasts and patted her\\nbuttocks “numerous times,” and rubbed his body against the plaintiff).\\n The complication is the one we have already mentioned: the source of the\\nharassment is the resident of an assisted living facility who suffers from\\ndementia. We have twice confronted hostile work environment claims based\\n 8\\n\\f Case: 17-60072 Document: 00514827002 Page: 9 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\non the behavior of patients towards caregivers. The first case involved home\\nhealth services. We held that the verbal harassment, which included the\\npatient repeatedly propositioning the plaintiff for sex and calling her\\ndisparaging names, was not sufficiently severe or pervasive. Cain v. Blackwell,\\n246 F.3d 758, 760–61 (5th Cir. 2001). We reached the same conclusion in the\\nnext case when a nursing home patient repeatedly directed racial slurs at a\\nnurse’s assistant. E.E.O.C. v. Nexion Health at Broadway, Inc., 199 F. App’x\\n351, 353 (5th Cir. 2006). 6 Although the verbal harassment was “quite\\noffensive,” the comments did not rise to the level of actionable conduct because\\nthey were not “physically threatening or humiliating” and did not “pervade the\\nwork experience of a reasonable nursing home employee, especially\\nconsidering their source.” Id. at 353–54. We recognized, however, that there\\nis not a categorical bar on hostile environment claims arising from harassment\\nby patients. See id. at 353 (“Cain does not establish a bright-line rule that\\nemployees who care for disabled, elderly patients can never succeed on a Title\\nVII claim.”). 7 The “specific circumstances” of such claims “must be judged to\\ndetermine whether a reasonable person would find the work environment\\nhostile or abusive” taking due account of the “unique circumstances involved\\nin caring for mentally diseased elderly patients.” Id.\\n Other circuits have found triable hostile work environment claims when\\npatients engaged in the physical harassment absent in Nexion and Cain. The\\n\\n\\n 6 Although Nexion is not binding, we address it because the district court relied on it\\nin granting summary judgment, and it illustrates the range of conduct courts have considered\\nin this area.\\n 7 The district court thought Nexion “indicates that the default is no viable Title VII\\n\\nclaim in such situations.” Nexion did not create a default presumption against Title VII\\nliability when the harasser is suffering from mental disability. Its statement that there is no\\n“bright-line rule” does the opposite of setting any hard and fast rule. The Nexion language\\nemphasizes what is true of most areas of the law—the outcome will depend on the facts of\\nindividual cases. So while a diminished mental condition of the harasser is an important\\nconsideration, it does not preclude liability.\\n 9\\n\\f Case: 17-60072 Document: 00514827002 Page: 10 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\nEighth Circuit reversed a grant of summary judgment when a mentally\\nhandicapped, teenage resident of a care facility “pushed [a female caregiver]\\nagainst a door, forced her right hand above her head, pulled open her jeans and\\nher blouse, grabbed her left breast, and pushed his weight and erect penis\\nagainst her stomach.” Crist v. Focus Homes, Inc., 122 F.3d 1107, 1108 (8th Cir.\\n1997). The Tenth Circuit also rejected a district court’s granting judgment as\\na matter of law for the hospital when a patient “knocked [a psychologist] to the\\nground, undressed her and digitally penetrated her, bit and choked her, and\\nrepeatedly threatened to kill her.” Turnbull v. Topeka State Hosp., 255 F.3d\\n1238, 1242–43 (10th Cir. 2001).\\n J.S.’s conduct is more severe than the nonphysical harassment held to\\nbe insufficient in Cain and Nexion 8 but not as severe as the potentially life-\\nthreatening sexual assaults in Crist or Turnbull. But the latter situation does\\nnot set a floor for actionable conduct. Harris, 510 U.S. at 22 (explaining that\\nTitle VII does not require harassment to “seriously affect employees’\\npsychological well-being”). So the question remains whether the conduct here,\\nwhich falls in the middle of this continuum, is enough. And that, as we have\\nsaid, involves the difficult line-drawing problem of what separates legally\\nactionable harassment from conduct that one should reasonably expect when\\nassisting people suffering from dementia.\\n We conclude that the evidence of persistent and often physical\\nharassment by J.S. is enough to allow a jury to decide whether a reasonable\\n\\n\\n\\n\\n 8 It is also more severe and pervasive than the conduct in an Illinois federal case the\\ndistrict court relied on. Pickett v. Sheridan Health Care Ctr., 2008 WL 719224, at *4 (N.D.\\nIll. Mar. 14, 2008), aff’d, 610 F.3d 434 (7th Cir. 2010). Pickett considered conduct from a\\nresident that happened three times over eight months. More importantly, Pickett refrained\\nfrom deciding whether the conduct was severe or pervasive, and instead granted summary\\njudgment in favor of the defendant because it took several steps to mitigate the harassing\\nbehavior. Id. at *5.\\n 10\\n\\f Case: 17-60072 Document: 00514827002 Page: 11 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\ncaregiver on the receiving end of the harassment would have viewed it as\\nsufficiently severe or pervasive even considering the medical condition of the\\nharasser. The frequency and nature of the conduct, along with its effect on\\nGardner’s employment, would allow (but not require) that finding. Id. at 23\\n(finding that “the frequency of the discriminatory conduct; its severity;\\nwhether it is physically threatening or humiliating, or a mere offensive\\nutterance; and whether it unreasonably interferes with an employee’s work\\nperformance” are factors that influence whether harassment can be described\\nas “hostile” or “abusive”); see also Turner v. Baylor Richardson Med. Ctr., 476\\nF.3d 337, 347–48 (5th Cir. 2007). J.S.’s inappropriate conduct occurred daily.\\nHis conduct was far more severe than other residents’ and consisted of physical\\nsexual assault and violent outbursts. J.S.’s physical assault on Gardner took\\nhis behavior outside the realm of a “mere offensive utterance.” And his actions\\ninterfered with her work performance, leaving Gardner unable to work for\\nthree months. A jury could conclude that an objectively reasonable caregiver\\nwould not expect a patient to grope her daily, injure her so badly she could not\\nwork for three months, and have her complaints met with laughter and\\ndismissal by the administration. Cf. Aguiar v. Bartlesville Care Ctr., 2011 WL\\n1461541, at *5 (10th Cir. Apr. 18, 2011) (finding sufficient severity when a\\npatient repeatedly engaged in unwanted touching of a nurse assistant,\\n“interfered with her work, and eventually assaulted her” with a medicine cart).\\n It is important to note that a finding that a patient’s harassment rises to\\na level of severity or pervasiveness that affects the terms and conditions of\\nemployment does not alone render the nursing home liable. As we mentioned\\nat the outset, liability when such a claim is based on the behavior of someone\\nother than a supervisor requires showing that the employer knew or should\\nhave known of the hostile work environment but failed to take reasonable\\nmeasures to try and stop it. Royal, 736 F.3d at 401. CLC did not argue in its\\n 11\\n\\f Case: 17-60072 Document: 00514827002 Page: 12 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-60072\\nsummary judgment motion that it was entitled to judgment as a matter of law\\non this element of Gardner’s claim. We thus have no occasion to consider it.\\n We reverse the entry of summary judgment on Gardner’s harassment\\nclaim.\\n III.\\n Gardner also appeals the grant of summary judgment on her retaliation\\nclaim. It requires her to show that “(1) she engaged in activity protected under\\nTitle VII, (2) an adverse employment action occurred, and (3) there was a\\ncausal connection between her protected activity and the adverse employment\\ndecision.” Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992).\\n The district court analyzed the retaliation issue under the McDonnell-\\nDouglas burden shifting framework used for cases relying on circumstantial\\nevidence. Gardner does not contest that ruling, so it is affirmed.\\n Her position all along, however, has been that she can prove retaliation\\nvia direct evidence. As the district court did not consider her argument based\\non direct evidence, we will allow it to consider that argument in the first\\ninstance on remand.\\n * * *\\n\\n REVERSED IN PART, AFFIRMED IN PART, and REMANDED for\\nfurther proceedings consistent with this opinion.\\n\\n\\n\\n\\n 12\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":594,"cells":{"id":{"kind":"number","value":4588552,"string":"4,588,552"},"name":{"kind":"string","value":"ALASKA ELECTRICAL PENSION FUND, Lead Plaintiff, Plaintiff - Appellant v. FLOTEK INDUSTRIES, INCORPORATED; John W. Chisholm ; H. Richard Walton; Robert M. Schmitz, Defendants - Appellees"},"name_abbreviation":{"kind":"string","value":"Alaska Elec. Pension Fund v. Flotek Indus., Inc."},"decision_date":{"kind":"string","value":"2019-02-07"},"docket_number":{"kind":"string","value":"17-20308"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Dennis, Clement, Engelhardt\", \"parties\": \"\", \"opinions\": [{\"author\": \"JAMES L. DENNIS, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-20308 Document: 00514827066 Page: 1 Date Filed: 02/07/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 17-20308\\n FILED\\n February 7, 2019\\n Lyle W. Cayce\\nALASKA ELECTRICAL PENSION FUND, Lead Plaintiff, Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nFLOTEK INDUSTRIES, INCORPORATED; JOHN W. CHISHOLM; H.\\nRICHARD WALTON; ROBERT M. SCHMITZ,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore DENNIS, CLEMENT, and ENGELHARDT, Circuit Judges.\\nJAMES L. DENNIS, Circuit Judge:\\n This appeal arises out of a putative class action filed on behalf of\\npurchasers of Flotek Industries, Inc. common stock. Plaintiffs allege that\\ndefendants, Flotek and three of its officers, exaggerated the usefulness of its\\nproducts. They allege misrepresentations relating to a proprietary software\\nFlotek developed to help market these products. The district court dismissed\\nthe complaint, holding that plaintiffs had failed to plead facts giving rise to a\\nstrong inference of fraudulent scienter. We AFFIRM.\\n\\f Case: 17-20308 Document: 00514827066 Page: 2 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\n I\\n Plaintiffs filed this putative securities class action on behalf of investors\\nwho purchased Flotek common stock between October 23, 2014, and November\\n9, 2015. Defendants are Flotek Industries, Inc. and three of its officers: Chief\\nExecutive Officer (CEO) and President John W. Chisholm and Chief Financial\\nOfficers H. Richard Walton and Robert M. Schmitz. Flotek sells oilfield\\nproducts called “Complex nano-Fluid technologies” (CnF), which are supposed\\nto improve the productivity of oil and gas wells. According to the complaint,\\nCnF is Flotek’s “hallmark” product, and “[b]y the beginning of the Class Period,\\nthe Energy Chemistry Technologies segment [of Flotek] represented over 50%\\nof the Company’s revenue due to sales of its CnF products.” This lawsuit\\nconcerns representations made about a software application Flotek developed\\nto help market CnF to exploration and production companies. The software,\\ncalled “FracMax,” analyzes and presents data concerning hydraulically\\nfractured wells to allow comparison of the productivity of oil and gas wells that\\nuse CnF with those that do not.\\n Flotek introduced FracMax to investors at a June 2014 investor\\nconference. Over the next sixteen months, “[D]efendants attended at least 21\\nconferences, including Flotek’s earning conference calls, analyst-hosted\\nconferences and [c]ompany-hosted investor conferences, where they focused on\\nand praised FracMax and its ability to conclusively validate the efficacy and\\neconomic benefits of Flotek’s CnF products.” Defendants promoted FracMax\\nas an integral component of Flotek’s sales strategy and as “key to ‘materially\\nbroaden[ing] the reach of Flotek’s marketing efforts’ for its CnF products.”\\n“[D]efendants reported that the FracMax database included production data\\nfrom 80,000 wells across key U.S. basins and that based on this data, Flotek’s\\nsales force could demonstrate to potential customers that the use of Flotek CnF\\nchemistries added at least an estimated $8 billion in aggregate value for\\n 2\\n\\f Case: 17-20308 Document: 00514827066 Page: 3 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\noperators when compared to those operators that had not adopted Flotek’s CnF\\nproducts.” In a 2015 press release, Chisholm, Flotek’s President and CEO,\\nstated, “Our FracMax software technology provides conclusive evidence that\\nour [CnF] suite of completion chemistries provides compelling economic\\nbenefits to production companies.” Flotek also represented in a quarterly\\nearnings press release that sales of CnFs increased substantially because of\\nFracMax.\\n Although their complaint largely refers to Defendants generically,\\nPlaintiffs’ references to specific representations, to the extent they specify,\\nprimarily relate to statements made by Chisholm, who at various times\\nemphasized FracMax’s empirical validity. During several conference calls\\nwith investors, Chisholm explained that FracMax used publicly available data\\nthat companies self-reported to state agencies to compare production from\\nwells that used CnF and wells that did not, suggesting this made FracMax’s\\noutput more reliable. In September 2015, Chisholm gave a presentation at an\\ninvestor conference in which he explained that FracMax used data reported to\\nthe Texas Railroad Commission, a state agency, and he suggested that the data\\nwas “back check[ed] and validate[d].” In his PowerPoint presentation,\\nChisholm presented an “About FracMax” slide stating that the data was\\n“sourced from operator-provided completion data.” This slide further stated\\nthat the data was “un-adjusted, providing for comparison and analysis of\\noperators’ self-reported data sets.” Chisholm also presented images of the\\nFracMax interface in order to compare the productivity of four Texas wells, one\\nthat used CnF and three that did not, again emphasizing the difference in\\nproduction levels.\\n On November 9, 2015, online financial publication Bronte Capital\\nreleased a blog post (the Bronte Report) contending that the data in Chisholm’s\\npresentation was wrong and suggesting that the data had been intentionally\\n 3\\n\\f Case: 17-20308 Document: 00514827066 Page: 4 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\naltered to make CnF look significantly more effective. Specifically, the Bronte\\nReport alleged that, as compared with the numbers reported by the Texas\\nRailroad Commission, “Flotek had reduced the production data for the [three]\\nnon-CnF wells by 40% to 50% . . . , while leaving the production data for the\\nCnF well unchanged.” After release of the Bronte Report, Flotek shares\\ndeclined.\\n The next day, Flotek issued a press release conceding that Bronte\\nCapital’s analysis was correct, 1 and ascribing the error to data provided by a\\nthird party, Drillinginfo, that “caused FracMax to identify the three non-CnF\\nwells as contained in units with multiple wells (as opposed to single well units),\\nwhich required FracMax to incorrectly apply an allocation algorithm to the\\nproduction for the non-CnF wells.” According to Flotek, because Texas reports\\noil and gas production by lease, rather than by well, FracMax used an\\nalgorithm to apportion production within multiple-well lease units, leading to\\nunwarranted adjustments of the non-CnF wells discussed at the September\\nconference. Flotek also held a conference call, during which “Chisholm\\nadmitted that the Company’s internal controls ‘did not catch’” the errors, and\\n“that the Company had no internal controls in place to check the accuracy of\\nthe third-party data from Drillinginfo.” He explained that they did not cross-\\nreference the third-party data against the underlying state-agency data and\\nthat the company “had, several months ago, evolved to a different allocation\\nprogram” that would provide greater accuracy.\\n According to Plaintiffs, a report issued by Iberia Capital Partners that\\nsame day “stated that the four wells presented at the September 11, 2015\\ninvestor conference were designated by Drillinginfo as being single well leases,\\nnot multiple leases, therefore the Texas Railroad Commission data for those\\n\\n\\n 1 Earlier, Flotek had denied the allegations contained in the Bronte Report.\\n 4\\n\\f Case: 17-20308 Document: 00514827066 Page: 5 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\nwells did not require adjustment,” and Flotek shares fell further as a result.\\nContrary to its earlier statements following the Bronte Report, Flotek then\\nreported that an internal investigation concluded that the error originated in\\nthe software, not the data set, as Chisholm had stated earlier, and “most likely\\nresulted from the accidental inclusion of test code by the third-party software\\ndeveloper . . . . who was hired to write code for FracMax.”\\n Plaintiffs filed this lawsuit, alleging violations of Section 10(b) of the\\nSecurities Exchange Act, 15 U.S.C. § 78j(b); Securities and Exchange\\nCommission Rule 10b-5, 17 C.F.R. § 240.10b-5; and control person liability for\\nthe individual defendants under Section 20(a) of the Securities Exchange Act,\\n15 U.S.C. § 78t. Defendants filed a motion to dismiss the complaint for failure\\nto state a claim. The district court dismissed the complaint, concluding that\\nPlaintiffs had failed to sufficiently plead scienter. Plaintiffs timely appealed.\\n II\\n This court reviews the sufficiency of a complaint de novo. Ind. Elec.\\nWorkers’ Pension Tr. Fund IBEW v. Shaw Grp., Inc., 537 F.3d 527, 533 (5th\\nCir. 2008). Plaintiffs’ “well-pleaded facts are to be accepted as true and viewed\\nin the light most favorable to [them].” Daugherty v. Convergent Outsourcing,\\nInc., 836 F.3d 507, 510 (5th Cir. 2016). “[C]onclusory allegations, unwarranted\\ndeductions, or legal conclusions” are not “well-pleaded facts” for purposes of\\nevaluating a complaint. Southland Sec. Corp. v. INSpire Ins. Sols. Inc., 365\\nF.3d 353, 361 (5th Cir. 2004). Where fraud is alleged, Federal “Rule [of Civil\\nProcedure] 9(b) creates a heightened pleading requirement that ‘the\\ncircumstances constituting fraud or mistake shall be stated with\\nparticularity.’” U.S. ex rel. Rafizadeh v. Cont’l Common, Inc., 553 F.3d 869,\\n872 (5th Cir. 2008) (quoting FED. R. CIV. P. 9(b)). A class-action complaint\\nalleging a violation of Section 10(b) must allege fraud in accordance with the\\nRule 9(b) heightened-pleading standard. See Southland, 365 F.3d at 362.\\n 5\\n\\f Case: 17-20308 Document: 00514827066 Page: 6 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\n To state a viable securities-fraud claim under Section 10(b) and Rule\\n10b-5, Plaintiffs must allege that (1) Defendants made a misrepresentation or\\nomission relating to the purchase or sale of a security, (2) such representation\\nor omission related to a material fact, (3) the representation or omission was\\nmade with scienter, (4) Plaintiffs acted in reliance on Defendants’\\nrepresentation or omission, and (5) the representation or omission proximately\\ncaused Plaintiffs’ losses. Neiman v. Bulmahn, 854 F.3d 741, 746 (5th Cir. 2017)\\n(quoting Nathenson v. Zonagen Inc., 267 F.3d 400, 406–07 (5th Cir. 2001)). At\\nissue in this appeal is whether Plaintiffs have sufficiently pleaded scienter.\\n III\\n A\\n The Private Securities Litigation Reform Act (PSLRA) specifically\\nrequires that a complaint in a securities case support allegations of scienter\\nwith “facts giving rise to a strong inference that the defendant acted with the\\nrequired state of mind.” 15 U.S.C. § 78u-4(b)(2)(A). “‘Scienter’ is ‘a mental\\nstate embracing intent to deceive, manipulate, or defraud.’” Goldstein v. MCI\\nWorldCom, 340 F.3d 238, 245 (5th Cir. 2003) (quoting Ernst & Ernst v.\\nHochfelder, 425 U.S. 185, 193 n.12 (1976)). For purposes of 10(b) liability, a\\ndefendant must have acted with, at minimum, severe recklessness. Warren v.\\nReserve Fund, Inc., 728 F.2d 741, 745 (5th Cir. 1984). “Severe recklessness,”\\nis “limited to those highly unreasonable omissions or misrepresentations that\\ninvolve not merely simple or even inexcusable negligence, but an extreme\\ndeparture from the standards of ordinary care.” Rosenzweig v. Azurix Corp.,\\n332 F.3d 854, 866 (5th Cir. 2003) (quoting Nathenson, 267 F.3d at 408). The\\nomissions or misrepresentations at issue must also “present a danger of\\nmisleading buyers or sellers which is either known to the defendant or is so\\nobvious that the defendant must have been aware of it.” Id. (quoting\\nNathenson, 267 F.3d at 408). Though not in themselves sufficient to support a\\n 6\\n\\f Case: 17-20308 Document: 00514827066 Page: 7 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\nstrong inference of scienter, “[a]ppropriate motive and opportunity allegations\\nmay . . . ‘meaningfully enhance the strength of the inference of scienter.’”\\nShaw, 537 F.3d at 533 (quoting Southland, 365 F.3d at 368).\\n To evaluate scienter in a securities-fraud case, a court must (1) take the\\nwell-pleaded allegations as true; (2) evaluate the facts collectively, including\\nfacts contained in “documents incorporated in the complaint by reference and\\nmatters subject to judicial notice,” “to determine whether a strong inference of\\nscienter has been pled”; and (3) “take into account plausible inferences\\nopposing as well as supporting a strong inference of scienter.” Id. To\\nwithstand a motion to dismiss, “an inference of scienter must be more than\\nmerely plausible or reasonable—it must be cogent and at least as compelling\\nas any opposing inference of nonfraudulent intent.” Tellabs, Inc. v. Makor\\nIssues & Rights, Ltd., 551 U.S. 308, 314 (2007).\\n Scienter must be alleged with respect to “the individual corporate official\\nor officials who make or issue the statement (or order or approve it or its\\nmaking or issuance, or who furnish information or language for inclusion\\ntherein, or the like) rather than generally to the collective knowledge of all the\\ncorporation’s officers and employees acquired in the course of their\\nemployment.” Southland, 365 F.3d at 366; see also Shaw, 537 F.3d at 533\\n(“[T]his court has rejected the group pleading approach to scienter and instead\\nlooks to the state of mind of the individual corporate official or officials.”).\\nFurthermore, such allegations ordinarily must be based on more than an\\nindividual’s position within the company, absent special circumstances.\\nNeiman, 854 F.3d at 749.\\n B\\n Plaintiffs identify several alleged misrepresentations they argue give\\nrise to a sufficient inference of scienter, both because Defendants were severely\\nreckless in making statements counter to information that should have been\\n 7\\n\\f Case: 17-20308 Document: 00514827066 Page: 8 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\nobvious to them, and because, after learning of that contrary information, they\\ncontinued to make those statements. The alleged misrepresentations are: (1)\\nDefendants’ repeated use of the term “conclusive” in describing FracMax’s\\neffect, which Plaintiffs characterize as tantamount to assuring that FracMax’s\\ndata was irrefutable; (2) Defendants’ reference to FracMax data as “un-\\nadjusted” when, in fact, FracMax used an algorithm to adjust certain data; (3)\\nDefendant Chisholm’s presentation at the September 11, 2015, conference of\\ndirect comparisons between several wells that used CnF versus several that\\ndid not, which Defendants concede relied on incorrect data for the non-CnF\\nwells; and (4) Chisholm’s representation at this same conference that this data\\nwas “back check[ed] and validate[d],” when Defendants later admitted that\\n“Flotek had no internal controls in place to ensure the integrity of the FracMax\\ndatabase.” The district court determined that these representations failed to\\ngenerate a strong inference of scienter. We consider each representation in\\nturn, and ultimately agree with the district court’s conclusion that each fails\\nto raise a strong inference of scienter. 2\\n 1. Description of FracMax as “Conclusive”\\n Plaintiffs suggest that Defendants’ use of the term “conclusive” to\\ndescribe FracMax was obviously misleading because Flotek employed “no\\ninternal controls” over the information used for FracMax provided by third-\\nparty Drillinginfo, yet the term “conclusive” suggests the data is infallible.\\nHowever, in context, Chisholm’s use of the term “conclusive” may have had\\ninnocent intentions and may not have been inconsistent with a lack of internal\\ncontrols. See Shaw, 537 F.3d at 538 (statements subject to “many\\ninterpretations, including innocent ones,” do not “contribute to a strong\\n\\n\\n 2Because we conclude that the alleged misrepresentations here do not reflect scienter\\non the part of any Defendant, we need not reach Plaintiffs’ argument that FracMax’s\\nimportance to the company permits an inference that Defendants had a motive to mislead.\\n 8\\n\\f Case: 17-20308 Document: 00514827066 Page: 9 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\ninference of scienter” (cleaned up)). For example, Chisholm stated in a press\\nrelease that the “FracMax software technology provides conclusive evidence\\nthat our [CnF] suite of completion chemistries provides compelling economic\\nbenefits to production companies.” Plaintiffs do not allege that CnF products\\nprovide no economic benefit whatsoever, but instead allege the benefit was\\noverstated. Therefore, Chisholm’s generalized endorsement of FracMax as\\nevidencing the “compelling economic benefits” of CnF products is not\\nunreasonable, given that CnF products undisputedly provided some economic\\nbenefit. At the very least, such statements are not “highly unreasonable\\nomissions or misrepresentations . . . involv[ing] . . . an extreme departure from\\nthe standards of ordinary care.” Rosenzweig, 332 F.3d at 866 (quoting\\nNathenson, 267 F.3d at 408). Plaintiffs argue that Flotek’s lack of internal\\ncontrols should have made it obvious to Defendants that using the term\\n“conclusive” was misleading. That argument also fails. Plaintiffs do not allege\\nthat Defendants should have known the Drillinginfo data was unreliable.\\nWhile it was perhaps unwise to rely completely on third-party data while\\nreferring to the product using it as “conclusive,” it was not reckless to do so.\\nSee MCI WorldCom, 340 F.3d at 254 (holding complaint presenting “what could\\nbest be described as allegations of mismanagement,” or even “gross\\nmismanagement,” failed to allege severe recklessness of any individual). At\\nbottom, Plaintiffs’ allegations concerning Defendants’ characterization of\\nFracMax data as conclusive fail to generate an inference of scienter that is “at\\nleast as compelling as . . . opposing inference[s] of nonfraudulent intent.”\\nTellabs, 551 U.S. at 314.\\n 2. Characterization of FracMax-Provided Information as “Un-\\n Adjusted”\\n Plaintiffs also contend that a slide show Chisholm presented at least\\nonce, which stated that FracMax “data is un-adjusted,” was misleading and\\n\\n 9\\n\\f Case: 17-20308 Document: 00514827066 Page: 10 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\nChisholm should have known it was incorrect, because FracMax used an\\nallocation algorithm that necessarily made adjustments to Texas production\\ndata. In response to the fallout from the Bronte Report, Flotek disclosed that\\nit used an “allocation algorithm” for Texas data, because data provided by the\\nTexas Railroad Commission was not broken down by well, but instead by lease,\\nand a lease might contain multiple wells. Therefore, according to Plaintiffs,\\nany statement positing that the data was not adjusted was patently false,\\nsupporting an inference of scienter. However, there is no specific allegation\\nthat Chisholm knew at the time he made the statement at issue that FracMax\\nutilized an algorithm. Moreover, as the district court correctly pointed out, the\\nuse of an algorithm does not make the claim that the data was “un-adjusted”\\nmisleading. See Rosenzweig, 332 F.3d at 866 (danger of misleading buyers or\\nsellers must be “either known to the defendant or is so obvious that the\\ndefendant must have been aware of it” (cleaned up)).\\n 3. Presentation of Incorrect Well Data\\n The starkest example of Flotek’s provision of false information is that\\nChisholm presented demonstrably false information at the September 2015\\nconference in the form of incorrect well data. However, even these statements\\nfail to support a strong inference of scienter, because Plaintiffs fail to plead\\nthat any Defendant knew of these errors at the time, and the misstatements\\nwere not sufficiently obvious that Defendants were severely reckless in\\npresenting the information. As the district court pointed out, although\\nPlaintiffs pleaded that the three non-CnF wells used in the September 2015\\npresentation were downwardly adjusted, they “failed to plead facts\\nestablishing this discrepancy is true throughout FracMax’s 80,000 well\\ndatabase,” and “a trend as to six wells out of 80,000 is not sufficient on its own\\nto establish a strong inference of scienter.” Plaintiffs contend that the fact that\\nthe discrepancies inured to Flotek’s benefit weighs in favor of a finding of\\n 10\\n\\f Case: 17-20308 Document: 00514827066 Page: 11 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\nscienter, as it suggests that Chisholm made intentional misrepresentations\\nrather than mistakes. But the mere fact that an error favors the defendant is\\ninsufficient to support a strong inference of scienter. Cf. Shaw, 537 F.3d at\\n543 (characterizing allegations that defendants would benefit from\\nrepresentations as supporting an inference of motive rather than going directly\\nto severe recklessness, and noting that motive alone is insufficient for scienter).\\n It does appear that it would have been very easy to check if this data was\\ncorrect—Flotek verified the alleged errors and responded to the Bronte Report\\nwithin a day. However, while this suggests negligence, there is no indication\\nthat Defendants had reason to know of any deficiencies in quality control\\nproblems before the data was made public. Cf. Abrams v. Baker Hughes Inc.,\\n292 F.3d 424, 432 (5th Cir. 2002) (“Plaintiffs point to no allegations that the\\ndefendants knew about the internal control problems, only that they should\\nhave known or that their lack of knowledge based on their corporate positions\\ndemonstrates recklessness.”). Plaintiffs rely on the fact that Flotek revised its\\nallocation algorithm, which they claim implies that there was an issue with\\nthe previous algorithm. However, we have previously declined to draw a\\nsimilar inference, concluding in Abrams that “[t]he fact that Baker Hughes was\\noverhauling its accounting system . . . does not command an inference that\\ncompany officials should have anticipated finding a problem or assumed that\\nfinancial data reported under [the] old system was inaccurate.” Abrams, 292\\nF.3d at 433. Thus, Chisholm’s use of incorrect data at the September 2015\\nconference also fails to give rise to a strong inference of scienter.\\n 4. Statement that Data Was Back-Checked and Validated\\n Finally, Plaintiffs claim that Chisholm represented that the data\\npresented at the September 2015 conference was “back check[ed] and\\nvalidate[d].” Plaintiffs allege that this was false, as “Flotek had no internal\\ncontrols in place to ensure the integrity of the FracMax database.” Indeed, as\\n 11\\n\\f Case: 17-20308 Document: 00514827066 Page: 12 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\nChisholm admitted, there was a failure in quality control, because Flotek did\\nnot cross-reference “[the Drillinginfo data] with the [Texas] Railroad\\nCommission data.” Despite Chisholm’s subsequent recognition that Flotek\\n“should have had the quality control in place that could have validated [the\\nDrillinginfo data] and it wasn’t,” Plaintiffs nonetheless fail to allege that\\nChisholm knew of this lack of quality control at the time he made the\\nstatement, or that it would have been so obvious that he should have known.\\nCf. Abrams, 292 F.3d at 432 (“Plaintiffs point to no allegations that the\\ndefendants knew about the internal control problems, only that they should\\nhave known or that their lack of knowledge based on their corporate\\npositions demonstrates recklessness.”). Further, the statement is ambiguous\\nbecause Chisholm does not say whether Flotek itself back checks and validates\\nthe data, or instead relies on a third party to do so, which Chisholm may well\\nhave believed was a part of the process. See Shaw, 537 F.3d at 538 (analyzing\\n“more likely, nonculpable inference, absent any other details” about the\\nrepresentation). Accordingly, this allegation also fails to give rise to a strong\\ninference of scienter.\\n C\\n In the absence of specific allegations that any Defendant knew of the\\nfalsity of any of the statements discussed above at the time they were made or\\nwere severely reckless with respect to the statements’ truth, Plaintiffs invoke\\nChisholm’s position as an inventor of the FracMax technology as sufficient to\\n“permit a plaintiff to plead scienter.” 3 Neiman, 854 F.3d at 749. Our case law\\n\\n\\n\\n 3Plaintiffs’ complaint repeatedly refers to Chisholm as “one of FracMax’s inventors\\nand President and CEO of Flotek,” but does not specify what role Chisholm played in\\ninventing FracMax. Although conceivable that Chisholm knew the intricacies of the software\\ncode underpinning FracMax, the Plaintiffs have made no specific allegations from which we\\ncould conclude such an inference is as likely as an opposing inference that Chisholm merely\\nthought of the concept while others implemented it. The lack of specific facts leading to an\\n 12\\n\\f Case: 17-20308 Document: 00514827066 Page: 13 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\nprovides that an inference of scienter may be drawn solely from “a defendant’s\\nposition in the company” only if certain “special circumstances” are alleged. Id.\\nWe have stated these “special circumstances” as follows: (1) “the smaller the\\ncompany the more likely it is that corporate executives would be familiar with\\nthe intricacies of day to day operations”; (2) “the transaction at issue may have\\nbeen critical to the company’s continued vitality”; (3) “the misrepresented or\\nomitted information at issue would have been readily apparent to the speaker”;\\nand (4) “the defendant’s statements were internally inconsistent with one\\nanother.” Id. at 749–50 (quoting Local 731 I.B. of T. Excavators & Pavers\\nPension Tr. Fund v. Diodes, Inc., 810 F.3d 951, 959 (5th Cir. 2016)).\\n Our “special circumstances” doctrine does not apply here, and therefore\\nour analysis regarding the alleged misrepresentations, supra Part III.B, holds.\\nPlaintiffs concede that they “do[] not contend Flotek is a small company,” and\\ninstead ask us to find special circumstances based on Defendants’ knowledge\\nof the FracMax product. However, we have never found special circumstances\\npermitting an inference of scienter based solely on a defendant’s position when\\nthe company was large. Compare Dorsey v. Portfolio Equities, Inc., 540 F.3d\\n333, 342–43 (5th Cir. 2008) (finding special circumstances where defendant\\ncompany had no employees itself and was managed by company with only eight\\nemployees) and Nathenson, 267 F.3d at 425 (inference warranted where\\ncompany had roughly thirty-five employees), with Neiman, 854 F.3d at 750\\n(“[W]ith over 60 employees, [defendant] was approximately twice as large as\\nthe companies in the cases where this court has found a ‘special\\ncircumstance.’”).\\n\\n\\n\\ninference of knowledge or severe recklessness of FracMax’s flaws leaves only the possibility\\nthat Chisholm’s title as “one of FracMax’s inventors and President and CEO of Flotek” might\\nresult in such an inference, a possibility which we conclude also fails under our “special\\ncircumstances” test.\\n 13\\n\\f Case: 17-20308 Document: 00514827066 Page: 14 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\n The other special circumstances factors also cut against applying that\\ndoctrine here. Although FracMax was important to Flotek’s sales of CnF, it\\ncannot be said to be critical to its “continued vitality,” as required. 4 See Diodes,\\n810 F.3d at 959 (finding omissions regarding a labor shortage not sufficiently\\nimportant where the plaintiff did not allege that the labor shortage\\n“jeopardized the company’s existence”). Nor would it have been “readily\\napparent to the speaker”—primarily, Chisholm—that the statements were\\nincorrect, as discussed above in analyzing each statement individually. See\\nsupra Part III.B. Finally, despite Plaintiffs’ contrary contention, no internal\\ninconsistency exists between the statements that well data was un-altered and\\nthat FracMax data was conclusive, on the one hand, and the later revelations\\nabout the accuracy of that data and the lack of internal controls, on the other.\\nThe earlier statements do not directly contradict that later information. As\\ndiscussed, the context of the use of these terms reveals that the term\\n“conclusive” was used to tout the economic benefits of CnF products, and the\\nterm “un-adjusted” was used in conjunction with references to FracMax as an\\n“analytical model.” As such, these statements do not conflict with later\\nrevelations that flaws existed in the data and that Flotek relied on a third\\nparty to provide accurate information. See supra Part III.B.1–2.\\n\\n\\n\\n\\n 4 We have concluded that, in order to constitute a special circumstance, the required\\nlevel of importance to the company must be such that the company’s continued existence\\ndepends on, or the company would be completely transformed by, the success of a product or\\nbusiness line. See Dorsey, 540 F.3d at 342 (defendant company “was essentially a one-trick\\npony”); Plotkin v. IP Axess Inc., Etc., 407 F.3d 690, 700 (5th Cir. 2005) (defendant “was a\\nstruggling company that announced to the public that it had reached agreements . . . that\\nwould bring them multimillion dollar revenues, which would amount to a thirty-fold\\nincrease” in revenue); Nathenson, 267 F.3d at 425 (“Zonagen was essentially a one product\\ncompany”).\\n 14\\n\\f Case: 17-20308 Document: 00514827066 Page: 15 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\n D\\n Finally, we review the complaint holistically, as the district court did, to\\ndetermine “whether all of the facts alleged, taken collectively, give rise to a\\nstrong inference of scienter,” Tellabs, 551 U.S. at 323. The district court\\ncorrectly pointed out that “Plaintiffs ask this Court to assume scienter based\\nsolely on the importance of FracMax to Flotek’s business, Defendants’ positions\\nwithin the company, and the fact that the alleged ‘mistake’ happened in a way\\nthat made Flotek’s core product, CnF, look more profitable.” We agree that\\nsuch allegations are insufficient to raise a strong inference of scienter and, at\\nmost, indicate “simple or even inexcusable negligence,” a lesser showing than\\nis required here. See Rosenzweig, 332 F.3d at 866. This conclusion is further\\nbuttressed by Plaintiffs’ pervasive use of group pleading—referring generally\\nto “Defendants” rather than specific individuals—a practice this court has\\nexpressly rejected. See Shaw, 537 F.3d at 533 (“[T]his court has rejected the\\ngroup pleading approach to scienter and instead looks to the state of mind of\\nthe individual corporate official or officials.”). For these reasons, the district\\ncourt’s holistic analysis was also correct.\\n IV\\n Plaintiffs contend that the district court erred by dismissing their\\nSection 20(a) claims against the individual defendants for control-person\\nliability. “Control person liability is secondary only and cannot exist in the\\nabsence of a primary violation.” Southland, 365 F.3d at 383. Because Plaintiffs\\nhave not established a primary violation, their Section 20(a) claims fail.\\n ***\\n For these reasons, the judgment of the district court is AFFIRMED.\\n\\n\\n\\n\\n 15\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4365805/\", \"author_raw\": \"JAMES L. DENNIS, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"DENNIS"},"judge2":{"kind":"string","value":"CLEMENT"},"judge3":{"kind":"string","value":"ENGELHARDT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4588552/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: ALASKA ELECTRICAL PENSION FUND, Lead Plaintiff, Plaintiff - Appellant v. FLOTEK INDUSTRIES, INCORPORATED; John W. Chisholm ; H. Richard Walton; Robert M. Schmitz, Defendants - Appellees\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-07\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-20308 Document: 00514827066 Page: 1 Date Filed: 02/07/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 17-20308\n FILED\n February 7, 2019\n Lyle W. Cayce\nALASKA ELECTRICAL PENSION FUND, Lead Plaintiff, Clerk\n\n Plaintiff - Appellant\n\nv.\n\nFLOTEK INDUSTRIES, INCORPORATED; JOHN W. CHISHOLM; H.\nRICHARD WALTON; ROBERT M. SCHMITZ,\n\n Defendants - Appellees\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore DENNIS, CLEMENT, and ENGELHARDT, Circuit Judges.\nJAMES L. DENNIS, Circuit Judge:\n This appeal arises out of a putative class action filed on behalf of\npurchasers of Flotek Industries, Inc. common stock. Plaintiffs allege that\ndefendants, Flotek and three of its officers, exaggerated the usefulness of its\nproducts. They allege misrepresentations relating to a proprietary software\nFlotek developed to help market these products. The district court dismissed\nthe complaint, holding that plaintiffs had failed to plead facts giving rise to a\nstrong inference of fraudulent scienter. We AFFIRM.\n\f Case: 17-20308 Document: 00514827066 Page: 2 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\n I\n Plaintiffs filed this putative securities class action on behalf of investors\nwho purchased Flotek common stock between October 23, 2014, and November\n9, 2015. Defendants are Flotek Industries, Inc. and three of its officers: Chief\nExecutive Officer (CEO) and President John W. Chisholm and Chief Financial\nOfficers H. Richard Walton and Robert M. Schmitz. Flotek sells oilfield\nproducts called “Complex nano-Fluid technologies” (CnF), which are supposed\nto improve the productivity of oil and gas wells. According to the complaint,\nCnF is Flotek’s “hallmark” product, and “[b]y the beginning of the Class Period,\nthe Energy Chemistry Technologies segment [of Flotek] represented over 50%\nof the Company’s revenue due to sales of its CnF products.” This lawsuit\nconcerns representations made about a software application Flotek developed\nto help market CnF to exploration and production companies. The software,\ncalled “FracMax,” analyzes and presents data concerning hydraulically\nfractured wells to allow comparison of the productivity of oil and gas wells that\nuse CnF with those that do not.\n Flotek introduced FracMax to investors at a June 2014 investor\nconference. Over the next sixteen months, “[D]efendants attended at least 21\nconferences, including Flotek’s earning conference calls, analyst-hosted\nconferences and [c]ompany-hosted investor conferences, where they focused on\nand praised FracMax and its ability to conclusively validate the efficacy and\neconomic benefits of Flotek’s CnF products.” Defendants promoted FracMax\nas an integral component of Flotek’s sales strategy and as “key to ‘materially\nbroaden[ing] the reach of Flotek’s marketing efforts’ for its CnF products.”\n“[D]efendants reported that the FracMax database included production data\nfrom 80,000 wells across key U.S. basins and that based on this data, Flotek’s\nsales force could demonstrate to potential customers that the use of Flotek CnF\nchemistries added at least an estimated $8 billion in aggregate value for\n 2\n\f Case: 17-20308 Document: 00514827066 Page: 3 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\noperators when compared to those operators that had not adopted Flotek’s CnF\nproducts.” In a 2015 press release, Chisholm, Flotek’s President and CEO,\nstated, “Our FracMax software technology provides conclusive evidence that\nour [CnF] suite of completion chemistries provides compelling economic\nbenefits to production companies.” Flotek also represented in a quarterly\nearnings press release that sales of CnFs increased substantially because of\nFracMax.\n Although their complaint largely refers to Defendants generically,\nPlaintiffs’ references to specific representations, to the extent they specify,\nprimarily relate to statements made by Chisholm, who at various times\nemphasized FracMax’s empirical validity. During several conference calls\nwith investors, Chisholm explained that FracMax used publicly available data\nthat companies self-reported to state agencies to compare production from\nwells that used CnF and wells that did not, suggesting this made FracMax’s\noutput more reliable. In September 2015, Chisholm gave a presentation at an\ninvestor conference in which he explained that FracMax used data reported to\nthe Texas Railroad Commission, a state agency, and he suggested that the data\nwas “back check[ed] and validate[d].” In his PowerPoint presentation,\nChisholm presented an “About FracMax” slide stating that the data was\n“sourced from operator-provided completion data.” This slide further stated\nthat the data was “un-adjusted, providing for comparison and analysis of\noperators’ self-reported data sets.” Chisholm also presented images of the\nFracMax interface in order to compare the productivity of four Texas wells, one\nthat used CnF and three that did not, again emphasizing the difference in\nproduction levels.\n On November 9, 2015, online financial publication Bronte Capital\nreleased a blog post (the Bronte Report) contending that the data in Chisholm’s\npresentation was wrong and suggesting that the data had been intentionally\n 3\n\f Case: 17-20308 Document: 00514827066 Page: 4 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\naltered to make CnF look significantly more effective. Specifically, the Bronte\nReport alleged that, as compared with the numbers reported by the Texas\nRailroad Commission, “Flotek had reduced the production data for the [three]\nnon-CnF wells by 40% to 50% . . . , while leaving the production data for the\nCnF well unchanged.” After release of the Bronte Report, Flotek shares\ndeclined.\n The next day, Flotek issued a press release conceding that Bronte\nCapital’s analysis was correct, 1 and ascribing the error to data provided by a\nthird party, Drillinginfo, that “caused FracMax to identify the three non-CnF\nwells as contained in units with multiple wells (as opposed to single well units),\nwhich required FracMax to incorrectly apply an allocation algorithm to the\nproduction for the non-CnF wells.” According to Flotek, because Texas reports\noil and gas production by lease, rather than by well, FracMax used an\nalgorithm to apportion production within multiple-well lease units, leading to\nunwarranted adjustments of the non-CnF wells discussed at the September\nconference. Flotek also held a conference call, during which “Chisholm\nadmitted that the Company’s internal controls ‘did not catch’” the errors, and\n“that the Company had no internal controls in place to check the accuracy of\nthe third-party data from Drillinginfo.” He explained that they did not cross-\nreference the third-party data against the underlying state-agency data and\nthat the company “had, several months ago, evolved to a different allocation\nprogram” that would provide greater accuracy.\n According to Plaintiffs, a report issued by Iberia Capital Partners that\nsame day “stated that the four wells presented at the September 11, 2015\ninvestor conference were designated by Drillinginfo as being single well leases,\nnot multiple leases, therefore the Texas Railroad Commission data for those\n\n\n 1 Earlier, Flotek had denied the allegations contained in the Bronte Report.\n 4\n\f Case: 17-20308 Document: 00514827066 Page: 5 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\nwells did not require adjustment,” and Flotek shares fell further as a result.\nContrary to its earlier statements following the Bronte Report, Flotek then\nreported that an internal investigation concluded that the error originated in\nthe software, not the data set, as Chisholm had stated earlier, and “most likely\nresulted from the accidental inclusion of test code by the third-party software\ndeveloper . . . . who was hired to write code for FracMax.”\n Plaintiffs filed this lawsuit, alleging violations of Section 10(b) of the\nSecurities Exchange Act, 15 U.S.C. § 78j(b); Securities and Exchange\nCommission Rule 10b-5, 17 C.F.R. § 240.10b-5; and control person liability for\nthe individual defendants under Section 20(a) of the Securities Exchange Act,\n15 U.S.C. § 78t. Defendants filed a motion to dismiss the complaint for failure\nto state a claim. The district court dismissed the complaint, concluding that\nPlaintiffs had failed to sufficiently plead scienter. Plaintiffs timely appealed.\n II\n This court reviews the sufficiency of a complaint de novo. Ind. Elec.\nWorkers’ Pension Tr. Fund IBEW v. Shaw Grp., Inc., 537 F.3d 527, 533 (5th\nCir. 2008). Plaintiffs’ “well-pleaded facts are to be accepted as true and viewed\nin the light most favorable to [them].” Daugherty v. Convergent Outsourcing,\nInc., 836 F.3d 507, 510 (5th Cir. 2016). “[C]onclusory allegations, unwarranted\ndeductions, or legal conclusions” are not “well-pleaded facts” for purposes of\nevaluating a complaint. Southland Sec. Corp. v. INSpire Ins. Sols. Inc., 365\nF.3d 353, 361 (5th Cir. 2004). Where fraud is alleged, Federal “Rule [of Civil\nProcedure] 9(b) creates a heightened pleading requirement that ‘the\ncircumstances constituting fraud or mistake shall be stated with\nparticularity.’” U.S. ex rel. Rafizadeh v. Cont’l Common, Inc., 553 F.3d 869,\n872 (5th Cir. 2008) (quoting FED. R. CIV. P. 9(b)). A class-action complaint\nalleging a violation of Section 10(b) must allege fraud in accordance with the\nRule 9(b) heightened-pleading standard. See Southland, 365 F.3d at 362.\n 5\n\f Case: 17-20308 Document: 00514827066 Page: 6 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\n To state a viable securities-fraud claim under Section 10(b) and Rule\n10b-5, Plaintiffs must allege that (1) Defendants made a misrepresentation or\nomission relating to the purchase or sale of a security, (2) such representation\nor omission related to a material fact, (3) the representation or omission was\nmade with scienter, (4) Plaintiffs acted in reliance on Defendants’\nrepresentation or omission, and (5) the representation or omission proximately\ncaused Plaintiffs’ losses. Neiman v. Bulmahn, 854 F.3d 741, 746 (5th Cir. 2017)\n(quoting Nathenson v. Zonagen Inc., 267 F.3d 400, 406–07 (5th Cir. 2001)). At\nissue in this appeal is whether Plaintiffs have sufficiently pleaded scienter.\n III\n A\n The Private Securities Litigation Reform Act (PSLRA) specifically\nrequires that a complaint in a securities case support allegations of scienter\nwith “facts giving rise to a strong inference that the defendant acted with the\nrequired state of mind.” 15 U.S.C. § 78u-4(b)(2)(A). “‘Scienter’ is ‘a mental\nstate embracing intent to deceive, manipulate, or defraud.’” Goldstein v. MCI\nWorldCom, 340 F.3d 238, 245 (5th Cir. 2003) (quoting Ernst & Ernst v.\nHochfelder, 425 U.S. 185, 193 n.12 (1976)). For purposes of 10(b) liability, a\ndefendant must have acted with, at minimum, severe recklessness. Warren v.\nReserve Fund, Inc., 728 F.2d 741, 745 (5th Cir. 1984). “Severe recklessness,”\nis “limited to those highly unreasonable omissions or misrepresentations that\ninvolve not merely simple or even inexcusable negligence, but an extreme\ndeparture from the standards of ordinary care.” Rosenzweig v. Azurix Corp.,\n332 F.3d 854, 866 (5th Cir. 2003) (quoting Nathenson, 267 F.3d at 408). The\nomissions or misrepresentations at issue must also “present a danger of\nmisleading buyers or sellers which is either known to the defendant or is so\nobvious that the defendant must have been aware of it.” Id. (quoting\nNathenson, 267 F.3d at 408). Though not in themselves sufficient to support a\n 6\n\f Case: 17-20308 Document: 00514827066 Page: 7 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\nstrong inference of scienter, “[a]ppropriate motive and opportunity allegations\nmay . . . ‘meaningfully enhance the strength of the inference of scienter.’”\nShaw, 537 F.3d at 533 (quoting Southland, 365 F.3d at 368).\n To evaluate scienter in a securities-fraud case, a court must (1) take the\nwell-pleaded allegations as true; (2) evaluate the facts collectively, including\nfacts contained in “documents incorporated in the complaint by reference and\nmatters subject to judicial notice,” “to determine whether a strong inference of\nscienter has been pled”; and (3) “take into account plausible inferences\nopposing as well as supporting a strong inference of scienter.” Id. To\nwithstand a motion to dismiss, “an inference of scienter must be more than\nmerely plausible or reasonable—it must be cogent and at least as compelling\nas any opposing inference of nonfraudulent intent.” Tellabs, Inc. v. Makor\nIssues & Rights, Ltd., 551 U.S. 308, 314 (2007).\n Scienter must be alleged with respect to “the individual corporate official\nor officials who make or issue the statement (or order or approve it or its\nmaking or issuance, or who furnish information or language for inclusion\ntherein, or the like) rather than generally to the collective knowledge of all the\ncorporation’s officers and employees acquired in the course of their\nemployment.” Southland, 365 F.3d at 366; see also Shaw, 537 F.3d at 533\n(“[T]his court has rejected the group pleading approach to scienter and instead\nlooks to the state of mind of the individual corporate official or officials.”).\nFurthermore, such allegations ordinarily must be based on more than an\nindividual’s position within the company, absent special circumstances.\nNeiman, 854 F.3d at 749.\n B\n Plaintiffs identify several alleged misrepresentations they argue give\nrise to a sufficient inference of scienter, both because Defendants were severely\nreckless in making statements counter to information that should have been\n 7\n\f Case: 17-20308 Document: 00514827066 Page: 8 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\nobvious to them, and because, after learning of that contrary information, they\ncontinued to make those statements. The alleged misrepresentations are: (1)\nDefendants’ repeated use of the term “conclusive” in describing FracMax’s\neffect, which Plaintiffs characterize as tantamount to assuring that FracMax’s\ndata was irrefutable; (2) Defendants’ reference to FracMax data as “un-\nadjusted” when, in fact, FracMax used an algorithm to adjust certain data; (3)\nDefendant Chisholm’s presentation at the September 11, 2015, conference of\ndirect comparisons between several wells that used CnF versus several that\ndid not, which Defendants concede relied on incorrect data for the non-CnF\nwells; and (4) Chisholm’s representation at this same conference that this data\nwas “back check[ed] and validate[d],” when Defendants later admitted that\n“Flotek had no internal controls in place to ensure the integrity of the FracMax\ndatabase.” The district court determined that these representations failed to\ngenerate a strong inference of scienter. We consider each representation in\nturn, and ultimately agree with the district court’s conclusion that each fails\nto raise a strong inference of scienter. 2\n 1. Description of FracMax as “Conclusive”\n Plaintiffs suggest that Defendants’ use of the term “conclusive” to\ndescribe FracMax was obviously misleading because Flotek employed “no\ninternal controls” over the information used for FracMax provided by third-\nparty Drillinginfo, yet the term “conclusive” suggests the data is infallible.\nHowever, in context, Chisholm’s use of the term “conclusive” may have had\ninnocent intentions and may not have been inconsistent with a lack of internal\ncontrols. See Shaw, 537 F.3d at 538 (statements subject to “many\ninterpretations, including innocent ones,” do not “contribute to a strong\n\n\n 2Because we conclude that the alleged misrepresentations here do not reflect scienter\non the part of any Defendant, we need not reach Plaintiffs’ argument that FracMax’s\nimportance to the company permits an inference that Defendants had a motive to mislead.\n 8\n\f Case: 17-20308 Document: 00514827066 Page: 9 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\ninference of scienter” (cleaned up)). For example, Chisholm stated in a press\nrelease that the “FracMax software technology provides conclusive evidence\nthat our [CnF] suite of completion chemistries provides compelling economic\nbenefits to production companies.” Plaintiffs do not allege that CnF products\nprovide no economic benefit whatsoever, but instead allege the benefit was\noverstated. Therefore, Chisholm’s generalized endorsement of FracMax as\nevidencing the “compelling economic benefits” of CnF products is not\nunreasonable, given that CnF products undisputedly provided some economic\nbenefit. At the very least, such statements are not “highly unreasonable\nomissions or misrepresentations . . . involv[ing] . . . an extreme departure from\nthe standards of ordinary care.” Rosenzweig, 332 F.3d at 866 (quoting\nNathenson, 267 F.3d at 408). Plaintiffs argue that Flotek’s lack of internal\ncontrols should have made it obvious to Defendants that using the term\n“conclusive” was misleading. That argument also fails. Plaintiffs do not allege\nthat Defendants should have known the Drillinginfo data was unreliable.\nWhile it was perhaps unwise to rely completely on third-party data while\nreferring to the product using it as “conclusive,” it was not reckless to do so.\nSee MCI WorldCom, 340 F.3d at 254 (holding complaint presenting “what could\nbest be described as allegations of mismanagement,” or even “gross\nmismanagement,” failed to allege severe recklessness of any individual). At\nbottom, Plaintiffs’ allegations concerning Defendants’ characterization of\nFracMax data as conclusive fail to generate an inference of scienter that is “at\nleast as compelling as . . . opposing inference[s] of nonfraudulent intent.”\nTellabs, 551 U.S. at 314.\n 2. Characterization of FracMax-Provided Information as “Un-\n Adjusted”\n Plaintiffs also contend that a slide show Chisholm presented at least\nonce, which stated that FracMax “data is un-adjusted,” was misleading and\n\n 9\n\f Case: 17-20308 Document: 00514827066 Page: 10 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\nChisholm should have known it was incorrect, because FracMax used an\nallocation algorithm that necessarily made adjustments to Texas production\ndata. In response to the fallout from the Bronte Report, Flotek disclosed that\nit used an “allocation algorithm” for Texas data, because data provided by the\nTexas Railroad Commission was not broken down by well, but instead by lease,\nand a lease might contain multiple wells. Therefore, according to Plaintiffs,\nany statement positing that the data was not adjusted was patently false,\nsupporting an inference of scienter. However, there is no specific allegation\nthat Chisholm knew at the time he made the statement at issue that FracMax\nutilized an algorithm. Moreover, as the district court correctly pointed out, the\nuse of an algorithm does not make the claim that the data was “un-adjusted”\nmisleading. See Rosenzweig, 332 F.3d at 866 (danger of misleading buyers or\nsellers must be “either known to the defendant or is so obvious that the\ndefendant must have been aware of it” (cleaned up)).\n 3. Presentation of Incorrect Well Data\n The starkest example of Flotek’s provision of false information is that\nChisholm presented demonstrably false information at the September 2015\nconference in the form of incorrect well data. However, even these statements\nfail to support a strong inference of scienter, because Plaintiffs fail to plead\nthat any Defendant knew of these errors at the time, and the misstatements\nwere not sufficiently obvious that Defendants were severely reckless in\npresenting the information. As the district court pointed out, although\nPlaintiffs pleaded that the three non-CnF wells used in the September 2015\npresentation were downwardly adjusted, they “failed to plead facts\nestablishing this discrepancy is true throughout FracMax’s 80,000 well\ndatabase,” and “a trend as to six wells out of 80,000 is not sufficient on its own\nto establish a strong inference of scienter.” Plaintiffs contend that the fact that\nthe discrepancies inured to Flotek’s benefit weighs in favor of a finding of\n 10\n\f Case: 17-20308 Document: 00514827066 Page: 11 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\nscienter, as it suggests that Chisholm made intentional misrepresentations\nrather than mistakes. But the mere fact that an error favors the defendant is\ninsufficient to support a strong inference of scienter. Cf. Shaw, 537 F.3d at\n543 (characterizing allegations that defendants would benefit from\nrepresentations as supporting an inference of motive rather than going directly\nto severe recklessness, and noting that motive alone is insufficient for scienter).\n It does appear that it would have been very easy to check if this data was\ncorrect—Flotek verified the alleged errors and responded to the Bronte Report\nwithin a day. However, while this suggests negligence, there is no indication\nthat Defendants had reason to know of any deficiencies in quality control\nproblems before the data was made public. Cf. Abrams v. Baker Hughes Inc.,\n292 F.3d 424, 432 (5th Cir. 2002) (“Plaintiffs point to no allegations that the\ndefendants knew about the internal control problems, only that they should\nhave known or that their lack of knowledge based on their corporate positions\ndemonstrates recklessness.”). Plaintiffs rely on the fact that Flotek revised its\nallocation algorithm, which they claim implies that there was an issue with\nthe previous algorithm. However, we have previously declined to draw a\nsimilar inference, concluding in Abrams that “[t]he fact that Baker Hughes was\noverhauling its accounting system . . . does not command an inference that\ncompany officials should have anticipated finding a problem or assumed that\nfinancial data reported under [the] old system was inaccurate.” Abrams, 292\nF.3d at 433. Thus, Chisholm’s use of incorrect data at the September 2015\nconference also fails to give rise to a strong inference of scienter.\n 4. Statement that Data Was Back-Checked and Validated\n Finally, Plaintiffs claim that Chisholm represented that the data\npresented at the September 2015 conference was “back check[ed] and\nvalidate[d].” Plaintiffs allege that this was false, as “Flotek had no internal\ncontrols in place to ensure the integrity of the FracMax database.” Indeed, as\n 11\n\f Case: 17-20308 Document: 00514827066 Page: 12 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\nChisholm admitted, there was a failure in quality control, because Flotek did\nnot cross-reference “[the Drillinginfo data] with the [Texas] Railroad\nCommission data.” Despite Chisholm’s subsequent recognition that Flotek\n“should have had the quality control in place that could have validated [the\nDrillinginfo data] and it wasn’t,” Plaintiffs nonetheless fail to allege that\nChisholm knew of this lack of quality control at the time he made the\nstatement, or that it would have been so obvious that he should have known.\nCf. Abrams, 292 F.3d at 432 (“Plaintiffs point to no allegations that the\ndefendants knew about the internal control problems, only that they should\nhave known or that their lack of knowledge based on their corporate\npositions demonstrates recklessness.”). Further, the statement is ambiguous\nbecause Chisholm does not say whether Flotek itself back checks and validates\nthe data, or instead relies on a third party to do so, which Chisholm may well\nhave believed was a part of the process. See Shaw, 537 F.3d at 538 (analyzing\n“more likely, nonculpable inference, absent any other details” about the\nrepresentation). Accordingly, this allegation also fails to give rise to a strong\ninference of scienter.\n C\n In the absence of specific allegations that any Defendant knew of the\nfalsity of any of the statements discussed above at the time they were made or\nwere severely reckless with respect to the statements’ truth, Plaintiffs invoke\nChisholm’s position as an inventor of the FracMax technology as sufficient to\n“permit a plaintiff to plead scienter.” 3 Neiman, 854 F.3d at 749. Our case law\n\n\n\n 3Plaintiffs’ complaint repeatedly refers to Chisholm as “one of FracMax’s inventors\nand President and CEO of Flotek,” but does not specify what role Chisholm played in\ninventing FracMax. Although conceivable that Chisholm knew the intricacies of the software\ncode underpinning FracMax, the Plaintiffs have made no specific allegations from which we\ncould conclude such an inference is as likely as an opposing inference that Chisholm merely\nthought of the concept while others implemented it. The lack of specific facts leading to an\n 12\n\f Case: 17-20308 Document: 00514827066 Page: 13 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\nprovides that an inference of scienter may be drawn solely from “a defendant’s\nposition in the company” only if certain “special circumstances” are alleged. Id.\nWe have stated these “special circumstances” as follows: (1) “the smaller the\ncompany the more likely it is that corporate executives would be familiar with\nthe intricacies of day to day operations”; (2) “the transaction at issue may have\nbeen critical to the company’s continued vitality”; (3) “the misrepresented or\nomitted information at issue would have been readily apparent to the speaker”;\nand (4) “the defendant’s statements were internally inconsistent with one\nanother.” Id. at 749–50 (quoting Local 731 I.B. of T. Excavators & Pavers\nPension Tr. Fund v. Diodes, Inc., 810 F.3d 951, 959 (5th Cir. 2016)).\n Our “special circumstances” doctrine does not apply here, and therefore\nour analysis regarding the alleged misrepresentations, supra Part III.B, holds.\nPlaintiffs concede that they “do[] not contend Flotek is a small company,” and\ninstead ask us to find special circumstances based on Defendants’ knowledge\nof the FracMax product. However, we have never found special circumstances\npermitting an inference of scienter based solely on a defendant’s position when\nthe company was large. Compare Dorsey v. Portfolio Equities, Inc., 540 F.3d\n333, 342–43 (5th Cir. 2008) (finding special circumstances where defendant\ncompany had no employees itself and was managed by company with only eight\nemployees) and Nathenson, 267 F.3d at 425 (inference warranted where\ncompany had roughly thirty-five employees), with Neiman, 854 F.3d at 750\n(“[W]ith over 60 employees, [defendant] was approximately twice as large as\nthe companies in the cases where this court has found a ‘special\ncircumstance.’”).\n\n\n\ninference of knowledge or severe recklessness of FracMax’s flaws leaves only the possibility\nthat Chisholm’s title as “one of FracMax’s inventors and President and CEO of Flotek” might\nresult in such an inference, a possibility which we conclude also fails under our “special\ncircumstances” test.\n 13\n\f Case: 17-20308 Document: 00514827066 Page: 14 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\n The other special circumstances factors also cut against applying that\ndoctrine here. Although FracMax was important to Flotek’s sales of CnF, it\ncannot be said to be critical to its “continued vitality,” as required. 4 See Diodes,\n810 F.3d at 959 (finding omissions regarding a labor shortage not sufficiently\nimportant where the plaintiff did not allege that the labor shortage\n“jeopardized the company’s existence”). Nor would it have been “readily\napparent to the speaker”—primarily, Chisholm—that the statements were\nincorrect, as discussed above in analyzing each statement individually. See\nsupra Part III.B. Finally, despite Plaintiffs’ contrary contention, no internal\ninconsistency exists between the statements that well data was un-altered and\nthat FracMax data was conclusive, on the one hand, and the later revelations\nabout the accuracy of that data and the lack of internal controls, on the other.\nThe earlier statements do not directly contradict that later information. As\ndiscussed, the context of the use of these terms reveals that the term\n“conclusive” was used to tout the economic benefits of CnF products, and the\nterm “un-adjusted” was used in conjunction with references to FracMax as an\n“analytical model.” As such, these statements do not conflict with later\nrevelations that flaws existed in the data and that Flotek relied on a third\nparty to provide accurate information. See supra Part III.B.1–2.\n\n\n\n\n 4 We have concluded that, in order to constitute a special circumstance, the required\nlevel of importance to the company must be such that the company’s continued existence\ndepends on, or the company would be completely transformed by, the success of a product or\nbusiness line. See Dorsey, 540 F.3d at 342 (defendant company “was essentially a one-trick\npony”); Plotkin v. IP Axess Inc., Etc., 407 F.3d 690, 700 (5th Cir. 2005) (defendant “was a\nstruggling company that announced to the public that it had reached agreements . . . that\nwould bring them multimillion dollar revenues, which would amount to a thirty-fold\nincrease” in revenue); Nathenson, 267 F.3d at 425 (“Zonagen was essentially a one product\ncompany”).\n 14\n\f Case: 17-20308 Document: 00514827066 Page: 15 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\n D\n Finally, we review the complaint holistically, as the district court did, to\ndetermine “whether all of the facts alleged, taken collectively, give rise to a\nstrong inference of scienter,” Tellabs, 551 U.S. at 323. The district court\ncorrectly pointed out that “Plaintiffs ask this Court to assume scienter based\nsolely on the importance of FracMax to Flotek’s business, Defendants’ positions\nwithin the company, and the fact that the alleged ‘mistake’ happened in a way\nthat made Flotek’s core product, CnF, look more profitable.” We agree that\nsuch allegations are insufficient to raise a strong inference of scienter and, at\nmost, indicate “simple or even inexcusable negligence,” a lesser showing than\nis required here. See Rosenzweig, 332 F.3d at 866. This conclusion is further\nbuttressed by Plaintiffs’ pervasive use of group pleading—referring generally\nto “Defendants” rather than specific individuals—a practice this court has\nexpressly rejected. See Shaw, 537 F.3d at 533 (“[T]his court has rejected the\ngroup pleading approach to scienter and instead looks to the state of mind of\nthe individual corporate official or officials.”). For these reasons, the district\ncourt’s holistic analysis was also correct.\n IV\n Plaintiffs contend that the district court erred by dismissing their\nSection 20(a) claims against the individual defendants for control-person\nliability. “Control person liability is secondary only and cannot exist in the\nabsence of a primary violation.” Southland, 365 F.3d at 383. Because Plaintiffs\nhave not established a primary violation, their Section 20(a) claims fail.\n ***\n For these reasons, the judgment of the district court is AFFIRMED.\n\n\n\n\n 15\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: ALASKA ELECTRICAL PENSION FUND, Lead Plaintiff, Plaintiff - Appellant v. FLOTEK INDUSTRIES, INCORPORATED; John W. Chisholm ; H. Richard Walton; Robert M. Schmitz, Defendants - Appellees\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-07\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-20308 Document: 00514827066 Page: 1 Date Filed: 02/07/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 17-20308\\n FILED\\n February 7, 2019\\n Lyle W. Cayce\\nALASKA ELECTRICAL PENSION FUND, Lead Plaintiff, Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nFLOTEK INDUSTRIES, INCORPORATED; JOHN W. CHISHOLM; H.\\nRICHARD WALTON; ROBERT M. SCHMITZ,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore DENNIS, CLEMENT, and ENGELHARDT, Circuit Judges.\\nJAMES L. DENNIS, Circuit Judge:\\n This appeal arises out of a putative class action filed on behalf of\\npurchasers of Flotek Industries, Inc. common stock. Plaintiffs allege that\\ndefendants, Flotek and three of its officers, exaggerated the usefulness of its\\nproducts. They allege misrepresentations relating to a proprietary software\\nFlotek developed to help market these products. The district court dismissed\\nthe complaint, holding that plaintiffs had failed to plead facts giving rise to a\\nstrong inference of fraudulent scienter. We AFFIRM.\\n\\f Case: 17-20308 Document: 00514827066 Page: 2 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\n I\\n Plaintiffs filed this putative securities class action on behalf of investors\\nwho purchased Flotek common stock between October 23, 2014, and November\\n9, 2015. Defendants are Flotek Industries, Inc. and three of its officers: Chief\\nExecutive Officer (CEO) and President John W. Chisholm and Chief Financial\\nOfficers H. Richard Walton and Robert M. Schmitz. Flotek sells oilfield\\nproducts called “Complex nano-Fluid technologies” (CnF), which are supposed\\nto improve the productivity of oil and gas wells. According to the complaint,\\nCnF is Flotek’s “hallmark” product, and “[b]y the beginning of the Class Period,\\nthe Energy Chemistry Technologies segment [of Flotek] represented over 50%\\nof the Company’s revenue due to sales of its CnF products.” This lawsuit\\nconcerns representations made about a software application Flotek developed\\nto help market CnF to exploration and production companies. The software,\\ncalled “FracMax,” analyzes and presents data concerning hydraulically\\nfractured wells to allow comparison of the productivity of oil and gas wells that\\nuse CnF with those that do not.\\n Flotek introduced FracMax to investors at a June 2014 investor\\nconference. Over the next sixteen months, “[D]efendants attended at least 21\\nconferences, including Flotek’s earning conference calls, analyst-hosted\\nconferences and [c]ompany-hosted investor conferences, where they focused on\\nand praised FracMax and its ability to conclusively validate the efficacy and\\neconomic benefits of Flotek’s CnF products.” Defendants promoted FracMax\\nas an integral component of Flotek’s sales strategy and as “key to ‘materially\\nbroaden[ing] the reach of Flotek’s marketing efforts’ for its CnF products.”\\n“[D]efendants reported that the FracMax database included production data\\nfrom 80,000 wells across key U.S. basins and that based on this data, Flotek’s\\nsales force could demonstrate to potential customers that the use of Flotek CnF\\nchemistries added at least an estimated $8 billion in aggregate value for\\n 2\\n\\f Case: 17-20308 Document: 00514827066 Page: 3 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\noperators when compared to those operators that had not adopted Flotek’s CnF\\nproducts.” In a 2015 press release, Chisholm, Flotek’s President and CEO,\\nstated, “Our FracMax software technology provides conclusive evidence that\\nour [CnF] suite of completion chemistries provides compelling economic\\nbenefits to production companies.” Flotek also represented in a quarterly\\nearnings press release that sales of CnFs increased substantially because of\\nFracMax.\\n Although their complaint largely refers to Defendants generically,\\nPlaintiffs’ references to specific representations, to the extent they specify,\\nprimarily relate to statements made by Chisholm, who at various times\\nemphasized FracMax’s empirical validity. During several conference calls\\nwith investors, Chisholm explained that FracMax used publicly available data\\nthat companies self-reported to state agencies to compare production from\\nwells that used CnF and wells that did not, suggesting this made FracMax’s\\noutput more reliable. In September 2015, Chisholm gave a presentation at an\\ninvestor conference in which he explained that FracMax used data reported to\\nthe Texas Railroad Commission, a state agency, and he suggested that the data\\nwas “back check[ed] and validate[d].” In his PowerPoint presentation,\\nChisholm presented an “About FracMax” slide stating that the data was\\n“sourced from operator-provided completion data.” This slide further stated\\nthat the data was “un-adjusted, providing for comparison and analysis of\\noperators’ self-reported data sets.” Chisholm also presented images of the\\nFracMax interface in order to compare the productivity of four Texas wells, one\\nthat used CnF and three that did not, again emphasizing the difference in\\nproduction levels.\\n On November 9, 2015, online financial publication Bronte Capital\\nreleased a blog post (the Bronte Report) contending that the data in Chisholm’s\\npresentation was wrong and suggesting that the data had been intentionally\\n 3\\n\\f Case: 17-20308 Document: 00514827066 Page: 4 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\naltered to make CnF look significantly more effective. Specifically, the Bronte\\nReport alleged that, as compared with the numbers reported by the Texas\\nRailroad Commission, “Flotek had reduced the production data for the [three]\\nnon-CnF wells by 40% to 50% . . . , while leaving the production data for the\\nCnF well unchanged.” After release of the Bronte Report, Flotek shares\\ndeclined.\\n The next day, Flotek issued a press release conceding that Bronte\\nCapital’s analysis was correct, 1 and ascribing the error to data provided by a\\nthird party, Drillinginfo, that “caused FracMax to identify the three non-CnF\\nwells as contained in units with multiple wells (as opposed to single well units),\\nwhich required FracMax to incorrectly apply an allocation algorithm to the\\nproduction for the non-CnF wells.” According to Flotek, because Texas reports\\noil and gas production by lease, rather than by well, FracMax used an\\nalgorithm to apportion production within multiple-well lease units, leading to\\nunwarranted adjustments of the non-CnF wells discussed at the September\\nconference. Flotek also held a conference call, during which “Chisholm\\nadmitted that the Company’s internal controls ‘did not catch’” the errors, and\\n“that the Company had no internal controls in place to check the accuracy of\\nthe third-party data from Drillinginfo.” He explained that they did not cross-\\nreference the third-party data against the underlying state-agency data and\\nthat the company “had, several months ago, evolved to a different allocation\\nprogram” that would provide greater accuracy.\\n According to Plaintiffs, a report issued by Iberia Capital Partners that\\nsame day “stated that the four wells presented at the September 11, 2015\\ninvestor conference were designated by Drillinginfo as being single well leases,\\nnot multiple leases, therefore the Texas Railroad Commission data for those\\n\\n\\n 1 Earlier, Flotek had denied the allegations contained in the Bronte Report.\\n 4\\n\\f Case: 17-20308 Document: 00514827066 Page: 5 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\nwells did not require adjustment,” and Flotek shares fell further as a result.\\nContrary to its earlier statements following the Bronte Report, Flotek then\\nreported that an internal investigation concluded that the error originated in\\nthe software, not the data set, as Chisholm had stated earlier, and “most likely\\nresulted from the accidental inclusion of test code by the third-party software\\ndeveloper . . . . who was hired to write code for FracMax.”\\n Plaintiffs filed this lawsuit, alleging violations of Section 10(b) of the\\nSecurities Exchange Act, 15 U.S.C. § 78j(b); Securities and Exchange\\nCommission Rule 10b-5, 17 C.F.R. § 240.10b-5; and control person liability for\\nthe individual defendants under Section 20(a) of the Securities Exchange Act,\\n15 U.S.C. § 78t. Defendants filed a motion to dismiss the complaint for failure\\nto state a claim. The district court dismissed the complaint, concluding that\\nPlaintiffs had failed to sufficiently plead scienter. Plaintiffs timely appealed.\\n II\\n This court reviews the sufficiency of a complaint de novo. Ind. Elec.\\nWorkers’ Pension Tr. Fund IBEW v. Shaw Grp., Inc., 537 F.3d 527, 533 (5th\\nCir. 2008). Plaintiffs’ “well-pleaded facts are to be accepted as true and viewed\\nin the light most favorable to [them].” Daugherty v. Convergent Outsourcing,\\nInc., 836 F.3d 507, 510 (5th Cir. 2016). “[C]onclusory allegations, unwarranted\\ndeductions, or legal conclusions” are not “well-pleaded facts” for purposes of\\nevaluating a complaint. Southland Sec. Corp. v. INSpire Ins. Sols. Inc., 365\\nF.3d 353, 361 (5th Cir. 2004). Where fraud is alleged, Federal “Rule [of Civil\\nProcedure] 9(b) creates a heightened pleading requirement that ‘the\\ncircumstances constituting fraud or mistake shall be stated with\\nparticularity.’” U.S. ex rel. Rafizadeh v. Cont’l Common, Inc., 553 F.3d 869,\\n872 (5th Cir. 2008) (quoting FED. R. CIV. P. 9(b)). A class-action complaint\\nalleging a violation of Section 10(b) must allege fraud in accordance with the\\nRule 9(b) heightened-pleading standard. See Southland, 365 F.3d at 362.\\n 5\\n\\f Case: 17-20308 Document: 00514827066 Page: 6 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\n To state a viable securities-fraud claim under Section 10(b) and Rule\\n10b-5, Plaintiffs must allege that (1) Defendants made a misrepresentation or\\nomission relating to the purchase or sale of a security, (2) such representation\\nor omission related to a material fact, (3) the representation or omission was\\nmade with scienter, (4) Plaintiffs acted in reliance on Defendants’\\nrepresentation or omission, and (5) the representation or omission proximately\\ncaused Plaintiffs’ losses. Neiman v. Bulmahn, 854 F.3d 741, 746 (5th Cir. 2017)\\n(quoting Nathenson v. Zonagen Inc., 267 F.3d 400, 406–07 (5th Cir. 2001)). At\\nissue in this appeal is whether Plaintiffs have sufficiently pleaded scienter.\\n III\\n A\\n The Private Securities Litigation Reform Act (PSLRA) specifically\\nrequires that a complaint in a securities case support allegations of scienter\\nwith “facts giving rise to a strong inference that the defendant acted with the\\nrequired state of mind.” 15 U.S.C. § 78u-4(b)(2)(A). “‘Scienter’ is ‘a mental\\nstate embracing intent to deceive, manipulate, or defraud.’” Goldstein v. MCI\\nWorldCom, 340 F.3d 238, 245 (5th Cir. 2003) (quoting Ernst & Ernst v.\\nHochfelder, 425 U.S. 185, 193 n.12 (1976)). For purposes of 10(b) liability, a\\ndefendant must have acted with, at minimum, severe recklessness. Warren v.\\nReserve Fund, Inc., 728 F.2d 741, 745 (5th Cir. 1984). “Severe recklessness,”\\nis “limited to those highly unreasonable omissions or misrepresentations that\\ninvolve not merely simple or even inexcusable negligence, but an extreme\\ndeparture from the standards of ordinary care.” Rosenzweig v. Azurix Corp.,\\n332 F.3d 854, 866 (5th Cir. 2003) (quoting Nathenson, 267 F.3d at 408). The\\nomissions or misrepresentations at issue must also “present a danger of\\nmisleading buyers or sellers which is either known to the defendant or is so\\nobvious that the defendant must have been aware of it.” Id. (quoting\\nNathenson, 267 F.3d at 408). Though not in themselves sufficient to support a\\n 6\\n\\f Case: 17-20308 Document: 00514827066 Page: 7 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\nstrong inference of scienter, “[a]ppropriate motive and opportunity allegations\\nmay . . . ‘meaningfully enhance the strength of the inference of scienter.’”\\nShaw, 537 F.3d at 533 (quoting Southland, 365 F.3d at 368).\\n To evaluate scienter in a securities-fraud case, a court must (1) take the\\nwell-pleaded allegations as true; (2) evaluate the facts collectively, including\\nfacts contained in “documents incorporated in the complaint by reference and\\nmatters subject to judicial notice,” “to determine whether a strong inference of\\nscienter has been pled”; and (3) “take into account plausible inferences\\nopposing as well as supporting a strong inference of scienter.” Id. To\\nwithstand a motion to dismiss, “an inference of scienter must be more than\\nmerely plausible or reasonable—it must be cogent and at least as compelling\\nas any opposing inference of nonfraudulent intent.” Tellabs, Inc. v. Makor\\nIssues & Rights, Ltd., 551 U.S. 308, 314 (2007).\\n Scienter must be alleged with respect to “the individual corporate official\\nor officials who make or issue the statement (or order or approve it or its\\nmaking or issuance, or who furnish information or language for inclusion\\ntherein, or the like) rather than generally to the collective knowledge of all the\\ncorporation’s officers and employees acquired in the course of their\\nemployment.” Southland, 365 F.3d at 366; see also Shaw, 537 F.3d at 533\\n(“[T]his court has rejected the group pleading approach to scienter and instead\\nlooks to the state of mind of the individual corporate official or officials.”).\\nFurthermore, such allegations ordinarily must be based on more than an\\nindividual’s position within the company, absent special circumstances.\\nNeiman, 854 F.3d at 749.\\n B\\n Plaintiffs identify several alleged misrepresentations they argue give\\nrise to a sufficient inference of scienter, both because Defendants were severely\\nreckless in making statements counter to information that should have been\\n 7\\n\\f Case: 17-20308 Document: 00514827066 Page: 8 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\nobvious to them, and because, after learning of that contrary information, they\\ncontinued to make those statements. The alleged misrepresentations are: (1)\\nDefendants’ repeated use of the term “conclusive” in describing FracMax’s\\neffect, which Plaintiffs characterize as tantamount to assuring that FracMax’s\\ndata was irrefutable; (2) Defendants’ reference to FracMax data as “un-\\nadjusted” when, in fact, FracMax used an algorithm to adjust certain data; (3)\\nDefendant Chisholm’s presentation at the September 11, 2015, conference of\\ndirect comparisons between several wells that used CnF versus several that\\ndid not, which Defendants concede relied on incorrect data for the non-CnF\\nwells; and (4) Chisholm’s representation at this same conference that this data\\nwas “back check[ed] and validate[d],” when Defendants later admitted that\\n“Flotek had no internal controls in place to ensure the integrity of the FracMax\\ndatabase.” The district court determined that these representations failed to\\ngenerate a strong inference of scienter. We consider each representation in\\nturn, and ultimately agree with the district court’s conclusion that each fails\\nto raise a strong inference of scienter. 2\\n 1. Description of FracMax as “Conclusive”\\n Plaintiffs suggest that Defendants’ use of the term “conclusive” to\\ndescribe FracMax was obviously misleading because Flotek employed “no\\ninternal controls” over the information used for FracMax provided by third-\\nparty Drillinginfo, yet the term “conclusive” suggests the data is infallible.\\nHowever, in context, Chisholm’s use of the term “conclusive” may have had\\ninnocent intentions and may not have been inconsistent with a lack of internal\\ncontrols. See Shaw, 537 F.3d at 538 (statements subject to “many\\ninterpretations, including innocent ones,” do not “contribute to a strong\\n\\n\\n 2Because we conclude that the alleged misrepresentations here do not reflect scienter\\non the part of any Defendant, we need not reach Plaintiffs’ argument that FracMax’s\\nimportance to the company permits an inference that Defendants had a motive to mislead.\\n 8\\n\\f Case: 17-20308 Document: 00514827066 Page: 9 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\ninference of scienter” (cleaned up)). For example, Chisholm stated in a press\\nrelease that the “FracMax software technology provides conclusive evidence\\nthat our [CnF] suite of completion chemistries provides compelling economic\\nbenefits to production companies.” Plaintiffs do not allege that CnF products\\nprovide no economic benefit whatsoever, but instead allege the benefit was\\noverstated. Therefore, Chisholm’s generalized endorsement of FracMax as\\nevidencing the “compelling economic benefits” of CnF products is not\\nunreasonable, given that CnF products undisputedly provided some economic\\nbenefit. At the very least, such statements are not “highly unreasonable\\nomissions or misrepresentations . . . involv[ing] . . . an extreme departure from\\nthe standards of ordinary care.” Rosenzweig, 332 F.3d at 866 (quoting\\nNathenson, 267 F.3d at 408). Plaintiffs argue that Flotek’s lack of internal\\ncontrols should have made it obvious to Defendants that using the term\\n“conclusive” was misleading. That argument also fails. Plaintiffs do not allege\\nthat Defendants should have known the Drillinginfo data was unreliable.\\nWhile it was perhaps unwise to rely completely on third-party data while\\nreferring to the product using it as “conclusive,” it was not reckless to do so.\\nSee MCI WorldCom, 340 F.3d at 254 (holding complaint presenting “what could\\nbest be described as allegations of mismanagement,” or even “gross\\nmismanagement,” failed to allege severe recklessness of any individual). At\\nbottom, Plaintiffs’ allegations concerning Defendants’ characterization of\\nFracMax data as conclusive fail to generate an inference of scienter that is “at\\nleast as compelling as . . . opposing inference[s] of nonfraudulent intent.”\\nTellabs, 551 U.S. at 314.\\n 2. Characterization of FracMax-Provided Information as “Un-\\n Adjusted”\\n Plaintiffs also contend that a slide show Chisholm presented at least\\nonce, which stated that FracMax “data is un-adjusted,” was misleading and\\n\\n 9\\n\\f Case: 17-20308 Document: 00514827066 Page: 10 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\nChisholm should have known it was incorrect, because FracMax used an\\nallocation algorithm that necessarily made adjustments to Texas production\\ndata. In response to the fallout from the Bronte Report, Flotek disclosed that\\nit used an “allocation algorithm” for Texas data, because data provided by the\\nTexas Railroad Commission was not broken down by well, but instead by lease,\\nand a lease might contain multiple wells. Therefore, according to Plaintiffs,\\nany statement positing that the data was not adjusted was patently false,\\nsupporting an inference of scienter. However, there is no specific allegation\\nthat Chisholm knew at the time he made the statement at issue that FracMax\\nutilized an algorithm. Moreover, as the district court correctly pointed out, the\\nuse of an algorithm does not make the claim that the data was “un-adjusted”\\nmisleading. See Rosenzweig, 332 F.3d at 866 (danger of misleading buyers or\\nsellers must be “either known to the defendant or is so obvious that the\\ndefendant must have been aware of it” (cleaned up)).\\n 3. Presentation of Incorrect Well Data\\n The starkest example of Flotek’s provision of false information is that\\nChisholm presented demonstrably false information at the September 2015\\nconference in the form of incorrect well data. However, even these statements\\nfail to support a strong inference of scienter, because Plaintiffs fail to plead\\nthat any Defendant knew of these errors at the time, and the misstatements\\nwere not sufficiently obvious that Defendants were severely reckless in\\npresenting the information. As the district court pointed out, although\\nPlaintiffs pleaded that the three non-CnF wells used in the September 2015\\npresentation were downwardly adjusted, they “failed to plead facts\\nestablishing this discrepancy is true throughout FracMax’s 80,000 well\\ndatabase,” and “a trend as to six wells out of 80,000 is not sufficient on its own\\nto establish a strong inference of scienter.” Plaintiffs contend that the fact that\\nthe discrepancies inured to Flotek’s benefit weighs in favor of a finding of\\n 10\\n\\f Case: 17-20308 Document: 00514827066 Page: 11 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\nscienter, as it suggests that Chisholm made intentional misrepresentations\\nrather than mistakes. But the mere fact that an error favors the defendant is\\ninsufficient to support a strong inference of scienter. Cf. Shaw, 537 F.3d at\\n543 (characterizing allegations that defendants would benefit from\\nrepresentations as supporting an inference of motive rather than going directly\\nto severe recklessness, and noting that motive alone is insufficient for scienter).\\n It does appear that it would have been very easy to check if this data was\\ncorrect—Flotek verified the alleged errors and responded to the Bronte Report\\nwithin a day. However, while this suggests negligence, there is no indication\\nthat Defendants had reason to know of any deficiencies in quality control\\nproblems before the data was made public. Cf. Abrams v. Baker Hughes Inc.,\\n292 F.3d 424, 432 (5th Cir. 2002) (“Plaintiffs point to no allegations that the\\ndefendants knew about the internal control problems, only that they should\\nhave known or that their lack of knowledge based on their corporate positions\\ndemonstrates recklessness.”). Plaintiffs rely on the fact that Flotek revised its\\nallocation algorithm, which they claim implies that there was an issue with\\nthe previous algorithm. However, we have previously declined to draw a\\nsimilar inference, concluding in Abrams that “[t]he fact that Baker Hughes was\\noverhauling its accounting system . . . does not command an inference that\\ncompany officials should have anticipated finding a problem or assumed that\\nfinancial data reported under [the] old system was inaccurate.” Abrams, 292\\nF.3d at 433. Thus, Chisholm’s use of incorrect data at the September 2015\\nconference also fails to give rise to a strong inference of scienter.\\n 4. Statement that Data Was Back-Checked and Validated\\n Finally, Plaintiffs claim that Chisholm represented that the data\\npresented at the September 2015 conference was “back check[ed] and\\nvalidate[d].” Plaintiffs allege that this was false, as “Flotek had no internal\\ncontrols in place to ensure the integrity of the FracMax database.” Indeed, as\\n 11\\n\\f Case: 17-20308 Document: 00514827066 Page: 12 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\nChisholm admitted, there was a failure in quality control, because Flotek did\\nnot cross-reference “[the Drillinginfo data] with the [Texas] Railroad\\nCommission data.” Despite Chisholm’s subsequent recognition that Flotek\\n“should have had the quality control in place that could have validated [the\\nDrillinginfo data] and it wasn’t,” Plaintiffs nonetheless fail to allege that\\nChisholm knew of this lack of quality control at the time he made the\\nstatement, or that it would have been so obvious that he should have known.\\nCf. Abrams, 292 F.3d at 432 (“Plaintiffs point to no allegations that the\\ndefendants knew about the internal control problems, only that they should\\nhave known or that their lack of knowledge based on their corporate\\npositions demonstrates recklessness.”). Further, the statement is ambiguous\\nbecause Chisholm does not say whether Flotek itself back checks and validates\\nthe data, or instead relies on a third party to do so, which Chisholm may well\\nhave believed was a part of the process. See Shaw, 537 F.3d at 538 (analyzing\\n“more likely, nonculpable inference, absent any other details” about the\\nrepresentation). Accordingly, this allegation also fails to give rise to a strong\\ninference of scienter.\\n C\\n In the absence of specific allegations that any Defendant knew of the\\nfalsity of any of the statements discussed above at the time they were made or\\nwere severely reckless with respect to the statements’ truth, Plaintiffs invoke\\nChisholm’s position as an inventor of the FracMax technology as sufficient to\\n“permit a plaintiff to plead scienter.” 3 Neiman, 854 F.3d at 749. Our case law\\n\\n\\n\\n 3Plaintiffs’ complaint repeatedly refers to Chisholm as “one of FracMax’s inventors\\nand President and CEO of Flotek,” but does not specify what role Chisholm played in\\ninventing FracMax. Although conceivable that Chisholm knew the intricacies of the software\\ncode underpinning FracMax, the Plaintiffs have made no specific allegations from which we\\ncould conclude such an inference is as likely as an opposing inference that Chisholm merely\\nthought of the concept while others implemented it. The lack of specific facts leading to an\\n 12\\n\\f Case: 17-20308 Document: 00514827066 Page: 13 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\nprovides that an inference of scienter may be drawn solely from “a defendant’s\\nposition in the company” only if certain “special circumstances” are alleged. Id.\\nWe have stated these “special circumstances” as follows: (1) “the smaller the\\ncompany the more likely it is that corporate executives would be familiar with\\nthe intricacies of day to day operations”; (2) “the transaction at issue may have\\nbeen critical to the company’s continued vitality”; (3) “the misrepresented or\\nomitted information at issue would have been readily apparent to the speaker”;\\nand (4) “the defendant’s statements were internally inconsistent with one\\nanother.” Id. at 749–50 (quoting Local 731 I.B. of T. Excavators & Pavers\\nPension Tr. Fund v. Diodes, Inc., 810 F.3d 951, 959 (5th Cir. 2016)).\\n Our “special circumstances” doctrine does not apply here, and therefore\\nour analysis regarding the alleged misrepresentations, supra Part III.B, holds.\\nPlaintiffs concede that they “do[] not contend Flotek is a small company,” and\\ninstead ask us to find special circumstances based on Defendants’ knowledge\\nof the FracMax product. However, we have never found special circumstances\\npermitting an inference of scienter based solely on a defendant’s position when\\nthe company was large. Compare Dorsey v. Portfolio Equities, Inc., 540 F.3d\\n333, 342–43 (5th Cir. 2008) (finding special circumstances where defendant\\ncompany had no employees itself and was managed by company with only eight\\nemployees) and Nathenson, 267 F.3d at 425 (inference warranted where\\ncompany had roughly thirty-five employees), with Neiman, 854 F.3d at 750\\n(“[W]ith over 60 employees, [defendant] was approximately twice as large as\\nthe companies in the cases where this court has found a ‘special\\ncircumstance.’”).\\n\\n\\n\\ninference of knowledge or severe recklessness of FracMax’s flaws leaves only the possibility\\nthat Chisholm’s title as “one of FracMax’s inventors and President and CEO of Flotek” might\\nresult in such an inference, a possibility which we conclude also fails under our “special\\ncircumstances” test.\\n 13\\n\\f Case: 17-20308 Document: 00514827066 Page: 14 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\n The other special circumstances factors also cut against applying that\\ndoctrine here. Although FracMax was important to Flotek’s sales of CnF, it\\ncannot be said to be critical to its “continued vitality,” as required. 4 See Diodes,\\n810 F.3d at 959 (finding omissions regarding a labor shortage not sufficiently\\nimportant where the plaintiff did not allege that the labor shortage\\n“jeopardized the company’s existence”). Nor would it have been “readily\\napparent to the speaker”—primarily, Chisholm—that the statements were\\nincorrect, as discussed above in analyzing each statement individually. See\\nsupra Part III.B. Finally, despite Plaintiffs’ contrary contention, no internal\\ninconsistency exists between the statements that well data was un-altered and\\nthat FracMax data was conclusive, on the one hand, and the later revelations\\nabout the accuracy of that data and the lack of internal controls, on the other.\\nThe earlier statements do not directly contradict that later information. As\\ndiscussed, the context of the use of these terms reveals that the term\\n“conclusive” was used to tout the economic benefits of CnF products, and the\\nterm “un-adjusted” was used in conjunction with references to FracMax as an\\n“analytical model.” As such, these statements do not conflict with later\\nrevelations that flaws existed in the data and that Flotek relied on a third\\nparty to provide accurate information. See supra Part III.B.1–2.\\n\\n\\n\\n\\n 4 We have concluded that, in order to constitute a special circumstance, the required\\nlevel of importance to the company must be such that the company’s continued existence\\ndepends on, or the company would be completely transformed by, the success of a product or\\nbusiness line. See Dorsey, 540 F.3d at 342 (defendant company “was essentially a one-trick\\npony”); Plotkin v. IP Axess Inc., Etc., 407 F.3d 690, 700 (5th Cir. 2005) (defendant “was a\\nstruggling company that announced to the public that it had reached agreements . . . that\\nwould bring them multimillion dollar revenues, which would amount to a thirty-fold\\nincrease” in revenue); Nathenson, 267 F.3d at 425 (“Zonagen was essentially a one product\\ncompany”).\\n 14\\n\\f Case: 17-20308 Document: 00514827066 Page: 15 Date Filed: 02/07/2019\\n\\n\\n\\n No. 17-20308\\n D\\n Finally, we review the complaint holistically, as the district court did, to\\ndetermine “whether all of the facts alleged, taken collectively, give rise to a\\nstrong inference of scienter,” Tellabs, 551 U.S. at 323. The district court\\ncorrectly pointed out that “Plaintiffs ask this Court to assume scienter based\\nsolely on the importance of FracMax to Flotek’s business, Defendants’ positions\\nwithin the company, and the fact that the alleged ‘mistake’ happened in a way\\nthat made Flotek’s core product, CnF, look more profitable.” We agree that\\nsuch allegations are insufficient to raise a strong inference of scienter and, at\\nmost, indicate “simple or even inexcusable negligence,” a lesser showing than\\nis required here. See Rosenzweig, 332 F.3d at 866. This conclusion is further\\nbuttressed by Plaintiffs’ pervasive use of group pleading—referring generally\\nto “Defendants” rather than specific individuals—a practice this court has\\nexpressly rejected. See Shaw, 537 F.3d at 533 (“[T]his court has rejected the\\ngroup pleading approach to scienter and instead looks to the state of mind of\\nthe individual corporate official or officials.”). For these reasons, the district\\ncourt’s holistic analysis was also correct.\\n IV\\n Plaintiffs contend that the district court erred by dismissing their\\nSection 20(a) claims against the individual defendants for control-person\\nliability. “Control person liability is secondary only and cannot exist in the\\nabsence of a primary violation.” Southland, 365 F.3d at 383. Because Plaintiffs\\nhave not established a primary violation, their Section 20(a) claims fail.\\n ***\\n For these reasons, the judgment of the district court is AFFIRMED.\\n\\n\\n\\n\\n 15\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":595,"cells":{"id":{"kind":"number","value":4588860,"string":"4,588,860"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Terry KELLY, Also Known as T.K., Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Terry Kelly"},"decision_date":{"kind":"string","value":"2019-02-08"},"docket_number":{"kind":"string","value":"17-60133"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Smith, Duncan, Engelhardt\", \"parties\": \"\", \"opinions\": [{\"author\": \"JERRY E. SMITH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-60133 Document: 00514827715 Page: 1 Date Filed: 02/08/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 17-60133 United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n February 8, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n\\n Plaintiff–Appellee,\\n\\nversus\\n\\nTERRY KELLY, Also Known as T.K.,\\n\\n Defendant–Appellant.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Mississippi\\n\\n\\n\\n\\nBefore SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n Terry Kelly pleaded guilty of being a felon in possession of a firearm, in\\nviolation of 18 U.S.C. § 922(g)(1) and enhanced per the Armed Career Criminal\\nAct (“ACCA”), 18 U.S.C. § 924(e) (2012). As part of his plea agreement, Kelly\\nagreed to an appeal waiver, yet he appeals.\\n\\n Kelly raises two issues. First, he asserts that the district court plainly\\nerred in applying the ACCA enhancement because he lacks the requisite\\n\\f Case: 17-60133 Document: 00514827715 Page: 2 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\nnumber of violent felony predicates. Second, he claims that he received in-\\neffective assistance of counsel (“IAC”), resulting in an increased term of impris-\\nonment. Because Kelly’s ACCA enhancement claim is barred by his appeal\\nwaiver and his IAC claim is not ripe for review on direct appeal, we dismiss\\nthe appeal as to both claims.\\n\\n I.\\n Police searched Kelly’s house after receiving information that stolen\\nproperty might be there. During the search, officers discovered that Kelly, a\\nconvicted felon, was in possession of two rifles, hence the indictment. 1\\n\\n Kelly and his lawyer signed a plea agreement in which he agreed to plead\\nguilty to the one-count indictment in exchange for the government’s agreement\\n“not to charge [him] with any other offenses known by the [g]overnment arising\\nfrom or related to the above charges.” As part of the deal, Kelly agreed to a\\nwaiver of appeals and collateral attacks, which stated,\\n WAIVER OF APPEALS AND COLLATERAL ATTACKS: Defen-\\n dant hereby expressly waives any and all rights to appeal the con-\\n viction in this case, on any ground whatsoever, including but not\\n limited to the grounds set forth in 18 U.S.C. § 3742. Defendant\\n also hereby expressly waives all rights to contest or collaterally at-\\n tack the conviction in any post-conviction proceeding, including\\n but not limited to a motion brought pursuant to 28 U.S.C. § 2255,\\n excepting only allegations of ineffective assistance of counsel and\\n prosecutorial misconduct. Defendant waives these rights in ex-\\n change for the concessions and recommendations made by the\\n United States in this plea agreement.\\n The district court held a Rule 11 plea hearing. In addition to discussing\\nthe charge and the related enhancement, the court emphasized Kelly’s appeal\\n\\n\\n\\n 1 See 18 U.S.C. §§ 922(g)(1), 924(e). The indictment listed three of Kelly’s previous\\nfelony convictions, including burglary of a dwelling, burglary, and shooting into an occupied\\ndwelling.\\n 2\\n\\f Case: 17-60133 Document: 00514827715 Page: 3 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\nwaiver: “[D]o you, in particular, understand that by entering into the Plea\\nAgreement and entering a guilty plea, you will waive all rights to appeal your\\nconviction on any ground and to collaterally attack your conviction except for\\nallegations of ineffective assistance of counsel and prosecutorial misconduct?”\\nKelly answered in the affirmative (“Yes, ma’am.”), acknowledging that he\\nunderstood his plea agreement and the related appeal waiver.\\n\\n After the guilty plea, the government filed a U.S.S.G. § 5K1.1 motion on\\nbehalf of Kelly for his substantial assistance with a RICO investigation against\\nthe Aryan Brotherhood of Mississippi. 2 The district court granted the § 5K1.1\\nmotion and imposed a 100-month term of imprisonment plus five years of\\nsupervised release. The sentence imposed was below both the ACCA minimum\\nof fifteen years and the recommended guideline range of 180 to 188 months.\\nAt sentencing, Kelly again affirmed that he “expressly waive[d] any and all\\nrights” to appeal or collaterally attack “the conviction or sentence imposed\\n. . . except [as] to claims relating to prosecutorial misconduct and ineffective\\nassistance of counsel relating to the validity of the waiver of appeal or the\\nvalidity of the guilty plea itself.”\\n\\n After sentencing, however, Kelly raised an IAC claim, which prompted\\nhis trial counsel to withdraw. This court assigned the Federal Public Defender\\nto represent Kelly on appeal and granted Kelly’s unopposed motion for leave\\nto file an untimely notice of appeal.\\n\\n II.\\n Kelly raises two issues on appeal. First, he asserts that the district court\\n\\n\\n 2 In its § 5K1.1 motion, the government noted that, inter alia, “Kelly showed courage\\nby sitting on the stand across from two individuals who had the authority within [the Aryan\\nBrotherhood of Mississippi] to order that he be killed. And he testified truthfully and pro-\\nvided the government with substantial assistance . . . in secur[ing] conviction at that trial for\\nthe two defendants who [Kelly] testified against.”\\n 3\\n\\f Case: 17-60133 Document: 00514827715 Page: 4 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\nplainly erred in applying the ACCA enhancement. Second, he claims IAC.\\nBefore analyzing either claim, we must address the applicability and scope of\\nthe appeal waiver.\\n\\n A.\\n “This court reviews de novo whether an appeal waiver bars an appeal.”\\nUnited States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). “A criminal defendant\\nmay waive his statutory right to appeal in a valid plea agreement.” United\\nStates v. Pleitez, 876 F.3d 150, 156 (5th Cir. 2017). When deciding “whether\\nan appeal of a sentence is barred by an appeal waiver provision in a plea agree-\\nment, we conduct a two-step inquiry: (1) whether the waiver was knowing and\\nvoluntary and (2) whether the waiver applies to the circumstances at hand,\\nbased on the plain language of the agreement.” United States v. Bond,\\n414 F.3d 542, 544 (5th Cir. 2005).\\n\\n For a waiver to be knowing and voluntary, “[a] defendant must know\\nthat he had a ‘right to appeal his sentence and that he was giving up that\\nright.’” United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (quoting\\nUnited States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992)). Moreover, “[a]\\nwaiver is both knowing and voluntary if the defendant indicates that he read\\nand understood the agreement and the agreement contains an ‘explicit, un-\\nambiguous waiver of appeal.’” Keele, 755 F.3d at 754 (quoting United States v.\\nMcKinney, 406 F.3d 744, 746 (5th Cir. 2005)). But, as acknowledged in the\\nplea agreement, “a defendant may always avoid a waiver on the limited\\ngrounds that the waiver of appeal itself was tainted by [IAC].” United States\\nv. White, 307 F.3d 336, 339 (5th Cir. 2002).\\n\\n “We apply normal principles of contract interpretation when construing\\n\\n\\n\\n\\n 4\\n\\f Case: 17-60133 Document: 00514827715 Page: 5 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\nplea agreements.” 3 When determining “whether an appeal waiver applies to\\nthe issues presented, this [c]ourt ‘ascertain[s] the ordinary meaning of the\\nwaiver provision,’” Pleitez, 876 F.3d at 156 (quoting United States v. Jacobs,\\n635 F.3d 778, 781 (5th Cir. 2011)), and “construe[s] appeal waivers narrowly\\n. . . against the government,” id. (quoting United States v. Palmer, 456 F.3d\\n484, 488 (5th Cir. 2006)). Nonetheless, “[t]he government has a strong and\\nlegitimate interest in both the finality of convictions and in the enforcement of\\nplea bargains.” United States v. Dyer, 136 F.3d 417, 429 (5th Cir. 1998).\\n\\n B.\\n With respect to his ACCA claim, Kelly concedes in his reply brief that\\n“there is a strong presumption for finding the waiver enforceable, as he . . .\\nknowingly and voluntarily plea[ded] guilty and the language in the plea is suf-\\nficiently clear.” Kelly, however, tempers this admission by further asserting\\nthat “he would not have [pleaded] guilty had he known there was a potential\\nchallenge” to the ACCA enhancement under recent Supreme Court caselaw.\\nAccordingly, Kelly contends that he “knowingly and voluntarily agreed to plead\\nguilty, but only under the premise that there were no meritorious arguments\\nto be made regarding the ACCA enhancement.”\\n\\n In response, the government asserts that the waiver (1) was knowing\\nand voluntary and (2) bars the ACCA issue Kelly raises on appeal. The govern-\\nment maintains that “[w]here the plea agreement contains an unambiguous\\nwaiver signed by the defendant, and the defendant states during the Rule 11\\nplea colloquy that he has read and understood [the] agreement, the waiver is\\nconsidered knowing and voluntary.” The government further asserts that\\n\\n\\n 3 McKinney, 406 F.3d at 746; see also United States v. Cantu, 185 F.3d 298, 304 (5th\\nCir. 1999) (“[W]e apply general principles of contract law in order to interpret the terms of\\nthe plea agreement.”).\\n 5\\n\\f Case: 17-60133 Document: 00514827715 Page: 6 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\nKelly knew that “he had a right to appeal his sentence and that he was giving\\nup that right” (quoting Portillo, 18 F.3d at 292). The government posits that\\n“[i]t is plain, based on his signing the plea agreement and his two declarations\\nto the district judge, that Kelly was well aware of his right to appeal and vol-\\nuntarily waived that right.” 4\\n\\n Turning to the second prong, the government claims that “[Kelly’s] chal-\\nlenge to the ACCA enhancement is clearly barred because it does not fall\\nwithin the Fifth Circuit’s exceptions to enforcement of a validly executed\\nwaiver.” 5 Consequently, the waiver is enforceable and bars Kelly’s appeal of\\nthis issue.\\n\\n We must determine whether Kelly’s waiver was knowing and voluntary\\nand “whether the waiver applies to the circumstances at hand, based on the\\nplain language of the plea agreement.” McKinney, 406 F.3d at 746. The waiver\\nsays that “[d]efendant hereby expressly waives any and all rights to appeal the\\nconviction in this case, on any ground whatsoever . . . .” 6 At the plea hearing,\\nthe court asked Kelly whether he “underst[ood] that by entering into the Plea\\nAgreement and entering a guilty plea, [he] waive[d] all rights to appeal [his]\\nconviction on any ground and to collaterally attack [his] conviction except for\\nallegations of ineffective assistance of counsel and prosecutorial misconduct.” 7\\nKelly replied, “Yes, ma’am.”\\n\\n\\n\\n 4 See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court\\ncarry a strong presumption of verity.”).\\n 5 The government concedes, however, that Kelly’s IAC claim is not barred by this\\ncourt’s precedent, but “only to the extent that his claim challenges the validity of [the]\\nwaiver.”\\n 6The waiver further states that “[d]efendant waives these rights in exchange for the\\nconcessions and recommendations made by the United States in this plea agreement.”\\n 7 Kelly also answered affirmatively when asked whether he “underst[ood] the terms\\nof the Plea Agreement and the Plea Supplement.”\\n 6\\n\\f Case: 17-60133 Document: 00514827715 Page: 7 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\n At the sentencing hearing, the court again discussed, at some length, the\\nscope and terms of Kelly’s appeal waiver, stating,\\n The defendant expressly waives any and all rights to appeal the\\n conviction or sentence imposed in this case, pursuant to his Plea\\n Agreement, and the manner in which sentence was imposed on any\\n ground whatsoever, including, but not limited to, the grounds set\\n forth in [18 U.S.C. § 3742] except [as] to claims relating to prose-\\n cutorial misconduct and [IAC] relating to the validity of the waiver\\n of appeal or the validity of the guilty plea itself. The defendant\\n also expressly waives all rights to contest or collaterally attack the\\n conviction and/or sentence and the manner in which the sentence\\n was imposed in any post-conviction proceeding, including, but not\\n limited to, a motion brought pursuant to [28 U.S.C. § 2255] except\\n [as] to claims relating to prosecutorial misconduct and [IAC]\\n relating to the validity of the waiver of appeal or the validity of the\\n guilty plea itself.\\nThe district court next asked Kelly whether he understood his sentence as spe-\\ncified by the court. Again, Kelly affirmatively acknowledged his understanding\\nof the sentence (including the related terms of his plea agreement) by stating\\n“Yes, ma’am.” 8\\n\\n Kelly’s waiver was both knowing and voluntary because the record dem-\\nonstrates that “he [both] read and understood the agreement, which include[d]\\nan explicit, unambiguous waiver of appeal.” Bond, 414 F.3d at 544; see also\\nKeele, 755 F.3d at 754–56; McKinney, 406 F.3d at 746. Moreover, the waiver\\napplies to all of Kelly’s potential claims—including a challenge to the applica-\\ntion of the ACCA enhancement—except those concerning prosecutorial mis-\\nconduct or IAC. Accordingly, although Kelly may not pursue his ACCA claim—\\nit is barred by the clear terms of his appeal waiver—he may appeal his IAC\\nclaim, under the terms of the plea agreement, and under this court’s precedent\\n\\n\\n\\n 8 Kelly also confirmed that he did not “have any questions about any matter related\\nto [his] sentence or any part of [the sentencing] proceeding.”\\n 7\\n\\f Case: 17-60133 Document: 00514827715 Page: 8 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\nthat “a defendant may always avoid a waiver on the limited grounds that the\\nwaiver of appeal itself was tainted by [IAC].” White, 307 F.3d at 339; see also\\nUnited States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995).\\n\\n III.\\n A.\\n In Strickland v. Washington, 466 U.S. 668, 687−96 (1984), the Court out-\\nlined a two-pronged test for determining whether counsel’s performance was\\nineffective. 9 First, “[w]hen a convicted defendant complains of [IAC], the\\ndefendant must show that counsel’s representation fell below an objective stan-\\ndard of reasonableness.” Id. at 687−88. Second, “any deficiencies in counsel’s\\nperformance must be prejudicial to the defense in order to constitute [IAC]\\nunder the Constitution.” Id. at 692. Nonetheless, “[b]ecause of the difficulties\\ninherent in making the evaluation, a court must indulge a strong presumption\\nthat counsel’s conduct falls within the wide range of reasonable professional\\nassistance . . . .” Id. at 689. 10 A defendant’s right to effective assistance of\\ncounsel extends to the plea-bargaining process. 11\\n\\n “[A] defendant may always avoid a waiver on the limited grounds that\\nthe waiver of appeal itself was tainted by [IAC].” White, 307 F.3d at 339; see\\nalso Henderson, 72 F.3d at 465. Nonetheless, “[t]he general rule in this circuit\\n\\n\\n\\n 9 See also Gulley, 526 F.3d 809, 821 (5th Cir. 2008) (“A defendant’s Sixth Amendment\\nright to counsel is violated if: (1) his counsel’s performance was deficient; and (2) the deficient\\nperformance prejudiced his defense.”).\\n 10“A fair assessment of attorney performance requires that every effort be made to\\neliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s\\nchallenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”\\nWashington, 466 U.S. at 689.\\n 11 Lafler v. Cooper, 566 U.S. 156, 162 (2012) (“During plea negotiations defendants are\\n‘entitled to the effective assistance of competent counsel.’” (quoting McMann v. Richardson,\\n397 U.S. 759, 771 (1970))); see also Missouri v. Frye, 566 U.S. 134, 140–44 (2012).\\n 8\\n\\f Case: 17-60133 Document: 00514827715 Page: 9 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\nis that a claim of [IAC] cannot be resolved on direct appeal when the claim has\\nnot been raised before the district court since no opportunity existed to develop\\nthe record on the merits of the allegations.” United States v. Higdon, 832 F.2d\\n312, 313–14 (5th Cir. 1987); see also Gulley, 526 F.3d at 821. Consequently,\\n“[o]nly in those rare occasions where the record is sufficiently developed will\\n[this] court undertake to consider claims of inadequate representation on direct\\nappeal.” Gulley, 526 F.3d at 821. Ultimately, unless we can “fairly evaluate\\nthe claim from the record, we must decline to consider the issue without preju-\\ndice to a defendant’s right to raise it in a subsequent proceeding.” Id. 12\\n\\n B.\\n Kelly contends that “[t]his is one of those rare cases” in which the record\\nis sufficiently developed to allow us to reach the merits of his IAC claim on\\ndirect appeal. Turning to the Washington factors, Kelly asserts that “[t]he\\nmere failure [of trial counsel] to challenge [his] prior convictions post-Johnson\\nand Mathis was deficient performance and severely prejudiced [him].” Kelly\\nfurther maintains that “[f]ailing to keep current on Supreme Court cases and\\nrelevant circuit court precedent is deficient performance,” especially given that\\nboth precedents “were easily accessible and gravely important to challenging\\nthe ACCA enhancement.” 13 Accordingly, “[n]o sound trial strategy can be rea-\\nsoned for not objecting to the [ACCA] enhancement at the infancy of the case\\nor at sentencing,” and his trial counsel’s performance should be deemed defici-\\nent because “it falls below an objective standard of reasonableness.”\\n\\n Kelly also asserts that he was prejudiced by his counsel’s deficient\\n\\n\\n 12See also United States v. Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999) (“We\\ndo not review a claim of [IAC] on direct appeal unless the district court has first addressed it\\nor unless the record is sufficiently developed to allow us to evaluate the claim on its merits.”).\\n 13Kelly notes that Johnson was released before both his change-of-plea hearing and\\nsentencing, while Mathis was released before sentencing.\\n 9\\n\\f Case: 17-60133 Document: 00514827715 Page: 10 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\nperformance. He acknowledges that he “bears the burden of demonstrating\\n. . . ‘there is a reasonable probability that, but for counsel’s errors, he would\\nnot have pleaded guilty and would have insisted on going to trial’” (quoting\\nHill v. Lockhart, 474 U.S. 52, 59 (1985)). Kelly maintains that had the ACCA\\nenhancement not been applied, “he would have faced a substantially lower\\nguidelines range which would have led to a plea agreement without the ACCA\\nenhancement.” Kelly claims that “[i]nstead of a fifteen-year mandatory mini-\\nmum and a suggested [g]uidelines range of 180–188 months,” he would have\\nfaced a range of 46–57 months even before the court granted the § 5K1.1\\nmotion. 14 Moreover, had his trial counsel been effective, “Kelly would have\\nbeen able to preserve his objection to the [ACCA] enhancement,” thereby also\\nproviding the benefit of de novo, rather than plain error, review.\\n\\n In response, the government contends that the record in the district\\ncourt is insufficient to determine whether trial counsel’s plea strategy was\\nsound. Highlighting circuit precedent, the government maintains that “[i]f\\n[this] [c]ourt cannot make the determination on the record before it, it should\\ndismiss the claim without prejudice and allow the defendant to raise it in\\nanother proceeding where the record can be developed.” “[F]ar from being a\\nrare case ripe for direct review,” the government asserts that “Kelly’s [IAC]\\nclaim begs for further factual development.”\\n\\n The government likewise challenges the assumption that “had [Kelly’s]\\ncounsel raised the issues he now [raises] on appeal, he would have gotten a\\nbetter result,” contending that such an approach “overlooks a variety of\\n\\n\\n\\n 14The government disputes this claim, maintaining that “[t]here are . . . uncertainties\\nas to what Kelly’s guideline range would be if he was not a violent offender under the ACCA.\\nKelly recalculates his guideline range assuming that both of his violent felonies should be\\ndiscounted; however, if [only] one violent felony is discounted . . . then his guideline range\\nwould be higher than he estimates.”\\n 10\\n\\f Case: 17-60133 Document: 00514827715 Page: 11 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\npractical considerations that may have affected his sentence.” Ultimately, the\\ngovernment maintains that “the [c]ourt can only speculate as to why Kelly’s\\ncounsel chose not to object to the ACCA enhancement” and urges that we “dis-\\nmiss [the IAC] claim without prejudice [so that] Kelly [may] pursue it in the\\ntrial court.”\\n\\n At bottom, Kelly’s IAC claim was not sufficiently developed. Although\\nhe raised the issue in a pro se habeas corpus petition that he filed in the district\\ncourt after sentencing, the court dismissed it without prejudice for lack of jur-\\nisdiction because “Kelly’s direct appeal [was] pending.” The court did not hold\\na hearing on the claim.\\n\\n Ultimately, much like the defendant in Gulley, Kelly’s “claim is not ripe\\nfor review because ‘the district court did not hold a hearing and the record does\\nnot provide sufficient detail about trial counsel’s conduct and motivations to\\nallow this court to make a fair evaluation of the merits of [his] claim.’” Gulley,\\n526 F.3d at 821 (quoting United States v. Aguilar, 503 F.3d 431, 436 (5th Cir.\\n2007)). Here, as in Higdon, 832 F.3d at 314, we “can only speculate on the\\nbasis for defense counsel’s actions” because there is no discussion in the record\\nconcerning trial counsel’s rationale for making his strategic choices, including\\nthe decision not to challenge the ACCA enhancement. Accordingly, Kelly’s IAC\\nclaim is not ripe for review on direct appeal.\\n\\n In sum, because Kelly’s ACCA enhancement claim is barred by the\\nappeal waiver, and his IAC claim is not ripe for review on direct appeal, the\\nappeal is DISMISSED, but without prejudice to Kelly’s right to raise IAC on\\ncollateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).\\n\\n\\n\\n\\n 11\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4366113/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"SMITH"},"judge2":{"kind":"string","value":"DUNCAN"},"judge3":{"kind":"string","value":"ENGELHARDT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4588860/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Terry KELLY, Also Known as T.K., Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-60133 Document: 00514827715 Page: 1 Date Filed: 02/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 17-60133 United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 8, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n\n Plaintiff–Appellee,\n\nversus\n\nTERRY KELLY, Also Known as T.K.,\n\n Defendant–Appellant.\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Mississippi\n\n\n\n\nBefore SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n Terry Kelly pleaded guilty of being a felon in possession of a firearm, in\nviolation of 18 U.S.C. § 922(g)(1) and enhanced per the Armed Career Criminal\nAct (“ACCA”), 18 U.S.C. § 924(e) (2012). As part of his plea agreement, Kelly\nagreed to an appeal waiver, yet he appeals.\n\n Kelly raises two issues. First, he asserts that the district court plainly\nerred in applying the ACCA enhancement because he lacks the requisite\n\f Case: 17-60133 Document: 00514827715 Page: 2 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\nnumber of violent felony predicates. Second, he claims that he received in-\neffective assistance of counsel (“IAC”), resulting in an increased term of impris-\nonment. Because Kelly’s ACCA enhancement claim is barred by his appeal\nwaiver and his IAC claim is not ripe for review on direct appeal, we dismiss\nthe appeal as to both claims.\n\n I.\n Police searched Kelly’s house after receiving information that stolen\nproperty might be there. During the search, officers discovered that Kelly, a\nconvicted felon, was in possession of two rifles, hence the indictment. 1\n\n Kelly and his lawyer signed a plea agreement in which he agreed to plead\nguilty to the one-count indictment in exchange for the government’s agreement\n“not to charge [him] with any other offenses known by the [g]overnment arising\nfrom or related to the above charges.” As part of the deal, Kelly agreed to a\nwaiver of appeals and collateral attacks, which stated,\n WAIVER OF APPEALS AND COLLATERAL ATTACKS: Defen-\n dant hereby expressly waives any and all rights to appeal the con-\n viction in this case, on any ground whatsoever, including but not\n limited to the grounds set forth in 18 U.S.C. § 3742. Defendant\n also hereby expressly waives all rights to contest or collaterally at-\n tack the conviction in any post-conviction proceeding, including\n but not limited to a motion brought pursuant to 28 U.S.C. § 2255,\n excepting only allegations of ineffective assistance of counsel and\n prosecutorial misconduct. Defendant waives these rights in ex-\n change for the concessions and recommendations made by the\n United States in this plea agreement.\n The district court held a Rule 11 plea hearing. In addition to discussing\nthe charge and the related enhancement, the court emphasized Kelly’s appeal\n\n\n\n 1 See 18 U.S.C. §§ 922(g)(1), 924(e). The indictment listed three of Kelly’s previous\nfelony convictions, including burglary of a dwelling, burglary, and shooting into an occupied\ndwelling.\n 2\n\f Case: 17-60133 Document: 00514827715 Page: 3 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\nwaiver: “[D]o you, in particular, understand that by entering into the Plea\nAgreement and entering a guilty plea, you will waive all rights to appeal your\nconviction on any ground and to collaterally attack your conviction except for\nallegations of ineffective assistance of counsel and prosecutorial misconduct?”\nKelly answered in the affirmative (“Yes, ma’am.”), acknowledging that he\nunderstood his plea agreement and the related appeal waiver.\n\n After the guilty plea, the government filed a U.S.S.G. § 5K1.1 motion on\nbehalf of Kelly for his substantial assistance with a RICO investigation against\nthe Aryan Brotherhood of Mississippi. 2 The district court granted the § 5K1.1\nmotion and imposed a 100-month term of imprisonment plus five years of\nsupervised release. The sentence imposed was below both the ACCA minimum\nof fifteen years and the recommended guideline range of 180 to 188 months.\nAt sentencing, Kelly again affirmed that he “expressly waive[d] any and all\nrights” to appeal or collaterally attack “the conviction or sentence imposed\n. . . except [as] to claims relating to prosecutorial misconduct and ineffective\nassistance of counsel relating to the validity of the waiver of appeal or the\nvalidity of the guilty plea itself.”\n\n After sentencing, however, Kelly raised an IAC claim, which prompted\nhis trial counsel to withdraw. This court assigned the Federal Public Defender\nto represent Kelly on appeal and granted Kelly’s unopposed motion for leave\nto file an untimely notice of appeal.\n\n II.\n Kelly raises two issues on appeal. First, he asserts that the district court\n\n\n 2 In its § 5K1.1 motion, the government noted that, inter alia, “Kelly showed courage\nby sitting on the stand across from two individuals who had the authority within [the Aryan\nBrotherhood of Mississippi] to order that he be killed. And he testified truthfully and pro-\nvided the government with substantial assistance . . . in secur[ing] conviction at that trial for\nthe two defendants who [Kelly] testified against.”\n 3\n\f Case: 17-60133 Document: 00514827715 Page: 4 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\nplainly erred in applying the ACCA enhancement. Second, he claims IAC.\nBefore analyzing either claim, we must address the applicability and scope of\nthe appeal waiver.\n\n A.\n “This court reviews de novo whether an appeal waiver bars an appeal.”\nUnited States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). “A criminal defendant\nmay waive his statutory right to appeal in a valid plea agreement.” United\nStates v. Pleitez, 876 F.3d 150, 156 (5th Cir. 2017). When deciding “whether\nan appeal of a sentence is barred by an appeal waiver provision in a plea agree-\nment, we conduct a two-step inquiry: (1) whether the waiver was knowing and\nvoluntary and (2) whether the waiver applies to the circumstances at hand,\nbased on the plain language of the agreement.” United States v. Bond,\n414 F.3d 542, 544 (5th Cir. 2005).\n\n For a waiver to be knowing and voluntary, “[a] defendant must know\nthat he had a ‘right to appeal his sentence and that he was giving up that\nright.’” United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (quoting\nUnited States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992)). Moreover, “[a]\nwaiver is both knowing and voluntary if the defendant indicates that he read\nand understood the agreement and the agreement contains an ‘explicit, un-\nambiguous waiver of appeal.’” Keele, 755 F.3d at 754 (quoting United States v.\nMcKinney, 406 F.3d 744, 746 (5th Cir. 2005)). But, as acknowledged in the\nplea agreement, “a defendant may always avoid a waiver on the limited\ngrounds that the waiver of appeal itself was tainted by [IAC].” United States\nv. White, 307 F.3d 336, 339 (5th Cir. 2002).\n\n “We apply normal principles of contract interpretation when construing\n\n\n\n\n 4\n\f Case: 17-60133 Document: 00514827715 Page: 5 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\nplea agreements.” 3 When determining “whether an appeal waiver applies to\nthe issues presented, this [c]ourt ‘ascertain[s] the ordinary meaning of the\nwaiver provision,’” Pleitez, 876 F.3d at 156 (quoting United States v. Jacobs,\n635 F.3d 778, 781 (5th Cir. 2011)), and “construe[s] appeal waivers narrowly\n. . . against the government,” id. (quoting United States v. Palmer, 456 F.3d\n484, 488 (5th Cir. 2006)). Nonetheless, “[t]he government has a strong and\nlegitimate interest in both the finality of convictions and in the enforcement of\nplea bargains.” United States v. Dyer, 136 F.3d 417, 429 (5th Cir. 1998).\n\n B.\n With respect to his ACCA claim, Kelly concedes in his reply brief that\n“there is a strong presumption for finding the waiver enforceable, as he . . .\nknowingly and voluntarily plea[ded] guilty and the language in the plea is suf-\nficiently clear.” Kelly, however, tempers this admission by further asserting\nthat “he would not have [pleaded] guilty had he known there was a potential\nchallenge” to the ACCA enhancement under recent Supreme Court caselaw.\nAccordingly, Kelly contends that he “knowingly and voluntarily agreed to plead\nguilty, but only under the premise that there were no meritorious arguments\nto be made regarding the ACCA enhancement.”\n\n In response, the government asserts that the waiver (1) was knowing\nand voluntary and (2) bars the ACCA issue Kelly raises on appeal. The govern-\nment maintains that “[w]here the plea agreement contains an unambiguous\nwaiver signed by the defendant, and the defendant states during the Rule 11\nplea colloquy that he has read and understood [the] agreement, the waiver is\nconsidered knowing and voluntary.” The government further asserts that\n\n\n 3 McKinney, 406 F.3d at 746; see also United States v. Cantu, 185 F.3d 298, 304 (5th\nCir. 1999) (“[W]e apply general principles of contract law in order to interpret the terms of\nthe plea agreement.”).\n 5\n\f Case: 17-60133 Document: 00514827715 Page: 6 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\nKelly knew that “he had a right to appeal his sentence and that he was giving\nup that right” (quoting Portillo, 18 F.3d at 292). The government posits that\n“[i]t is plain, based on his signing the plea agreement and his two declarations\nto the district judge, that Kelly was well aware of his right to appeal and vol-\nuntarily waived that right.” 4\n\n Turning to the second prong, the government claims that “[Kelly’s] chal-\nlenge to the ACCA enhancement is clearly barred because it does not fall\nwithin the Fifth Circuit’s exceptions to enforcement of a validly executed\nwaiver.” 5 Consequently, the waiver is enforceable and bars Kelly’s appeal of\nthis issue.\n\n We must determine whether Kelly’s waiver was knowing and voluntary\nand “whether the waiver applies to the circumstances at hand, based on the\nplain language of the plea agreement.” McKinney, 406 F.3d at 746. The waiver\nsays that “[d]efendant hereby expressly waives any and all rights to appeal the\nconviction in this case, on any ground whatsoever . . . .” 6 At the plea hearing,\nthe court asked Kelly whether he “underst[ood] that by entering into the Plea\nAgreement and entering a guilty plea, [he] waive[d] all rights to appeal [his]\nconviction on any ground and to collaterally attack [his] conviction except for\nallegations of ineffective assistance of counsel and prosecutorial misconduct.” 7\nKelly replied, “Yes, ma’am.”\n\n\n\n 4 See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court\ncarry a strong presumption of verity.”).\n 5 The government concedes, however, that Kelly’s IAC claim is not barred by this\ncourt’s precedent, but “only to the extent that his claim challenges the validity of [the]\nwaiver.”\n 6The waiver further states that “[d]efendant waives these rights in exchange for the\nconcessions and recommendations made by the United States in this plea agreement.”\n 7 Kelly also answered affirmatively when asked whether he “underst[ood] the terms\nof the Plea Agreement and the Plea Supplement.”\n 6\n\f Case: 17-60133 Document: 00514827715 Page: 7 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\n At the sentencing hearing, the court again discussed, at some length, the\nscope and terms of Kelly’s appeal waiver, stating,\n The defendant expressly waives any and all rights to appeal the\n conviction or sentence imposed in this case, pursuant to his Plea\n Agreement, and the manner in which sentence was imposed on any\n ground whatsoever, including, but not limited to, the grounds set\n forth in [18 U.S.C. § 3742] except [as] to claims relating to prose-\n cutorial misconduct and [IAC] relating to the validity of the waiver\n of appeal or the validity of the guilty plea itself. The defendant\n also expressly waives all rights to contest or collaterally attack the\n conviction and/or sentence and the manner in which the sentence\n was imposed in any post-conviction proceeding, including, but not\n limited to, a motion brought pursuant to [28 U.S.C. § 2255] except\n [as] to claims relating to prosecutorial misconduct and [IAC]\n relating to the validity of the waiver of appeal or the validity of the\n guilty plea itself.\nThe district court next asked Kelly whether he understood his sentence as spe-\ncified by the court. Again, Kelly affirmatively acknowledged his understanding\nof the sentence (including the related terms of his plea agreement) by stating\n“Yes, ma’am.” 8\n\n Kelly’s waiver was both knowing and voluntary because the record dem-\nonstrates that “he [both] read and understood the agreement, which include[d]\nan explicit, unambiguous waiver of appeal.” Bond, 414 F.3d at 544; see also\nKeele, 755 F.3d at 754–56; McKinney, 406 F.3d at 746. Moreover, the waiver\napplies to all of Kelly’s potential claims—including a challenge to the applica-\ntion of the ACCA enhancement—except those concerning prosecutorial mis-\nconduct or IAC. Accordingly, although Kelly may not pursue his ACCA claim—\nit is barred by the clear terms of his appeal waiver—he may appeal his IAC\nclaim, under the terms of the plea agreement, and under this court’s precedent\n\n\n\n 8 Kelly also confirmed that he did not “have any questions about any matter related\nto [his] sentence or any part of [the sentencing] proceeding.”\n 7\n\f Case: 17-60133 Document: 00514827715 Page: 8 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\nthat “a defendant may always avoid a waiver on the limited grounds that the\nwaiver of appeal itself was tainted by [IAC].” White, 307 F.3d at 339; see also\nUnited States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995).\n\n III.\n A.\n In Strickland v. Washington, 466 U.S. 668, 687−96 (1984), the Court out-\nlined a two-pronged test for determining whether counsel’s performance was\nineffective. 9 First, “[w]hen a convicted defendant complains of [IAC], the\ndefendant must show that counsel’s representation fell below an objective stan-\ndard of reasonableness.” Id. at 687−88. Second, “any deficiencies in counsel’s\nperformance must be prejudicial to the defense in order to constitute [IAC]\nunder the Constitution.” Id. at 692. Nonetheless, “[b]ecause of the difficulties\ninherent in making the evaluation, a court must indulge a strong presumption\nthat counsel’s conduct falls within the wide range of reasonable professional\nassistance . . . .” Id. at 689. 10 A defendant’s right to effective assistance of\ncounsel extends to the plea-bargaining process. 11\n\n “[A] defendant may always avoid a waiver on the limited grounds that\nthe waiver of appeal itself was tainted by [IAC].” White, 307 F.3d at 339; see\nalso Henderson, 72 F.3d at 465. Nonetheless, “[t]he general rule in this circuit\n\n\n\n 9 See also Gulley, 526 F.3d 809, 821 (5th Cir. 2008) (“A defendant’s Sixth Amendment\nright to counsel is violated if: (1) his counsel’s performance was deficient; and (2) the deficient\nperformance prejudiced his defense.”).\n 10“A fair assessment of attorney performance requires that every effort be made to\neliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s\nchallenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”\nWashington, 466 U.S. at 689.\n 11 Lafler v. Cooper, 566 U.S. 156, 162 (2012) (“During plea negotiations defendants are\n‘entitled to the effective assistance of competent counsel.’” (quoting McMann v. Richardson,\n397 U.S. 759, 771 (1970))); see also Missouri v. Frye, 566 U.S. 134, 140–44 (2012).\n 8\n\f Case: 17-60133 Document: 00514827715 Page: 9 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\nis that a claim of [IAC] cannot be resolved on direct appeal when the claim has\nnot been raised before the district court since no opportunity existed to develop\nthe record on the merits of the allegations.” United States v. Higdon, 832 F.2d\n312, 313–14 (5th Cir. 1987); see also Gulley, 526 F.3d at 821. Consequently,\n“[o]nly in those rare occasions where the record is sufficiently developed will\n[this] court undertake to consider claims of inadequate representation on direct\nappeal.” Gulley, 526 F.3d at 821. Ultimately, unless we can “fairly evaluate\nthe claim from the record, we must decline to consider the issue without preju-\ndice to a defendant’s right to raise it in a subsequent proceeding.” Id. 12\n\n B.\n Kelly contends that “[t]his is one of those rare cases” in which the record\nis sufficiently developed to allow us to reach the merits of his IAC claim on\ndirect appeal. Turning to the Washington factors, Kelly asserts that “[t]he\nmere failure [of trial counsel] to challenge [his] prior convictions post-Johnson\nand Mathis was deficient performance and severely prejudiced [him].” Kelly\nfurther maintains that “[f]ailing to keep current on Supreme Court cases and\nrelevant circuit court precedent is deficient performance,” especially given that\nboth precedents “were easily accessible and gravely important to challenging\nthe ACCA enhancement.” 13 Accordingly, “[n]o sound trial strategy can be rea-\nsoned for not objecting to the [ACCA] enhancement at the infancy of the case\nor at sentencing,” and his trial counsel’s performance should be deemed defici-\nent because “it falls below an objective standard of reasonableness.”\n\n Kelly also asserts that he was prejudiced by his counsel’s deficient\n\n\n 12See also United States v. Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999) (“We\ndo not review a claim of [IAC] on direct appeal unless the district court has first addressed it\nor unless the record is sufficiently developed to allow us to evaluate the claim on its merits.”).\n 13Kelly notes that Johnson was released before both his change-of-plea hearing and\nsentencing, while Mathis was released before sentencing.\n 9\n\f Case: 17-60133 Document: 00514827715 Page: 10 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\nperformance. He acknowledges that he “bears the burden of demonstrating\n. . . ‘there is a reasonable probability that, but for counsel’s errors, he would\nnot have pleaded guilty and would have insisted on going to trial’” (quoting\nHill v. Lockhart, 474 U.S. 52, 59 (1985)). Kelly maintains that had the ACCA\nenhancement not been applied, “he would have faced a substantially lower\nguidelines range which would have led to a plea agreement without the ACCA\nenhancement.” Kelly claims that “[i]nstead of a fifteen-year mandatory mini-\nmum and a suggested [g]uidelines range of 180–188 months,” he would have\nfaced a range of 46–57 months even before the court granted the § 5K1.1\nmotion. 14 Moreover, had his trial counsel been effective, “Kelly would have\nbeen able to preserve his objection to the [ACCA] enhancement,” thereby also\nproviding the benefit of de novo, rather than plain error, review.\n\n In response, the government contends that the record in the district\ncourt is insufficient to determine whether trial counsel’s plea strategy was\nsound. Highlighting circuit precedent, the government maintains that “[i]f\n[this] [c]ourt cannot make the determination on the record before it, it should\ndismiss the claim without prejudice and allow the defendant to raise it in\nanother proceeding where the record can be developed.” “[F]ar from being a\nrare case ripe for direct review,” the government asserts that “Kelly’s [IAC]\nclaim begs for further factual development.”\n\n The government likewise challenges the assumption that “had [Kelly’s]\ncounsel raised the issues he now [raises] on appeal, he would have gotten a\nbetter result,” contending that such an approach “overlooks a variety of\n\n\n\n 14The government disputes this claim, maintaining that “[t]here are . . . uncertainties\nas to what Kelly’s guideline range would be if he was not a violent offender under the ACCA.\nKelly recalculates his guideline range assuming that both of his violent felonies should be\ndiscounted; however, if [only] one violent felony is discounted . . . then his guideline range\nwould be higher than he estimates.”\n 10\n\f Case: 17-60133 Document: 00514827715 Page: 11 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\npractical considerations that may have affected his sentence.” Ultimately, the\ngovernment maintains that “the [c]ourt can only speculate as to why Kelly’s\ncounsel chose not to object to the ACCA enhancement” and urges that we “dis-\nmiss [the IAC] claim without prejudice [so that] Kelly [may] pursue it in the\ntrial court.”\n\n At bottom, Kelly’s IAC claim was not sufficiently developed. Although\nhe raised the issue in a pro se habeas corpus petition that he filed in the district\ncourt after sentencing, the court dismissed it without prejudice for lack of jur-\nisdiction because “Kelly’s direct appeal [was] pending.” The court did not hold\na hearing on the claim.\n\n Ultimately, much like the defendant in Gulley, Kelly’s “claim is not ripe\nfor review because ‘the district court did not hold a hearing and the record does\nnot provide sufficient detail about trial counsel’s conduct and motivations to\nallow this court to make a fair evaluation of the merits of [his] claim.’” Gulley,\n526 F.3d at 821 (quoting United States v. Aguilar, 503 F.3d 431, 436 (5th Cir.\n2007)). Here, as in Higdon, 832 F.3d at 314, we “can only speculate on the\nbasis for defense counsel’s actions” because there is no discussion in the record\nconcerning trial counsel’s rationale for making his strategic choices, including\nthe decision not to challenge the ACCA enhancement. Accordingly, Kelly’s IAC\nclaim is not ripe for review on direct appeal.\n\n In sum, because Kelly’s ACCA enhancement claim is barred by the\nappeal waiver, and his IAC claim is not ripe for review on direct appeal, the\nappeal is DISMISSED, but without prejudice to Kelly’s right to raise IAC on\ncollateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).\n\n\n\n\n 11\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Terry KELLY, Also Known as T.K., Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-08\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-60133 Document: 00514827715 Page: 1 Date Filed: 02/08/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 17-60133 United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n February 8, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n\\n Plaintiff–Appellee,\\n\\nversus\\n\\nTERRY KELLY, Also Known as T.K.,\\n\\n Defendant–Appellant.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Mississippi\\n\\n\\n\\n\\nBefore SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n Terry Kelly pleaded guilty of being a felon in possession of a firearm, in\\nviolation of 18 U.S.C. § 922(g)(1) and enhanced per the Armed Career Criminal\\nAct (“ACCA”), 18 U.S.C. § 924(e) (2012). As part of his plea agreement, Kelly\\nagreed to an appeal waiver, yet he appeals.\\n\\n Kelly raises two issues. First, he asserts that the district court plainly\\nerred in applying the ACCA enhancement because he lacks the requisite\\n\\f Case: 17-60133 Document: 00514827715 Page: 2 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\nnumber of violent felony predicates. Second, he claims that he received in-\\neffective assistance of counsel (“IAC”), resulting in an increased term of impris-\\nonment. Because Kelly’s ACCA enhancement claim is barred by his appeal\\nwaiver and his IAC claim is not ripe for review on direct appeal, we dismiss\\nthe appeal as to both claims.\\n\\n I.\\n Police searched Kelly’s house after receiving information that stolen\\nproperty might be there. During the search, officers discovered that Kelly, a\\nconvicted felon, was in possession of two rifles, hence the indictment. 1\\n\\n Kelly and his lawyer signed a plea agreement in which he agreed to plead\\nguilty to the one-count indictment in exchange for the government’s agreement\\n“not to charge [him] with any other offenses known by the [g]overnment arising\\nfrom or related to the above charges.” As part of the deal, Kelly agreed to a\\nwaiver of appeals and collateral attacks, which stated,\\n WAIVER OF APPEALS AND COLLATERAL ATTACKS: Defen-\\n dant hereby expressly waives any and all rights to appeal the con-\\n viction in this case, on any ground whatsoever, including but not\\n limited to the grounds set forth in 18 U.S.C. § 3742. Defendant\\n also hereby expressly waives all rights to contest or collaterally at-\\n tack the conviction in any post-conviction proceeding, including\\n but not limited to a motion brought pursuant to 28 U.S.C. § 2255,\\n excepting only allegations of ineffective assistance of counsel and\\n prosecutorial misconduct. Defendant waives these rights in ex-\\n change for the concessions and recommendations made by the\\n United States in this plea agreement.\\n The district court held a Rule 11 plea hearing. In addition to discussing\\nthe charge and the related enhancement, the court emphasized Kelly’s appeal\\n\\n\\n\\n 1 See 18 U.S.C. §§ 922(g)(1), 924(e). The indictment listed three of Kelly’s previous\\nfelony convictions, including burglary of a dwelling, burglary, and shooting into an occupied\\ndwelling.\\n 2\\n\\f Case: 17-60133 Document: 00514827715 Page: 3 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\nwaiver: “[D]o you, in particular, understand that by entering into the Plea\\nAgreement and entering a guilty plea, you will waive all rights to appeal your\\nconviction on any ground and to collaterally attack your conviction except for\\nallegations of ineffective assistance of counsel and prosecutorial misconduct?”\\nKelly answered in the affirmative (“Yes, ma’am.”), acknowledging that he\\nunderstood his plea agreement and the related appeal waiver.\\n\\n After the guilty plea, the government filed a U.S.S.G. § 5K1.1 motion on\\nbehalf of Kelly for his substantial assistance with a RICO investigation against\\nthe Aryan Brotherhood of Mississippi. 2 The district court granted the § 5K1.1\\nmotion and imposed a 100-month term of imprisonment plus five years of\\nsupervised release. The sentence imposed was below both the ACCA minimum\\nof fifteen years and the recommended guideline range of 180 to 188 months.\\nAt sentencing, Kelly again affirmed that he “expressly waive[d] any and all\\nrights” to appeal or collaterally attack “the conviction or sentence imposed\\n. . . except [as] to claims relating to prosecutorial misconduct and ineffective\\nassistance of counsel relating to the validity of the waiver of appeal or the\\nvalidity of the guilty plea itself.”\\n\\n After sentencing, however, Kelly raised an IAC claim, which prompted\\nhis trial counsel to withdraw. This court assigned the Federal Public Defender\\nto represent Kelly on appeal and granted Kelly’s unopposed motion for leave\\nto file an untimely notice of appeal.\\n\\n II.\\n Kelly raises two issues on appeal. First, he asserts that the district court\\n\\n\\n 2 In its § 5K1.1 motion, the government noted that, inter alia, “Kelly showed courage\\nby sitting on the stand across from two individuals who had the authority within [the Aryan\\nBrotherhood of Mississippi] to order that he be killed. And he testified truthfully and pro-\\nvided the government with substantial assistance . . . in secur[ing] conviction at that trial for\\nthe two defendants who [Kelly] testified against.”\\n 3\\n\\f Case: 17-60133 Document: 00514827715 Page: 4 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\nplainly erred in applying the ACCA enhancement. Second, he claims IAC.\\nBefore analyzing either claim, we must address the applicability and scope of\\nthe appeal waiver.\\n\\n A.\\n “This court reviews de novo whether an appeal waiver bars an appeal.”\\nUnited States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). “A criminal defendant\\nmay waive his statutory right to appeal in a valid plea agreement.” United\\nStates v. Pleitez, 876 F.3d 150, 156 (5th Cir. 2017). When deciding “whether\\nan appeal of a sentence is barred by an appeal waiver provision in a plea agree-\\nment, we conduct a two-step inquiry: (1) whether the waiver was knowing and\\nvoluntary and (2) whether the waiver applies to the circumstances at hand,\\nbased on the plain language of the agreement.” United States v. Bond,\\n414 F.3d 542, 544 (5th Cir. 2005).\\n\\n For a waiver to be knowing and voluntary, “[a] defendant must know\\nthat he had a ‘right to appeal his sentence and that he was giving up that\\nright.’” United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (quoting\\nUnited States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992)). Moreover, “[a]\\nwaiver is both knowing and voluntary if the defendant indicates that he read\\nand understood the agreement and the agreement contains an ‘explicit, un-\\nambiguous waiver of appeal.’” Keele, 755 F.3d at 754 (quoting United States v.\\nMcKinney, 406 F.3d 744, 746 (5th Cir. 2005)). But, as acknowledged in the\\nplea agreement, “a defendant may always avoid a waiver on the limited\\ngrounds that the waiver of appeal itself was tainted by [IAC].” United States\\nv. White, 307 F.3d 336, 339 (5th Cir. 2002).\\n\\n “We apply normal principles of contract interpretation when construing\\n\\n\\n\\n\\n 4\\n\\f Case: 17-60133 Document: 00514827715 Page: 5 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\nplea agreements.” 3 When determining “whether an appeal waiver applies to\\nthe issues presented, this [c]ourt ‘ascertain[s] the ordinary meaning of the\\nwaiver provision,’” Pleitez, 876 F.3d at 156 (quoting United States v. Jacobs,\\n635 F.3d 778, 781 (5th Cir. 2011)), and “construe[s] appeal waivers narrowly\\n. . . against the government,” id. (quoting United States v. Palmer, 456 F.3d\\n484, 488 (5th Cir. 2006)). Nonetheless, “[t]he government has a strong and\\nlegitimate interest in both the finality of convictions and in the enforcement of\\nplea bargains.” United States v. Dyer, 136 F.3d 417, 429 (5th Cir. 1998).\\n\\n B.\\n With respect to his ACCA claim, Kelly concedes in his reply brief that\\n“there is a strong presumption for finding the waiver enforceable, as he . . .\\nknowingly and voluntarily plea[ded] guilty and the language in the plea is suf-\\nficiently clear.” Kelly, however, tempers this admission by further asserting\\nthat “he would not have [pleaded] guilty had he known there was a potential\\nchallenge” to the ACCA enhancement under recent Supreme Court caselaw.\\nAccordingly, Kelly contends that he “knowingly and voluntarily agreed to plead\\nguilty, but only under the premise that there were no meritorious arguments\\nto be made regarding the ACCA enhancement.”\\n\\n In response, the government asserts that the waiver (1) was knowing\\nand voluntary and (2) bars the ACCA issue Kelly raises on appeal. The govern-\\nment maintains that “[w]here the plea agreement contains an unambiguous\\nwaiver signed by the defendant, and the defendant states during the Rule 11\\nplea colloquy that he has read and understood [the] agreement, the waiver is\\nconsidered knowing and voluntary.” The government further asserts that\\n\\n\\n 3 McKinney, 406 F.3d at 746; see also United States v. Cantu, 185 F.3d 298, 304 (5th\\nCir. 1999) (“[W]e apply general principles of contract law in order to interpret the terms of\\nthe plea agreement.”).\\n 5\\n\\f Case: 17-60133 Document: 00514827715 Page: 6 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\nKelly knew that “he had a right to appeal his sentence and that he was giving\\nup that right” (quoting Portillo, 18 F.3d at 292). The government posits that\\n“[i]t is plain, based on his signing the plea agreement and his two declarations\\nto the district judge, that Kelly was well aware of his right to appeal and vol-\\nuntarily waived that right.” 4\\n\\n Turning to the second prong, the government claims that “[Kelly’s] chal-\\nlenge to the ACCA enhancement is clearly barred because it does not fall\\nwithin the Fifth Circuit’s exceptions to enforcement of a validly executed\\nwaiver.” 5 Consequently, the waiver is enforceable and bars Kelly’s appeal of\\nthis issue.\\n\\n We must determine whether Kelly’s waiver was knowing and voluntary\\nand “whether the waiver applies to the circumstances at hand, based on the\\nplain language of the plea agreement.” McKinney, 406 F.3d at 746. The waiver\\nsays that “[d]efendant hereby expressly waives any and all rights to appeal the\\nconviction in this case, on any ground whatsoever . . . .” 6 At the plea hearing,\\nthe court asked Kelly whether he “underst[ood] that by entering into the Plea\\nAgreement and entering a guilty plea, [he] waive[d] all rights to appeal [his]\\nconviction on any ground and to collaterally attack [his] conviction except for\\nallegations of ineffective assistance of counsel and prosecutorial misconduct.” 7\\nKelly replied, “Yes, ma’am.”\\n\\n\\n\\n 4 See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court\\ncarry a strong presumption of verity.”).\\n 5 The government concedes, however, that Kelly’s IAC claim is not barred by this\\ncourt’s precedent, but “only to the extent that his claim challenges the validity of [the]\\nwaiver.”\\n 6The waiver further states that “[d]efendant waives these rights in exchange for the\\nconcessions and recommendations made by the United States in this plea agreement.”\\n 7 Kelly also answered affirmatively when asked whether he “underst[ood] the terms\\nof the Plea Agreement and the Plea Supplement.”\\n 6\\n\\f Case: 17-60133 Document: 00514827715 Page: 7 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\n At the sentencing hearing, the court again discussed, at some length, the\\nscope and terms of Kelly’s appeal waiver, stating,\\n The defendant expressly waives any and all rights to appeal the\\n conviction or sentence imposed in this case, pursuant to his Plea\\n Agreement, and the manner in which sentence was imposed on any\\n ground whatsoever, including, but not limited to, the grounds set\\n forth in [18 U.S.C. § 3742] except [as] to claims relating to prose-\\n cutorial misconduct and [IAC] relating to the validity of the waiver\\n of appeal or the validity of the guilty plea itself. The defendant\\n also expressly waives all rights to contest or collaterally attack the\\n conviction and/or sentence and the manner in which the sentence\\n was imposed in any post-conviction proceeding, including, but not\\n limited to, a motion brought pursuant to [28 U.S.C. § 2255] except\\n [as] to claims relating to prosecutorial misconduct and [IAC]\\n relating to the validity of the waiver of appeal or the validity of the\\n guilty plea itself.\\nThe district court next asked Kelly whether he understood his sentence as spe-\\ncified by the court. Again, Kelly affirmatively acknowledged his understanding\\nof the sentence (including the related terms of his plea agreement) by stating\\n“Yes, ma’am.” 8\\n\\n Kelly’s waiver was both knowing and voluntary because the record dem-\\nonstrates that “he [both] read and understood the agreement, which include[d]\\nan explicit, unambiguous waiver of appeal.” Bond, 414 F.3d at 544; see also\\nKeele, 755 F.3d at 754–56; McKinney, 406 F.3d at 746. Moreover, the waiver\\napplies to all of Kelly’s potential claims—including a challenge to the applica-\\ntion of the ACCA enhancement—except those concerning prosecutorial mis-\\nconduct or IAC. Accordingly, although Kelly may not pursue his ACCA claim—\\nit is barred by the clear terms of his appeal waiver—he may appeal his IAC\\nclaim, under the terms of the plea agreement, and under this court’s precedent\\n\\n\\n\\n 8 Kelly also confirmed that he did not “have any questions about any matter related\\nto [his] sentence or any part of [the sentencing] proceeding.”\\n 7\\n\\f Case: 17-60133 Document: 00514827715 Page: 8 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\nthat “a defendant may always avoid a waiver on the limited grounds that the\\nwaiver of appeal itself was tainted by [IAC].” White, 307 F.3d at 339; see also\\nUnited States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995).\\n\\n III.\\n A.\\n In Strickland v. Washington, 466 U.S. 668, 687−96 (1984), the Court out-\\nlined a two-pronged test for determining whether counsel’s performance was\\nineffective. 9 First, “[w]hen a convicted defendant complains of [IAC], the\\ndefendant must show that counsel’s representation fell below an objective stan-\\ndard of reasonableness.” Id. at 687−88. Second, “any deficiencies in counsel’s\\nperformance must be prejudicial to the defense in order to constitute [IAC]\\nunder the Constitution.” Id. at 692. Nonetheless, “[b]ecause of the difficulties\\ninherent in making the evaluation, a court must indulge a strong presumption\\nthat counsel’s conduct falls within the wide range of reasonable professional\\nassistance . . . .” Id. at 689. 10 A defendant’s right to effective assistance of\\ncounsel extends to the plea-bargaining process. 11\\n\\n “[A] defendant may always avoid a waiver on the limited grounds that\\nthe waiver of appeal itself was tainted by [IAC].” White, 307 F.3d at 339; see\\nalso Henderson, 72 F.3d at 465. Nonetheless, “[t]he general rule in this circuit\\n\\n\\n\\n 9 See also Gulley, 526 F.3d 809, 821 (5th Cir. 2008) (“A defendant’s Sixth Amendment\\nright to counsel is violated if: (1) his counsel’s performance was deficient; and (2) the deficient\\nperformance prejudiced his defense.”).\\n 10“A fair assessment of attorney performance requires that every effort be made to\\neliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s\\nchallenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”\\nWashington, 466 U.S. at 689.\\n 11 Lafler v. Cooper, 566 U.S. 156, 162 (2012) (“During plea negotiations defendants are\\n‘entitled to the effective assistance of competent counsel.’” (quoting McMann v. Richardson,\\n397 U.S. 759, 771 (1970))); see also Missouri v. Frye, 566 U.S. 134, 140–44 (2012).\\n 8\\n\\f Case: 17-60133 Document: 00514827715 Page: 9 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\nis that a claim of [IAC] cannot be resolved on direct appeal when the claim has\\nnot been raised before the district court since no opportunity existed to develop\\nthe record on the merits of the allegations.” United States v. Higdon, 832 F.2d\\n312, 313–14 (5th Cir. 1987); see also Gulley, 526 F.3d at 821. Consequently,\\n“[o]nly in those rare occasions where the record is sufficiently developed will\\n[this] court undertake to consider claims of inadequate representation on direct\\nappeal.” Gulley, 526 F.3d at 821. Ultimately, unless we can “fairly evaluate\\nthe claim from the record, we must decline to consider the issue without preju-\\ndice to a defendant’s right to raise it in a subsequent proceeding.” Id. 12\\n\\n B.\\n Kelly contends that “[t]his is one of those rare cases” in which the record\\nis sufficiently developed to allow us to reach the merits of his IAC claim on\\ndirect appeal. Turning to the Washington factors, Kelly asserts that “[t]he\\nmere failure [of trial counsel] to challenge [his] prior convictions post-Johnson\\nand Mathis was deficient performance and severely prejudiced [him].” Kelly\\nfurther maintains that “[f]ailing to keep current on Supreme Court cases and\\nrelevant circuit court precedent is deficient performance,” especially given that\\nboth precedents “were easily accessible and gravely important to challenging\\nthe ACCA enhancement.” 13 Accordingly, “[n]o sound trial strategy can be rea-\\nsoned for not objecting to the [ACCA] enhancement at the infancy of the case\\nor at sentencing,” and his trial counsel’s performance should be deemed defici-\\nent because “it falls below an objective standard of reasonableness.”\\n\\n Kelly also asserts that he was prejudiced by his counsel’s deficient\\n\\n\\n 12See also United States v. Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999) (“We\\ndo not review a claim of [IAC] on direct appeal unless the district court has first addressed it\\nor unless the record is sufficiently developed to allow us to evaluate the claim on its merits.”).\\n 13Kelly notes that Johnson was released before both his change-of-plea hearing and\\nsentencing, while Mathis was released before sentencing.\\n 9\\n\\f Case: 17-60133 Document: 00514827715 Page: 10 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\nperformance. He acknowledges that he “bears the burden of demonstrating\\n. . . ‘there is a reasonable probability that, but for counsel’s errors, he would\\nnot have pleaded guilty and would have insisted on going to trial’” (quoting\\nHill v. Lockhart, 474 U.S. 52, 59 (1985)). Kelly maintains that had the ACCA\\nenhancement not been applied, “he would have faced a substantially lower\\nguidelines range which would have led to a plea agreement without the ACCA\\nenhancement.” Kelly claims that “[i]nstead of a fifteen-year mandatory mini-\\nmum and a suggested [g]uidelines range of 180–188 months,” he would have\\nfaced a range of 46–57 months even before the court granted the § 5K1.1\\nmotion. 14 Moreover, had his trial counsel been effective, “Kelly would have\\nbeen able to preserve his objection to the [ACCA] enhancement,” thereby also\\nproviding the benefit of de novo, rather than plain error, review.\\n\\n In response, the government contends that the record in the district\\ncourt is insufficient to determine whether trial counsel’s plea strategy was\\nsound. Highlighting circuit precedent, the government maintains that “[i]f\\n[this] [c]ourt cannot make the determination on the record before it, it should\\ndismiss the claim without prejudice and allow the defendant to raise it in\\nanother proceeding where the record can be developed.” “[F]ar from being a\\nrare case ripe for direct review,” the government asserts that “Kelly’s [IAC]\\nclaim begs for further factual development.”\\n\\n The government likewise challenges the assumption that “had [Kelly’s]\\ncounsel raised the issues he now [raises] on appeal, he would have gotten a\\nbetter result,” contending that such an approach “overlooks a variety of\\n\\n\\n\\n 14The government disputes this claim, maintaining that “[t]here are . . . uncertainties\\nas to what Kelly’s guideline range would be if he was not a violent offender under the ACCA.\\nKelly recalculates his guideline range assuming that both of his violent felonies should be\\ndiscounted; however, if [only] one violent felony is discounted . . . then his guideline range\\nwould be higher than he estimates.”\\n 10\\n\\f Case: 17-60133 Document: 00514827715 Page: 11 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-60133\\npractical considerations that may have affected his sentence.” Ultimately, the\\ngovernment maintains that “the [c]ourt can only speculate as to why Kelly’s\\ncounsel chose not to object to the ACCA enhancement” and urges that we “dis-\\nmiss [the IAC] claim without prejudice [so that] Kelly [may] pursue it in the\\ntrial court.”\\n\\n At bottom, Kelly’s IAC claim was not sufficiently developed. Although\\nhe raised the issue in a pro se habeas corpus petition that he filed in the district\\ncourt after sentencing, the court dismissed it without prejudice for lack of jur-\\nisdiction because “Kelly’s direct appeal [was] pending.” The court did not hold\\na hearing on the claim.\\n\\n Ultimately, much like the defendant in Gulley, Kelly’s “claim is not ripe\\nfor review because ‘the district court did not hold a hearing and the record does\\nnot provide sufficient detail about trial counsel’s conduct and motivations to\\nallow this court to make a fair evaluation of the merits of [his] claim.’” Gulley,\\n526 F.3d at 821 (quoting United States v. Aguilar, 503 F.3d 431, 436 (5th Cir.\\n2007)). Here, as in Higdon, 832 F.3d at 314, we “can only speculate on the\\nbasis for defense counsel’s actions” because there is no discussion in the record\\nconcerning trial counsel’s rationale for making his strategic choices, including\\nthe decision not to challenge the ACCA enhancement. Accordingly, Kelly’s IAC\\nclaim is not ripe for review on direct appeal.\\n\\n In sum, because Kelly’s ACCA enhancement claim is barred by the\\nappeal waiver, and his IAC claim is not ripe for review on direct appeal, the\\nappeal is DISMISSED, but without prejudice to Kelly’s right to raise IAC on\\ncollateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).\\n\\n\\n\\n\\n 11\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":596,"cells":{"id":{"kind":"number","value":4588862,"string":"4,588,862"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee v. Jennifer Lynn RICHMOND, Defendant - Appellant"},"name_abbreviation":{"kind":"string","value":"United States v. Jennifer Richmond"},"decision_date":{"kind":"string","value":"2019-02-08"},"docket_number":{"kind":"string","value":"17-40299"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Graves, Costa, Bennett\", \"parties\": \"\", \"opinions\": [{\"author\": \"GREGG COSTA, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-40299 Document: 00514827910 Page: 1 Date Filed: 02/08/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-40299 February 8, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nJENNIFER LYNN RICHMOND,\\n\\n Defendant - Appellant\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore GRAVES and COSTA, Circuit Judges and BENNETT, District Judge.*\\nGREGG COSTA, Circuit Judge:\\n During a traffic stop, a state trooper pushed his fingers against the\\nvehicle’s tire to try and confirm his suspicion that it contained more than just\\nair. We conclude that the brief physical examination of the tire was subject to\\nthe Fourth Amendment under the recently revived trespass test for deciding\\nwhat is a search. The search was a reasonable one, however, because there\\n\\n\\n\\n\\n * District Judge for the Southern District of Texas, sitting by designation.\\n\\f Case: 17-40299 Document: 00514827910 Page: 2 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\nwas probable cause to believe the loose tire posed a safety risk.\\n I.\\n A\\n Texas State Trooper Manuel Gonzales was patrolling U.S. Highway 77\\nin south Texas when he saw a blue pickup Jennifer Richmond was driving. He\\ndrove alongside the truck and saw that the tires were “shaking,” “wobbly,” and\\n“unbalanced.” He was concerned that the tires were a potential danger to the\\npublic. After the truck drove across the fog line between the right lane and the\\nshoulder of the highway, Gonzales initiated a traffic stop. When the vehicle\\ncame to a stop, Gonzales saw that one of the truck’s brake lights was broken.\\nHe ran the license plate and learned the truck was registered two days earlier\\nin nearby Brownsville.\\n When he approached the vehicle, Gonzales explained the reason for the\\nstop—that Richmond crossed the fog line—and also told her about the brake\\nlight. Richmond apologized and, without prompting, stated that she was from\\nArizona. She avoided eye contact, and Gonzales noticed that her hands were\\n“trembling,” her mouth was “dry,” and her lips had “a white coating.”\\n In response to questioning, Richmond said that she was from Tucson but\\nwas traveling to Brownsville, where she was moving with her husband.\\nGonzales asked Richmond to exit the truck so that he could show her the\\nbroken brake light. Richmond complied.\\n As Gonzales walked to the rear of the truck, he looked at the passenger-\\nside rear tire and observed that the bolts “had been stripped as [if] they had\\nbeen taken off numerous times.”\\n This is when the challenged conduct occurred. Gonzales pushed on the\\ntire with his hand. The resulting sound was not what “a normal tire with air”\\nwould produce; instead there was a “solid thumping noise” that indicated\\nsomething besides air was inside. Gonzales, who already was concerned about\\n 2\\n\\f Case: 17-40299 Document: 00514827910 Page: 3 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\nthe tires because he had seen them bouncing before the stop, became more\\nsuspicious that they might contain drugs.\\n After tapping the tire, Gonzales resumed asking Richmond about her\\npersonal history and itinerary. She could not readily recall her age, date of\\nbirth, or husband’s name. Richmond asserted that she was traveling to Dallas\\nto visit a friend, but did not know the friend’s phone number or address.\\nStranger still, she said she intended to use Google to learn the friend’s address\\nand would return home if that search came up empty.\\n When Gonzales went back to his car to check Richmond’s license and the\\nvehicle’s registration, he discovered that, contrary to her story about driving\\nfrom Arizona, the truck had entered Mexico the day before. It had crossed\\nback into the United States only a few hours before the traffic stop.\\n Gonzalez then obtained Richmond’s consent to search the truck. After\\nfinding suspicious items inside the vehicle, Gonzales “let some air out [of the\\ntires] and [ ] smelled some kind of chemical cleaning odor coming out of them.”\\nAt least one of the tires did not release air. Gonzales checked beneath the\\ntruck and saw “fingerprints [ ] on the inside of . . . the rims” and an atypical\\namount of weight placed on the tires to try to balance them. When he removed\\nthe tires, they seemed unusually heavy and solid.\\n Gonzales decided to take the truck to a local car dealership and have the\\ntires examined. Technicians at the dealership discovered secret compartments\\nthat contained methamphetamine.\\n B\\n After being charged with trafficking that meth, Richmond tried to\\nsuppress its discovery. She challenged the lawfulness of the stop and its\\nlength. The district court rejected those arguments, concluding that\\nreasonable suspicion of a traffic violation supported the stop and that\\nRichmond’s suspicious statements and demeanor raised sufficient concerns\\n 3\\n\\f Case: 17-40299 Document: 00514827910 Page: 4 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\nabout drug trafficking to support extending the stop for the additional time\\nthat resulted in her consenting to the search.\\n After the motion was denied, Richmond entered a guilty plea that\\nallowed her to appeal the suppression ruling. Before sentencing, Richmond\\nfiled an amended motion to suppress that argued for the first time that\\nGonzales’s tap of her tire was a search not supported by probable cause. At\\nthe sentencing hearing, the district court considered but rejected Richmond’s\\namended motion because “as the law stands now, tapping tires is not a search.”\\nThe district court noted that it would permit Richmond to appeal the tire tap\\nissue along with her original Fourth Amendment claims in light of her\\nconditional guilty plea.\\n II.\\n Richmond no longer challenges the initial stop or that there was\\nreasonable suspicion of drug trafficking to extend the stop until the point when\\nGonzales physically examined the tire. And in not challenging events after\\nGonzales learned that the tire likely contained more than just air, Richmond\\napparently acknowledges that discovery justified further investigation into the\\ntrafficking up until when she consented to a full search. 1\\n So the tap of the tire is the focus of this appeal. Richmond contends that\\nit was a search within the meaning of the Fourth Amendment. That is the\\ncase, she says, because touching the tire was a trespass which counts as a\\nsearch under recent Supreme Court cases. See Florida v. Jardines, 569 U.S.\\n1, 5 (2013); United States v. Jones, 565 U.S. 400, 404–07 & n.3 (2012).\\n The government counters that we have previously held that similar law\\nenforcement conduct is not a search. In United States v. Muniz-Melchor, 894\\n\\n\\n\\n 1 The government does not dispute Richmond’s premise that an unlawful search of the\\ntire would have tainted the investigation that followed, including her consent.\\n 4\\n\\f Case: 17-40299 Document: 00514827910 Page: 5 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\nF.2d 1430 (5th Cir. 1990), a border patrol agent used a pocket knife to tap the\\nside of a propane tank mounted in the bed of a pickup. Id. at 1432. We\\nacknowledged that the tapping “may have constituted a technical trespass,” id.\\nat 1435, but explained that Katz v. United States, 389 U.S. 347 (1967), had\\n“rejected the notion that what constitutes a trespass under various property\\nlaws necessarily constitutes a search under the Fourth Amendment.” 894 F.2d\\nat 1434. Instead, the then-prevailing Katz test—which came not from the\\nmajority opinion but from Justice Harlan’s concurrence—asked whether the\\nperson challenging a search had a reasonable expectation of privacy in the item\\nbeing examined. 2 Id. (quoting Katz, 389 U.S. at 360–61 (Harlan, J.,\\nconcurring)). The answer was “no” for the owner of the tapped propane tank\\nbecause he “surely . . . must have reasonably expected that someone, such as a\\ngasoline station attendant, might lean against the tank or touch it in some\\nmanner.” Id at 1435.\\n That expectation of contact is even greater for a vehicle’s tire as it is\\nroutinely checked for air pressure. So Muniz-Melcher binds us on the\\n“reasonable expectation of privacy” question. Richmond did not have a\\nreasonable basis to believe that the tire would not be touched.\\n But a precedent binds us only as far as it goes. See Brecht v. Abrahmson,\\n507 U.S. 619, 631 (1993) (explaining that an opinion is not binding on a\\nquestion it “never squarely addressed”). Richmond contends that Muniz-\\nMelcher did not decide whether tapping part of a vehicle was a search under a\\n\\n\\n\\n\\n 2Katz’s focus on privacy marked a reversal in allowing electronic eavesdropping to be\\ntreated as a search even when it does not involve physical penetration into an individual’s\\nproperty. 389 U.S. at 352–53 (overruling Goldman v. United States, 316 U.S. 129 (1942), and\\nOlmstead v. United States, 277 U.S. 438 (1928)); see also Orin Kerr, The Curious History of\\nFourth Amendment Searches, 2012 SUP. CT. REV. 67, 85 (recognizing that pre-Katz cases had\\n“eventually focus[ed] on physical penetration into a protected space as the primary test for a\\nFourth Amendment search” even if trespass was not the focus).\\n 5\\n\\f Case: 17-40299 Document: 00514827910 Page: 6 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\ntrespass theory because, as the opinion recognized, at that time a physical\\nintrusion did not on its own constitute a search.\\n We agree. Katz held that “[t]he premise that property interests control\\nthe right of the Government to search and seize has been discredited.” 389\\nU.S. at 353 (quoting Warden v. Hayden, 387 U.S. 294, 304 (1967)). In the\\ndecades that followed, a trespass did not automatically amount to a search.\\nSee United States v. Karo, 468 U.S. 705, 713 (1984) (“[A]n actual trespass is\\nneither necessary nor sufficient to establish a constitutional violation.”); Oliver\\nv. United States, 466 U.S. 170, 183–84 (1984) (holding that narcotics agent\\nsearching for marijuana in the open fields of a farm was not a search even\\nthough it was a trespass). But in 2012, United States v. Jones revived the\\nproperty approach that most, including our court, thought Katz had\\njettisoned. 3 565 U.S. at 400. In explaining why a search occurred when law\\nenforcement placed a GPS tracking device on the undercarriage of a car, the\\nCourt relied on “the common-law trespassory test,” which it treated as a\\nseparate basis for finding a search alongside the Katz “reasonable expectation\\nof privacy” test. 565 U.S. at 409.\\n Lower courts recognized Jones as a sea change. See, e.g., United States\\nv. Ackerman, 831 F.3d 1292, 1307 (10th Cir. 2016) (Gorsuch, J.) (explaining\\nthat that there is now “reason to wonder” about the vitality of a 1984 Supreme\\nCourt decision after “Jones held that the Katz formula is but one way to\\ndetermine if a . . . ‘search’ has taken place”); United States v. Sweeney, 821 F.3d\\n893, 899 (7th Cir. 2016) (“In recent years, the Supreme Court has revived a\\n‘property-based approach’ to identify unconstitutional searches.”); United\\n\\n\\n 3A prominent Fourth Amendment scholar contends that Jones did not so much revive\\nthe property-based approach as invent it. Kerr, supra note 2, at 68 (reaching “the surprising\\nconclusion that no trespass test was used in the pre-Katz era”). That historical account is\\neven more problematic for the government’s view that a trespass test has always governed\\nFourth Amendment law, including when Muniz-Melcher was decided.\\n 6\\n\\f Case: 17-40299 Document: 00514827910 Page: 7 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\nStates v. Katzin, 769 F.3d 163, 181 (3d Cir. 2014) (en banc) (explaining that\\n“Jones fundamentally altered [the] legal landscape by reviving—after a forty-\\nfive year hibernation—the Supreme Court’s trespass theory”). So did Fourth\\nAmendment scholars. 4 The leading treatise on searches had to add a new\\nchapter to its section on “Protected Areas and Interests.” The title of the\\naddition? “Trespass as an alternate theory.” Compare Wayne R. LaFave et\\nal., 1 SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 2.1(e) (5th\\ned. 2012) (explaining that although Katz “seemed to sound the death knell for\\nthe pre-Katz ‘trespass’ approach,” the “doctrine re-emerged as an alternate\\ntheory to the Katz expectation-of-privacy test”), with id. § 2.1 (4th ed. 2004) (no\\nsubsection on trespass). The most colorful description of Jones’s revival of the\\ntrespass approach was the comment that “[i]t turns out that approach was not\\ndead, just taking a really long nap.” John P. Elwood & Eric A. White, What\\nWere They Thinking: The Supreme Court in Revue, October Term 2011, 15\\nGREEN BAG 2D 405, 409 (2012).\\n Jones thus requires us to consider the trespass test that Muniz-Melchor\\ndid not think was sufficient to establish a search but now is. Even under Jones,\\nhowever, a trespass does not get a defendant all the way to characterizing\\npolice conduct as a search. Jones, 565 U.S. at 408 n.5. Consistent with the\\nmeaning of “search,” a trespass “must be conjoined” with “an attempt to find\\nsomething or obtain information.” Id.; see also id. at 404 (describing the\\n\\n\\n 4 The notion that the trespass test had remained part of the post-Katz Fourth\\nAmendment inquiry “came as a surprise to every student and scholar of the Fourth\\nAmendment.” Kerr, supra note 2, at 68 n.5. The titles of numerous post-Jones articles reflect\\nthis view that the decision restored a property-based approach that had been dormant since\\nKatz. See, e.g., Arnold H. Loewy, United States v. Jones: Return To Trespass-Good News Or\\nBad, 82 MISS. L.J. 879 (2013); Nancy Foster, Back to the Future: United States v. Jones\\nResuscitates Property Law Concepts in Fourth American Jurisprudence, 42 U. BALT. L. REV.\\n445 (2013); Herbert W. Titus & William J. Olson, United States v. Jones, Reviving the\\nProperty Foundation of the Fourth Amendment, 3 CASE W. RESERVE L.J. TECH. & INTERNET\\n243 (2012).\\n 7\\n\\f Case: 17-40299 Document: 00514827910 Page: 8 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\ngovernment’s conduct as “physically occup[ying] private property for the\\npurpose of obtaining information”). This prevents a mere physical touching,\\nsuch as when an officer leans on the door of a car while questioning its driver,\\nfrom being a search. Gonzales’s tapping of the tire was not that type of\\nincidental conduct. He touched the tire in order to help find out what was\\ninside. That satisfies the second Jones requirement.\\n So whether the touching was a search comes down to whether it was a\\ntrespass. Muniz-Melchor thought tapping a tank “may have constituted a\\ntechnical trespass,” but did not decide if that was the case. 894 F.2d at 1435.\\nIts “technical” qualifier may have come from the absence of damage to the tank,\\nwhich modern tort law requires for trespass to chattel. See Jones, 565 U.S. at\\n419 & n.2 (Alito, J., concurring) (quoting W. Keeton et al., PROSSER & KEETON\\nON LAW OF TORTS § 14, at 87 (5th ed. 1984)). But in concluding that attaching\\na GPS to the exterior of a vehicle was a trespass, Jones relied on its reading of\\nthe common law of trespass as it existed in 1791 when the Fourth Amendment\\nwas ratified. 5 Id. at 404–05 (tying the Fourth Amendment to common law\\ntrespass and concluding that a “physical intrusion would have been considered\\na ‘search’ within the meaning of the Fourth Amendment when it was adopted)\\n(citing Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765)); id. at 419 & n.2\\n(Alito, J., concurring) (characterizing the common law for trespass to chattels\\nas requiring only a “violation of ‘the dignitary interest in the inviolability of\\nchattels” (quoting W. Keeton et al., PROSSER & KEETON ON LAW OF TORTS § 14,\\nat 87 (5th ed. 1984)). In terms of the physical intrusion, we see no difference\\n\\n\\n\\n\\n 5 Professor Kerr also questions whether Jones got history right on this point. He\\nobserves that installing a device on the exterior of a car “is not an obvious case for trespass,”\\nas a “trespass usually implies some sort of invasion into property” beyond just touching it.\\nKerr, supra note 2, at 91.\\n 8\\n\\f Case: 17-40299 Document: 00514827910 Page: 9 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\nbetween the Jones device touching the car and an officer touching the tire. 6\\nNor, apparently, does the government as it does not dispute that the tire tap\\nwas a trespass. Of course, the GPS device remained attached for a longer\\nperiod and gathered a lot more information compared to a tire tap, but Jones\\nfound a trespass because of the physical contact the device made with the car\\nat the moment it was affixed. Jones, 565 U.S. at 404 (focusing on the\\n“installation of a GPS device”). Indeed, Justice Alito’s opinion in Jones\\ncritiques the majority’s trespass approach because it “largely disregards what\\nis really important (the use of a GPS for the purpose of long-term tracking) and\\ninstead attaches great significance to something that most would view as\\nrelatively minor (attaching to the bottom of a car a small, light object that does\\nnot interfere in any way with the car’s operation).” Id. at 424–25 (Alito, J.,\\nconcurring). The also “relatively minor” act of tapping tires is thus a trespass.\\nBecause that trespass occurred to learn what was inside the tires, it qualifies\\nas a search.\\n This trespass analysis might seem simplistic. But proponents of the\\nproperty-based approach view its bright line as a virtue over the less\\npredictable expectation-of-privacy inquiry. 565 U.S. at 412–13 (noting the line-\\ndrawing problems that would arise from applying the Katz test to the GPS\\ntracking device); Erica Goldberg, How United States v. Jones Can Restore Our\\nFaith in the Fourth Amendment, 110 MICH. L. REV. FIRST IMPRESSIONS 62, 68–\\n69 (2011) (suggesting that a property-based test provides a “clearer, cleaner\\n\\n\\n\\n 6 Jones recognized this similarity in addressing Cardwell v. Jones, 417 U.S. 583\\n(1974), a case that found no Fourth Amendment violation when law enforcement inspected\\nthe tread of a tire and collected paint scrapings from the exterior of a car. In Jones, the\\ngovernment argued that Cardwell supported its position that installation of the GPS tracker\\nwas not a search. The Court disagreed on the ground that the plurality opinion in Cardwell\\nwas “unclear” about whether it ruled that way because there was no search or because the\\nsearch was a reasonable one supported by probable cause. Jones, 565 U.S. at n.7 (quoting\\nCardwell, 417 U.S. at 591–92).\\n 9\\n\\f Case: 17-40299 Document: 00514827910 Page: 10 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\nmetric of when the Fourth Amendment is implicated”). It may also seem\\ntroubling that the brief touching of a tire reveals far less information than\\nother lawful conduct, like a dog sniff, that is not considered a search. See\\nIllinois v. Cabelles, 543 U.S. 405, 409 (2005). That critique, however, views the\\nsearch question through the invasion-of-privacy mindset. Rightly or wrongly,\\nJones held that a trespassory search implicates the Fourth Amendment even\\nif it does not offend privacy interests. Under that property-based approach,\\nGonzales’s tapping of the tire was a search regardless of how insignificant it\\nmight seem.\\n III.\\n Although the limited nature of the intrusion does not affect whether the\\nphysical examination of the tire is deemed a search, that is only the\\npreliminary Fourth Amendment question. The ultimate question is whether\\nthe government’s conduct was reasonable. Heien v. North Carolina, 135 S. Ct.\\n530, 536 (2014). And in that analysis the extent of the intrusion on an\\nindividual’s Fourth Amendment interests is relevant. See, e.g., United States\\nv. Knights, 534 U.S. 112, 118–19 (2001) (explaining that the reasonableness of\\na search depends on balancing the governmental interest in the search against\\nthe degree of the intrusion on the individual). 7\\n The government first argues that a search of the tire complied with the\\nFourth Amendment because Gonzales had probable cause to believe drugs\\nwere inside. Probable cause to believe a vehicle contains contraband allows a\\nwarrantless search because of the car’s mobility. Maryland v. Dyson, 527 U.S.\\n465, 467 (1999).\\n\\n\\n 7 The district court held that Gonzalez did not search the tire, but we may consider\\nthe reasonableness of the search because we may affirm the denial of a suppression ruling\\non any basis supported by the record. United States v. El-Mezain, 664 F.3d 467, 540 (5th Cir.\\n2011).\\n\\n 10\\n\\f Case: 17-40299 Document: 00514827910 Page: 11 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\n Did that probable cause exist before Gonzales tapped the tire? The\\ninformation Gonzales had by that time—the wobbly tires, stripped bolts,\\nRichmond’s nervousness, and the new registration on an older vehicle stopped\\nin a trafficking corridor—certainly gave him the reasonable suspicion of drug\\ntrafficking needed to justify extending the traffic stop to investigate further.\\nUnited States v. Brigham, 382 F.3d 500, 507 (5th Cir. 2004) (en banc). But\\nprobable cause is a higher rung on the probability ladder than reasonable\\nsuspicion. See Navarette v. California, 572 U.S. 393, 397 (2014) (explaining\\nthat the evidence required for reasonable suspicion “is obviously less than is\\nnecessary for probable cause” (citation omitted)). Demonstrating the greater\\nshowing required for probable cause, evidence rising to that level would be\\nenough to have supported an arrest of Richmond for drug trafficking or a grand\\njury indictment charging that crime. See United States v. Watson, 423 U.S.\\n411 (1976) (holding that probable cause supports warrantless arrest of a\\nsuspect); U.S. CONST. amend. V. We doubt the information Gonzales had prior\\nto tapping the tire rose to that level.\\n But if probable cause of drug trafficking did not yet exist, the government\\nargues that the physical inspection of the tire served another interest:\\n“ensuring that vehicles on the road are operated safely and responsibly.”\\nIndeed, the wobbly tires, the truck veering outside its lane, and the stripped\\nbolts gave a reasonable officer probable cause to believe that the tire posed a\\nsafety risk. TEX. TRANSP. CODE § 547.004(a) (making it a misdemeanor to\\noperate a vehicle that is “unsafe so as to endanger a person”). On that basis,\\nthe tapping of the tire was justified. It does not matter that Gonzales also\\n\\n\\n\\n\\n 11\\n\\f Case: 17-40299 Document: 00514827910 Page: 12 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\nwanted to find out if drugs were in the tire. See Whren v. United States, 517\\nU.S. 806, 813 (1996). 8\\n Pulling back from the discrete Fourth Amendment doctrines we have\\nexamined, finding no constitutional violation makes sense in terms of the\\noverall Fourth Amendment balance. The government’s interest in making sure\\nthat a loose tire does not pose a safety threat strongly outweighs the\\nintrusiveness of an officer’s tapping the tire for a second or two.\\n ***\\n The judgement of the district court is AFFIRMED.\\n\\n\\n\\n\\n 8 Richmond argues that public safety must be an officer’s sole motivation when that\\nis the justification for the search, citing the pre-Whren cases of South Dakota v. Opperman,\\n428 U.S. 364 (1976), and Cady v. Dombrowski, 413 U.S. 433 (1973). Both of those cases\\ninvolved searches conducted as part of routine police procedures. Opperman, 482 U.S. at 369\\n(postimpoundment inventory search); Dombrowski, 413 U.S. at 436 (post-tow search of trunk\\nconsistent with department policy to retrieve officer’s weapon). Whatever role subjective\\nmotivation plays in the context of regulatory searches, Whren says that intent does not\\nmatter for searches based on individualized suspicion. See Hunsberger v. Wood, 570 F.3d\\n546, 554 (4th Cir. 2009) (making this distinction between Whren and Dombrowski); cf.\\nMichigan v. Fisher, 558 U.S. 45, 47 (2009) (explaining that the “emergency aid” exception to\\nthe Fourth Amendment “does not depend on the officer’s subjective intent”). Suspicion\\nparticular to Richmond—probable cause to believe the loose tires on her pickup posed a safety\\nrisk—is the basis for finding the tap of the tire reasonable.\\n 12\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4366115/\", \"author_raw\": \"GREGG COSTA, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"GRAVES"},"judge2":{"kind":"string","value":"COSTA"},"judge3":{"kind":"string","value":"BENNETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4588862/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Jennifer Lynn RICHMOND, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-40299 Document: 00514827910 Page: 1 Date Filed: 02/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-40299 February 8, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n\n Plaintiff - Appellee\n\nv.\n\nJENNIFER LYNN RICHMOND,\n\n Defendant - Appellant\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore GRAVES and COSTA, Circuit Judges and BENNETT, District Judge.*\nGREGG COSTA, Circuit Judge:\n During a traffic stop, a state trooper pushed his fingers against the\nvehicle’s tire to try and confirm his suspicion that it contained more than just\nair. We conclude that the brief physical examination of the tire was subject to\nthe Fourth Amendment under the recently revived trespass test for deciding\nwhat is a search. The search was a reasonable one, however, because there\n\n\n\n\n * District Judge for the Southern District of Texas, sitting by designation.\n\f Case: 17-40299 Document: 00514827910 Page: 2 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\nwas probable cause to believe the loose tire posed a safety risk.\n I.\n A\n Texas State Trooper Manuel Gonzales was patrolling U.S. Highway 77\nin south Texas when he saw a blue pickup Jennifer Richmond was driving. He\ndrove alongside the truck and saw that the tires were “shaking,” “wobbly,” and\n“unbalanced.” He was concerned that the tires were a potential danger to the\npublic. After the truck drove across the fog line between the right lane and the\nshoulder of the highway, Gonzales initiated a traffic stop. When the vehicle\ncame to a stop, Gonzales saw that one of the truck’s brake lights was broken.\nHe ran the license plate and learned the truck was registered two days earlier\nin nearby Brownsville.\n When he approached the vehicle, Gonzales explained the reason for the\nstop—that Richmond crossed the fog line—and also told her about the brake\nlight. Richmond apologized and, without prompting, stated that she was from\nArizona. She avoided eye contact, and Gonzales noticed that her hands were\n“trembling,” her mouth was “dry,” and her lips had “a white coating.”\n In response to questioning, Richmond said that she was from Tucson but\nwas traveling to Brownsville, where she was moving with her husband.\nGonzales asked Richmond to exit the truck so that he could show her the\nbroken brake light. Richmond complied.\n As Gonzales walked to the rear of the truck, he looked at the passenger-\nside rear tire and observed that the bolts “had been stripped as [if] they had\nbeen taken off numerous times.”\n This is when the challenged conduct occurred. Gonzales pushed on the\ntire with his hand. The resulting sound was not what “a normal tire with air”\nwould produce; instead there was a “solid thumping noise” that indicated\nsomething besides air was inside. Gonzales, who already was concerned about\n 2\n\f Case: 17-40299 Document: 00514827910 Page: 3 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\nthe tires because he had seen them bouncing before the stop, became more\nsuspicious that they might contain drugs.\n After tapping the tire, Gonzales resumed asking Richmond about her\npersonal history and itinerary. She could not readily recall her age, date of\nbirth, or husband’s name. Richmond asserted that she was traveling to Dallas\nto visit a friend, but did not know the friend’s phone number or address.\nStranger still, she said she intended to use Google to learn the friend’s address\nand would return home if that search came up empty.\n When Gonzales went back to his car to check Richmond’s license and the\nvehicle’s registration, he discovered that, contrary to her story about driving\nfrom Arizona, the truck had entered Mexico the day before. It had crossed\nback into the United States only a few hours before the traffic stop.\n Gonzalez then obtained Richmond’s consent to search the truck. After\nfinding suspicious items inside the vehicle, Gonzales “let some air out [of the\ntires] and [ ] smelled some kind of chemical cleaning odor coming out of them.”\nAt least one of the tires did not release air. Gonzales checked beneath the\ntruck and saw “fingerprints [ ] on the inside of . . . the rims” and an atypical\namount of weight placed on the tires to try to balance them. When he removed\nthe tires, they seemed unusually heavy and solid.\n Gonzales decided to take the truck to a local car dealership and have the\ntires examined. Technicians at the dealership discovered secret compartments\nthat contained methamphetamine.\n B\n After being charged with trafficking that meth, Richmond tried to\nsuppress its discovery. She challenged the lawfulness of the stop and its\nlength. The district court rejected those arguments, concluding that\nreasonable suspicion of a traffic violation supported the stop and that\nRichmond’s suspicious statements and demeanor raised sufficient concerns\n 3\n\f Case: 17-40299 Document: 00514827910 Page: 4 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\nabout drug trafficking to support extending the stop for the additional time\nthat resulted in her consenting to the search.\n After the motion was denied, Richmond entered a guilty plea that\nallowed her to appeal the suppression ruling. Before sentencing, Richmond\nfiled an amended motion to suppress that argued for the first time that\nGonzales’s tap of her tire was a search not supported by probable cause. At\nthe sentencing hearing, the district court considered but rejected Richmond’s\namended motion because “as the law stands now, tapping tires is not a search.”\nThe district court noted that it would permit Richmond to appeal the tire tap\nissue along with her original Fourth Amendment claims in light of her\nconditional guilty plea.\n II.\n Richmond no longer challenges the initial stop or that there was\nreasonable suspicion of drug trafficking to extend the stop until the point when\nGonzales physically examined the tire. And in not challenging events after\nGonzales learned that the tire likely contained more than just air, Richmond\napparently acknowledges that discovery justified further investigation into the\ntrafficking up until when she consented to a full search. 1\n So the tap of the tire is the focus of this appeal. Richmond contends that\nit was a search within the meaning of the Fourth Amendment. That is the\ncase, she says, because touching the tire was a trespass which counts as a\nsearch under recent Supreme Court cases. See Florida v. Jardines, 569 U.S.\n1, 5 (2013); United States v. Jones, 565 U.S. 400, 404–07 & n.3 (2012).\n The government counters that we have previously held that similar law\nenforcement conduct is not a search. In United States v. Muniz-Melchor, 894\n\n\n\n 1 The government does not dispute Richmond’s premise that an unlawful search of the\ntire would have tainted the investigation that followed, including her consent.\n 4\n\f Case: 17-40299 Document: 00514827910 Page: 5 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\nF.2d 1430 (5th Cir. 1990), a border patrol agent used a pocket knife to tap the\nside of a propane tank mounted in the bed of a pickup. Id. at 1432. We\nacknowledged that the tapping “may have constituted a technical trespass,” id.\nat 1435, but explained that Katz v. United States, 389 U.S. 347 (1967), had\n“rejected the notion that what constitutes a trespass under various property\nlaws necessarily constitutes a search under the Fourth Amendment.” 894 F.2d\nat 1434. Instead, the then-prevailing Katz test—which came not from the\nmajority opinion but from Justice Harlan’s concurrence—asked whether the\nperson challenging a search had a reasonable expectation of privacy in the item\nbeing examined. 2 Id. (quoting Katz, 389 U.S. at 360–61 (Harlan, J.,\nconcurring)). The answer was “no” for the owner of the tapped propane tank\nbecause he “surely . . . must have reasonably expected that someone, such as a\ngasoline station attendant, might lean against the tank or touch it in some\nmanner.” Id at 1435.\n That expectation of contact is even greater for a vehicle’s tire as it is\nroutinely checked for air pressure. So Muniz-Melcher binds us on the\n“reasonable expectation of privacy” question. Richmond did not have a\nreasonable basis to believe that the tire would not be touched.\n But a precedent binds us only as far as it goes. See Brecht v. Abrahmson,\n507 U.S. 619, 631 (1993) (explaining that an opinion is not binding on a\nquestion it “never squarely addressed”). Richmond contends that Muniz-\nMelcher did not decide whether tapping part of a vehicle was a search under a\n\n\n\n\n 2Katz’s focus on privacy marked a reversal in allowing electronic eavesdropping to be\ntreated as a search even when it does not involve physical penetration into an individual’s\nproperty. 389 U.S. at 352–53 (overruling Goldman v. United States, 316 U.S. 129 (1942), and\nOlmstead v. United States, 277 U.S. 438 (1928)); see also Orin Kerr, The Curious History of\nFourth Amendment Searches, 2012 SUP. CT. REV. 67, 85 (recognizing that pre-Katz cases had\n“eventually focus[ed] on physical penetration into a protected space as the primary test for a\nFourth Amendment search” even if trespass was not the focus).\n 5\n\f Case: 17-40299 Document: 00514827910 Page: 6 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\ntrespass theory because, as the opinion recognized, at that time a physical\nintrusion did not on its own constitute a search.\n We agree. Katz held that “[t]he premise that property interests control\nthe right of the Government to search and seize has been discredited.” 389\nU.S. at 353 (quoting Warden v. Hayden, 387 U.S. 294, 304 (1967)). In the\ndecades that followed, a trespass did not automatically amount to a search.\nSee United States v. Karo, 468 U.S. 705, 713 (1984) (“[A]n actual trespass is\nneither necessary nor sufficient to establish a constitutional violation.”); Oliver\nv. United States, 466 U.S. 170, 183–84 (1984) (holding that narcotics agent\nsearching for marijuana in the open fields of a farm was not a search even\nthough it was a trespass). But in 2012, United States v. Jones revived the\nproperty approach that most, including our court, thought Katz had\njettisoned. 3 565 U.S. at 400. In explaining why a search occurred when law\nenforcement placed a GPS tracking device on the undercarriage of a car, the\nCourt relied on “the common-law trespassory test,” which it treated as a\nseparate basis for finding a search alongside the Katz “reasonable expectation\nof privacy” test. 565 U.S. at 409.\n Lower courts recognized Jones as a sea change. See, e.g., United States\nv. Ackerman, 831 F.3d 1292, 1307 (10th Cir. 2016) (Gorsuch, J.) (explaining\nthat that there is now “reason to wonder” about the vitality of a 1984 Supreme\nCourt decision after “Jones held that the Katz formula is but one way to\ndetermine if a . . . ‘search’ has taken place”); United States v. Sweeney, 821 F.3d\n893, 899 (7th Cir. 2016) (“In recent years, the Supreme Court has revived a\n‘property-based approach’ to identify unconstitutional searches.”); United\n\n\n 3A prominent Fourth Amendment scholar contends that Jones did not so much revive\nthe property-based approach as invent it. Kerr, supra note 2, at 68 (reaching “the surprising\nconclusion that no trespass test was used in the pre-Katz era”). That historical account is\neven more problematic for the government’s view that a trespass test has always governed\nFourth Amendment law, including when Muniz-Melcher was decided.\n 6\n\f Case: 17-40299 Document: 00514827910 Page: 7 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\nStates v. Katzin, 769 F.3d 163, 181 (3d Cir. 2014) (en banc) (explaining that\n“Jones fundamentally altered [the] legal landscape by reviving—after a forty-\nfive year hibernation—the Supreme Court’s trespass theory”). So did Fourth\nAmendment scholars. 4 The leading treatise on searches had to add a new\nchapter to its section on “Protected Areas and Interests.” The title of the\naddition? “Trespass as an alternate theory.” Compare Wayne R. LaFave et\nal., 1 SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 2.1(e) (5th\ned. 2012) (explaining that although Katz “seemed to sound the death knell for\nthe pre-Katz ‘trespass’ approach,” the “doctrine re-emerged as an alternate\ntheory to the Katz expectation-of-privacy test”), with id. § 2.1 (4th ed. 2004) (no\nsubsection on trespass). The most colorful description of Jones’s revival of the\ntrespass approach was the comment that “[i]t turns out that approach was not\ndead, just taking a really long nap.” John P. Elwood & Eric A. White, What\nWere They Thinking: The Supreme Court in Revue, October Term 2011, 15\nGREEN BAG 2D 405, 409 (2012).\n Jones thus requires us to consider the trespass test that Muniz-Melchor\ndid not think was sufficient to establish a search but now is. Even under Jones,\nhowever, a trespass does not get a defendant all the way to characterizing\npolice conduct as a search. Jones, 565 U.S. at 408 n.5. Consistent with the\nmeaning of “search,” a trespass “must be conjoined” with “an attempt to find\nsomething or obtain information.” Id.; see also id. at 404 (describing the\n\n\n 4 The notion that the trespass test had remained part of the post-Katz Fourth\nAmendment inquiry “came as a surprise to every student and scholar of the Fourth\nAmendment.” Kerr, supra note 2, at 68 n.5. The titles of numerous post-Jones articles reflect\nthis view that the decision restored a property-based approach that had been dormant since\nKatz. See, e.g., Arnold H. Loewy, United States v. Jones: Return To Trespass-Good News Or\nBad, 82 MISS. L.J. 879 (2013); Nancy Foster, Back to the Future: United States v. Jones\nResuscitates Property Law Concepts in Fourth American Jurisprudence, 42 U. BALT. L. REV.\n445 (2013); Herbert W. Titus & William J. Olson, United States v. Jones, Reviving the\nProperty Foundation of the Fourth Amendment, 3 CASE W. RESERVE L.J. TECH. & INTERNET\n243 (2012).\n 7\n\f Case: 17-40299 Document: 00514827910 Page: 8 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\ngovernment’s conduct as “physically occup[ying] private property for the\npurpose of obtaining information”). This prevents a mere physical touching,\nsuch as when an officer leans on the door of a car while questioning its driver,\nfrom being a search. Gonzales’s tapping of the tire was not that type of\nincidental conduct. He touched the tire in order to help find out what was\ninside. That satisfies the second Jones requirement.\n So whether the touching was a search comes down to whether it was a\ntrespass. Muniz-Melchor thought tapping a tank “may have constituted a\ntechnical trespass,” but did not decide if that was the case. 894 F.2d at 1435.\nIts “technical” qualifier may have come from the absence of damage to the tank,\nwhich modern tort law requires for trespass to chattel. See Jones, 565 U.S. at\n419 & n.2 (Alito, J., concurring) (quoting W. Keeton et al., PROSSER & KEETON\nON LAW OF TORTS § 14, at 87 (5th ed. 1984)). But in concluding that attaching\na GPS to the exterior of a vehicle was a trespass, Jones relied on its reading of\nthe common law of trespass as it existed in 1791 when the Fourth Amendment\nwas ratified. 5 Id. at 404–05 (tying the Fourth Amendment to common law\ntrespass and concluding that a “physical intrusion would have been considered\na ‘search’ within the meaning of the Fourth Amendment when it was adopted)\n(citing Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765)); id. at 419 & n.2\n(Alito, J., concurring) (characterizing the common law for trespass to chattels\nas requiring only a “violation of ‘the dignitary interest in the inviolability of\nchattels” (quoting W. Keeton et al., PROSSER & KEETON ON LAW OF TORTS § 14,\nat 87 (5th ed. 1984)). In terms of the physical intrusion, we see no difference\n\n\n\n\n 5 Professor Kerr also questions whether Jones got history right on this point. He\nobserves that installing a device on the exterior of a car “is not an obvious case for trespass,”\nas a “trespass usually implies some sort of invasion into property” beyond just touching it.\nKerr, supra note 2, at 91.\n 8\n\f Case: 17-40299 Document: 00514827910 Page: 9 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\nbetween the Jones device touching the car and an officer touching the tire. 6\nNor, apparently, does the government as it does not dispute that the tire tap\nwas a trespass. Of course, the GPS device remained attached for a longer\nperiod and gathered a lot more information compared to a tire tap, but Jones\nfound a trespass because of the physical contact the device made with the car\nat the moment it was affixed. Jones, 565 U.S. at 404 (focusing on the\n“installation of a GPS device”). Indeed, Justice Alito’s opinion in Jones\ncritiques the majority’s trespass approach because it “largely disregards what\nis really important (the use of a GPS for the purpose of long-term tracking) and\ninstead attaches great significance to something that most would view as\nrelatively minor (attaching to the bottom of a car a small, light object that does\nnot interfere in any way with the car’s operation).” Id. at 424–25 (Alito, J.,\nconcurring). The also “relatively minor” act of tapping tires is thus a trespass.\nBecause that trespass occurred to learn what was inside the tires, it qualifies\nas a search.\n This trespass analysis might seem simplistic. But proponents of the\nproperty-based approach view its bright line as a virtue over the less\npredictable expectation-of-privacy inquiry. 565 U.S. at 412–13 (noting the line-\ndrawing problems that would arise from applying the Katz test to the GPS\ntracking device); Erica Goldberg, How United States v. Jones Can Restore Our\nFaith in the Fourth Amendment, 110 MICH. L. REV. FIRST IMPRESSIONS 62, 68–\n69 (2011) (suggesting that a property-based test provides a “clearer, cleaner\n\n\n\n 6 Jones recognized this similarity in addressing Cardwell v. Jones, 417 U.S. 583\n(1974), a case that found no Fourth Amendment violation when law enforcement inspected\nthe tread of a tire and collected paint scrapings from the exterior of a car. In Jones, the\ngovernment argued that Cardwell supported its position that installation of the GPS tracker\nwas not a search. The Court disagreed on the ground that the plurality opinion in Cardwell\nwas “unclear” about whether it ruled that way because there was no search or because the\nsearch was a reasonable one supported by probable cause. Jones, 565 U.S. at n.7 (quoting\nCardwell, 417 U.S. at 591–92).\n 9\n\f Case: 17-40299 Document: 00514827910 Page: 10 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\nmetric of when the Fourth Amendment is implicated”). It may also seem\ntroubling that the brief touching of a tire reveals far less information than\nother lawful conduct, like a dog sniff, that is not considered a search. See\nIllinois v. Cabelles, 543 U.S. 405, 409 (2005). That critique, however, views the\nsearch question through the invasion-of-privacy mindset. Rightly or wrongly,\nJones held that a trespassory search implicates the Fourth Amendment even\nif it does not offend privacy interests. Under that property-based approach,\nGonzales’s tapping of the tire was a search regardless of how insignificant it\nmight seem.\n III.\n Although the limited nature of the intrusion does not affect whether the\nphysical examination of the tire is deemed a search, that is only the\npreliminary Fourth Amendment question. The ultimate question is whether\nthe government’s conduct was reasonable. Heien v. North Carolina, 135 S. Ct.\n530, 536 (2014). And in that analysis the extent of the intrusion on an\nindividual’s Fourth Amendment interests is relevant. See, e.g., United States\nv. Knights, 534 U.S. 112, 118–19 (2001) (explaining that the reasonableness of\na search depends on balancing the governmental interest in the search against\nthe degree of the intrusion on the individual). 7\n The government first argues that a search of the tire complied with the\nFourth Amendment because Gonzales had probable cause to believe drugs\nwere inside. Probable cause to believe a vehicle contains contraband allows a\nwarrantless search because of the car’s mobility. Maryland v. Dyson, 527 U.S.\n465, 467 (1999).\n\n\n 7 The district court held that Gonzalez did not search the tire, but we may consider\nthe reasonableness of the search because we may affirm the denial of a suppression ruling\non any basis supported by the record. United States v. El-Mezain, 664 F.3d 467, 540 (5th Cir.\n2011).\n\n 10\n\f Case: 17-40299 Document: 00514827910 Page: 11 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\n Did that probable cause exist before Gonzales tapped the tire? The\ninformation Gonzales had by that time—the wobbly tires, stripped bolts,\nRichmond’s nervousness, and the new registration on an older vehicle stopped\nin a trafficking corridor—certainly gave him the reasonable suspicion of drug\ntrafficking needed to justify extending the traffic stop to investigate further.\nUnited States v. Brigham, 382 F.3d 500, 507 (5th Cir. 2004) (en banc). But\nprobable cause is a higher rung on the probability ladder than reasonable\nsuspicion. See Navarette v. California, 572 U.S. 393, 397 (2014) (explaining\nthat the evidence required for reasonable suspicion “is obviously less than is\nnecessary for probable cause” (citation omitted)). Demonstrating the greater\nshowing required for probable cause, evidence rising to that level would be\nenough to have supported an arrest of Richmond for drug trafficking or a grand\njury indictment charging that crime. See United States v. Watson, 423 U.S.\n411 (1976) (holding that probable cause supports warrantless arrest of a\nsuspect); U.S. CONST. amend. V. We doubt the information Gonzales had prior\nto tapping the tire rose to that level.\n But if probable cause of drug trafficking did not yet exist, the government\nargues that the physical inspection of the tire served another interest:\n“ensuring that vehicles on the road are operated safely and responsibly.”\nIndeed, the wobbly tires, the truck veering outside its lane, and the stripped\nbolts gave a reasonable officer probable cause to believe that the tire posed a\nsafety risk. TEX. TRANSP. CODE § 547.004(a) (making it a misdemeanor to\noperate a vehicle that is “unsafe so as to endanger a person”). On that basis,\nthe tapping of the tire was justified. It does not matter that Gonzales also\n\n\n\n\n 11\n\f Case: 17-40299 Document: 00514827910 Page: 12 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\nwanted to find out if drugs were in the tire. See Whren v. United States, 517\nU.S. 806, 813 (1996). 8\n Pulling back from the discrete Fourth Amendment doctrines we have\nexamined, finding no constitutional violation makes sense in terms of the\noverall Fourth Amendment balance. The government’s interest in making sure\nthat a loose tire does not pose a safety threat strongly outweighs the\nintrusiveness of an officer’s tapping the tire for a second or two.\n ***\n The judgement of the district court is AFFIRMED.\n\n\n\n\n 8 Richmond argues that public safety must be an officer’s sole motivation when that\nis the justification for the search, citing the pre-Whren cases of South Dakota v. Opperman,\n428 U.S. 364 (1976), and Cady v. Dombrowski, 413 U.S. 433 (1973). Both of those cases\ninvolved searches conducted as part of routine police procedures. Opperman, 482 U.S. at 369\n(postimpoundment inventory search); Dombrowski, 413 U.S. at 436 (post-tow search of trunk\nconsistent with department policy to retrieve officer’s weapon). Whatever role subjective\nmotivation plays in the context of regulatory searches, Whren says that intent does not\nmatter for searches based on individualized suspicion. See Hunsberger v. Wood, 570 F.3d\n546, 554 (4th Cir. 2009) (making this distinction between Whren and Dombrowski); cf.\nMichigan v. Fisher, 558 U.S. 45, 47 (2009) (explaining that the “emergency aid” exception to\nthe Fourth Amendment “does not depend on the officer’s subjective intent”). Suspicion\nparticular to Richmond—probable cause to believe the loose tires on her pickup posed a safety\nrisk—is the basis for finding the tap of the tire reasonable.\n 12\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Jennifer Lynn RICHMOND, Defendant - Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-08\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-40299 Document: 00514827910 Page: 1 Date Filed: 02/08/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-40299 February 8, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nJENNIFER LYNN RICHMOND,\\n\\n Defendant - Appellant\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore GRAVES and COSTA, Circuit Judges and BENNETT, District Judge.*\\nGREGG COSTA, Circuit Judge:\\n During a traffic stop, a state trooper pushed his fingers against the\\nvehicle’s tire to try and confirm his suspicion that it contained more than just\\nair. We conclude that the brief physical examination of the tire was subject to\\nthe Fourth Amendment under the recently revived trespass test for deciding\\nwhat is a search. The search was a reasonable one, however, because there\\n\\n\\n\\n\\n * District Judge for the Southern District of Texas, sitting by designation.\\n\\f Case: 17-40299 Document: 00514827910 Page: 2 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\nwas probable cause to believe the loose tire posed a safety risk.\\n I.\\n A\\n Texas State Trooper Manuel Gonzales was patrolling U.S. Highway 77\\nin south Texas when he saw a blue pickup Jennifer Richmond was driving. He\\ndrove alongside the truck and saw that the tires were “shaking,” “wobbly,” and\\n“unbalanced.” He was concerned that the tires were a potential danger to the\\npublic. After the truck drove across the fog line between the right lane and the\\nshoulder of the highway, Gonzales initiated a traffic stop. When the vehicle\\ncame to a stop, Gonzales saw that one of the truck’s brake lights was broken.\\nHe ran the license plate and learned the truck was registered two days earlier\\nin nearby Brownsville.\\n When he approached the vehicle, Gonzales explained the reason for the\\nstop—that Richmond crossed the fog line—and also told her about the brake\\nlight. Richmond apologized and, without prompting, stated that she was from\\nArizona. She avoided eye contact, and Gonzales noticed that her hands were\\n“trembling,” her mouth was “dry,” and her lips had “a white coating.”\\n In response to questioning, Richmond said that she was from Tucson but\\nwas traveling to Brownsville, where she was moving with her husband.\\nGonzales asked Richmond to exit the truck so that he could show her the\\nbroken brake light. Richmond complied.\\n As Gonzales walked to the rear of the truck, he looked at the passenger-\\nside rear tire and observed that the bolts “had been stripped as [if] they had\\nbeen taken off numerous times.”\\n This is when the challenged conduct occurred. Gonzales pushed on the\\ntire with his hand. The resulting sound was not what “a normal tire with air”\\nwould produce; instead there was a “solid thumping noise” that indicated\\nsomething besides air was inside. Gonzales, who already was concerned about\\n 2\\n\\f Case: 17-40299 Document: 00514827910 Page: 3 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\nthe tires because he had seen them bouncing before the stop, became more\\nsuspicious that they might contain drugs.\\n After tapping the tire, Gonzales resumed asking Richmond about her\\npersonal history and itinerary. She could not readily recall her age, date of\\nbirth, or husband’s name. Richmond asserted that she was traveling to Dallas\\nto visit a friend, but did not know the friend’s phone number or address.\\nStranger still, she said she intended to use Google to learn the friend’s address\\nand would return home if that search came up empty.\\n When Gonzales went back to his car to check Richmond’s license and the\\nvehicle’s registration, he discovered that, contrary to her story about driving\\nfrom Arizona, the truck had entered Mexico the day before. It had crossed\\nback into the United States only a few hours before the traffic stop.\\n Gonzalez then obtained Richmond’s consent to search the truck. After\\nfinding suspicious items inside the vehicle, Gonzales “let some air out [of the\\ntires] and [ ] smelled some kind of chemical cleaning odor coming out of them.”\\nAt least one of the tires did not release air. Gonzales checked beneath the\\ntruck and saw “fingerprints [ ] on the inside of . . . the rims” and an atypical\\namount of weight placed on the tires to try to balance them. When he removed\\nthe tires, they seemed unusually heavy and solid.\\n Gonzales decided to take the truck to a local car dealership and have the\\ntires examined. Technicians at the dealership discovered secret compartments\\nthat contained methamphetamine.\\n B\\n After being charged with trafficking that meth, Richmond tried to\\nsuppress its discovery. She challenged the lawfulness of the stop and its\\nlength. The district court rejected those arguments, concluding that\\nreasonable suspicion of a traffic violation supported the stop and that\\nRichmond’s suspicious statements and demeanor raised sufficient concerns\\n 3\\n\\f Case: 17-40299 Document: 00514827910 Page: 4 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\nabout drug trafficking to support extending the stop for the additional time\\nthat resulted in her consenting to the search.\\n After the motion was denied, Richmond entered a guilty plea that\\nallowed her to appeal the suppression ruling. Before sentencing, Richmond\\nfiled an amended motion to suppress that argued for the first time that\\nGonzales’s tap of her tire was a search not supported by probable cause. At\\nthe sentencing hearing, the district court considered but rejected Richmond’s\\namended motion because “as the law stands now, tapping tires is not a search.”\\nThe district court noted that it would permit Richmond to appeal the tire tap\\nissue along with her original Fourth Amendment claims in light of her\\nconditional guilty plea.\\n II.\\n Richmond no longer challenges the initial stop or that there was\\nreasonable suspicion of drug trafficking to extend the stop until the point when\\nGonzales physically examined the tire. And in not challenging events after\\nGonzales learned that the tire likely contained more than just air, Richmond\\napparently acknowledges that discovery justified further investigation into the\\ntrafficking up until when she consented to a full search. 1\\n So the tap of the tire is the focus of this appeal. Richmond contends that\\nit was a search within the meaning of the Fourth Amendment. That is the\\ncase, she says, because touching the tire was a trespass which counts as a\\nsearch under recent Supreme Court cases. See Florida v. Jardines, 569 U.S.\\n1, 5 (2013); United States v. Jones, 565 U.S. 400, 404–07 & n.3 (2012).\\n The government counters that we have previously held that similar law\\nenforcement conduct is not a search. In United States v. Muniz-Melchor, 894\\n\\n\\n\\n 1 The government does not dispute Richmond’s premise that an unlawful search of the\\ntire would have tainted the investigation that followed, including her consent.\\n 4\\n\\f Case: 17-40299 Document: 00514827910 Page: 5 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\nF.2d 1430 (5th Cir. 1990), a border patrol agent used a pocket knife to tap the\\nside of a propane tank mounted in the bed of a pickup. Id. at 1432. We\\nacknowledged that the tapping “may have constituted a technical trespass,” id.\\nat 1435, but explained that Katz v. United States, 389 U.S. 347 (1967), had\\n“rejected the notion that what constitutes a trespass under various property\\nlaws necessarily constitutes a search under the Fourth Amendment.” 894 F.2d\\nat 1434. Instead, the then-prevailing Katz test—which came not from the\\nmajority opinion but from Justice Harlan’s concurrence—asked whether the\\nperson challenging a search had a reasonable expectation of privacy in the item\\nbeing examined. 2 Id. (quoting Katz, 389 U.S. at 360–61 (Harlan, J.,\\nconcurring)). The answer was “no” for the owner of the tapped propane tank\\nbecause he “surely . . . must have reasonably expected that someone, such as a\\ngasoline station attendant, might lean against the tank or touch it in some\\nmanner.” Id at 1435.\\n That expectation of contact is even greater for a vehicle’s tire as it is\\nroutinely checked for air pressure. So Muniz-Melcher binds us on the\\n“reasonable expectation of privacy” question. Richmond did not have a\\nreasonable basis to believe that the tire would not be touched.\\n But a precedent binds us only as far as it goes. See Brecht v. Abrahmson,\\n507 U.S. 619, 631 (1993) (explaining that an opinion is not binding on a\\nquestion it “never squarely addressed”). Richmond contends that Muniz-\\nMelcher did not decide whether tapping part of a vehicle was a search under a\\n\\n\\n\\n\\n 2Katz’s focus on privacy marked a reversal in allowing electronic eavesdropping to be\\ntreated as a search even when it does not involve physical penetration into an individual’s\\nproperty. 389 U.S. at 352–53 (overruling Goldman v. United States, 316 U.S. 129 (1942), and\\nOlmstead v. United States, 277 U.S. 438 (1928)); see also Orin Kerr, The Curious History of\\nFourth Amendment Searches, 2012 SUP. CT. REV. 67, 85 (recognizing that pre-Katz cases had\\n“eventually focus[ed] on physical penetration into a protected space as the primary test for a\\nFourth Amendment search” even if trespass was not the focus).\\n 5\\n\\f Case: 17-40299 Document: 00514827910 Page: 6 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\ntrespass theory because, as the opinion recognized, at that time a physical\\nintrusion did not on its own constitute a search.\\n We agree. Katz held that “[t]he premise that property interests control\\nthe right of the Government to search and seize has been discredited.” 389\\nU.S. at 353 (quoting Warden v. Hayden, 387 U.S. 294, 304 (1967)). In the\\ndecades that followed, a trespass did not automatically amount to a search.\\nSee United States v. Karo, 468 U.S. 705, 713 (1984) (“[A]n actual trespass is\\nneither necessary nor sufficient to establish a constitutional violation.”); Oliver\\nv. United States, 466 U.S. 170, 183–84 (1984) (holding that narcotics agent\\nsearching for marijuana in the open fields of a farm was not a search even\\nthough it was a trespass). But in 2012, United States v. Jones revived the\\nproperty approach that most, including our court, thought Katz had\\njettisoned. 3 565 U.S. at 400. In explaining why a search occurred when law\\nenforcement placed a GPS tracking device on the undercarriage of a car, the\\nCourt relied on “the common-law trespassory test,” which it treated as a\\nseparate basis for finding a search alongside the Katz “reasonable expectation\\nof privacy” test. 565 U.S. at 409.\\n Lower courts recognized Jones as a sea change. See, e.g., United States\\nv. Ackerman, 831 F.3d 1292, 1307 (10th Cir. 2016) (Gorsuch, J.) (explaining\\nthat that there is now “reason to wonder” about the vitality of a 1984 Supreme\\nCourt decision after “Jones held that the Katz formula is but one way to\\ndetermine if a . . . ‘search’ has taken place”); United States v. Sweeney, 821 F.3d\\n893, 899 (7th Cir. 2016) (“In recent years, the Supreme Court has revived a\\n‘property-based approach’ to identify unconstitutional searches.”); United\\n\\n\\n 3A prominent Fourth Amendment scholar contends that Jones did not so much revive\\nthe property-based approach as invent it. Kerr, supra note 2, at 68 (reaching “the surprising\\nconclusion that no trespass test was used in the pre-Katz era”). That historical account is\\neven more problematic for the government’s view that a trespass test has always governed\\nFourth Amendment law, including when Muniz-Melcher was decided.\\n 6\\n\\f Case: 17-40299 Document: 00514827910 Page: 7 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\nStates v. Katzin, 769 F.3d 163, 181 (3d Cir. 2014) (en banc) (explaining that\\n“Jones fundamentally altered [the] legal landscape by reviving—after a forty-\\nfive year hibernation—the Supreme Court’s trespass theory”). So did Fourth\\nAmendment scholars. 4 The leading treatise on searches had to add a new\\nchapter to its section on “Protected Areas and Interests.” The title of the\\naddition? “Trespass as an alternate theory.” Compare Wayne R. LaFave et\\nal., 1 SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 2.1(e) (5th\\ned. 2012) (explaining that although Katz “seemed to sound the death knell for\\nthe pre-Katz ‘trespass’ approach,” the “doctrine re-emerged as an alternate\\ntheory to the Katz expectation-of-privacy test”), with id. § 2.1 (4th ed. 2004) (no\\nsubsection on trespass). The most colorful description of Jones’s revival of the\\ntrespass approach was the comment that “[i]t turns out that approach was not\\ndead, just taking a really long nap.” John P. Elwood & Eric A. White, What\\nWere They Thinking: The Supreme Court in Revue, October Term 2011, 15\\nGREEN BAG 2D 405, 409 (2012).\\n Jones thus requires us to consider the trespass test that Muniz-Melchor\\ndid not think was sufficient to establish a search but now is. Even under Jones,\\nhowever, a trespass does not get a defendant all the way to characterizing\\npolice conduct as a search. Jones, 565 U.S. at 408 n.5. Consistent with the\\nmeaning of “search,” a trespass “must be conjoined” with “an attempt to find\\nsomething or obtain information.” Id.; see also id. at 404 (describing the\\n\\n\\n 4 The notion that the trespass test had remained part of the post-Katz Fourth\\nAmendment inquiry “came as a surprise to every student and scholar of the Fourth\\nAmendment.” Kerr, supra note 2, at 68 n.5. The titles of numerous post-Jones articles reflect\\nthis view that the decision restored a property-based approach that had been dormant since\\nKatz. See, e.g., Arnold H. Loewy, United States v. Jones: Return To Trespass-Good News Or\\nBad, 82 MISS. L.J. 879 (2013); Nancy Foster, Back to the Future: United States v. Jones\\nResuscitates Property Law Concepts in Fourth American Jurisprudence, 42 U. BALT. L. REV.\\n445 (2013); Herbert W. Titus & William J. Olson, United States v. Jones, Reviving the\\nProperty Foundation of the Fourth Amendment, 3 CASE W. RESERVE L.J. TECH. & INTERNET\\n243 (2012).\\n 7\\n\\f Case: 17-40299 Document: 00514827910 Page: 8 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\ngovernment’s conduct as “physically occup[ying] private property for the\\npurpose of obtaining information”). This prevents a mere physical touching,\\nsuch as when an officer leans on the door of a car while questioning its driver,\\nfrom being a search. Gonzales’s tapping of the tire was not that type of\\nincidental conduct. He touched the tire in order to help find out what was\\ninside. That satisfies the second Jones requirement.\\n So whether the touching was a search comes down to whether it was a\\ntrespass. Muniz-Melchor thought tapping a tank “may have constituted a\\ntechnical trespass,” but did not decide if that was the case. 894 F.2d at 1435.\\nIts “technical” qualifier may have come from the absence of damage to the tank,\\nwhich modern tort law requires for trespass to chattel. See Jones, 565 U.S. at\\n419 & n.2 (Alito, J., concurring) (quoting W. Keeton et al., PROSSER & KEETON\\nON LAW OF TORTS § 14, at 87 (5th ed. 1984)). But in concluding that attaching\\na GPS to the exterior of a vehicle was a trespass, Jones relied on its reading of\\nthe common law of trespass as it existed in 1791 when the Fourth Amendment\\nwas ratified. 5 Id. at 404–05 (tying the Fourth Amendment to common law\\ntrespass and concluding that a “physical intrusion would have been considered\\na ‘search’ within the meaning of the Fourth Amendment when it was adopted)\\n(citing Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765)); id. at 419 & n.2\\n(Alito, J., concurring) (characterizing the common law for trespass to chattels\\nas requiring only a “violation of ‘the dignitary interest in the inviolability of\\nchattels” (quoting W. Keeton et al., PROSSER & KEETON ON LAW OF TORTS § 14,\\nat 87 (5th ed. 1984)). In terms of the physical intrusion, we see no difference\\n\\n\\n\\n\\n 5 Professor Kerr also questions whether Jones got history right on this point. He\\nobserves that installing a device on the exterior of a car “is not an obvious case for trespass,”\\nas a “trespass usually implies some sort of invasion into property” beyond just touching it.\\nKerr, supra note 2, at 91.\\n 8\\n\\f Case: 17-40299 Document: 00514827910 Page: 9 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\nbetween the Jones device touching the car and an officer touching the tire. 6\\nNor, apparently, does the government as it does not dispute that the tire tap\\nwas a trespass. Of course, the GPS device remained attached for a longer\\nperiod and gathered a lot more information compared to a tire tap, but Jones\\nfound a trespass because of the physical contact the device made with the car\\nat the moment it was affixed. Jones, 565 U.S. at 404 (focusing on the\\n“installation of a GPS device”). Indeed, Justice Alito’s opinion in Jones\\ncritiques the majority’s trespass approach because it “largely disregards what\\nis really important (the use of a GPS for the purpose of long-term tracking) and\\ninstead attaches great significance to something that most would view as\\nrelatively minor (attaching to the bottom of a car a small, light object that does\\nnot interfere in any way with the car’s operation).” Id. at 424–25 (Alito, J.,\\nconcurring). The also “relatively minor” act of tapping tires is thus a trespass.\\nBecause that trespass occurred to learn what was inside the tires, it qualifies\\nas a search.\\n This trespass analysis might seem simplistic. But proponents of the\\nproperty-based approach view its bright line as a virtue over the less\\npredictable expectation-of-privacy inquiry. 565 U.S. at 412–13 (noting the line-\\ndrawing problems that would arise from applying the Katz test to the GPS\\ntracking device); Erica Goldberg, How United States v. Jones Can Restore Our\\nFaith in the Fourth Amendment, 110 MICH. L. REV. FIRST IMPRESSIONS 62, 68–\\n69 (2011) (suggesting that a property-based test provides a “clearer, cleaner\\n\\n\\n\\n 6 Jones recognized this similarity in addressing Cardwell v. Jones, 417 U.S. 583\\n(1974), a case that found no Fourth Amendment violation when law enforcement inspected\\nthe tread of a tire and collected paint scrapings from the exterior of a car. In Jones, the\\ngovernment argued that Cardwell supported its position that installation of the GPS tracker\\nwas not a search. The Court disagreed on the ground that the plurality opinion in Cardwell\\nwas “unclear” about whether it ruled that way because there was no search or because the\\nsearch was a reasonable one supported by probable cause. Jones, 565 U.S. at n.7 (quoting\\nCardwell, 417 U.S. at 591–92).\\n 9\\n\\f Case: 17-40299 Document: 00514827910 Page: 10 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\nmetric of when the Fourth Amendment is implicated”). It may also seem\\ntroubling that the brief touching of a tire reveals far less information than\\nother lawful conduct, like a dog sniff, that is not considered a search. See\\nIllinois v. Cabelles, 543 U.S. 405, 409 (2005). That critique, however, views the\\nsearch question through the invasion-of-privacy mindset. Rightly or wrongly,\\nJones held that a trespassory search implicates the Fourth Amendment even\\nif it does not offend privacy interests. Under that property-based approach,\\nGonzales’s tapping of the tire was a search regardless of how insignificant it\\nmight seem.\\n III.\\n Although the limited nature of the intrusion does not affect whether the\\nphysical examination of the tire is deemed a search, that is only the\\npreliminary Fourth Amendment question. The ultimate question is whether\\nthe government’s conduct was reasonable. Heien v. North Carolina, 135 S. Ct.\\n530, 536 (2014). And in that analysis the extent of the intrusion on an\\nindividual’s Fourth Amendment interests is relevant. See, e.g., United States\\nv. Knights, 534 U.S. 112, 118–19 (2001) (explaining that the reasonableness of\\na search depends on balancing the governmental interest in the search against\\nthe degree of the intrusion on the individual). 7\\n The government first argues that a search of the tire complied with the\\nFourth Amendment because Gonzales had probable cause to believe drugs\\nwere inside. Probable cause to believe a vehicle contains contraband allows a\\nwarrantless search because of the car’s mobility. Maryland v. Dyson, 527 U.S.\\n465, 467 (1999).\\n\\n\\n 7 The district court held that Gonzalez did not search the tire, but we may consider\\nthe reasonableness of the search because we may affirm the denial of a suppression ruling\\non any basis supported by the record. United States v. El-Mezain, 664 F.3d 467, 540 (5th Cir.\\n2011).\\n\\n 10\\n\\f Case: 17-40299 Document: 00514827910 Page: 11 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\n Did that probable cause exist before Gonzales tapped the tire? The\\ninformation Gonzales had by that time—the wobbly tires, stripped bolts,\\nRichmond’s nervousness, and the new registration on an older vehicle stopped\\nin a trafficking corridor—certainly gave him the reasonable suspicion of drug\\ntrafficking needed to justify extending the traffic stop to investigate further.\\nUnited States v. Brigham, 382 F.3d 500, 507 (5th Cir. 2004) (en banc). But\\nprobable cause is a higher rung on the probability ladder than reasonable\\nsuspicion. See Navarette v. California, 572 U.S. 393, 397 (2014) (explaining\\nthat the evidence required for reasonable suspicion “is obviously less than is\\nnecessary for probable cause” (citation omitted)). Demonstrating the greater\\nshowing required for probable cause, evidence rising to that level would be\\nenough to have supported an arrest of Richmond for drug trafficking or a grand\\njury indictment charging that crime. See United States v. Watson, 423 U.S.\\n411 (1976) (holding that probable cause supports warrantless arrest of a\\nsuspect); U.S. CONST. amend. V. We doubt the information Gonzales had prior\\nto tapping the tire rose to that level.\\n But if probable cause of drug trafficking did not yet exist, the government\\nargues that the physical inspection of the tire served another interest:\\n“ensuring that vehicles on the road are operated safely and responsibly.”\\nIndeed, the wobbly tires, the truck veering outside its lane, and the stripped\\nbolts gave a reasonable officer probable cause to believe that the tire posed a\\nsafety risk. TEX. TRANSP. CODE § 547.004(a) (making it a misdemeanor to\\noperate a vehicle that is “unsafe so as to endanger a person”). On that basis,\\nthe tapping of the tire was justified. It does not matter that Gonzales also\\n\\n\\n\\n\\n 11\\n\\f Case: 17-40299 Document: 00514827910 Page: 12 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40299\\nwanted to find out if drugs were in the tire. See Whren v. United States, 517\\nU.S. 806, 813 (1996). 8\\n Pulling back from the discrete Fourth Amendment doctrines we have\\nexamined, finding no constitutional violation makes sense in terms of the\\noverall Fourth Amendment balance. The government’s interest in making sure\\nthat a loose tire does not pose a safety threat strongly outweighs the\\nintrusiveness of an officer’s tapping the tire for a second or two.\\n ***\\n The judgement of the district court is AFFIRMED.\\n\\n\\n\\n\\n 8 Richmond argues that public safety must be an officer’s sole motivation when that\\nis the justification for the search, citing the pre-Whren cases of South Dakota v. Opperman,\\n428 U.S. 364 (1976), and Cady v. Dombrowski, 413 U.S. 433 (1973). Both of those cases\\ninvolved searches conducted as part of routine police procedures. Opperman, 482 U.S. at 369\\n(postimpoundment inventory search); Dombrowski, 413 U.S. at 436 (post-tow search of trunk\\nconsistent with department policy to retrieve officer’s weapon). Whatever role subjective\\nmotivation plays in the context of regulatory searches, Whren says that intent does not\\nmatter for searches based on individualized suspicion. See Hunsberger v. Wood, 570 F.3d\\n546, 554 (4th Cir. 2009) (making this distinction between Whren and Dombrowski); cf.\\nMichigan v. Fisher, 558 U.S. 45, 47 (2009) (explaining that the “emergency aid” exception to\\nthe Fourth Amendment “does not depend on the officer’s subjective intent”). Suspicion\\nparticular to Richmond—probable cause to believe the loose tires on her pickup posed a safety\\nrisk—is the basis for finding the tap of the tire reasonable.\\n 12\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":597,"cells":{"id":{"kind":"number","value":4588864,"string":"4,588,864"},"name":{"kind":"string","value":"I.F., Plaintiff-Appellant, v. LEWISVILLE INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Paul Fletcher v. Lewisville Indep Sch Dist"},"decision_date":{"kind":"string","value":"2019-02-08"},"docket_number":{"kind":"string","value":"17-40722"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Smith, Duncan, Engelhardt\", \"parties\": \"\", \"opinions\": [{\"author\": \"JERRY E. SMITH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-40722 Document: 00514828083 Page: 1 Date Filed: 02/08/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-40722 February 8, 2019\\n Lyle W. Cayce\\n Clerk\\n\\n\\nI.F.,\\n\\n Plaintiff–Appellant,\\n\\nversus\\n\\nLEWISVILLE INDEPENDENT SCHOOL DISTRICT,\\n\\n Defendant–Appellee.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Texas\\n\\n\\n\\n\\nBefore SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n I.F., a former student, sued Lewisville Independent School District\\n(“LISD”) for violating Title IX of the Education Amendments of 1972, 20 U.S.C.\\n§§ 1681–1688 (2012), claiming that LISD was deliberately indifferent to her\\nalleged sexual harassment and retaliated against her by withholding Title IX\\nprotections. LISD moved for summary judgment, and I.F. moved for partial\\nsummary judgment. The district court granted in part and denied in part\\n\\f Case: 17-40722 Document: 00514828083 Page: 2 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nLISD’s motion, finding that whereas the evidence did not establish a genuine\\ndispute of material fact regarding whether LISD was deliberately indifferent\\nto I.F.’s reports of sexual harassment and bullying, there was a genuine dis-\\npute of material fact regarding the retaliation claim. The court also denied\\nI.F.’s motion. I.F. appeals, challenging only the summary judgment on deliber-\\nate indifference. We affirm.\\n\\n I.\\n I.F. was a ninth-grade student at the Hebron High School Ninth Grade\\nCampus (“Hebron”) in LISD during the 2012−13 school year. On Friday, Sep-\\ntember 28, 2012, she attended a non-school-sponsored, non-school-affiliated\\nparty at the private residence of fellow Hebron student S.S. at which no LISD\\npersonnel were present. At the party, A.V. and I.G. engaged in sexual activity\\nwith I.F., which she claims was rape.\\n\\n When I.F. returned to school on Monday, her classmates began to harass\\nand bully her. According to the complaint, they called her a “whore” and a\\n“slut,” asked whether she had sex with multiple people, and inquired “how did\\nit feel to be fucked in every single hole of your body?” A.V. “wore the pants that\\nhe raped [I.F.] in to school, which had [her] blood on them from intercourse,\\nand stood on the lunch table and said, these are the pants that I took [I.F.’s]\\nvirginity in.”\\n\\n I.F. informed her mother, Jaime Fletcher (“Fletcher”), that she was being\\nbullied, and on October 10, Fletcher contacted Hebron counselor Debra\\nDenson-Whitehead to report the bullying but said nothing about sexual active-\\nity or assault. 1 Denson-Whitehead told Fletcher that she would speak with\\n\\n\\n 1 Fletcher stated during her deposition that she told Denson-Whitehead that “there’s\\nsomething . . . horribly wrong. Something happened. I don’t know what, but my daughter is\\nbeing severely bullied, and it’s really bad.” Ms. Fletcher also told Denson-Whitehead that\\n 2\\n\\f Case: 17-40722 Document: 00514828083 Page: 3 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nI.F. about the bullying when I.F. returned to school. But on Friday, October 12,\\nwhen I.F. next attended school, before Denson-Whitehead could speak with\\nI.F., Fletcher emailed Denson-Whitehead and told her not to speak with I.F.\\nthat day about the bullying. Denson-Whitehead complied and informed Flet-\\ncher that she would check in with I.F. the following week. Nevertheless, I.F.\\nnever physically attended any LISD school after October 12.\\n\\n That same day, I.F.’s parents (“the Fletchers”) learned for the first time\\nfrom other parents at a football game that I.F. allegedly had been sexually\\nassaulted. The Fletchers reported the assault to the Carrollton Police Depart-\\nment (“CPD”), which opened an investigation.\\n\\n On Monday, October 15, the Fletchers met with Denson-Whitehead to\\ninform her that I.F. had been sexually assaulted at a party by two Hebron\\nstudents and that they had reported the assault to CPD, which had opened an\\ninvestigation. The Fletchers also gave Denson-Whitehead a list of students\\nwho they believed were involved. This meeting was the first time that Denson-\\nWhitehead learned of I.F.’s alleged sexual assault. Denson-Whitehead alleges\\nthat she expressed her shock and sorrow to the Fletchers and advised them\\nthat she would notify the administration. According to the Fletchers, Denson-\\nWhitehead told them that “it was going to be very difficult going against the\\nfootball team” and that “the best thing for [I.F.] would be to transfer schools.”\\nAfter the meeting, Denson-Whitehead conveyed the information she had\\nlearned regarding the sexual assault to Hebron Assistant Principal Amanda\\nWerneke and Hebron School Resource Officer Cole Langston, who was also a\\npolice officer at CPD.\\n\\n\\n\\n\\nshe didn’t know whether the bullying was cheerleading bullying, and there was a senior who\\nwas “saying something,” but she “didn’t have any names.”\\n 3\\n\\f Case: 17-40722 Document: 00514828083 Page: 4 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\n On October 16, 2012, Denson-Whitehead reported the same information\\nto Hebron Principal Mark Dalton. Dalton, Denson-Whitehead, and Werneke\\nconsulted with Langston about the alleged assault. Langston confirmed that\\nCPD had opened a case and was investigating the sexual assault. He requested\\nthat Hebron refrain from investigating the matter until CPD informed LISD\\nthat it could proceed because any LISD investigation could interfere with and\\npotentially compromise the criminal investigation. Dalton interpreted that\\nrequest to apply to both Fletcher’s complaint that I.F. was being bullied and\\nI.F.’s alleged sexual assault. Furthermore, both Dalton’s and Denson-\\nWhitehead’s concerns about I.F.’s alleged sexual assault took precedence over\\nthe previously reported bullying. 2\\n\\n During this time, I.F. was not attending school, so LISD took steps to\\nensure that she earned credit for the classes she was taking. First, Dalton and\\nDenson-Whitehead worked together with I.F.’s teachers to get I.F. the work\\nshe needed to complete her first-grading-period classes. Dalton also requested\\nthat the teachers be flexible and informed them that I.F. need not complete all\\nwork that was expected from students who were regularly attending class.\\n\\n Second, Denson-Whitehead informed the Fletchers of several options for\\nI.F. to continue her education, including continuing to attend Hebron, enrolling\\nin Texas Tech online/correspondence courses, or transferring to a charter\\nschool. The Fletchers did not choose any of those options. Though they desired\\nthat I.F. return to Hebron, this was not an option unless her alleged assailants\\nwere removed from the school, and the online courses were outside their bud-\\nget. Instead, after finding out about the LISD Homebound program from the\\n\\n\\n 2Denson-Whitehead stated in her affidavit that “[w]hile not minimizing the purported\\nbullying of I.F., she considered [the] report of an alleged rape to be much more serious . . .,\\nparticularly given that Mrs. Fletcher had asked [her] . . . not to talk to I.F. about the\\nbullying.”\\n 4\\n\\f Case: 17-40722 Document: 00514828083 Page: 5 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nChildren’s Medical Center in Dallas, the Fletchers requested that LISD place\\nI.F. into that program.\\n\\n LISD’s Homebound program allows students who are unable to attend\\nschool for an extended period of time, for medical reasons, to work from home\\nand receive credit. LISD requires a physician’s recommendation before a stu-\\ndent may be placed into the program. The Fletchers obtained that recommen-\\ndation, and LISD enrolled I.F. in the Homebound program by October 30,\\nwhere she remained for the rest of the 2012−13 school year.\\n\\n In early October 2012, Brian Brazil, Hebron High School’s head football\\ncoach and athletic coordinator, was informed by a freshman football coach that\\nsome of the football players may have been involved in a party, where alcohol\\nwas consumed, thrown by S.S., a member of the freshman team. Brazil held a\\nmeeting with all the football players, where he discussed the rumor of alcohol\\nconsumption at a party and reminded them that LISD’s Extra-Curricular Code\\nof Conduct prohibited the consumption of alcohol.\\n\\n Following the meeting, he spoke with S.S. individually about the party,\\nincluding asking about the presence of alcohol and drugs. S.S. admitted that\\nhe had consumed alcohol at the party, but falsely stated that no other football\\nplayers were present at the party. Brazil suspended S.S. for two games for\\nviolating the alcohol consumption prohibition and spoke with S.S.’s father\\nabout his meeting with S.S.\\n\\n During the team-wide meeting and the individual meeting with S.S.,\\nBrazil discussed the party only in relation to alcohol and drugs. At that time,\\nhe did not know anything about the alleged sexual assault. Before he could\\ninterview other players, the Hebron administration advised him that the police\\nwere conducting an investigation into the party and that he should not speak\\nwith anyone else about the party.\\n 5\\n\\f Case: 17-40722 Document: 00514828083 Page: 6 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\n At the end of October 2012, Langston informed LISD that CPD had suf-\\nficiently progressed in its investigation of alcohol and drug consumption at the\\nparty that LISD could proceed with its own investigation of alcohol and drug\\nconsumption. Soon thereafter, at the beginning of November, Dalton in-\\nstructed Brazil to investigate the alcohol consumption issue with the football\\nplayers. Brazil interviewed several more players, including A.V. and I.G.; at\\nno point during any of those meetings was there mention of an alleged sexual\\nassault or alleged sexual misconduct by anyone at the party. After completing\\nhis investigation, Brazil reported to Dalton that only one student had admitted\\nto drinking and had been disciplined.\\n\\n In either early November or mid-December, the police authorized LISD\\nto proceed with its investigation into I.F.’s allegation of sexual assault. 3 Dur-\\ning that time, LISD schools were closed for both Thanksgiving break (Novem-\\nber 20−25, 2012) and Christmas/New Years break (December 21, 2012, to Jan-\\nuary 6, 2013). Beginning in early January 2013, Hebron conducted two simul-\\ntaneous investigations regarding I.F.: one concerning the allegation of sexual\\nassault and another concerning I.F.’s allegations of being cyberbullied.\\n\\n Werneke led both investigations. For the sexual assault investigation,\\nduring the month of January 2013, LISD interviewed fourteen students,\\nincluding A.V. and I.G. On February 19, LISD followed up with four students,\\nagain including A.V. and I.G., interviewing them a second time. Throughout\\nthe interviews, A.V. and I.G. were represented by counsel and did not answer\\nall of LISD’s questions. Nevertheless, A.V. and I.G. insisted that the sexual\\nactivity with I.F. was consensual. LISD also interviewed I.F., with her lawyer\\n\\n\\n\\n 3 The parties disagree regarding when CPD authorized LISD to proceed with its inves-\\ntigation into sexual assault. LISD contends that the authorization occurred in mid-Decem-\\nber; I.F. asserts that it occurred in early November.\\n 6\\n\\f Case: 17-40722 Document: 00514828083 Page: 7 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\npresent, and she gave a written statement.\\n\\n LISD’s investigation revealed that no adults or LISD personnel wit-\\nnessed the events at the September 28, 2012, party. Furthermore, the wit-\\nnesses gave conflicting accounts regarding who was involved, precisely what\\nhad occurred, how intoxicated the students were, and whether I.F.’s sexual\\nactivity with A.V. and I.G. was consensual. LISD found that it did not have\\nsufficient evidence that I.F. was sexually assaulted at the party. LISD con-\\ncluded, therefore, that there was no basis for any discipline for sexual assault.\\n\\n For the cyberbullying investigation, Werneke first became aware that\\nI.F. was being cyberbullied as she was beginning the sexual-assault investiga-\\ntion when Fletcher explained the situation in person and provided Werneke a\\nlist of names and the Twitter posting that had started the cyberbullying.\\nAssisted by Dalton and Assistant Principals Michael Vargas and James Scott,\\nWerneke interviewed nineteen students in early-to-mid-January and reviewed\\nseveral social media posts and photographs that Fletcher had provided. The\\ninvestigation revealed that the cyberbullying complaint stemmed from Twitter\\ntweets and retweets by Hebron High School students on or around Decem-\\nber 31, 2012, and January 1, 2013, and that appeared to be in response to a\\ntweet by I.F. regarding Christianity. Many of the implicated students had not\\nthemselves tweeted but had merely retweeted or liked a comment by another\\nstudent.\\n\\n LISD concluded that those social media posts did not amount to “bully-\\ning” as defined by LISD policy because there was no indication that they oc-\\ncurred while the students were on school property or at a school-sponsored\\nactivity, they did not threaten harm to I.F.’s person or property, and they were\\nnot sufficiently pervasive to create a harassing environment. Nevertheless,\\nLISD did consider the postings “improper and hurtful,” so LISD counseled the\\n\\n 7\\n\\f Case: 17-40722 Document: 00514828083 Page: 8 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\ninterviewed students about improper social media conduct, advised them not\\nto engage in such behavior, and contacted their parents. Werneke received no\\nfurther complaints from the Fletchers regarding cyberbullying by the individu-\\nals involved in this phase of the cyberbullying investigation.\\n\\n On February 19, however, Fletcher informed Werneke of a different form\\nof cyberbullying I.F. was experiencing, this time arising from photographs and\\nharassing comments posted on two Instagram accounts. The next day, Wer-\\nneke reported the complaint to Langston and Dalton, and CPD began an inves-\\ntigation. Langston interviewed several Hebron students, including J.J.D., who\\nlater admitted that he had created one of the Instagram accounts and was\\nresponsible for all of the account’s posts. 4 The police charged J.J.D. with crim-\\ninal harassment, and LISD suspended him for three days and then assigned\\nhim to the Disciplinary Alternative Education Program for thirty days as pun-\\nishment. After the Instagram cyberbullying complaint, the Fletchers made no\\nother cyberbullying complaints.\\n\\n Once LISD had completed the sexual assault and cyberbullying investi-\\ngations, it reported its findings to the Fletchers by letter dated April 5, 2013.\\nI.F. completed her ninth-grade coursework through the Homebound program\\nand advanced to the tenth grade at the end of the 2012−13 school year. There-\\nafter, the Fletchers withdrew her from LISD, and she never returned there as\\na student.\\n\\n II.\\n I.F. sued LISD for violating Title IX, asserting that LISD was deliber-\\nately indifferent to her alleged sexual harassment and retaliated against her\\n\\n\\n\\n 4 The other account was created by a former LISD student who had left LISD and was\\nattending a private school in Carrollton.\\n 8\\n\\f Case: 17-40722 Document: 00514828083 Page: 9 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nby withholding Title IX protections. LISD moved for summary judgment on\\nall of I.F.’s claims, and I.F. moved for partial summary judgment to establish\\nthat she had proved two essential elements of her claims: (1) that she was\\nsexually assaulted by two classmates and (2) that she engaged in an activity\\nprotected under Title IX. The magistrate judge (“MJ”) granted LISD’s motion\\nand denied I.F.’s, determining that the alleged sexually harassing conduct was\\nnot “severe, pervasive, or objectively unreasonable,” that LISD’s responses to\\nI.F.’s allegations of sexual assault, bullying, and cyberbullying were not delib-\\nerately indifferent, and that I.F. had failed to show any evidence of retaliatory\\nactions by LISD.\\n\\n I.F. objected to the MJ’s order and report and recommendation in the\\ndistrict court. Considering the parties’ motions de novo, the district court\\ngranted in part and denied in part LISD’s motion, finding that whereas the\\nevidence did not establish a genuine dispute of material fact regarding whether\\nLISD was deliberately indifferent to I.F.’s reports of sexual harassment and\\nbullying, 5 there was a genuine dispute of material fact regarding I.F.’s retali-\\nation claim. The retaliation claim proceeded to trial, and a jury returned a\\nverdict in favor of LISD.\\n\\n On appeal, I.F. challenges only the summary judgment for LISD on the\\ndeliberate indifference claim. She asserts that summary judgment was inap-\\npropriate because (1) the question of whether a school district acted with delib-\\nerate indifference generally should be decided by a jury; (2) the summary judg-\\nment evidence contained a factual dispute regarding when LISD should have\\ncommenced its investigation into I.F.’s reports of sexual assault, harassment,\\n\\n\\n\\n 5 Though the district court agreed with the MJ on this point, it found that I.F.’s har-\\nassment was sufficiently severe, pervasive, and objectively offensive so as to have had a con-\\ncrete, negative effect on her access to education.\\n 9\\n\\f Case: 17-40722 Document: 00514828083 Page: 10 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nand bullying; and (3) “allowing deliberate-indifference claims to be resolved by\\njury deliberations . . . serves the underlying purpose of discouraging gender-\\nbased 6 discrimination, which is the very purpose for which Title IX was enacted\\nin the first place.”\\n\\n III.\\n Title IX states that “[n]o person in the United States shall, on the basis\\nof sex, be excluded from participation in, be denied the benefits of, or be sub-\\njected to discrimination under any education program or activity receiving\\nFederal financial assistance.” 20 U.S.C. § 1681(a). “A school district that\\nreceives federal funds may be liable for student-on-student harassment if the\\ndistrict (1) had actual knowledge of the harassment, (2) the harasser was\\nunder the district’s control, (3) the harassment was based on the victim’s sex,\\n(4) the harassment was so severe, pervasive, and objectively offensive that it\\neffectively bar[red] the victim’s access to an educational opportunity or benefit,\\nand (5) the district was deliberately indifferent to the harassment.” Sanches\\nv. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir.\\n2011) (citation and internal quotation marks omitted).\\n\\n For a school district to be liable under Title IX, it must have been delib-\\nerately indifferent to student-on-student harassment. “Deliberate indifference\\nis an extremely high standard to meet.” Domino v. Tex. Dep’t of Crim. Justice,\\n239 F.3d 752, 756 (5th Cir. 2001). A school district’s “response to the harass-\\nment or lack thereof [must be] clearly unreasonable in light of the known\\ncircumstances.” Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ.,\\n526 U.S. 629, 648 (1999). Because “deliberate indifference . . . is . . . a lesser\\n\\n\\n 6I.F.’s reference to “gender” is entirely inappropriate. This case is about sex, not\\ngender. Title IX addresses sex and never mentions gender. We will flexibly treat I.F.’s claims\\nas regarding sex discrimination.\\n 10\\n\\f Case: 17-40722 Document: 00514828083 Page: 11 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nform of intent rather than a heightened degree of negligence,” Leffall v. Dall.\\nIndep. Sch. Dist., 28 F.3d 521, 531 (5th Cir. 1994) (citation and internal quo-\\ntation marks omitted), neither negligent nor merely unreasonable responses\\nare enough, Sanches, 647 F.3d at 167. 7 “Actions and decisions by officials that\\nare merely inept, erroneous, ineffective, or negligent do not amount to deliber-\\nate indifference . . . .” Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 153 F.3d 211,\\n219 (5th Cir. 1998). 8 Indeed, as the district court noted, our precedent “makes\\nit clear that negligent delays, botched investigations of complaints due to the\\nineptitude of investigators, or responses that most reasonable persons could\\nhave improved upon do not equate to deliberate indifference.” 9\\n\\n School districts enjoy flexibility in responding to student-on-student har-\\nassment and “may tailor their responses to the circumstances.” Lance,\\n743 F.3d at 1000. Title IX does not require school districts to purge themselves\\nof harassment, take specific disciplinary actions, nor comply with parents’\\nremedial demands. Davis, 526 U.S. at 648. Even a school district’s “failure to\\ncomply with [its] regulations . . . does not establish the requisite . . . deliberate\\nindifference.” Sanches, 647 F.3d at 169 (citation omitted). Given this flexibil-\\nity, “courts should refrain from second-guessing the disciplinary decisions\\nmade by school administrators.” Davis, 526 U.S. at 648.\\n\\n\\n 7 See also Farmer v. Brennan, 511 U.S. 825, 835 (1994) (“[D]eliberate indifference\\nentails something more than mere negligence . . . .”).\\n 8 See also Sanches, 647 F.3d at 168 (“Ineffective responses . . . are not necessarily\\nclearly unreasonable.”).\\n 9 See Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 997 (5th Cir. 2014)\\n(determining that the district’s response to complainant’s bullying, despite several instances\\nof inaction, was not deliberately indifferent); Doe ex rel. Doe v. Dall. Indep. Sch. Dist.,\\n220 F.3d 380, 388–89 (5th Cir. 2000) (holding that the district was not deliberately indifferent\\ndespite its having erroneously concluded that the complainant had not been sexually as-\\nsaulted); Leffall, 28 F.3d at 531–32 (finding that the district’s decision to hire two unarmed\\nsecurity guards for a school dance where a student was fatally shot established a lack of\\ndeliberate indifference despite awareness of the risk of violence).\\n 11\\n\\f Case: 17-40722 Document: 00514828083 Page: 12 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\n Accordingly, the strict nature of the deliberate indifference standard and\\nthe considerable flexibility school districts exercise in responding to harass-\\nment counsel that “Title IX does not require flawless investigations or perfect\\nsolutions.” Sanches, 647 F.3d at 170. Instead, school districts “must merely\\nrespond to known peer harassment in a manner that is not clearly unreasona-\\nble.” Davis, 526 U.S. at 649.\\n\\n IV.\\n I.F. asserts that “generally,” “[t]he question of whether an action by a\\nschool district is ‘clearly unreasonable,’” and therefore, that the school district\\nwas deliberately indifferent, “should . . . be decided by juries.” Though she\\nacknowledges that judgment as a matter of law (“JML”) on deliberate indiffer-\\nence is permissible “[i]n an appropriate case,” id., she relies on principles from\\ncivil rights jurisprudence and qualified immunity to contend that the\\n“Supreme Court would prefer the deliberate-indifference issue to be resolved\\nby juries rather than judges.”\\n\\n I.F. first maintains that because the Supreme Court adopted the delib-\\nerate indifference standard from its civil rights jurisprudence, where the ques-\\ntion of deliberate indifference is routinely placed before juries, the issue should\\nbe decided by a jury in the Title IX context as well. Second, she states that\\nbecause the public policy underlying qualified immunity for individual govern-\\nmental employees does not apply to school districts, the question whether a\\nschool district’s response to student-on-student harassment was not clearly\\nunreasonable, and therefore not deliberately indifferent, should be a question\\nof fact for a jury to decide. I.F. also attempts to distinguish Sanches by inter-\\npreting it to have found, unlike in the current case, “that there was no evidence\\nin the record of sexual-based harassment . . . and, therefore, as a matter of law,\\nthe defendant school district could not have been deliberately indifferent to it.”\\n\\n 12\\n\\f Case: 17-40722 Document: 00514828083 Page: 13 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nI.F.’s assertions conflict with uncontroverted Supreme Court and Fifth Circuit\\nprecedent, and her analogies to disparate areas of law are unavailing.\\n\\n First, the Supreme Court and this court recognize that in ruling on a\\nmotion for summary judgment, a district court can determine, as a matter of\\nlaw, that a party was not deliberately indifferent. “The deliberate-indifference\\ninquiry does not transform every school disciplinary decision into a jury ques-\\ntion.” Nevills v. Mart Indep. Sch. Dist., 608 F. App’x 217, 221 (5th Cir. 2015)\\n(per curiam) (citation omitted). Instead, “[i]n an appropriate case, there is no\\nreason why courts, on a motion . . . for summary judgment, . . . could not iden-\\ntify a response as not ‘clearly unreasonable’ as a matter of law.” Davis,\\n526 U.S. at 649. “Whether an official’s response to actual knowledge of dis-\\ncrimination amounted to deliberate indifference . . . may appropriately be\\ndetermined on summary judgment.” Doe, 220 F.3d at 387.\\n\\n Following these principles, we have repeatedly upheld summary judg-\\nments after finding, as a matter of law, that a school district’s response to har-\\nassment was not deliberately indifferent. 10 In the context of Title IX student-\\non-student harassment claims, summary judgment remains an appropriate\\ntool, and courts may grant summary judgment if there is no genuine dispute\\nof material fact regarding deliberate indifference. See Doe, 153 F.3d at 220 n.8.\\nTherefore, I.F.’s claim that courts should generally allow juries to decide the\\nquestion of deliberate indifference is merely an advocacy position not grounded\\nin the law. 11\\n\\n Second, I.F.’s attempt to rely on principles of qualified immunity is\\n\\n\\n 10 See, e.g., Nevills, 608 F. App’x at 222; Lance, 743 F.3d at 997, 1000–01; Sanches,\\n647 F.3d at 167–70; Doe, 220 F.3d at 387–89.\\n 11 Moreover, I.F. concedes that we have “issued several opinions in recent years in\\nwhich [we have] affirmed summary judgments on deliberate-indifference claims arising out\\nof student-on-student harassment.”\\n 13\\n\\f Case: 17-40722 Document: 00514828083 Page: 14 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nmeritless. Qualified immunity is not implicated in this appeal, and the doc-\\ntrine does not speak to whether I.F. raised a genuine dispute of material fact\\non deliberate indifference to avoid summary judgment. Therefore, the alleged\\nfact that questions of qualified immunity are often resolved as a matter of law\\nand that LISD cannot assert qualified immunity here, has no import in resolv-\\ning whether a district court may decide deliberate indifference as a matter of\\nlaw.\\n\\n Third, in attempting to distinguish Sanches, I.F. misconstrues its find-\\nings. Contrary to I.F.’s assertion, Sanches held the opposite and explicitly\\nstated that “the district was not deliberately indifferent.” Sanches, 647 F.3d\\nat 170. Accordingly, I.F.’s claim—that the question whether an action by a\\nschool district was clearly unreasonable, and, thus, that the district was delib-\\nerately indifferent, should generally be decided by a jury—is meritless.\\n\\n V.\\n I.F. claims that a district court’s finding, as a matter of law, that a school\\ndistrict was not deliberately indifferent instead of allowing a jury to decide the\\nquestion “dissuades . . . potential future victims from pursuing their legal rem-\\nedies, thereby rewarding those who engage in the conduct that Title IX was\\nenacted to deter.” She likens her case to those of black plaintiffs “50 years ago”\\nand asserts that “this Court should not conclude today that Texans’ perceived\\nlove of high-school football should eviscerate a young woman’s right to a jury\\ntrial when her gender-discrimination claim potentially threatens the success\\nof an all-male football team.” At its core, I.F.’s policy reasoning is that allowing\\nclaims of Title IX student-on-student harassment to be decided by a court on\\nsummary judgment is contrary to Title IX’s “purpose” and will “eviscerate the\\nstatute[] that w[as] designed to prevent prejudice.” I.F.’s theory is\\nunpersuasive.\\n\\n 14\\n\\f Case: 17-40722 Document: 00514828083 Page: 15 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\n The law on whether a district court can grant summary judgment on\\nTitle IX student-on-student harassment claims is settled. Summary judgment\\non Title IX claims is appropriate if there are no genuine disputes as to material\\nfacts and the moving party is entitled to JML, and the Supreme Court agrees.\\nDavis, 526 U.S. at 649. The district court did precisely that, granting summary\\njudgment to LISD because “I.F. has not shown the existence of a material issue\\nof fact under the objective standard applicable to review of a Title IX deliberate\\nindifference claim.” Though I.F. attempts to alter this law by relying on asser-\\ntions regarding the purpose of Title IX and the alleged consequences of grant-\\ning summary judgment on these types of claims, her points are untenable.\\nTheir logical endpoint is that a court would never be able to grant summary\\njudgment against a claimant without essentially declaring that the movant’s\\ninterests are more important than the claimant’s right to be free from Title IX\\ndiscrimination. Consequently, I.F.’s points conflict with settled law.\\n\\n I.F. further supports her policy reasoning by misconstruing a statement\\nby the district court regarding high school football. I.F. states that the court\\n“tacitly” acknowledged that “jurors in the Eastern District of Texas will place\\na greater emphasis on preserving a successful high-school football team than\\non other conceivable public-policy goals,” such as preventing student-on-\\nstudent harassment under Title IX. I.F. uses this interpretation to urge that\\nthe district court should not be allowed to decide that jurors will favor high\\nschool football as a matter of law, and, therefore, that the question of deliberate\\nindifference should be decided by a jury. Understood in context, however, the\\ndistrict court’s statement was merely an explanation of why Denson-\\nWhitehead’s comment that I.F. would encounter difficulties if she “went\\nagainst the football team” was a legitimate, if inartful, concern. Therefore, I.F.\\ncannot use the district court’s observation to support her assertion that by\\n\\n 15\\n\\f Case: 17-40722 Document: 00514828083 Page: 16 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nallowing courts to grant summary judgment on Title IX claims, they would be\\ncountenancing putting football above preventing Title IX harassment and\\neviscerating the antidiscrimination protections afforded by the statute.\\n\\n VI.\\n Liability for student-on-student harassment under Title IX requires the\\nclaimant to prove each of five elements. Therefore, to prevail on summary\\njudgment for a claim of student-on-student harassment, a defendant school\\ndistrict, as the moving party, must demonstrate that there is no genuine dis-\\npute as to any one of the following material facts and that it is therefore\\nentitled to JML: “(1) [The district] had actual knowledge of the harassment,\\n(2) the harasser was under the district’s control, (3) the harassment was based\\non the victim’s sex, (4) the harassment was so severe, pervasive, and object-\\ntively offensive that it effectively bar[red] the victim’s access to an educational\\nopportunity or benefit, and (5) the district was deliberately indifferent to the\\nharassment.” Sanches, 647 F.3d at 165 (citation and internal quotation marks\\nomitted).\\n\\n I.F. and LISD do not dispute prong (2) or (3): I.F.’s harassers, as stu-\\ndents, were under LISD’s control, and the harassment was based on I.F.’s sex.\\nThe parties dispute the other elements. Based on a de novo review of the rec-\\nord, viewing the evidence in the light most favorable to I.F., we determine that\\nsummary judgment is appropriate in LISD’s favor because there is no genuine\\ndispute that LISD was not deliberately indifferent to I.F.’s claims of\\nharassment.\\n\\n A.\\n The first material fact is whether LISD had actual knowledge of the\\nharassment. I.F. asserts two distinct allegations of harassment: a sexual\\n\\n 16\\n\\f Case: 17-40722 Document: 00514828083 Page: 17 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nassault on September 28, 2012, and incidents of sexual harassment following\\nthe alleged sexual assault in the form of bullying and cyberbullying. The bully-\\ning consists of three episodes: (1) bullying and harassment by fellow students\\nin the two weeks following the alleged sexual assault, (2) cyberbullying com-\\nprising Twitter posts, retweets, and likes that occurred on or around Decem-\\nber 31, 2012, and January 1, 2013, and (3) cyberbullying in the form of har-\\nassing Instagram posts in February 2013.\\n\\n First, for the sexual assault allegation, LISD had actual knowledge of\\nthe harassment on October 15, 2012, when the Fletchers reported it to Denson-\\nWhitehead. By October 16, Denson-Whitehead had reported the information\\nshe had learned regarding the sexual assault to Dalton and Werneke. Second,\\nfor the bullying complaint, LISD had actual knowledge of the harassment on\\nOctober 10, when Fletcher contacted Denson-Whitehead to report that I.F. was\\nbeing bullied. Denson-Whitehead informed Dalton of the bullying complaint\\nby October 16. Third, for the Twitter cyberbullying complaint, LISD had actual\\nknowledge of the harassment on January 7, when Fletcher went to Hebron and\\nprovided Werneke with a list of students who she claimed had been cyber-\\nbullying I.F. on Twitter and a copy of the alleged post that had started the\\nharassment. Fourth, for the Instagram cyberbullying complaint, LISD had\\nactual knowledge of the harassment on February 19, when Fletcher contacted\\nWerneke and told her about photographs and harassing comments posted by\\ntwo Instagram accounts. The next day, Werneke reported the complaint to\\nDalton.\\n\\n LISD does not dispute that it had actual knowledge of the sexual assault\\nand two forms of cyberbullying on the dates set forth above, but it does assert\\nthat it did not have actual knowledge of “any sex-based bullying in connection\\nwith the October 10, 2012, report” because Fletcher’s complaint to Denson-\\n\\n 17\\n\\f Case: 17-40722 Document: 00514828083 Page: 18 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nWhitehead on that date did not implicate Title IX. LISD maintains that Flet-\\ncher merely described that I.F. was being bullied generally, or at most, was\\nexperiencing cheerleading bullying, but Fletcher did not give any information\\nthat would lead Denson-Whitehead to believe the bullying was sex-based.\\n\\n Nevertheless, LISD’s contention is better directed at the question of\\nLISD’s deliberate indifference, not whether it had actual knowledge of the\\nbullying. Based on the evidence, it is indisputable that LISD had actual knowl-\\nedge, through Denson-Whitehead, that I.F. was being bullied in some manner.\\nThough the parties may dispute whether LISD’s response to that knowledge\\nwas deliberately indifferent, the fact is that LISD knew of the harassment on\\nthat day.\\n\\n B.\\n The second material fact is whether the harassment was so severe, per-\\nvasive, and objectively offensive that it effectively barred I.F.’s access to an\\neducational opportunity or benefit. The MJ and the district court reached\\ndifferent conclusions. The MJ determined that the harassing conduct I.F.\\nendured “was not severe, pervasive, or objectively unreasonable,” nor did it\\nhave a concrete, negative effect on her access to education. Conversely, the\\ndistrict court found that there was a genuine dispute concerning this material\\nelement. The court determined that I.F. had provided evidence that, “if\\nbelieved by a jury, could be a basis for a jury finding that the sexual harass-\\nment was so severe, pervasive, or objectively unreasonable so as to have had a\\nconcrete, negative effect on I.F.’s access to education.” Although neither side\\nchallenges this finding on appeal, we are not bound by the parties’ agreement\\nbut must review the summary judgment de novo. Austin v. Kroger Tex., L.P.,\\n864 F.3d 326, 328 (5th Cir. 2017) (per curiam). Based on that de novo review,\\nviewing the evidence in the light most favorable to I.F., we determine that I.F.\\n\\n 18\\n\\f Case: 17-40722 Document: 00514828083 Page: 19 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nhas demonstrated a genuine dispute as to a material fact, namely, whether the\\nharassment she endured was so severe, pervasive, and objectively offensive\\nthat it effectively barred her access to an educational opportunity or benefit.\\n\\n First, I.F. has raised a genuine dispute as to whether the harassment\\nshe endured was severe, pervasive, and objectively offensive. Her classmates\\ncalled her a “whore” and a “slut.” They spread rumors about her, talked about\\nher loudly in her presence, and excluded her during cheerleading. One student\\nasked her the race of the baby she would be having. Others asked whether she\\nhad sex with multiple people and “how did it feel to be fucked in every single\\nhole of your body?” A.V., one of the students I.F. asserts raped her, “wore the\\npants that he raped [I.F.] in to school, which had [her] blood on them from\\nintercourse, and stood on the lunch table and said, these are the pants that\\nI took [I.F.’s] virginity in.” Multiple football players called her a liar and told\\nher that she was “going to ruin everything.” The harassment continued online,\\nwith students commenting about I.F.’s alleged assault on Twitter and Insta-\\ngram. As a result of the harassment, I.F. felt suicidal and depressed, began\\ncutting herself, had nightmares, and experienced panic attacks. Therefore, she\\nhas demonstrated a genuine dispute regarding whether the harassment was\\nsevere, pervasive, and objectively offensive.\\n\\n Second, I.F. has raised a genuine dispute as to whether the harassment\\neffectively barred her access to an educational opportunity or benefit because\\nshe provided evidence that she felt that she could not return to Hebron on\\naccount of the harassment. In her statement of events dated February 8, 2013,\\nI.F. stated that “I asked [my parents] to pull me out of school because of the\\nbullying, and that I didn’t want to be there with those two boys who raped me.”\\n“I thought once the police and school heard about what happened to me that\\nthey would arrest the boys and kick them out of school and I could go back to\\n\\n 19\\n\\f Case: 17-40722 Document: 00514828083 Page: 20 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nschool, but no!” I.F. also asserted during her deposition that Fletcher had\\ninformed LISD that I.F. could not “be going to the same school as [her] rapists.”\\nAccordingly, I.F. has presented sufficient evidence to raise a genuine dispute\\nas to a material fact, namely, that the harassment she endured was so severe,\\npervasive, and objectively offensive that it effectively barred her access to an\\neducational opportunity or benefit.\\n\\n C.\\n The third material fact is whether LISD was deliberately indifferent to\\nthe harassment. The MJ and the district court agreed that “there is no issue\\nof fact as to whether the district was deliberately indifferent.” Based on a de\\nnovo review of the record, viewing the evidence in the light most favorable to\\nI.F., we determine that I.F. has failed to demonstrate a genuine dispute of\\nmaterial fact to show that LISD’s responses to I.F.’s alleged sexual assault on\\nSeptember 28, 2012, and incidents of sexual harassment following the alleged\\nsexual assault in the form of bullying and cyberbullying, were deliberately\\nindifferent. Therefore, LISD is entitled to JML.\\n\\n 1.\\n I.F. claims that LISD was deliberately indifferent to her alleged sexual\\nassault because there was a “lengthy and unjustified delay” before it began its\\ninvestigation. I.F. rejects LISD’s contention that it was not cleared to inves-\\ntigate the sexual assault allegation until mid-December 2012 and asserts that\\nalthough CPD “finished its criminal investigation on November 8, 2012, . . .\\nLISD did not begin its investigation for nearly two months,” in January 2013.\\nAside from generally averring that LISD should have initiated the investiga-\\ntion soon after it received clearance from the police in early November 2012,\\nI.F. proffers three reasons why LISD’s delay was unjustified.\\n\\n\\n 20\\n\\f Case: 17-40722 Document: 00514828083 Page: 21 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\n First, I.F. contends that the delayed investigation contravened the “Dear\\nColleague Letter,” sent to LISD and all other school districts in the United\\nStates, by the U.S. Department of Education’s Office for Civil Rights in 2011,\\nwhich states that “a school . . . must promptly investigate” potential harass-\\nment and that “a law enforcement investigation does not relieve the school of\\nits independent Title IX obligation to investigate the conduct.” 12 Second, she\\nclaims the delay was motivated by LISD’s preference for its high school football\\nprogram over the Title IX rights of its students. Third, I.F. asserts that the\\ndistrict court mistakenly did not apply the reasoning of Williams v. Board of\\nRegents of the University System of Georgia, 477 F.3d 1282 (11th Cir. 2007),\\nwhich I.F. interprets as holding that a school may not delay its investigation\\nin light of a pending criminal investigation where that investigation would not\\naffect the school’s ability to institute its own procedures. Accepting I.F.’s ver-\\nsion of when LISD received authorization from CPD to begin its investigation,\\neach of I.F.’s claims nevertheless fails, and the evidence instead supports the\\nconclusion that LISD was not deliberately indifferent to I.F.’s sexual assault\\nallegation.\\n\\n I.F. misconstrues the Dear Colleague Letter by selectively quoting it.\\nThough she claims that the letter states that a school district may not delay\\nits investigation in light of a simultaneous criminal investigation, the letter\\ncontains additional language regarding how a district should approach\\ncoordinating its Title IX investigation with a criminal investigation:\\n Although a school may need to delay temporarily the fact-finding\\n portion of a Title IX investigation while the police are gathering\\n evidence, once notified that the police department has completed\\n\\n\\n\\n 12 Dear Colleague Letter: Sexual Violence 4, Russlynn Ali, Assistant Sec’y for Civil\\nRights, Office for Civil Rights, U.S. Dep’t of Educ. (Apr. 4, 2011),\\nhttps://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.\\n 21\\n\\f Case: 17-40722 Document: 00514828083 Page: 22 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\n its gathering of evidence (not the ultimate outcome of the investi-\\n gation or the filing of any charges), the school must promptly re-\\n sume and complete its fact-finding for the Title IX investiga-\\n tion.[ 13]\\n LISD first learned of I.F.’s sexual assault allegation on October 15, 2012.\\nThe next day, Langston requested that LISD refrain from investigating the\\nmatter until CPD informed LISD that it could proceed because any LISD inves-\\ntigation could interfere with the criminal investigation. According to I.F.,\\nLISD received that authorization on November 8, 2012, and, thus, should have\\nbegun its investigation at that time. Therefore, because it was complying with\\nthe police request not to investigate for approximately three weeks between\\nOctober 15 and November 8, LISD was not violating the letter during that\\ntime.\\n\\n Furthermore, though LISD did not begin its investigation until January,\\naccepting I.F.’s version of events, LISD’s delay after the initial three-week per-\\niod was not because it was waiting for police authorization. Consequently,\\nI.F.’s attempt to use the Dear Colleague Letter’s statements about coordination\\nwith criminal investigations—to demonstrate that LISD was deliberately\\nindifferent during this period—fails. To the extent that I.F. contends that\\nLISD violated the letter’s mandate that school districts promptly resume their\\ninvestigations after a criminal investigation has been completed, that is\\nexactly the inquiry we are engaging in when we analyze whether LISD’s delay\\nin beginning its investigation was deliberately indifferent. 14\\n\\n Next, even accepting I.F.’s allegation of Denson-Whitehead’s statements\\n\\n\\n 13 Id. at 10.\\n The U.S. Department of Education’s Office for Civil Rights has since rescinded the\\n 14\\n\\nDear Colleague Letter. Dear Colleague Letter, Candice Jackson, Acting Assistant Sec’y for\\nCivil Rights, Office for Civil Rights, U.S. Dep’t of Educ. (Sept. 22, 2017),\\nhttps://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.\\n 22\\n\\f Case: 17-40722 Document: 00514828083 Page: 23 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nas true, I.F. has failed to raise a genuine dispute of material fact that Denson-\\nWhitehead’s statements evidence LISD’s deliberate indifference because they\\nwere motivated by an animus against I.F. for attempting to “go against the\\nfootball team.” As the district court explained, at many high schools in Texas,\\nthe football team and its games are a source of school and community pride.\\nMany students are involved in the team or related organizations, such as the\\ncheerleading squad or the band. Consequently, an individual who raises seri-\\nous sexual assault allegations against members of the team may experience\\nresistance.\\n\\n Denson-Whitehead’s statement that “it was going to be very difficult\\ngoing against the football team” must be construed in this context as express-\\ning her concern to I.F. and her parents about this potential resistance. Denson-\\nWhitehead’s subsequent actions support this interpretation. She did not keep\\nI.F.’s sexual assault allegation to herself or change details to make it seem less\\nserious. Instead, the same day that she learned of the allegation, she informed\\nWerneke and Langston, and the next day, she told Dalton. Though Denson-\\nWhitehead’s comment was inartful and could have been more tactful, it is not\\nobjective evidence of deliberate indifference.\\n\\n Finally, I.F.’s reliance on Williams, an out-of-circuit case, is misplaced.\\nThe Eleventh Circuit found that the University of Georgia was deliberately\\nindifferent because it waited eight months after receiving a full police report\\nbefore conducting a disciplinary hearing regarding an alleged sexual assault.\\nThough the university tried to justify the delay by averring to the pending\\ncriminal trials against the alleged assailants, the court rejected its contentions\\nas insufficient. Williams, 477 F.3d at 1296−97.\\n\\n I.F.’s case is readily distinguishable from Williams. LISD did not delay\\nits investigation after receiving a full police report or because criminal trials\\n\\n 23\\n\\f Case: 17-40722 Document: 00514828083 Page: 24 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nwere pending. Instead, LISD delayed because of a specific directive from CPD.\\nAccepting I.F.’s version of events as true, LISD then further delayed the inves-\\ntigation for about two months, which included Thanksgiving break and the\\nChristmas/New Years holidays. This delay was much shorter than the eight-\\nmonth delay that the Williams court relied on, in part, in finding that the\\nuniversity was deliberately indifferent.\\n\\n Contrary to I.F.’s theory that LISD’s delayed investigation shows delib-\\nerate indifference, the evidence supports the conclusion that LISD performed\\nan extensive investigation within a reasonable time. Accepting I.F.’s version\\nof events that LISD received authorization to begin investigating the sexual\\nassault allegation on November 8, 2012, LISD’s delay consisted of two periods:\\nwaiting for police authorization from October 16, 2012, to November 8, 2012,\\nand the November 8, 2012, to January 7, 2013, period. 15\\n\\n Though a delay in instituting remedial actions may constitute deliberate\\nindifference under Title IX, 16 LISD’s twenty-eight school-day delay does not\\nrise to that level. During that period, LISD was actively taking steps to provide\\nrelief to I.F. It worked together with I.F.’s teachers to get her the work she\\nwas missing during her absence and requested the teachers be flexible with\\nI.F.’s workload, provided her with information regarding educational oppor-\\ntunities outside of LISD, and assisted I.F. in enrolling in the Homebound\\n\\n\\n\\n\\n 15Based on a 2012-year calendar and the dates for the vacation periods LISD provides,\\nThanksgiving break and the Christmas/New Years holidays together consumed three full\\nschool weeks.\\n 16 See, e.g., Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 669–70 (2d Cir. 2012)\\n(holding that a jury was within its power to find that a school district was deliberately indif-\\nferent where it waited over a year to implement remedial action in response to a complaint);\\nMatthews v. Nwankwo, 36 F. Supp. 3d 718, 725 (N.D. Miss. 2014) (holding that an unjustified\\ndelay of two to three months in separating a complainant from the alleged assailant’s class\\nwas deliberate indifference).\\n 24\\n\\f Case: 17-40722 Document: 00514828083 Page: 25 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nprogram. 17 In light of these known circumstances, the delay was not clearly\\nunreasonable and thus was not deliberately indifferent. See Davis, 526 U.S.\\nat 648; Sanches, 647 F.3d at 167–68.\\n\\n Once it began its investigation, moreover, LISD’s response was not\\ndeliberately indifferent. It interviewed fourteen students about the alleged\\nsexual assault and followed up with four students, including the two alleged\\nassailants. It interviewed I.F., with her lawyer present, and accepted her writ-\\nten statement. After reviewing the evidence, LISD concluded that it could not\\nestablish, with sufficient evidence, that I.F. had been sexually assaulted at the\\nparty, so there was no basis for any LISD discipline for sexual assault. Title IX\\ndid not require LISD to take specific disciplinary actions, comply with parents’\\nremedial demands, or comply with its own regulations in investigating the\\ncomplaint. Davis, 526 U.S. at 648; Sanches, 647 F.3d at 169. Instead of being\\nclearly unreasonable, to the contrary, LISD’s investigation was thorough and\\nappropriate. Therefore, LISD’s response to I.F.’s sexual assault allegation was\\nnot deliberately indifferent.\\n\\n 2.\\n I.F. contends that LISD was deliberately indifferent to her October 10,\\n2012, bullying complaints because it “never undertook an investigation into”\\nthem. Nevertheless, in light of the known circumstances, LISD’s response to\\nthe harassment in the form of bullying was not deliberately indifferent.\\n\\n When Fletcher contacted Denson-Whitehead on October 10 to report that\\nI.F. was being bullied, she did not give specific details. Fletcher stated that\\nI.F. was being “severely bullied” and opined that it could be cheerleading\\n\\n\\n\\n 17 Furthermore, I.F. was separated from her alleged assailants by her absence from\\nschool and subsequent enrollment in the Homebound program.\\n 25\\n\\f Case: 17-40722 Document: 00514828083 Page: 26 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nbullying, but other than giving Denson-Whitehead the names of several stu-\\ndents, who had bullied I.F. at her middle school, who Fletcher was unsure were\\ninvolved, Fletcher “didn’t have any names” for this bullying complaint.\\nDenson-Whitehead said that she would speak with I.F. about the bullying\\nwhen I.F. next attended school. But when I.F. returned to school on Friday,\\nOctober 12, for the first time since Denson-Whitehead and Fletcher’s conver-\\nsation, before Denson-Whitehead could speak with I.F., Fletcher emailed\\nDenson-Whitehead to request that she not speak with I.F., and Denson-\\nWhitehead complied.\\n\\n The following Monday, October 15, LISD learned of I.F.’s alleged sexual\\nassault and shifted its focus to investigating that claim. After that date, I.F.\\nnever provided a statement to LISD regarding the bullying, nor did the Flet-\\nchers give LISD further details to supplement their earlier complaint about\\nthe bullying. Therefore, in light of the known circumstances, LISD’s response\\nto the bullying complaint was not clearly unreasonable and thus was not\\ndeliberately indifferent.\\n\\n 3.\\n I.F. does not specifically allege that LISD was deliberately indifferent to\\nher complaints of cyberbullying through Twitter and Instagram. Because,\\nhowever, I.F. asserts that the cyberbullying was sexual harassment under\\nTitle IX, if there is a genuine dispute regarding whether LISD was deliberately\\nindifferent to these complaints, summary judgment was inappropriate. Never-\\ntheless, LISD was not deliberately indifferent to the cyberbullying complaints.\\n\\n In response to I.F.’s first cyberbullying complaint on January 7, 2013,\\nLISD promptly interviewed nineteen students in early-to-mid January and\\nreviewed the alleged offending social media posts. Though LISD concluded\\nthat the posts did not constitute “bullying” as defined by LISD policy, it still\\n 26\\n\\f Case: 17-40722 Document: 00514828083 Page: 27 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nconsidered them improper and hurtful. LISD therefore counseled the impli-\\ncated students about inappropriate social media behavior, advised them not to\\nengage in such behavior in the future, and contacted their parents.\\n\\n In response to I.F.’s second cyberbullying complaint on February 19,\\n2013, LISD promptly reported the matter to CPD, which began an investiga-\\ntion. As a result, one Hebron student was charged with criminal harassment,\\nand LISD suspended him for three days and assigned him to the Disciplinary\\nAlternative Education Program for thirty days as punishment.\\n\\n LISD’s responses to both cyberbullying complaints were reasonable\\ninvestigatory efforts aimed at discovering who was responsible, determining\\nwhether Title IX sexual harassment had occurred, and remedying offending\\nconduct. Consequently, LISD’s investigation was not clearly unreasonable,\\nand it was not deliberately indifferent.\\n\\n There is no error. The summary judgment is AFFIRMED.\\n\\n\\n\\n\\n 27\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4366117/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"SMITH"},"judge2":{"kind":"string","value":"DUNCAN"},"judge3":{"kind":"string","value":"ENGELHARDT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4588864/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: I.F., Plaintiff-Appellant, v. LEWISVILLE INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-40722 Document: 00514828083 Page: 1 Date Filed: 02/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-40722 February 8, 2019\n Lyle W. Cayce\n Clerk\n\n\nI.F.,\n\n Plaintiff–Appellant,\n\nversus\n\nLEWISVILLE INDEPENDENT SCHOOL DISTRICT,\n\n Defendant–Appellee.\n\n\n\n\n Appeal from the United States District Court\n for the Eastern District of Texas\n\n\n\n\nBefore SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n I.F., a former student, sued Lewisville Independent School District\n(“LISD”) for violating Title IX of the Education Amendments of 1972, 20 U.S.C.\n§§ 1681–1688 (2012), claiming that LISD was deliberately indifferent to her\nalleged sexual harassment and retaliated against her by withholding Title IX\nprotections. LISD moved for summary judgment, and I.F. moved for partial\nsummary judgment. The district court granted in part and denied in part\n\f Case: 17-40722 Document: 00514828083 Page: 2 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nLISD’s motion, finding that whereas the evidence did not establish a genuine\ndispute of material fact regarding whether LISD was deliberately indifferent\nto I.F.’s reports of sexual harassment and bullying, there was a genuine dis-\npute of material fact regarding the retaliation claim. The court also denied\nI.F.’s motion. I.F. appeals, challenging only the summary judgment on deliber-\nate indifference. We affirm.\n\n I.\n I.F. was a ninth-grade student at the Hebron High School Ninth Grade\nCampus (“Hebron”) in LISD during the 2012−13 school year. On Friday, Sep-\ntember 28, 2012, she attended a non-school-sponsored, non-school-affiliated\nparty at the private residence of fellow Hebron student S.S. at which no LISD\npersonnel were present. At the party, A.V. and I.G. engaged in sexual activity\nwith I.F., which she claims was rape.\n\n When I.F. returned to school on Monday, her classmates began to harass\nand bully her. According to the complaint, they called her a “whore” and a\n“slut,” asked whether she had sex with multiple people, and inquired “how did\nit feel to be fucked in every single hole of your body?” A.V. “wore the pants that\nhe raped [I.F.] in to school, which had [her] blood on them from intercourse,\nand stood on the lunch table and said, these are the pants that I took [I.F.’s]\nvirginity in.”\n\n I.F. informed her mother, Jaime Fletcher (“Fletcher”), that she was being\nbullied, and on October 10, Fletcher contacted Hebron counselor Debra\nDenson-Whitehead to report the bullying but said nothing about sexual active-\nity or assault. 1 Denson-Whitehead told Fletcher that she would speak with\n\n\n 1 Fletcher stated during her deposition that she told Denson-Whitehead that “there’s\nsomething . . . horribly wrong. Something happened. I don’t know what, but my daughter is\nbeing severely bullied, and it’s really bad.” Ms. Fletcher also told Denson-Whitehead that\n 2\n\f Case: 17-40722 Document: 00514828083 Page: 3 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nI.F. about the bullying when I.F. returned to school. But on Friday, October 12,\nwhen I.F. next attended school, before Denson-Whitehead could speak with\nI.F., Fletcher emailed Denson-Whitehead and told her not to speak with I.F.\nthat day about the bullying. Denson-Whitehead complied and informed Flet-\ncher that she would check in with I.F. the following week. Nevertheless, I.F.\nnever physically attended any LISD school after October 12.\n\n That same day, I.F.’s parents (“the Fletchers”) learned for the first time\nfrom other parents at a football game that I.F. allegedly had been sexually\nassaulted. The Fletchers reported the assault to the Carrollton Police Depart-\nment (“CPD”), which opened an investigation.\n\n On Monday, October 15, the Fletchers met with Denson-Whitehead to\ninform her that I.F. had been sexually assaulted at a party by two Hebron\nstudents and that they had reported the assault to CPD, which had opened an\ninvestigation. The Fletchers also gave Denson-Whitehead a list of students\nwho they believed were involved. This meeting was the first time that Denson-\nWhitehead learned of I.F.’s alleged sexual assault. Denson-Whitehead alleges\nthat she expressed her shock and sorrow to the Fletchers and advised them\nthat she would notify the administration. According to the Fletchers, Denson-\nWhitehead told them that “it was going to be very difficult going against the\nfootball team” and that “the best thing for [I.F.] would be to transfer schools.”\nAfter the meeting, Denson-Whitehead conveyed the information she had\nlearned regarding the sexual assault to Hebron Assistant Principal Amanda\nWerneke and Hebron School Resource Officer Cole Langston, who was also a\npolice officer at CPD.\n\n\n\n\nshe didn’t know whether the bullying was cheerleading bullying, and there was a senior who\nwas “saying something,” but she “didn’t have any names.”\n 3\n\f Case: 17-40722 Document: 00514828083 Page: 4 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\n On October 16, 2012, Denson-Whitehead reported the same information\nto Hebron Principal Mark Dalton. Dalton, Denson-Whitehead, and Werneke\nconsulted with Langston about the alleged assault. Langston confirmed that\nCPD had opened a case and was investigating the sexual assault. He requested\nthat Hebron refrain from investigating the matter until CPD informed LISD\nthat it could proceed because any LISD investigation could interfere with and\npotentially compromise the criminal investigation. Dalton interpreted that\nrequest to apply to both Fletcher’s complaint that I.F. was being bullied and\nI.F.’s alleged sexual assault. Furthermore, both Dalton’s and Denson-\nWhitehead’s concerns about I.F.’s alleged sexual assault took precedence over\nthe previously reported bullying. 2\n\n During this time, I.F. was not attending school, so LISD took steps to\nensure that she earned credit for the classes she was taking. First, Dalton and\nDenson-Whitehead worked together with I.F.’s teachers to get I.F. the work\nshe needed to complete her first-grading-period classes. Dalton also requested\nthat the teachers be flexible and informed them that I.F. need not complete all\nwork that was expected from students who were regularly attending class.\n\n Second, Denson-Whitehead informed the Fletchers of several options for\nI.F. to continue her education, including continuing to attend Hebron, enrolling\nin Texas Tech online/correspondence courses, or transferring to a charter\nschool. The Fletchers did not choose any of those options. Though they desired\nthat I.F. return to Hebron, this was not an option unless her alleged assailants\nwere removed from the school, and the online courses were outside their bud-\nget. Instead, after finding out about the LISD Homebound program from the\n\n\n 2Denson-Whitehead stated in her affidavit that “[w]hile not minimizing the purported\nbullying of I.F., she considered [the] report of an alleged rape to be much more serious . . .,\nparticularly given that Mrs. Fletcher had asked [her] . . . not to talk to I.F. about the\nbullying.”\n 4\n\f Case: 17-40722 Document: 00514828083 Page: 5 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nChildren’s Medical Center in Dallas, the Fletchers requested that LISD place\nI.F. into that program.\n\n LISD’s Homebound program allows students who are unable to attend\nschool for an extended period of time, for medical reasons, to work from home\nand receive credit. LISD requires a physician’s recommendation before a stu-\ndent may be placed into the program. The Fletchers obtained that recommen-\ndation, and LISD enrolled I.F. in the Homebound program by October 30,\nwhere she remained for the rest of the 2012−13 school year.\n\n In early October 2012, Brian Brazil, Hebron High School’s head football\ncoach and athletic coordinator, was informed by a freshman football coach that\nsome of the football players may have been involved in a party, where alcohol\nwas consumed, thrown by S.S., a member of the freshman team. Brazil held a\nmeeting with all the football players, where he discussed the rumor of alcohol\nconsumption at a party and reminded them that LISD’s Extra-Curricular Code\nof Conduct prohibited the consumption of alcohol.\n\n Following the meeting, he spoke with S.S. individually about the party,\nincluding asking about the presence of alcohol and drugs. S.S. admitted that\nhe had consumed alcohol at the party, but falsely stated that no other football\nplayers were present at the party. Brazil suspended S.S. for two games for\nviolating the alcohol consumption prohibition and spoke with S.S.’s father\nabout his meeting with S.S.\n\n During the team-wide meeting and the individual meeting with S.S.,\nBrazil discussed the party only in relation to alcohol and drugs. At that time,\nhe did not know anything about the alleged sexual assault. Before he could\ninterview other players, the Hebron administration advised him that the police\nwere conducting an investigation into the party and that he should not speak\nwith anyone else about the party.\n 5\n\f Case: 17-40722 Document: 00514828083 Page: 6 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\n At the end of October 2012, Langston informed LISD that CPD had suf-\nficiently progressed in its investigation of alcohol and drug consumption at the\nparty that LISD could proceed with its own investigation of alcohol and drug\nconsumption. Soon thereafter, at the beginning of November, Dalton in-\nstructed Brazil to investigate the alcohol consumption issue with the football\nplayers. Brazil interviewed several more players, including A.V. and I.G.; at\nno point during any of those meetings was there mention of an alleged sexual\nassault or alleged sexual misconduct by anyone at the party. After completing\nhis investigation, Brazil reported to Dalton that only one student had admitted\nto drinking and had been disciplined.\n\n In either early November or mid-December, the police authorized LISD\nto proceed with its investigation into I.F.’s allegation of sexual assault. 3 Dur-\ning that time, LISD schools were closed for both Thanksgiving break (Novem-\nber 20−25, 2012) and Christmas/New Years break (December 21, 2012, to Jan-\nuary 6, 2013). Beginning in early January 2013, Hebron conducted two simul-\ntaneous investigations regarding I.F.: one concerning the allegation of sexual\nassault and another concerning I.F.’s allegations of being cyberbullied.\n\n Werneke led both investigations. For the sexual assault investigation,\nduring the month of January 2013, LISD interviewed fourteen students,\nincluding A.V. and I.G. On February 19, LISD followed up with four students,\nagain including A.V. and I.G., interviewing them a second time. Throughout\nthe interviews, A.V. and I.G. were represented by counsel and did not answer\nall of LISD’s questions. Nevertheless, A.V. and I.G. insisted that the sexual\nactivity with I.F. was consensual. LISD also interviewed I.F., with her lawyer\n\n\n\n 3 The parties disagree regarding when CPD authorized LISD to proceed with its inves-\ntigation into sexual assault. LISD contends that the authorization occurred in mid-Decem-\nber; I.F. asserts that it occurred in early November.\n 6\n\f Case: 17-40722 Document: 00514828083 Page: 7 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\npresent, and she gave a written statement.\n\n LISD’s investigation revealed that no adults or LISD personnel wit-\nnessed the events at the September 28, 2012, party. Furthermore, the wit-\nnesses gave conflicting accounts regarding who was involved, precisely what\nhad occurred, how intoxicated the students were, and whether I.F.’s sexual\nactivity with A.V. and I.G. was consensual. LISD found that it did not have\nsufficient evidence that I.F. was sexually assaulted at the party. LISD con-\ncluded, therefore, that there was no basis for any discipline for sexual assault.\n\n For the cyberbullying investigation, Werneke first became aware that\nI.F. was being cyberbullied as she was beginning the sexual-assault investiga-\ntion when Fletcher explained the situation in person and provided Werneke a\nlist of names and the Twitter posting that had started the cyberbullying.\nAssisted by Dalton and Assistant Principals Michael Vargas and James Scott,\nWerneke interviewed nineteen students in early-to-mid-January and reviewed\nseveral social media posts and photographs that Fletcher had provided. The\ninvestigation revealed that the cyberbullying complaint stemmed from Twitter\ntweets and retweets by Hebron High School students on or around Decem-\nber 31, 2012, and January 1, 2013, and that appeared to be in response to a\ntweet by I.F. regarding Christianity. Many of the implicated students had not\nthemselves tweeted but had merely retweeted or liked a comment by another\nstudent.\n\n LISD concluded that those social media posts did not amount to “bully-\ning” as defined by LISD policy because there was no indication that they oc-\ncurred while the students were on school property or at a school-sponsored\nactivity, they did not threaten harm to I.F.’s person or property, and they were\nnot sufficiently pervasive to create a harassing environment. Nevertheless,\nLISD did consider the postings “improper and hurtful,” so LISD counseled the\n\n 7\n\f Case: 17-40722 Document: 00514828083 Page: 8 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\ninterviewed students about improper social media conduct, advised them not\nto engage in such behavior, and contacted their parents. Werneke received no\nfurther complaints from the Fletchers regarding cyberbullying by the individu-\nals involved in this phase of the cyberbullying investigation.\n\n On February 19, however, Fletcher informed Werneke of a different form\nof cyberbullying I.F. was experiencing, this time arising from photographs and\nharassing comments posted on two Instagram accounts. The next day, Wer-\nneke reported the complaint to Langston and Dalton, and CPD began an inves-\ntigation. Langston interviewed several Hebron students, including J.J.D., who\nlater admitted that he had created one of the Instagram accounts and was\nresponsible for all of the account’s posts. 4 The police charged J.J.D. with crim-\ninal harassment, and LISD suspended him for three days and then assigned\nhim to the Disciplinary Alternative Education Program for thirty days as pun-\nishment. After the Instagram cyberbullying complaint, the Fletchers made no\nother cyberbullying complaints.\n\n Once LISD had completed the sexual assault and cyberbullying investi-\ngations, it reported its findings to the Fletchers by letter dated April 5, 2013.\nI.F. completed her ninth-grade coursework through the Homebound program\nand advanced to the tenth grade at the end of the 2012−13 school year. There-\nafter, the Fletchers withdrew her from LISD, and she never returned there as\na student.\n\n II.\n I.F. sued LISD for violating Title IX, asserting that LISD was deliber-\nately indifferent to her alleged sexual harassment and retaliated against her\n\n\n\n 4 The other account was created by a former LISD student who had left LISD and was\nattending a private school in Carrollton.\n 8\n\f Case: 17-40722 Document: 00514828083 Page: 9 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nby withholding Title IX protections. LISD moved for summary judgment on\nall of I.F.’s claims, and I.F. moved for partial summary judgment to establish\nthat she had proved two essential elements of her claims: (1) that she was\nsexually assaulted by two classmates and (2) that she engaged in an activity\nprotected under Title IX. The magistrate judge (“MJ”) granted LISD’s motion\nand denied I.F.’s, determining that the alleged sexually harassing conduct was\nnot “severe, pervasive, or objectively unreasonable,” that LISD’s responses to\nI.F.’s allegations of sexual assault, bullying, and cyberbullying were not delib-\nerately indifferent, and that I.F. had failed to show any evidence of retaliatory\nactions by LISD.\n\n I.F. objected to the MJ’s order and report and recommendation in the\ndistrict court. Considering the parties’ motions de novo, the district court\ngranted in part and denied in part LISD’s motion, finding that whereas the\nevidence did not establish a genuine dispute of material fact regarding whether\nLISD was deliberately indifferent to I.F.’s reports of sexual harassment and\nbullying, 5 there was a genuine dispute of material fact regarding I.F.’s retali-\nation claim. The retaliation claim proceeded to trial, and a jury returned a\nverdict in favor of LISD.\n\n On appeal, I.F. challenges only the summary judgment for LISD on the\ndeliberate indifference claim. She asserts that summary judgment was inap-\npropriate because (1) the question of whether a school district acted with delib-\nerate indifference generally should be decided by a jury; (2) the summary judg-\nment evidence contained a factual dispute regarding when LISD should have\ncommenced its investigation into I.F.’s reports of sexual assault, harassment,\n\n\n\n 5 Though the district court agreed with the MJ on this point, it found that I.F.’s har-\nassment was sufficiently severe, pervasive, and objectively offensive so as to have had a con-\ncrete, negative effect on her access to education.\n 9\n\f Case: 17-40722 Document: 00514828083 Page: 10 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nand bullying; and (3) “allowing deliberate-indifference claims to be resolved by\njury deliberations . . . serves the underlying purpose of discouraging gender-\nbased 6 discrimination, which is the very purpose for which Title IX was enacted\nin the first place.”\n\n III.\n Title IX states that “[n]o person in the United States shall, on the basis\nof sex, be excluded from participation in, be denied the benefits of, or be sub-\njected to discrimination under any education program or activity receiving\nFederal financial assistance.” 20 U.S.C. § 1681(a). “A school district that\nreceives federal funds may be liable for student-on-student harassment if the\ndistrict (1) had actual knowledge of the harassment, (2) the harasser was\nunder the district’s control, (3) the harassment was based on the victim’s sex,\n(4) the harassment was so severe, pervasive, and objectively offensive that it\neffectively bar[red] the victim’s access to an educational opportunity or benefit,\nand (5) the district was deliberately indifferent to the harassment.” Sanches\nv. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir.\n2011) (citation and internal quotation marks omitted).\n\n For a school district to be liable under Title IX, it must have been delib-\nerately indifferent to student-on-student harassment. “Deliberate indifference\nis an extremely high standard to meet.” Domino v. Tex. Dep’t of Crim. Justice,\n239 F.3d 752, 756 (5th Cir. 2001). A school district’s “response to the harass-\nment or lack thereof [must be] clearly unreasonable in light of the known\ncircumstances.” Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ.,\n526 U.S. 629, 648 (1999). Because “deliberate indifference . . . is . . . a lesser\n\n\n 6I.F.’s reference to “gender” is entirely inappropriate. This case is about sex, not\ngender. Title IX addresses sex and never mentions gender. We will flexibly treat I.F.’s claims\nas regarding sex discrimination.\n 10\n\f Case: 17-40722 Document: 00514828083 Page: 11 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nform of intent rather than a heightened degree of negligence,” Leffall v. Dall.\nIndep. Sch. Dist., 28 F.3d 521, 531 (5th Cir. 1994) (citation and internal quo-\ntation marks omitted), neither negligent nor merely unreasonable responses\nare enough, Sanches, 647 F.3d at 167. 7 “Actions and decisions by officials that\nare merely inept, erroneous, ineffective, or negligent do not amount to deliber-\nate indifference . . . .” Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 153 F.3d 211,\n219 (5th Cir. 1998). 8 Indeed, as the district court noted, our precedent “makes\nit clear that negligent delays, botched investigations of complaints due to the\nineptitude of investigators, or responses that most reasonable persons could\nhave improved upon do not equate to deliberate indifference.” 9\n\n School districts enjoy flexibility in responding to student-on-student har-\nassment and “may tailor their responses to the circumstances.” Lance,\n743 F.3d at 1000. Title IX does not require school districts to purge themselves\nof harassment, take specific disciplinary actions, nor comply with parents’\nremedial demands. Davis, 526 U.S. at 648. Even a school district’s “failure to\ncomply with [its] regulations . . . does not establish the requisite . . . deliberate\nindifference.” Sanches, 647 F.3d at 169 (citation omitted). Given this flexibil-\nity, “courts should refrain from second-guessing the disciplinary decisions\nmade by school administrators.” Davis, 526 U.S. at 648.\n\n\n 7 See also Farmer v. Brennan, 511 U.S. 825, 835 (1994) (“[D]eliberate indifference\nentails something more than mere negligence . . . .”).\n 8 See also Sanches, 647 F.3d at 168 (“Ineffective responses . . . are not necessarily\nclearly unreasonable.”).\n 9 See Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 997 (5th Cir. 2014)\n(determining that the district’s response to complainant’s bullying, despite several instances\nof inaction, was not deliberately indifferent); Doe ex rel. Doe v. Dall. Indep. Sch. Dist.,\n220 F.3d 380, 388–89 (5th Cir. 2000) (holding that the district was not deliberately indifferent\ndespite its having erroneously concluded that the complainant had not been sexually as-\nsaulted); Leffall, 28 F.3d at 531–32 (finding that the district’s decision to hire two unarmed\nsecurity guards for a school dance where a student was fatally shot established a lack of\ndeliberate indifference despite awareness of the risk of violence).\n 11\n\f Case: 17-40722 Document: 00514828083 Page: 12 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\n Accordingly, the strict nature of the deliberate indifference standard and\nthe considerable flexibility school districts exercise in responding to harass-\nment counsel that “Title IX does not require flawless investigations or perfect\nsolutions.” Sanches, 647 F.3d at 170. Instead, school districts “must merely\nrespond to known peer harassment in a manner that is not clearly unreasona-\nble.” Davis, 526 U.S. at 649.\n\n IV.\n I.F. asserts that “generally,” “[t]he question of whether an action by a\nschool district is ‘clearly unreasonable,’” and therefore, that the school district\nwas deliberately indifferent, “should . . . be decided by juries.” Though she\nacknowledges that judgment as a matter of law (“JML”) on deliberate indiffer-\nence is permissible “[i]n an appropriate case,” id., she relies on principles from\ncivil rights jurisprudence and qualified immunity to contend that the\n“Supreme Court would prefer the deliberate-indifference issue to be resolved\nby juries rather than judges.”\n\n I.F. first maintains that because the Supreme Court adopted the delib-\nerate indifference standard from its civil rights jurisprudence, where the ques-\ntion of deliberate indifference is routinely placed before juries, the issue should\nbe decided by a jury in the Title IX context as well. Second, she states that\nbecause the public policy underlying qualified immunity for individual govern-\nmental employees does not apply to school districts, the question whether a\nschool district’s response to student-on-student harassment was not clearly\nunreasonable, and therefore not deliberately indifferent, should be a question\nof fact for a jury to decide. I.F. also attempts to distinguish Sanches by inter-\npreting it to have found, unlike in the current case, “that there was no evidence\nin the record of sexual-based harassment . . . and, therefore, as a matter of law,\nthe defendant school district could not have been deliberately indifferent to it.”\n\n 12\n\f Case: 17-40722 Document: 00514828083 Page: 13 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nI.F.’s assertions conflict with uncontroverted Supreme Court and Fifth Circuit\nprecedent, and her analogies to disparate areas of law are unavailing.\n\n First, the Supreme Court and this court recognize that in ruling on a\nmotion for summary judgment, a district court can determine, as a matter of\nlaw, that a party was not deliberately indifferent. “The deliberate-indifference\ninquiry does not transform every school disciplinary decision into a jury ques-\ntion.” Nevills v. Mart Indep. Sch. Dist., 608 F. App’x 217, 221 (5th Cir. 2015)\n(per curiam) (citation omitted). Instead, “[i]n an appropriate case, there is no\nreason why courts, on a motion . . . for summary judgment, . . . could not iden-\ntify a response as not ‘clearly unreasonable’ as a matter of law.” Davis,\n526 U.S. at 649. “Whether an official’s response to actual knowledge of dis-\ncrimination amounted to deliberate indifference . . . may appropriately be\ndetermined on summary judgment.” Doe, 220 F.3d at 387.\n\n Following these principles, we have repeatedly upheld summary judg-\nments after finding, as a matter of law, that a school district’s response to har-\nassment was not deliberately indifferent. 10 In the context of Title IX student-\non-student harassment claims, summary judgment remains an appropriate\ntool, and courts may grant summary judgment if there is no genuine dispute\nof material fact regarding deliberate indifference. See Doe, 153 F.3d at 220 n.8.\nTherefore, I.F.’s claim that courts should generally allow juries to decide the\nquestion of deliberate indifference is merely an advocacy position not grounded\nin the law. 11\n\n Second, I.F.’s attempt to rely on principles of qualified immunity is\n\n\n 10 See, e.g., Nevills, 608 F. App’x at 222; Lance, 743 F.3d at 997, 1000–01; Sanches,\n647 F.3d at 167–70; Doe, 220 F.3d at 387–89.\n 11 Moreover, I.F. concedes that we have “issued several opinions in recent years in\nwhich [we have] affirmed summary judgments on deliberate-indifference claims arising out\nof student-on-student harassment.”\n 13\n\f Case: 17-40722 Document: 00514828083 Page: 14 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nmeritless. Qualified immunity is not implicated in this appeal, and the doc-\ntrine does not speak to whether I.F. raised a genuine dispute of material fact\non deliberate indifference to avoid summary judgment. Therefore, the alleged\nfact that questions of qualified immunity are often resolved as a matter of law\nand that LISD cannot assert qualified immunity here, has no import in resolv-\ning whether a district court may decide deliberate indifference as a matter of\nlaw.\n\n Third, in attempting to distinguish Sanches, I.F. misconstrues its find-\nings. Contrary to I.F.’s assertion, Sanches held the opposite and explicitly\nstated that “the district was not deliberately indifferent.” Sanches, 647 F.3d\nat 170. Accordingly, I.F.’s claim—that the question whether an action by a\nschool district was clearly unreasonable, and, thus, that the district was delib-\nerately indifferent, should generally be decided by a jury—is meritless.\n\n V.\n I.F. claims that a district court’s finding, as a matter of law, that a school\ndistrict was not deliberately indifferent instead of allowing a jury to decide the\nquestion “dissuades . . . potential future victims from pursuing their legal rem-\nedies, thereby rewarding those who engage in the conduct that Title IX was\nenacted to deter.” She likens her case to those of black plaintiffs “50 years ago”\nand asserts that “this Court should not conclude today that Texans’ perceived\nlove of high-school football should eviscerate a young woman’s right to a jury\ntrial when her gender-discrimination claim potentially threatens the success\nof an all-male football team.” At its core, I.F.’s policy reasoning is that allowing\nclaims of Title IX student-on-student harassment to be decided by a court on\nsummary judgment is contrary to Title IX’s “purpose” and will “eviscerate the\nstatute[] that w[as] designed to prevent prejudice.” I.F.’s theory is\nunpersuasive.\n\n 14\n\f Case: 17-40722 Document: 00514828083 Page: 15 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\n The law on whether a district court can grant summary judgment on\nTitle IX student-on-student harassment claims is settled. Summary judgment\non Title IX claims is appropriate if there are no genuine disputes as to material\nfacts and the moving party is entitled to JML, and the Supreme Court agrees.\nDavis, 526 U.S. at 649. The district court did precisely that, granting summary\njudgment to LISD because “I.F. has not shown the existence of a material issue\nof fact under the objective standard applicable to review of a Title IX deliberate\nindifference claim.” Though I.F. attempts to alter this law by relying on asser-\ntions regarding the purpose of Title IX and the alleged consequences of grant-\ning summary judgment on these types of claims, her points are untenable.\nTheir logical endpoint is that a court would never be able to grant summary\njudgment against a claimant without essentially declaring that the movant’s\ninterests are more important than the claimant’s right to be free from Title IX\ndiscrimination. Consequently, I.F.’s points conflict with settled law.\n\n I.F. further supports her policy reasoning by misconstruing a statement\nby the district court regarding high school football. I.F. states that the court\n“tacitly” acknowledged that “jurors in the Eastern District of Texas will place\na greater emphasis on preserving a successful high-school football team than\non other conceivable public-policy goals,” such as preventing student-on-\nstudent harassment under Title IX. I.F. uses this interpretation to urge that\nthe district court should not be allowed to decide that jurors will favor high\nschool football as a matter of law, and, therefore, that the question of deliberate\nindifference should be decided by a jury. Understood in context, however, the\ndistrict court’s statement was merely an explanation of why Denson-\nWhitehead’s comment that I.F. would encounter difficulties if she “went\nagainst the football team” was a legitimate, if inartful, concern. Therefore, I.F.\ncannot use the district court’s observation to support her assertion that by\n\n 15\n\f Case: 17-40722 Document: 00514828083 Page: 16 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nallowing courts to grant summary judgment on Title IX claims, they would be\ncountenancing putting football above preventing Title IX harassment and\neviscerating the antidiscrimination protections afforded by the statute.\n\n VI.\n Liability for student-on-student harassment under Title IX requires the\nclaimant to prove each of five elements. Therefore, to prevail on summary\njudgment for a claim of student-on-student harassment, a defendant school\ndistrict, as the moving party, must demonstrate that there is no genuine dis-\npute as to any one of the following material facts and that it is therefore\nentitled to JML: “(1) [The district] had actual knowledge of the harassment,\n(2) the harasser was under the district’s control, (3) the harassment was based\non the victim’s sex, (4) the harassment was so severe, pervasive, and object-\ntively offensive that it effectively bar[red] the victim’s access to an educational\nopportunity or benefit, and (5) the district was deliberately indifferent to the\nharassment.” Sanches, 647 F.3d at 165 (citation and internal quotation marks\nomitted).\n\n I.F. and LISD do not dispute prong (2) or (3): I.F.’s harassers, as stu-\ndents, were under LISD’s control, and the harassment was based on I.F.’s sex.\nThe parties dispute the other elements. Based on a de novo review of the rec-\nord, viewing the evidence in the light most favorable to I.F., we determine that\nsummary judgment is appropriate in LISD’s favor because there is no genuine\ndispute that LISD was not deliberately indifferent to I.F.’s claims of\nharassment.\n\n A.\n The first material fact is whether LISD had actual knowledge of the\nharassment. I.F. asserts two distinct allegations of harassment: a sexual\n\n 16\n\f Case: 17-40722 Document: 00514828083 Page: 17 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nassault on September 28, 2012, and incidents of sexual harassment following\nthe alleged sexual assault in the form of bullying and cyberbullying. The bully-\ning consists of three episodes: (1) bullying and harassment by fellow students\nin the two weeks following the alleged sexual assault, (2) cyberbullying com-\nprising Twitter posts, retweets, and likes that occurred on or around Decem-\nber 31, 2012, and January 1, 2013, and (3) cyberbullying in the form of har-\nassing Instagram posts in February 2013.\n\n First, for the sexual assault allegation, LISD had actual knowledge of\nthe harassment on October 15, 2012, when the Fletchers reported it to Denson-\nWhitehead. By October 16, Denson-Whitehead had reported the information\nshe had learned regarding the sexual assault to Dalton and Werneke. Second,\nfor the bullying complaint, LISD had actual knowledge of the harassment on\nOctober 10, when Fletcher contacted Denson-Whitehead to report that I.F. was\nbeing bullied. Denson-Whitehead informed Dalton of the bullying complaint\nby October 16. Third, for the Twitter cyberbullying complaint, LISD had actual\nknowledge of the harassment on January 7, when Fletcher went to Hebron and\nprovided Werneke with a list of students who she claimed had been cyber-\nbullying I.F. on Twitter and a copy of the alleged post that had started the\nharassment. Fourth, for the Instagram cyberbullying complaint, LISD had\nactual knowledge of the harassment on February 19, when Fletcher contacted\nWerneke and told her about photographs and harassing comments posted by\ntwo Instagram accounts. The next day, Werneke reported the complaint to\nDalton.\n\n LISD does not dispute that it had actual knowledge of the sexual assault\nand two forms of cyberbullying on the dates set forth above, but it does assert\nthat it did not have actual knowledge of “any sex-based bullying in connection\nwith the October 10, 2012, report” because Fletcher’s complaint to Denson-\n\n 17\n\f Case: 17-40722 Document: 00514828083 Page: 18 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nWhitehead on that date did not implicate Title IX. LISD maintains that Flet-\ncher merely described that I.F. was being bullied generally, or at most, was\nexperiencing cheerleading bullying, but Fletcher did not give any information\nthat would lead Denson-Whitehead to believe the bullying was sex-based.\n\n Nevertheless, LISD’s contention is better directed at the question of\nLISD’s deliberate indifference, not whether it had actual knowledge of the\nbullying. Based on the evidence, it is indisputable that LISD had actual knowl-\nedge, through Denson-Whitehead, that I.F. was being bullied in some manner.\nThough the parties may dispute whether LISD’s response to that knowledge\nwas deliberately indifferent, the fact is that LISD knew of the harassment on\nthat day.\n\n B.\n The second material fact is whether the harassment was so severe, per-\nvasive, and objectively offensive that it effectively barred I.F.’s access to an\neducational opportunity or benefit. The MJ and the district court reached\ndifferent conclusions. The MJ determined that the harassing conduct I.F.\nendured “was not severe, pervasive, or objectively unreasonable,” nor did it\nhave a concrete, negative effect on her access to education. Conversely, the\ndistrict court found that there was a genuine dispute concerning this material\nelement. The court determined that I.F. had provided evidence that, “if\nbelieved by a jury, could be a basis for a jury finding that the sexual harass-\nment was so severe, pervasive, or objectively unreasonable so as to have had a\nconcrete, negative effect on I.F.’s access to education.” Although neither side\nchallenges this finding on appeal, we are not bound by the parties’ agreement\nbut must review the summary judgment de novo. Austin v. Kroger Tex., L.P.,\n864 F.3d 326, 328 (5th Cir. 2017) (per curiam). Based on that de novo review,\nviewing the evidence in the light most favorable to I.F., we determine that I.F.\n\n 18\n\f Case: 17-40722 Document: 00514828083 Page: 19 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nhas demonstrated a genuine dispute as to a material fact, namely, whether the\nharassment she endured was so severe, pervasive, and objectively offensive\nthat it effectively barred her access to an educational opportunity or benefit.\n\n First, I.F. has raised a genuine dispute as to whether the harassment\nshe endured was severe, pervasive, and objectively offensive. Her classmates\ncalled her a “whore” and a “slut.” They spread rumors about her, talked about\nher loudly in her presence, and excluded her during cheerleading. One student\nasked her the race of the baby she would be having. Others asked whether she\nhad sex with multiple people and “how did it feel to be fucked in every single\nhole of your body?” A.V., one of the students I.F. asserts raped her, “wore the\npants that he raped [I.F.] in to school, which had [her] blood on them from\nintercourse, and stood on the lunch table and said, these are the pants that\nI took [I.F.’s] virginity in.” Multiple football players called her a liar and told\nher that she was “going to ruin everything.” The harassment continued online,\nwith students commenting about I.F.’s alleged assault on Twitter and Insta-\ngram. As a result of the harassment, I.F. felt suicidal and depressed, began\ncutting herself, had nightmares, and experienced panic attacks. Therefore, she\nhas demonstrated a genuine dispute regarding whether the harassment was\nsevere, pervasive, and objectively offensive.\n\n Second, I.F. has raised a genuine dispute as to whether the harassment\neffectively barred her access to an educational opportunity or benefit because\nshe provided evidence that she felt that she could not return to Hebron on\naccount of the harassment. In her statement of events dated February 8, 2013,\nI.F. stated that “I asked [my parents] to pull me out of school because of the\nbullying, and that I didn’t want to be there with those two boys who raped me.”\n“I thought once the police and school heard about what happened to me that\nthey would arrest the boys and kick them out of school and I could go back to\n\n 19\n\f Case: 17-40722 Document: 00514828083 Page: 20 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nschool, but no!” I.F. also asserted during her deposition that Fletcher had\ninformed LISD that I.F. could not “be going to the same school as [her] rapists.”\nAccordingly, I.F. has presented sufficient evidence to raise a genuine dispute\nas to a material fact, namely, that the harassment she endured was so severe,\npervasive, and objectively offensive that it effectively barred her access to an\neducational opportunity or benefit.\n\n C.\n The third material fact is whether LISD was deliberately indifferent to\nthe harassment. The MJ and the district court agreed that “there is no issue\nof fact as to whether the district was deliberately indifferent.” Based on a de\nnovo review of the record, viewing the evidence in the light most favorable to\nI.F., we determine that I.F. has failed to demonstrate a genuine dispute of\nmaterial fact to show that LISD’s responses to I.F.’s alleged sexual assault on\nSeptember 28, 2012, and incidents of sexual harassment following the alleged\nsexual assault in the form of bullying and cyberbullying, were deliberately\nindifferent. Therefore, LISD is entitled to JML.\n\n 1.\n I.F. claims that LISD was deliberately indifferent to her alleged sexual\nassault because there was a “lengthy and unjustified delay” before it began its\ninvestigation. I.F. rejects LISD’s contention that it was not cleared to inves-\ntigate the sexual assault allegation until mid-December 2012 and asserts that\nalthough CPD “finished its criminal investigation on November 8, 2012, . . .\nLISD did not begin its investigation for nearly two months,” in January 2013.\nAside from generally averring that LISD should have initiated the investiga-\ntion soon after it received clearance from the police in early November 2012,\nI.F. proffers three reasons why LISD’s delay was unjustified.\n\n\n 20\n\f Case: 17-40722 Document: 00514828083 Page: 21 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\n First, I.F. contends that the delayed investigation contravened the “Dear\nColleague Letter,” sent to LISD and all other school districts in the United\nStates, by the U.S. Department of Education’s Office for Civil Rights in 2011,\nwhich states that “a school . . . must promptly investigate” potential harass-\nment and that “a law enforcement investigation does not relieve the school of\nits independent Title IX obligation to investigate the conduct.” 12 Second, she\nclaims the delay was motivated by LISD’s preference for its high school football\nprogram over the Title IX rights of its students. Third, I.F. asserts that the\ndistrict court mistakenly did not apply the reasoning of Williams v. Board of\nRegents of the University System of Georgia, 477 F.3d 1282 (11th Cir. 2007),\nwhich I.F. interprets as holding that a school may not delay its investigation\nin light of a pending criminal investigation where that investigation would not\naffect the school’s ability to institute its own procedures. Accepting I.F.’s ver-\nsion of when LISD received authorization from CPD to begin its investigation,\neach of I.F.’s claims nevertheless fails, and the evidence instead supports the\nconclusion that LISD was not deliberately indifferent to I.F.’s sexual assault\nallegation.\n\n I.F. misconstrues the Dear Colleague Letter by selectively quoting it.\nThough she claims that the letter states that a school district may not delay\nits investigation in light of a simultaneous criminal investigation, the letter\ncontains additional language regarding how a district should approach\ncoordinating its Title IX investigation with a criminal investigation:\n Although a school may need to delay temporarily the fact-finding\n portion of a Title IX investigation while the police are gathering\n evidence, once notified that the police department has completed\n\n\n\n 12 Dear Colleague Letter: Sexual Violence 4, Russlynn Ali, Assistant Sec’y for Civil\nRights, Office for Civil Rights, U.S. Dep’t of Educ. (Apr. 4, 2011),\nhttps://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.\n 21\n\f Case: 17-40722 Document: 00514828083 Page: 22 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\n its gathering of evidence (not the ultimate outcome of the investi-\n gation or the filing of any charges), the school must promptly re-\n sume and complete its fact-finding for the Title IX investiga-\n tion.[ 13]\n LISD first learned of I.F.’s sexual assault allegation on October 15, 2012.\nThe next day, Langston requested that LISD refrain from investigating the\nmatter until CPD informed LISD that it could proceed because any LISD inves-\ntigation could interfere with the criminal investigation. According to I.F.,\nLISD received that authorization on November 8, 2012, and, thus, should have\nbegun its investigation at that time. Therefore, because it was complying with\nthe police request not to investigate for approximately three weeks between\nOctober 15 and November 8, LISD was not violating the letter during that\ntime.\n\n Furthermore, though LISD did not begin its investigation until January,\naccepting I.F.’s version of events, LISD’s delay after the initial three-week per-\niod was not because it was waiting for police authorization. Consequently,\nI.F.’s attempt to use the Dear Colleague Letter’s statements about coordination\nwith criminal investigations—to demonstrate that LISD was deliberately\nindifferent during this period—fails. To the extent that I.F. contends that\nLISD violated the letter’s mandate that school districts promptly resume their\ninvestigations after a criminal investigation has been completed, that is\nexactly the inquiry we are engaging in when we analyze whether LISD’s delay\nin beginning its investigation was deliberately indifferent. 14\n\n Next, even accepting I.F.’s allegation of Denson-Whitehead’s statements\n\n\n 13 Id. at 10.\n The U.S. Department of Education’s Office for Civil Rights has since rescinded the\n 14\n\nDear Colleague Letter. Dear Colleague Letter, Candice Jackson, Acting Assistant Sec’y for\nCivil Rights, Office for Civil Rights, U.S. Dep’t of Educ. (Sept. 22, 2017),\nhttps://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.\n 22\n\f Case: 17-40722 Document: 00514828083 Page: 23 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nas true, I.F. has failed to raise a genuine dispute of material fact that Denson-\nWhitehead’s statements evidence LISD’s deliberate indifference because they\nwere motivated by an animus against I.F. for attempting to “go against the\nfootball team.” As the district court explained, at many high schools in Texas,\nthe football team and its games are a source of school and community pride.\nMany students are involved in the team or related organizations, such as the\ncheerleading squad or the band. Consequently, an individual who raises seri-\nous sexual assault allegations against members of the team may experience\nresistance.\n\n Denson-Whitehead’s statement that “it was going to be very difficult\ngoing against the football team” must be construed in this context as express-\ning her concern to I.F. and her parents about this potential resistance. Denson-\nWhitehead’s subsequent actions support this interpretation. She did not keep\nI.F.’s sexual assault allegation to herself or change details to make it seem less\nserious. Instead, the same day that she learned of the allegation, she informed\nWerneke and Langston, and the next day, she told Dalton. Though Denson-\nWhitehead’s comment was inartful and could have been more tactful, it is not\nobjective evidence of deliberate indifference.\n\n Finally, I.F.’s reliance on Williams, an out-of-circuit case, is misplaced.\nThe Eleventh Circuit found that the University of Georgia was deliberately\nindifferent because it waited eight months after receiving a full police report\nbefore conducting a disciplinary hearing regarding an alleged sexual assault.\nThough the university tried to justify the delay by averring to the pending\ncriminal trials against the alleged assailants, the court rejected its contentions\nas insufficient. Williams, 477 F.3d at 1296−97.\n\n I.F.’s case is readily distinguishable from Williams. LISD did not delay\nits investigation after receiving a full police report or because criminal trials\n\n 23\n\f Case: 17-40722 Document: 00514828083 Page: 24 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nwere pending. Instead, LISD delayed because of a specific directive from CPD.\nAccepting I.F.’s version of events as true, LISD then further delayed the inves-\ntigation for about two months, which included Thanksgiving break and the\nChristmas/New Years holidays. This delay was much shorter than the eight-\nmonth delay that the Williams court relied on, in part, in finding that the\nuniversity was deliberately indifferent.\n\n Contrary to I.F.’s theory that LISD’s delayed investigation shows delib-\nerate indifference, the evidence supports the conclusion that LISD performed\nan extensive investigation within a reasonable time. Accepting I.F.’s version\nof events that LISD received authorization to begin investigating the sexual\nassault allegation on November 8, 2012, LISD’s delay consisted of two periods:\nwaiting for police authorization from October 16, 2012, to November 8, 2012,\nand the November 8, 2012, to January 7, 2013, period. 15\n\n Though a delay in instituting remedial actions may constitute deliberate\nindifference under Title IX, 16 LISD’s twenty-eight school-day delay does not\nrise to that level. During that period, LISD was actively taking steps to provide\nrelief to I.F. It worked together with I.F.’s teachers to get her the work she\nwas missing during her absence and requested the teachers be flexible with\nI.F.’s workload, provided her with information regarding educational oppor-\ntunities outside of LISD, and assisted I.F. in enrolling in the Homebound\n\n\n\n\n 15Based on a 2012-year calendar and the dates for the vacation periods LISD provides,\nThanksgiving break and the Christmas/New Years holidays together consumed three full\nschool weeks.\n 16 See, e.g., Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 669–70 (2d Cir. 2012)\n(holding that a jury was within its power to find that a school district was deliberately indif-\nferent where it waited over a year to implement remedial action in response to a complaint);\nMatthews v. Nwankwo, 36 F. Supp. 3d 718, 725 (N.D. Miss. 2014) (holding that an unjustified\ndelay of two to three months in separating a complainant from the alleged assailant’s class\nwas deliberate indifference).\n 24\n\f Case: 17-40722 Document: 00514828083 Page: 25 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nprogram. 17 In light of these known circumstances, the delay was not clearly\nunreasonable and thus was not deliberately indifferent. See Davis, 526 U.S.\nat 648; Sanches, 647 F.3d at 167–68.\n\n Once it began its investigation, moreover, LISD’s response was not\ndeliberately indifferent. It interviewed fourteen students about the alleged\nsexual assault and followed up with four students, including the two alleged\nassailants. It interviewed I.F., with her lawyer present, and accepted her writ-\nten statement. After reviewing the evidence, LISD concluded that it could not\nestablish, with sufficient evidence, that I.F. had been sexually assaulted at the\nparty, so there was no basis for any LISD discipline for sexual assault. Title IX\ndid not require LISD to take specific disciplinary actions, comply with parents’\nremedial demands, or comply with its own regulations in investigating the\ncomplaint. Davis, 526 U.S. at 648; Sanches, 647 F.3d at 169. Instead of being\nclearly unreasonable, to the contrary, LISD’s investigation was thorough and\nappropriate. Therefore, LISD’s response to I.F.’s sexual assault allegation was\nnot deliberately indifferent.\n\n 2.\n I.F. contends that LISD was deliberately indifferent to her October 10,\n2012, bullying complaints because it “never undertook an investigation into”\nthem. Nevertheless, in light of the known circumstances, LISD’s response to\nthe harassment in the form of bullying was not deliberately indifferent.\n\n When Fletcher contacted Denson-Whitehead on October 10 to report that\nI.F. was being bullied, she did not give specific details. Fletcher stated that\nI.F. was being “severely bullied” and opined that it could be cheerleading\n\n\n\n 17 Furthermore, I.F. was separated from her alleged assailants by her absence from\nschool and subsequent enrollment in the Homebound program.\n 25\n\f Case: 17-40722 Document: 00514828083 Page: 26 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nbullying, but other than giving Denson-Whitehead the names of several stu-\ndents, who had bullied I.F. at her middle school, who Fletcher was unsure were\ninvolved, Fletcher “didn’t have any names” for this bullying complaint.\nDenson-Whitehead said that she would speak with I.F. about the bullying\nwhen I.F. next attended school. But when I.F. returned to school on Friday,\nOctober 12, for the first time since Denson-Whitehead and Fletcher’s conver-\nsation, before Denson-Whitehead could speak with I.F., Fletcher emailed\nDenson-Whitehead to request that she not speak with I.F., and Denson-\nWhitehead complied.\n\n The following Monday, October 15, LISD learned of I.F.’s alleged sexual\nassault and shifted its focus to investigating that claim. After that date, I.F.\nnever provided a statement to LISD regarding the bullying, nor did the Flet-\nchers give LISD further details to supplement their earlier complaint about\nthe bullying. Therefore, in light of the known circumstances, LISD’s response\nto the bullying complaint was not clearly unreasonable and thus was not\ndeliberately indifferent.\n\n 3.\n I.F. does not specifically allege that LISD was deliberately indifferent to\nher complaints of cyberbullying through Twitter and Instagram. Because,\nhowever, I.F. asserts that the cyberbullying was sexual harassment under\nTitle IX, if there is a genuine dispute regarding whether LISD was deliberately\nindifferent to these complaints, summary judgment was inappropriate. Never-\ntheless, LISD was not deliberately indifferent to the cyberbullying complaints.\n\n In response to I.F.’s first cyberbullying complaint on January 7, 2013,\nLISD promptly interviewed nineteen students in early-to-mid January and\nreviewed the alleged offending social media posts. Though LISD concluded\nthat the posts did not constitute “bullying” as defined by LISD policy, it still\n 26\n\f Case: 17-40722 Document: 00514828083 Page: 27 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nconsidered them improper and hurtful. LISD therefore counseled the impli-\ncated students about inappropriate social media behavior, advised them not to\nengage in such behavior in the future, and contacted their parents.\n\n In response to I.F.’s second cyberbullying complaint on February 19,\n2013, LISD promptly reported the matter to CPD, which began an investiga-\ntion. As a result, one Hebron student was charged with criminal harassment,\nand LISD suspended him for three days and assigned him to the Disciplinary\nAlternative Education Program for thirty days as punishment.\n\n LISD’s responses to both cyberbullying complaints were reasonable\ninvestigatory efforts aimed at discovering who was responsible, determining\nwhether Title IX sexual harassment had occurred, and remedying offending\nconduct. Consequently, LISD’s investigation was not clearly unreasonable,\nand it was not deliberately indifferent.\n\n There is no error. The summary judgment is AFFIRMED.\n\n\n\n\n 27\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: I.F., Plaintiff-Appellant, v. LEWISVILLE INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-08\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-40722 Document: 00514828083 Page: 1 Date Filed: 02/08/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-40722 February 8, 2019\\n Lyle W. Cayce\\n Clerk\\n\\n\\nI.F.,\\n\\n Plaintiff–Appellant,\\n\\nversus\\n\\nLEWISVILLE INDEPENDENT SCHOOL DISTRICT,\\n\\n Defendant–Appellee.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Texas\\n\\n\\n\\n\\nBefore SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n I.F., a former student, sued Lewisville Independent School District\\n(“LISD”) for violating Title IX of the Education Amendments of 1972, 20 U.S.C.\\n§§ 1681–1688 (2012), claiming that LISD was deliberately indifferent to her\\nalleged sexual harassment and retaliated against her by withholding Title IX\\nprotections. LISD moved for summary judgment, and I.F. moved for partial\\nsummary judgment. The district court granted in part and denied in part\\n\\f Case: 17-40722 Document: 00514828083 Page: 2 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nLISD’s motion, finding that whereas the evidence did not establish a genuine\\ndispute of material fact regarding whether LISD was deliberately indifferent\\nto I.F.’s reports of sexual harassment and bullying, there was a genuine dis-\\npute of material fact regarding the retaliation claim. The court also denied\\nI.F.’s motion. I.F. appeals, challenging only the summary judgment on deliber-\\nate indifference. We affirm.\\n\\n I.\\n I.F. was a ninth-grade student at the Hebron High School Ninth Grade\\nCampus (“Hebron”) in LISD during the 2012−13 school year. On Friday, Sep-\\ntember 28, 2012, she attended a non-school-sponsored, non-school-affiliated\\nparty at the private residence of fellow Hebron student S.S. at which no LISD\\npersonnel were present. At the party, A.V. and I.G. engaged in sexual activity\\nwith I.F., which she claims was rape.\\n\\n When I.F. returned to school on Monday, her classmates began to harass\\nand bully her. According to the complaint, they called her a “whore” and a\\n“slut,” asked whether she had sex with multiple people, and inquired “how did\\nit feel to be fucked in every single hole of your body?” A.V. “wore the pants that\\nhe raped [I.F.] in to school, which had [her] blood on them from intercourse,\\nand stood on the lunch table and said, these are the pants that I took [I.F.’s]\\nvirginity in.”\\n\\n I.F. informed her mother, Jaime Fletcher (“Fletcher”), that she was being\\nbullied, and on October 10, Fletcher contacted Hebron counselor Debra\\nDenson-Whitehead to report the bullying but said nothing about sexual active-\\nity or assault. 1 Denson-Whitehead told Fletcher that she would speak with\\n\\n\\n 1 Fletcher stated during her deposition that she told Denson-Whitehead that “there’s\\nsomething . . . horribly wrong. Something happened. I don’t know what, but my daughter is\\nbeing severely bullied, and it’s really bad.” Ms. Fletcher also told Denson-Whitehead that\\n 2\\n\\f Case: 17-40722 Document: 00514828083 Page: 3 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nI.F. about the bullying when I.F. returned to school. But on Friday, October 12,\\nwhen I.F. next attended school, before Denson-Whitehead could speak with\\nI.F., Fletcher emailed Denson-Whitehead and told her not to speak with I.F.\\nthat day about the bullying. Denson-Whitehead complied and informed Flet-\\ncher that she would check in with I.F. the following week. Nevertheless, I.F.\\nnever physically attended any LISD school after October 12.\\n\\n That same day, I.F.’s parents (“the Fletchers”) learned for the first time\\nfrom other parents at a football game that I.F. allegedly had been sexually\\nassaulted. The Fletchers reported the assault to the Carrollton Police Depart-\\nment (“CPD”), which opened an investigation.\\n\\n On Monday, October 15, the Fletchers met with Denson-Whitehead to\\ninform her that I.F. had been sexually assaulted at a party by two Hebron\\nstudents and that they had reported the assault to CPD, which had opened an\\ninvestigation. The Fletchers also gave Denson-Whitehead a list of students\\nwho they believed were involved. This meeting was the first time that Denson-\\nWhitehead learned of I.F.’s alleged sexual assault. Denson-Whitehead alleges\\nthat she expressed her shock and sorrow to the Fletchers and advised them\\nthat she would notify the administration. According to the Fletchers, Denson-\\nWhitehead told them that “it was going to be very difficult going against the\\nfootball team” and that “the best thing for [I.F.] would be to transfer schools.”\\nAfter the meeting, Denson-Whitehead conveyed the information she had\\nlearned regarding the sexual assault to Hebron Assistant Principal Amanda\\nWerneke and Hebron School Resource Officer Cole Langston, who was also a\\npolice officer at CPD.\\n\\n\\n\\n\\nshe didn’t know whether the bullying was cheerleading bullying, and there was a senior who\\nwas “saying something,” but she “didn’t have any names.”\\n 3\\n\\f Case: 17-40722 Document: 00514828083 Page: 4 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\n On October 16, 2012, Denson-Whitehead reported the same information\\nto Hebron Principal Mark Dalton. Dalton, Denson-Whitehead, and Werneke\\nconsulted with Langston about the alleged assault. Langston confirmed that\\nCPD had opened a case and was investigating the sexual assault. He requested\\nthat Hebron refrain from investigating the matter until CPD informed LISD\\nthat it could proceed because any LISD investigation could interfere with and\\npotentially compromise the criminal investigation. Dalton interpreted that\\nrequest to apply to both Fletcher’s complaint that I.F. was being bullied and\\nI.F.’s alleged sexual assault. Furthermore, both Dalton’s and Denson-\\nWhitehead’s concerns about I.F.’s alleged sexual assault took precedence over\\nthe previously reported bullying. 2\\n\\n During this time, I.F. was not attending school, so LISD took steps to\\nensure that she earned credit for the classes she was taking. First, Dalton and\\nDenson-Whitehead worked together with I.F.’s teachers to get I.F. the work\\nshe needed to complete her first-grading-period classes. Dalton also requested\\nthat the teachers be flexible and informed them that I.F. need not complete all\\nwork that was expected from students who were regularly attending class.\\n\\n Second, Denson-Whitehead informed the Fletchers of several options for\\nI.F. to continue her education, including continuing to attend Hebron, enrolling\\nin Texas Tech online/correspondence courses, or transferring to a charter\\nschool. The Fletchers did not choose any of those options. Though they desired\\nthat I.F. return to Hebron, this was not an option unless her alleged assailants\\nwere removed from the school, and the online courses were outside their bud-\\nget. Instead, after finding out about the LISD Homebound program from the\\n\\n\\n 2Denson-Whitehead stated in her affidavit that “[w]hile not minimizing the purported\\nbullying of I.F., she considered [the] report of an alleged rape to be much more serious . . .,\\nparticularly given that Mrs. Fletcher had asked [her] . . . not to talk to I.F. about the\\nbullying.”\\n 4\\n\\f Case: 17-40722 Document: 00514828083 Page: 5 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nChildren’s Medical Center in Dallas, the Fletchers requested that LISD place\\nI.F. into that program.\\n\\n LISD’s Homebound program allows students who are unable to attend\\nschool for an extended period of time, for medical reasons, to work from home\\nand receive credit. LISD requires a physician’s recommendation before a stu-\\ndent may be placed into the program. The Fletchers obtained that recommen-\\ndation, and LISD enrolled I.F. in the Homebound program by October 30,\\nwhere she remained for the rest of the 2012−13 school year.\\n\\n In early October 2012, Brian Brazil, Hebron High School’s head football\\ncoach and athletic coordinator, was informed by a freshman football coach that\\nsome of the football players may have been involved in a party, where alcohol\\nwas consumed, thrown by S.S., a member of the freshman team. Brazil held a\\nmeeting with all the football players, where he discussed the rumor of alcohol\\nconsumption at a party and reminded them that LISD’s Extra-Curricular Code\\nof Conduct prohibited the consumption of alcohol.\\n\\n Following the meeting, he spoke with S.S. individually about the party,\\nincluding asking about the presence of alcohol and drugs. S.S. admitted that\\nhe had consumed alcohol at the party, but falsely stated that no other football\\nplayers were present at the party. Brazil suspended S.S. for two games for\\nviolating the alcohol consumption prohibition and spoke with S.S.’s father\\nabout his meeting with S.S.\\n\\n During the team-wide meeting and the individual meeting with S.S.,\\nBrazil discussed the party only in relation to alcohol and drugs. At that time,\\nhe did not know anything about the alleged sexual assault. Before he could\\ninterview other players, the Hebron administration advised him that the police\\nwere conducting an investigation into the party and that he should not speak\\nwith anyone else about the party.\\n 5\\n\\f Case: 17-40722 Document: 00514828083 Page: 6 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\n At the end of October 2012, Langston informed LISD that CPD had suf-\\nficiently progressed in its investigation of alcohol and drug consumption at the\\nparty that LISD could proceed with its own investigation of alcohol and drug\\nconsumption. Soon thereafter, at the beginning of November, Dalton in-\\nstructed Brazil to investigate the alcohol consumption issue with the football\\nplayers. Brazil interviewed several more players, including A.V. and I.G.; at\\nno point during any of those meetings was there mention of an alleged sexual\\nassault or alleged sexual misconduct by anyone at the party. After completing\\nhis investigation, Brazil reported to Dalton that only one student had admitted\\nto drinking and had been disciplined.\\n\\n In either early November or mid-December, the police authorized LISD\\nto proceed with its investigation into I.F.’s allegation of sexual assault. 3 Dur-\\ning that time, LISD schools were closed for both Thanksgiving break (Novem-\\nber 20−25, 2012) and Christmas/New Years break (December 21, 2012, to Jan-\\nuary 6, 2013). Beginning in early January 2013, Hebron conducted two simul-\\ntaneous investigations regarding I.F.: one concerning the allegation of sexual\\nassault and another concerning I.F.’s allegations of being cyberbullied.\\n\\n Werneke led both investigations. For the sexual assault investigation,\\nduring the month of January 2013, LISD interviewed fourteen students,\\nincluding A.V. and I.G. On February 19, LISD followed up with four students,\\nagain including A.V. and I.G., interviewing them a second time. Throughout\\nthe interviews, A.V. and I.G. were represented by counsel and did not answer\\nall of LISD’s questions. Nevertheless, A.V. and I.G. insisted that the sexual\\nactivity with I.F. was consensual. LISD also interviewed I.F., with her lawyer\\n\\n\\n\\n 3 The parties disagree regarding when CPD authorized LISD to proceed with its inves-\\ntigation into sexual assault. LISD contends that the authorization occurred in mid-Decem-\\nber; I.F. asserts that it occurred in early November.\\n 6\\n\\f Case: 17-40722 Document: 00514828083 Page: 7 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\npresent, and she gave a written statement.\\n\\n LISD’s investigation revealed that no adults or LISD personnel wit-\\nnessed the events at the September 28, 2012, party. Furthermore, the wit-\\nnesses gave conflicting accounts regarding who was involved, precisely what\\nhad occurred, how intoxicated the students were, and whether I.F.’s sexual\\nactivity with A.V. and I.G. was consensual. LISD found that it did not have\\nsufficient evidence that I.F. was sexually assaulted at the party. LISD con-\\ncluded, therefore, that there was no basis for any discipline for sexual assault.\\n\\n For the cyberbullying investigation, Werneke first became aware that\\nI.F. was being cyberbullied as she was beginning the sexual-assault investiga-\\ntion when Fletcher explained the situation in person and provided Werneke a\\nlist of names and the Twitter posting that had started the cyberbullying.\\nAssisted by Dalton and Assistant Principals Michael Vargas and James Scott,\\nWerneke interviewed nineteen students in early-to-mid-January and reviewed\\nseveral social media posts and photographs that Fletcher had provided. The\\ninvestigation revealed that the cyberbullying complaint stemmed from Twitter\\ntweets and retweets by Hebron High School students on or around Decem-\\nber 31, 2012, and January 1, 2013, and that appeared to be in response to a\\ntweet by I.F. regarding Christianity. Many of the implicated students had not\\nthemselves tweeted but had merely retweeted or liked a comment by another\\nstudent.\\n\\n LISD concluded that those social media posts did not amount to “bully-\\ning” as defined by LISD policy because there was no indication that they oc-\\ncurred while the students were on school property or at a school-sponsored\\nactivity, they did not threaten harm to I.F.’s person or property, and they were\\nnot sufficiently pervasive to create a harassing environment. Nevertheless,\\nLISD did consider the postings “improper and hurtful,” so LISD counseled the\\n\\n 7\\n\\f Case: 17-40722 Document: 00514828083 Page: 8 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\ninterviewed students about improper social media conduct, advised them not\\nto engage in such behavior, and contacted their parents. Werneke received no\\nfurther complaints from the Fletchers regarding cyberbullying by the individu-\\nals involved in this phase of the cyberbullying investigation.\\n\\n On February 19, however, Fletcher informed Werneke of a different form\\nof cyberbullying I.F. was experiencing, this time arising from photographs and\\nharassing comments posted on two Instagram accounts. The next day, Wer-\\nneke reported the complaint to Langston and Dalton, and CPD began an inves-\\ntigation. Langston interviewed several Hebron students, including J.J.D., who\\nlater admitted that he had created one of the Instagram accounts and was\\nresponsible for all of the account’s posts. 4 The police charged J.J.D. with crim-\\ninal harassment, and LISD suspended him for three days and then assigned\\nhim to the Disciplinary Alternative Education Program for thirty days as pun-\\nishment. After the Instagram cyberbullying complaint, the Fletchers made no\\nother cyberbullying complaints.\\n\\n Once LISD had completed the sexual assault and cyberbullying investi-\\ngations, it reported its findings to the Fletchers by letter dated April 5, 2013.\\nI.F. completed her ninth-grade coursework through the Homebound program\\nand advanced to the tenth grade at the end of the 2012−13 school year. There-\\nafter, the Fletchers withdrew her from LISD, and she never returned there as\\na student.\\n\\n II.\\n I.F. sued LISD for violating Title IX, asserting that LISD was deliber-\\nately indifferent to her alleged sexual harassment and retaliated against her\\n\\n\\n\\n 4 The other account was created by a former LISD student who had left LISD and was\\nattending a private school in Carrollton.\\n 8\\n\\f Case: 17-40722 Document: 00514828083 Page: 9 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nby withholding Title IX protections. LISD moved for summary judgment on\\nall of I.F.’s claims, and I.F. moved for partial summary judgment to establish\\nthat she had proved two essential elements of her claims: (1) that she was\\nsexually assaulted by two classmates and (2) that she engaged in an activity\\nprotected under Title IX. The magistrate judge (“MJ”) granted LISD’s motion\\nand denied I.F.’s, determining that the alleged sexually harassing conduct was\\nnot “severe, pervasive, or objectively unreasonable,” that LISD’s responses to\\nI.F.’s allegations of sexual assault, bullying, and cyberbullying were not delib-\\nerately indifferent, and that I.F. had failed to show any evidence of retaliatory\\nactions by LISD.\\n\\n I.F. objected to the MJ’s order and report and recommendation in the\\ndistrict court. Considering the parties’ motions de novo, the district court\\ngranted in part and denied in part LISD’s motion, finding that whereas the\\nevidence did not establish a genuine dispute of material fact regarding whether\\nLISD was deliberately indifferent to I.F.’s reports of sexual harassment and\\nbullying, 5 there was a genuine dispute of material fact regarding I.F.’s retali-\\nation claim. The retaliation claim proceeded to trial, and a jury returned a\\nverdict in favor of LISD.\\n\\n On appeal, I.F. challenges only the summary judgment for LISD on the\\ndeliberate indifference claim. She asserts that summary judgment was inap-\\npropriate because (1) the question of whether a school district acted with delib-\\nerate indifference generally should be decided by a jury; (2) the summary judg-\\nment evidence contained a factual dispute regarding when LISD should have\\ncommenced its investigation into I.F.’s reports of sexual assault, harassment,\\n\\n\\n\\n 5 Though the district court agreed with the MJ on this point, it found that I.F.’s har-\\nassment was sufficiently severe, pervasive, and objectively offensive so as to have had a con-\\ncrete, negative effect on her access to education.\\n 9\\n\\f Case: 17-40722 Document: 00514828083 Page: 10 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nand bullying; and (3) “allowing deliberate-indifference claims to be resolved by\\njury deliberations . . . serves the underlying purpose of discouraging gender-\\nbased 6 discrimination, which is the very purpose for which Title IX was enacted\\nin the first place.”\\n\\n III.\\n Title IX states that “[n]o person in the United States shall, on the basis\\nof sex, be excluded from participation in, be denied the benefits of, or be sub-\\njected to discrimination under any education program or activity receiving\\nFederal financial assistance.” 20 U.S.C. § 1681(a). “A school district that\\nreceives federal funds may be liable for student-on-student harassment if the\\ndistrict (1) had actual knowledge of the harassment, (2) the harasser was\\nunder the district’s control, (3) the harassment was based on the victim’s sex,\\n(4) the harassment was so severe, pervasive, and objectively offensive that it\\neffectively bar[red] the victim’s access to an educational opportunity or benefit,\\nand (5) the district was deliberately indifferent to the harassment.” Sanches\\nv. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir.\\n2011) (citation and internal quotation marks omitted).\\n\\n For a school district to be liable under Title IX, it must have been delib-\\nerately indifferent to student-on-student harassment. “Deliberate indifference\\nis an extremely high standard to meet.” Domino v. Tex. Dep’t of Crim. Justice,\\n239 F.3d 752, 756 (5th Cir. 2001). A school district’s “response to the harass-\\nment or lack thereof [must be] clearly unreasonable in light of the known\\ncircumstances.” Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ.,\\n526 U.S. 629, 648 (1999). Because “deliberate indifference . . . is . . . a lesser\\n\\n\\n 6I.F.’s reference to “gender” is entirely inappropriate. This case is about sex, not\\ngender. Title IX addresses sex and never mentions gender. We will flexibly treat I.F.’s claims\\nas regarding sex discrimination.\\n 10\\n\\f Case: 17-40722 Document: 00514828083 Page: 11 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nform of intent rather than a heightened degree of negligence,” Leffall v. Dall.\\nIndep. Sch. Dist., 28 F.3d 521, 531 (5th Cir. 1994) (citation and internal quo-\\ntation marks omitted), neither negligent nor merely unreasonable responses\\nare enough, Sanches, 647 F.3d at 167. 7 “Actions and decisions by officials that\\nare merely inept, erroneous, ineffective, or negligent do not amount to deliber-\\nate indifference . . . .” Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 153 F.3d 211,\\n219 (5th Cir. 1998). 8 Indeed, as the district court noted, our precedent “makes\\nit clear that negligent delays, botched investigations of complaints due to the\\nineptitude of investigators, or responses that most reasonable persons could\\nhave improved upon do not equate to deliberate indifference.” 9\\n\\n School districts enjoy flexibility in responding to student-on-student har-\\nassment and “may tailor their responses to the circumstances.” Lance,\\n743 F.3d at 1000. Title IX does not require school districts to purge themselves\\nof harassment, take specific disciplinary actions, nor comply with parents’\\nremedial demands. Davis, 526 U.S. at 648. Even a school district’s “failure to\\ncomply with [its] regulations . . . does not establish the requisite . . . deliberate\\nindifference.” Sanches, 647 F.3d at 169 (citation omitted). Given this flexibil-\\nity, “courts should refrain from second-guessing the disciplinary decisions\\nmade by school administrators.” Davis, 526 U.S. at 648.\\n\\n\\n 7 See also Farmer v. Brennan, 511 U.S. 825, 835 (1994) (“[D]eliberate indifference\\nentails something more than mere negligence . . . .”).\\n 8 See also Sanches, 647 F.3d at 168 (“Ineffective responses . . . are not necessarily\\nclearly unreasonable.”).\\n 9 See Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 997 (5th Cir. 2014)\\n(determining that the district’s response to complainant’s bullying, despite several instances\\nof inaction, was not deliberately indifferent); Doe ex rel. Doe v. Dall. Indep. Sch. Dist.,\\n220 F.3d 380, 388–89 (5th Cir. 2000) (holding that the district was not deliberately indifferent\\ndespite its having erroneously concluded that the complainant had not been sexually as-\\nsaulted); Leffall, 28 F.3d at 531–32 (finding that the district’s decision to hire two unarmed\\nsecurity guards for a school dance where a student was fatally shot established a lack of\\ndeliberate indifference despite awareness of the risk of violence).\\n 11\\n\\f Case: 17-40722 Document: 00514828083 Page: 12 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\n Accordingly, the strict nature of the deliberate indifference standard and\\nthe considerable flexibility school districts exercise in responding to harass-\\nment counsel that “Title IX does not require flawless investigations or perfect\\nsolutions.” Sanches, 647 F.3d at 170. Instead, school districts “must merely\\nrespond to known peer harassment in a manner that is not clearly unreasona-\\nble.” Davis, 526 U.S. at 649.\\n\\n IV.\\n I.F. asserts that “generally,” “[t]he question of whether an action by a\\nschool district is ‘clearly unreasonable,’” and therefore, that the school district\\nwas deliberately indifferent, “should . . . be decided by juries.” Though she\\nacknowledges that judgment as a matter of law (“JML”) on deliberate indiffer-\\nence is permissible “[i]n an appropriate case,” id., she relies on principles from\\ncivil rights jurisprudence and qualified immunity to contend that the\\n“Supreme Court would prefer the deliberate-indifference issue to be resolved\\nby juries rather than judges.”\\n\\n I.F. first maintains that because the Supreme Court adopted the delib-\\nerate indifference standard from its civil rights jurisprudence, where the ques-\\ntion of deliberate indifference is routinely placed before juries, the issue should\\nbe decided by a jury in the Title IX context as well. Second, she states that\\nbecause the public policy underlying qualified immunity for individual govern-\\nmental employees does not apply to school districts, the question whether a\\nschool district’s response to student-on-student harassment was not clearly\\nunreasonable, and therefore not deliberately indifferent, should be a question\\nof fact for a jury to decide. I.F. also attempts to distinguish Sanches by inter-\\npreting it to have found, unlike in the current case, “that there was no evidence\\nin the record of sexual-based harassment . . . and, therefore, as a matter of law,\\nthe defendant school district could not have been deliberately indifferent to it.”\\n\\n 12\\n\\f Case: 17-40722 Document: 00514828083 Page: 13 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nI.F.’s assertions conflict with uncontroverted Supreme Court and Fifth Circuit\\nprecedent, and her analogies to disparate areas of law are unavailing.\\n\\n First, the Supreme Court and this court recognize that in ruling on a\\nmotion for summary judgment, a district court can determine, as a matter of\\nlaw, that a party was not deliberately indifferent. “The deliberate-indifference\\ninquiry does not transform every school disciplinary decision into a jury ques-\\ntion.” Nevills v. Mart Indep. Sch. Dist., 608 F. App’x 217, 221 (5th Cir. 2015)\\n(per curiam) (citation omitted). Instead, “[i]n an appropriate case, there is no\\nreason why courts, on a motion . . . for summary judgment, . . . could not iden-\\ntify a response as not ‘clearly unreasonable’ as a matter of law.” Davis,\\n526 U.S. at 649. “Whether an official’s response to actual knowledge of dis-\\ncrimination amounted to deliberate indifference . . . may appropriately be\\ndetermined on summary judgment.” Doe, 220 F.3d at 387.\\n\\n Following these principles, we have repeatedly upheld summary judg-\\nments after finding, as a matter of law, that a school district’s response to har-\\nassment was not deliberately indifferent. 10 In the context of Title IX student-\\non-student harassment claims, summary judgment remains an appropriate\\ntool, and courts may grant summary judgment if there is no genuine dispute\\nof material fact regarding deliberate indifference. See Doe, 153 F.3d at 220 n.8.\\nTherefore, I.F.’s claim that courts should generally allow juries to decide the\\nquestion of deliberate indifference is merely an advocacy position not grounded\\nin the law. 11\\n\\n Second, I.F.’s attempt to rely on principles of qualified immunity is\\n\\n\\n 10 See, e.g., Nevills, 608 F. App’x at 222; Lance, 743 F.3d at 997, 1000–01; Sanches,\\n647 F.3d at 167–70; Doe, 220 F.3d at 387–89.\\n 11 Moreover, I.F. concedes that we have “issued several opinions in recent years in\\nwhich [we have] affirmed summary judgments on deliberate-indifference claims arising out\\nof student-on-student harassment.”\\n 13\\n\\f Case: 17-40722 Document: 00514828083 Page: 14 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nmeritless. Qualified immunity is not implicated in this appeal, and the doc-\\ntrine does not speak to whether I.F. raised a genuine dispute of material fact\\non deliberate indifference to avoid summary judgment. Therefore, the alleged\\nfact that questions of qualified immunity are often resolved as a matter of law\\nand that LISD cannot assert qualified immunity here, has no import in resolv-\\ning whether a district court may decide deliberate indifference as a matter of\\nlaw.\\n\\n Third, in attempting to distinguish Sanches, I.F. misconstrues its find-\\nings. Contrary to I.F.’s assertion, Sanches held the opposite and explicitly\\nstated that “the district was not deliberately indifferent.” Sanches, 647 F.3d\\nat 170. Accordingly, I.F.’s claim—that the question whether an action by a\\nschool district was clearly unreasonable, and, thus, that the district was delib-\\nerately indifferent, should generally be decided by a jury—is meritless.\\n\\n V.\\n I.F. claims that a district court’s finding, as a matter of law, that a school\\ndistrict was not deliberately indifferent instead of allowing a jury to decide the\\nquestion “dissuades . . . potential future victims from pursuing their legal rem-\\nedies, thereby rewarding those who engage in the conduct that Title IX was\\nenacted to deter.” She likens her case to those of black plaintiffs “50 years ago”\\nand asserts that “this Court should not conclude today that Texans’ perceived\\nlove of high-school football should eviscerate a young woman’s right to a jury\\ntrial when her gender-discrimination claim potentially threatens the success\\nof an all-male football team.” At its core, I.F.’s policy reasoning is that allowing\\nclaims of Title IX student-on-student harassment to be decided by a court on\\nsummary judgment is contrary to Title IX’s “purpose” and will “eviscerate the\\nstatute[] that w[as] designed to prevent prejudice.” I.F.’s theory is\\nunpersuasive.\\n\\n 14\\n\\f Case: 17-40722 Document: 00514828083 Page: 15 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\n The law on whether a district court can grant summary judgment on\\nTitle IX student-on-student harassment claims is settled. Summary judgment\\non Title IX claims is appropriate if there are no genuine disputes as to material\\nfacts and the moving party is entitled to JML, and the Supreme Court agrees.\\nDavis, 526 U.S. at 649. The district court did precisely that, granting summary\\njudgment to LISD because “I.F. has not shown the existence of a material issue\\nof fact under the objective standard applicable to review of a Title IX deliberate\\nindifference claim.” Though I.F. attempts to alter this law by relying on asser-\\ntions regarding the purpose of Title IX and the alleged consequences of grant-\\ning summary judgment on these types of claims, her points are untenable.\\nTheir logical endpoint is that a court would never be able to grant summary\\njudgment against a claimant without essentially declaring that the movant’s\\ninterests are more important than the claimant’s right to be free from Title IX\\ndiscrimination. Consequently, I.F.’s points conflict with settled law.\\n\\n I.F. further supports her policy reasoning by misconstruing a statement\\nby the district court regarding high school football. I.F. states that the court\\n“tacitly” acknowledged that “jurors in the Eastern District of Texas will place\\na greater emphasis on preserving a successful high-school football team than\\non other conceivable public-policy goals,” such as preventing student-on-\\nstudent harassment under Title IX. I.F. uses this interpretation to urge that\\nthe district court should not be allowed to decide that jurors will favor high\\nschool football as a matter of law, and, therefore, that the question of deliberate\\nindifference should be decided by a jury. Understood in context, however, the\\ndistrict court’s statement was merely an explanation of why Denson-\\nWhitehead’s comment that I.F. would encounter difficulties if she “went\\nagainst the football team” was a legitimate, if inartful, concern. Therefore, I.F.\\ncannot use the district court’s observation to support her assertion that by\\n\\n 15\\n\\f Case: 17-40722 Document: 00514828083 Page: 16 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nallowing courts to grant summary judgment on Title IX claims, they would be\\ncountenancing putting football above preventing Title IX harassment and\\neviscerating the antidiscrimination protections afforded by the statute.\\n\\n VI.\\n Liability for student-on-student harassment under Title IX requires the\\nclaimant to prove each of five elements. Therefore, to prevail on summary\\njudgment for a claim of student-on-student harassment, a defendant school\\ndistrict, as the moving party, must demonstrate that there is no genuine dis-\\npute as to any one of the following material facts and that it is therefore\\nentitled to JML: “(1) [The district] had actual knowledge of the harassment,\\n(2) the harasser was under the district’s control, (3) the harassment was based\\non the victim’s sex, (4) the harassment was so severe, pervasive, and object-\\ntively offensive that it effectively bar[red] the victim’s access to an educational\\nopportunity or benefit, and (5) the district was deliberately indifferent to the\\nharassment.” Sanches, 647 F.3d at 165 (citation and internal quotation marks\\nomitted).\\n\\n I.F. and LISD do not dispute prong (2) or (3): I.F.’s harassers, as stu-\\ndents, were under LISD’s control, and the harassment was based on I.F.’s sex.\\nThe parties dispute the other elements. Based on a de novo review of the rec-\\nord, viewing the evidence in the light most favorable to I.F., we determine that\\nsummary judgment is appropriate in LISD’s favor because there is no genuine\\ndispute that LISD was not deliberately indifferent to I.F.’s claims of\\nharassment.\\n\\n A.\\n The first material fact is whether LISD had actual knowledge of the\\nharassment. I.F. asserts two distinct allegations of harassment: a sexual\\n\\n 16\\n\\f Case: 17-40722 Document: 00514828083 Page: 17 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nassault on September 28, 2012, and incidents of sexual harassment following\\nthe alleged sexual assault in the form of bullying and cyberbullying. The bully-\\ning consists of three episodes: (1) bullying and harassment by fellow students\\nin the two weeks following the alleged sexual assault, (2) cyberbullying com-\\nprising Twitter posts, retweets, and likes that occurred on or around Decem-\\nber 31, 2012, and January 1, 2013, and (3) cyberbullying in the form of har-\\nassing Instagram posts in February 2013.\\n\\n First, for the sexual assault allegation, LISD had actual knowledge of\\nthe harassment on October 15, 2012, when the Fletchers reported it to Denson-\\nWhitehead. By October 16, Denson-Whitehead had reported the information\\nshe had learned regarding the sexual assault to Dalton and Werneke. Second,\\nfor the bullying complaint, LISD had actual knowledge of the harassment on\\nOctober 10, when Fletcher contacted Denson-Whitehead to report that I.F. was\\nbeing bullied. Denson-Whitehead informed Dalton of the bullying complaint\\nby October 16. Third, for the Twitter cyberbullying complaint, LISD had actual\\nknowledge of the harassment on January 7, when Fletcher went to Hebron and\\nprovided Werneke with a list of students who she claimed had been cyber-\\nbullying I.F. on Twitter and a copy of the alleged post that had started the\\nharassment. Fourth, for the Instagram cyberbullying complaint, LISD had\\nactual knowledge of the harassment on February 19, when Fletcher contacted\\nWerneke and told her about photographs and harassing comments posted by\\ntwo Instagram accounts. The next day, Werneke reported the complaint to\\nDalton.\\n\\n LISD does not dispute that it had actual knowledge of the sexual assault\\nand two forms of cyberbullying on the dates set forth above, but it does assert\\nthat it did not have actual knowledge of “any sex-based bullying in connection\\nwith the October 10, 2012, report” because Fletcher’s complaint to Denson-\\n\\n 17\\n\\f Case: 17-40722 Document: 00514828083 Page: 18 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nWhitehead on that date did not implicate Title IX. LISD maintains that Flet-\\ncher merely described that I.F. was being bullied generally, or at most, was\\nexperiencing cheerleading bullying, but Fletcher did not give any information\\nthat would lead Denson-Whitehead to believe the bullying was sex-based.\\n\\n Nevertheless, LISD’s contention is better directed at the question of\\nLISD’s deliberate indifference, not whether it had actual knowledge of the\\nbullying. Based on the evidence, it is indisputable that LISD had actual knowl-\\nedge, through Denson-Whitehead, that I.F. was being bullied in some manner.\\nThough the parties may dispute whether LISD’s response to that knowledge\\nwas deliberately indifferent, the fact is that LISD knew of the harassment on\\nthat day.\\n\\n B.\\n The second material fact is whether the harassment was so severe, per-\\nvasive, and objectively offensive that it effectively barred I.F.’s access to an\\neducational opportunity or benefit. The MJ and the district court reached\\ndifferent conclusions. The MJ determined that the harassing conduct I.F.\\nendured “was not severe, pervasive, or objectively unreasonable,” nor did it\\nhave a concrete, negative effect on her access to education. Conversely, the\\ndistrict court found that there was a genuine dispute concerning this material\\nelement. The court determined that I.F. had provided evidence that, “if\\nbelieved by a jury, could be a basis for a jury finding that the sexual harass-\\nment was so severe, pervasive, or objectively unreasonable so as to have had a\\nconcrete, negative effect on I.F.’s access to education.” Although neither side\\nchallenges this finding on appeal, we are not bound by the parties’ agreement\\nbut must review the summary judgment de novo. Austin v. Kroger Tex., L.P.,\\n864 F.3d 326, 328 (5th Cir. 2017) (per curiam). Based on that de novo review,\\nviewing the evidence in the light most favorable to I.F., we determine that I.F.\\n\\n 18\\n\\f Case: 17-40722 Document: 00514828083 Page: 19 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nhas demonstrated a genuine dispute as to a material fact, namely, whether the\\nharassment she endured was so severe, pervasive, and objectively offensive\\nthat it effectively barred her access to an educational opportunity or benefit.\\n\\n First, I.F. has raised a genuine dispute as to whether the harassment\\nshe endured was severe, pervasive, and objectively offensive. Her classmates\\ncalled her a “whore” and a “slut.” They spread rumors about her, talked about\\nher loudly in her presence, and excluded her during cheerleading. One student\\nasked her the race of the baby she would be having. Others asked whether she\\nhad sex with multiple people and “how did it feel to be fucked in every single\\nhole of your body?” A.V., one of the students I.F. asserts raped her, “wore the\\npants that he raped [I.F.] in to school, which had [her] blood on them from\\nintercourse, and stood on the lunch table and said, these are the pants that\\nI took [I.F.’s] virginity in.” Multiple football players called her a liar and told\\nher that she was “going to ruin everything.” The harassment continued online,\\nwith students commenting about I.F.’s alleged assault on Twitter and Insta-\\ngram. As a result of the harassment, I.F. felt suicidal and depressed, began\\ncutting herself, had nightmares, and experienced panic attacks. Therefore, she\\nhas demonstrated a genuine dispute regarding whether the harassment was\\nsevere, pervasive, and objectively offensive.\\n\\n Second, I.F. has raised a genuine dispute as to whether the harassment\\neffectively barred her access to an educational opportunity or benefit because\\nshe provided evidence that she felt that she could not return to Hebron on\\naccount of the harassment. In her statement of events dated February 8, 2013,\\nI.F. stated that “I asked [my parents] to pull me out of school because of the\\nbullying, and that I didn’t want to be there with those two boys who raped me.”\\n“I thought once the police and school heard about what happened to me that\\nthey would arrest the boys and kick them out of school and I could go back to\\n\\n 19\\n\\f Case: 17-40722 Document: 00514828083 Page: 20 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nschool, but no!” I.F. also asserted during her deposition that Fletcher had\\ninformed LISD that I.F. could not “be going to the same school as [her] rapists.”\\nAccordingly, I.F. has presented sufficient evidence to raise a genuine dispute\\nas to a material fact, namely, that the harassment she endured was so severe,\\npervasive, and objectively offensive that it effectively barred her access to an\\neducational opportunity or benefit.\\n\\n C.\\n The third material fact is whether LISD was deliberately indifferent to\\nthe harassment. The MJ and the district court agreed that “there is no issue\\nof fact as to whether the district was deliberately indifferent.” Based on a de\\nnovo review of the record, viewing the evidence in the light most favorable to\\nI.F., we determine that I.F. has failed to demonstrate a genuine dispute of\\nmaterial fact to show that LISD’s responses to I.F.’s alleged sexual assault on\\nSeptember 28, 2012, and incidents of sexual harassment following the alleged\\nsexual assault in the form of bullying and cyberbullying, were deliberately\\nindifferent. Therefore, LISD is entitled to JML.\\n\\n 1.\\n I.F. claims that LISD was deliberately indifferent to her alleged sexual\\nassault because there was a “lengthy and unjustified delay” before it began its\\ninvestigation. I.F. rejects LISD’s contention that it was not cleared to inves-\\ntigate the sexual assault allegation until mid-December 2012 and asserts that\\nalthough CPD “finished its criminal investigation on November 8, 2012, . . .\\nLISD did not begin its investigation for nearly two months,” in January 2013.\\nAside from generally averring that LISD should have initiated the investiga-\\ntion soon after it received clearance from the police in early November 2012,\\nI.F. proffers three reasons why LISD’s delay was unjustified.\\n\\n\\n 20\\n\\f Case: 17-40722 Document: 00514828083 Page: 21 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\n First, I.F. contends that the delayed investigation contravened the “Dear\\nColleague Letter,” sent to LISD and all other school districts in the United\\nStates, by the U.S. Department of Education’s Office for Civil Rights in 2011,\\nwhich states that “a school . . . must promptly investigate” potential harass-\\nment and that “a law enforcement investigation does not relieve the school of\\nits independent Title IX obligation to investigate the conduct.” 12 Second, she\\nclaims the delay was motivated by LISD’s preference for its high school football\\nprogram over the Title IX rights of its students. Third, I.F. asserts that the\\ndistrict court mistakenly did not apply the reasoning of Williams v. Board of\\nRegents of the University System of Georgia, 477 F.3d 1282 (11th Cir. 2007),\\nwhich I.F. interprets as holding that a school may not delay its investigation\\nin light of a pending criminal investigation where that investigation would not\\naffect the school’s ability to institute its own procedures. Accepting I.F.’s ver-\\nsion of when LISD received authorization from CPD to begin its investigation,\\neach of I.F.’s claims nevertheless fails, and the evidence instead supports the\\nconclusion that LISD was not deliberately indifferent to I.F.’s sexual assault\\nallegation.\\n\\n I.F. misconstrues the Dear Colleague Letter by selectively quoting it.\\nThough she claims that the letter states that a school district may not delay\\nits investigation in light of a simultaneous criminal investigation, the letter\\ncontains additional language regarding how a district should approach\\ncoordinating its Title IX investigation with a criminal investigation:\\n Although a school may need to delay temporarily the fact-finding\\n portion of a Title IX investigation while the police are gathering\\n evidence, once notified that the police department has completed\\n\\n\\n\\n 12 Dear Colleague Letter: Sexual Violence 4, Russlynn Ali, Assistant Sec’y for Civil\\nRights, Office for Civil Rights, U.S. Dep’t of Educ. (Apr. 4, 2011),\\nhttps://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.\\n 21\\n\\f Case: 17-40722 Document: 00514828083 Page: 22 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\n its gathering of evidence (not the ultimate outcome of the investi-\\n gation or the filing of any charges), the school must promptly re-\\n sume and complete its fact-finding for the Title IX investiga-\\n tion.[ 13]\\n LISD first learned of I.F.’s sexual assault allegation on October 15, 2012.\\nThe next day, Langston requested that LISD refrain from investigating the\\nmatter until CPD informed LISD that it could proceed because any LISD inves-\\ntigation could interfere with the criminal investigation. According to I.F.,\\nLISD received that authorization on November 8, 2012, and, thus, should have\\nbegun its investigation at that time. Therefore, because it was complying with\\nthe police request not to investigate for approximately three weeks between\\nOctober 15 and November 8, LISD was not violating the letter during that\\ntime.\\n\\n Furthermore, though LISD did not begin its investigation until January,\\naccepting I.F.’s version of events, LISD’s delay after the initial three-week per-\\niod was not because it was waiting for police authorization. Consequently,\\nI.F.’s attempt to use the Dear Colleague Letter’s statements about coordination\\nwith criminal investigations—to demonstrate that LISD was deliberately\\nindifferent during this period—fails. To the extent that I.F. contends that\\nLISD violated the letter’s mandate that school districts promptly resume their\\ninvestigations after a criminal investigation has been completed, that is\\nexactly the inquiry we are engaging in when we analyze whether LISD’s delay\\nin beginning its investigation was deliberately indifferent. 14\\n\\n Next, even accepting I.F.’s allegation of Denson-Whitehead’s statements\\n\\n\\n 13 Id. at 10.\\n The U.S. Department of Education’s Office for Civil Rights has since rescinded the\\n 14\\n\\nDear Colleague Letter. Dear Colleague Letter, Candice Jackson, Acting Assistant Sec’y for\\nCivil Rights, Office for Civil Rights, U.S. Dep’t of Educ. (Sept. 22, 2017),\\nhttps://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.\\n 22\\n\\f Case: 17-40722 Document: 00514828083 Page: 23 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nas true, I.F. has failed to raise a genuine dispute of material fact that Denson-\\nWhitehead’s statements evidence LISD’s deliberate indifference because they\\nwere motivated by an animus against I.F. for attempting to “go against the\\nfootball team.” As the district court explained, at many high schools in Texas,\\nthe football team and its games are a source of school and community pride.\\nMany students are involved in the team or related organizations, such as the\\ncheerleading squad or the band. Consequently, an individual who raises seri-\\nous sexual assault allegations against members of the team may experience\\nresistance.\\n\\n Denson-Whitehead’s statement that “it was going to be very difficult\\ngoing against the football team” must be construed in this context as express-\\ning her concern to I.F. and her parents about this potential resistance. Denson-\\nWhitehead’s subsequent actions support this interpretation. She did not keep\\nI.F.’s sexual assault allegation to herself or change details to make it seem less\\nserious. Instead, the same day that she learned of the allegation, she informed\\nWerneke and Langston, and the next day, she told Dalton. Though Denson-\\nWhitehead’s comment was inartful and could have been more tactful, it is not\\nobjective evidence of deliberate indifference.\\n\\n Finally, I.F.’s reliance on Williams, an out-of-circuit case, is misplaced.\\nThe Eleventh Circuit found that the University of Georgia was deliberately\\nindifferent because it waited eight months after receiving a full police report\\nbefore conducting a disciplinary hearing regarding an alleged sexual assault.\\nThough the university tried to justify the delay by averring to the pending\\ncriminal trials against the alleged assailants, the court rejected its contentions\\nas insufficient. Williams, 477 F.3d at 1296−97.\\n\\n I.F.’s case is readily distinguishable from Williams. LISD did not delay\\nits investigation after receiving a full police report or because criminal trials\\n\\n 23\\n\\f Case: 17-40722 Document: 00514828083 Page: 24 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nwere pending. Instead, LISD delayed because of a specific directive from CPD.\\nAccepting I.F.’s version of events as true, LISD then further delayed the inves-\\ntigation for about two months, which included Thanksgiving break and the\\nChristmas/New Years holidays. This delay was much shorter than the eight-\\nmonth delay that the Williams court relied on, in part, in finding that the\\nuniversity was deliberately indifferent.\\n\\n Contrary to I.F.’s theory that LISD’s delayed investigation shows delib-\\nerate indifference, the evidence supports the conclusion that LISD performed\\nan extensive investigation within a reasonable time. Accepting I.F.’s version\\nof events that LISD received authorization to begin investigating the sexual\\nassault allegation on November 8, 2012, LISD’s delay consisted of two periods:\\nwaiting for police authorization from October 16, 2012, to November 8, 2012,\\nand the November 8, 2012, to January 7, 2013, period. 15\\n\\n Though a delay in instituting remedial actions may constitute deliberate\\nindifference under Title IX, 16 LISD’s twenty-eight school-day delay does not\\nrise to that level. During that period, LISD was actively taking steps to provide\\nrelief to I.F. It worked together with I.F.’s teachers to get her the work she\\nwas missing during her absence and requested the teachers be flexible with\\nI.F.’s workload, provided her with information regarding educational oppor-\\ntunities outside of LISD, and assisted I.F. in enrolling in the Homebound\\n\\n\\n\\n\\n 15Based on a 2012-year calendar and the dates for the vacation periods LISD provides,\\nThanksgiving break and the Christmas/New Years holidays together consumed three full\\nschool weeks.\\n 16 See, e.g., Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 669–70 (2d Cir. 2012)\\n(holding that a jury was within its power to find that a school district was deliberately indif-\\nferent where it waited over a year to implement remedial action in response to a complaint);\\nMatthews v. Nwankwo, 36 F. Supp. 3d 718, 725 (N.D. Miss. 2014) (holding that an unjustified\\ndelay of two to three months in separating a complainant from the alleged assailant’s class\\nwas deliberate indifference).\\n 24\\n\\f Case: 17-40722 Document: 00514828083 Page: 25 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nprogram. 17 In light of these known circumstances, the delay was not clearly\\nunreasonable and thus was not deliberately indifferent. See Davis, 526 U.S.\\nat 648; Sanches, 647 F.3d at 167–68.\\n\\n Once it began its investigation, moreover, LISD’s response was not\\ndeliberately indifferent. It interviewed fourteen students about the alleged\\nsexual assault and followed up with four students, including the two alleged\\nassailants. It interviewed I.F., with her lawyer present, and accepted her writ-\\nten statement. After reviewing the evidence, LISD concluded that it could not\\nestablish, with sufficient evidence, that I.F. had been sexually assaulted at the\\nparty, so there was no basis for any LISD discipline for sexual assault. Title IX\\ndid not require LISD to take specific disciplinary actions, comply with parents’\\nremedial demands, or comply with its own regulations in investigating the\\ncomplaint. Davis, 526 U.S. at 648; Sanches, 647 F.3d at 169. Instead of being\\nclearly unreasonable, to the contrary, LISD’s investigation was thorough and\\nappropriate. Therefore, LISD’s response to I.F.’s sexual assault allegation was\\nnot deliberately indifferent.\\n\\n 2.\\n I.F. contends that LISD was deliberately indifferent to her October 10,\\n2012, bullying complaints because it “never undertook an investigation into”\\nthem. Nevertheless, in light of the known circumstances, LISD’s response to\\nthe harassment in the form of bullying was not deliberately indifferent.\\n\\n When Fletcher contacted Denson-Whitehead on October 10 to report that\\nI.F. was being bullied, she did not give specific details. Fletcher stated that\\nI.F. was being “severely bullied” and opined that it could be cheerleading\\n\\n\\n\\n 17 Furthermore, I.F. was separated from her alleged assailants by her absence from\\nschool and subsequent enrollment in the Homebound program.\\n 25\\n\\f Case: 17-40722 Document: 00514828083 Page: 26 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nbullying, but other than giving Denson-Whitehead the names of several stu-\\ndents, who had bullied I.F. at her middle school, who Fletcher was unsure were\\ninvolved, Fletcher “didn’t have any names” for this bullying complaint.\\nDenson-Whitehead said that she would speak with I.F. about the bullying\\nwhen I.F. next attended school. But when I.F. returned to school on Friday,\\nOctober 12, for the first time since Denson-Whitehead and Fletcher’s conver-\\nsation, before Denson-Whitehead could speak with I.F., Fletcher emailed\\nDenson-Whitehead to request that she not speak with I.F., and Denson-\\nWhitehead complied.\\n\\n The following Monday, October 15, LISD learned of I.F.’s alleged sexual\\nassault and shifted its focus to investigating that claim. After that date, I.F.\\nnever provided a statement to LISD regarding the bullying, nor did the Flet-\\nchers give LISD further details to supplement their earlier complaint about\\nthe bullying. Therefore, in light of the known circumstances, LISD’s response\\nto the bullying complaint was not clearly unreasonable and thus was not\\ndeliberately indifferent.\\n\\n 3.\\n I.F. does not specifically allege that LISD was deliberately indifferent to\\nher complaints of cyberbullying through Twitter and Instagram. Because,\\nhowever, I.F. asserts that the cyberbullying was sexual harassment under\\nTitle IX, if there is a genuine dispute regarding whether LISD was deliberately\\nindifferent to these complaints, summary judgment was inappropriate. Never-\\ntheless, LISD was not deliberately indifferent to the cyberbullying complaints.\\n\\n In response to I.F.’s first cyberbullying complaint on January 7, 2013,\\nLISD promptly interviewed nineteen students in early-to-mid January and\\nreviewed the alleged offending social media posts. Though LISD concluded\\nthat the posts did not constitute “bullying” as defined by LISD policy, it still\\n 26\\n\\f Case: 17-40722 Document: 00514828083 Page: 27 Date Filed: 02/08/2019\\n\\n\\n\\n No. 17-40722\\nconsidered them improper and hurtful. LISD therefore counseled the impli-\\ncated students about inappropriate social media behavior, advised them not to\\nengage in such behavior in the future, and contacted their parents.\\n\\n In response to I.F.’s second cyberbullying complaint on February 19,\\n2013, LISD promptly reported the matter to CPD, which began an investiga-\\ntion. As a result, one Hebron student was charged with criminal harassment,\\nand LISD suspended him for three days and assigned him to the Disciplinary\\nAlternative Education Program for thirty days as punishment.\\n\\n LISD’s responses to both cyberbullying complaints were reasonable\\ninvestigatory efforts aimed at discovering who was responsible, determining\\nwhether Title IX sexual harassment had occurred, and remedying offending\\nconduct. Consequently, LISD’s investigation was not clearly unreasonable,\\nand it was not deliberately indifferent.\\n\\n There is no error. The summary judgment is AFFIRMED.\\n\\n\\n\\n\\n 27\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":598,"cells":{"id":{"kind":"number","value":8443874,"string":"8,443,874"},"name":{"kind":"string","value":"Randy COLE Karen Cole Ryan Cole v. Carl CARSON, - Randy Cole Karen Cole Ryan Cole v. Michael Hunter Martin Cassidy"},"name_abbreviation":{"kind":"string","value":"Cole v. Carson"},"decision_date":{"kind":"string","value":"2019-02-08"},"docket_number":{"kind":"string","value":"No. 14-10228; cons. w/ No. 15-10045"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415303/\"}]}"},"judge1":{"kind":"string","value":""},"judge2":{"kind":"string","value":""},"judge3":{"kind":"string","value":""},"exactly_three_caps":{"kind":"number","value":0,"string":"0"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8443874/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Randy COLE Karen Cole Ryan Cole v. Carl CARSON, - Randy Cole Karen Cole Ryan Cole v. Michael Hunter Martin Cassidy\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Randy COLE Karen Cole Ryan Cole v. Carl CARSON, - Randy Cole Karen Cole Ryan Cole v. Michael Hunter Martin Cassidy\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-08\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":599,"cells":{"id":{"kind":"number","value":4589527,"string":"4,589,527"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Randy Cole v. Michael Hunter"},"decision_date":{"kind":"string","value":"2019-02-11"},"docket_number":{"kind":"string","value":"14-10228"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"010combined\", \"text\": \"IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n _____________________\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 14-10228 FILED\\n _____________________ February 8, 2019\\n Lyle W. Cayce\\n Clerk\\nRANDY COLE; KAREN COLE; RYAN COLE,\\n\\n Plaintiffs - Appellees\\nv.\\n\\nCARL CARSON,\\n\\n Defendant - Appellant\\n\\n----------------------------------------------------------------------------------------------------------\\ncons. w/No. 15-10045\\n\\nRANDY COLE; KAREN COLE; RYAN COLE,\\n\\n Plaintiffs - Appellees\\nv.\\n\\nMICHAEL HUNTER; MARTIN CASSIDY,\\n\\n Defendants - Appellants\\n\\n __________________________\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n __________________________\\n\\n ON PETITION FOR REHEARING EN BANC\\n\\n (Opinion September 25, 2015, 5 Cir., 2015, 802 F.3d 752)\\n (Opinion on Remand from U.S. Sup.Ct. September 25, 2018,\\n 5 Cir., 2018, 905 F.3d 334)\\n\\f No. 14-10228 c/w No. 15-10045\\n\\n\\n\\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD,\\nSOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO,\\nDUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.\\n\\nBY THE COURT:\\n\\n A member of the court having requested a poll on the petition for\\nrehearing en banc, and a majority of the circuit judges in regular active\\nservice and not disqualified having voted in favor,\\n\\n IT IS ORDERED that this cause shall be reheard by the court en banc\\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\\nbriefing schedule for the filing of supplemental briefs.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4366780/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"JONES"},"judge3":{"kind":"string","value":"SMITH"},"exactly_three_caps":{"kind":"number","value":2,"string":"2"},"extra_judges":{"kind":"string","value":"DENNIS; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; HO; DUNCAN; ENGELHARDT; OLDHAM"},"judge_designations":{"kind":"string","value":"{\"STEWART\": \", Chief\", \"JONES\": \", Circuit\", \"SMITH\": \", Circuit\", \"DENNIS\": \", Circuit\", \"OWEN\": \", Circuit\", \"ELROD\": \", Circuit\", \"SOUTHWICK\": \", Circuit\", \"HAYNES\": \", Circuit\", \"GRAVES\": \", Circuit\", \"HIGGINSON\": \", Circuit\", \"COSTA\": \", Circuit\", \"WILLETT\": \", Circuit\", \"HO\": \", Circuit\", \"DUNCAN\": \", Circuit\", \"ENGELHARDT\": \", Circuit\", \"OLDHAM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4589527/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Randy Cole v. Michael Hunter\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-02-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n _____________________\n United States Court of Appeals\n Fifth Circuit\n\n No. 14-10228 FILED\n _____________________ February 8, 2019\n Lyle W. Cayce\n Clerk\nRANDY COLE; KAREN COLE; RYAN COLE,\n\n Plaintiffs - Appellees\nv.\n\nCARL CARSON,\n\n Defendant - Appellant\n\n----------------------------------------------------------------------------------------------------------\ncons. w/No. 15-10045\n\nRANDY COLE; KAREN COLE; RYAN COLE,\n\n Plaintiffs - Appellees\nv.\n\nMICHAEL HUNTER; MARTIN CASSIDY,\n\n Defendants - Appellants\n\n __________________________\n\n Appeals from the United States District Court\n for the Northern District of Texas\n __________________________\n\n ON PETITION FOR REHEARING EN BANC\n\n (Opinion September 25, 2015, 5 Cir., 2015, 802 F.3d 752)\n (Opinion on Remand from U.S. Sup.Ct. September 25, 2018,\n 5 Cir., 2018, 905 F.3d 334)\n\f No. 14-10228 c/w No. 15-10045\n\n\n\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD,\nSOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO,\nDUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.\n\nBY THE COURT:\n\n A member of the court having requested a poll on the petition for\nrehearing en banc, and a majority of the circuit judges in regular active\nservice and not disqualified having voted in favor,\n\n IT IS ORDERED that this cause shall be reheard by the court en banc\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\nbriefing schedule for the filing of supplemental briefs.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Randy Cole v. Michael Hunter\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-02-11\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nIN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n _____________________\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 14-10228 FILED\\n _____________________ February 8, 2019\\n Lyle W. Cayce\\n Clerk\\nRANDY COLE; KAREN COLE; RYAN COLE,\\n\\n Plaintiffs - Appellees\\nv.\\n\\nCARL CARSON,\\n\\n Defendant - Appellant\\n\\n----------------------------------------------------------------------------------------------------------\\ncons. w/No. 15-10045\\n\\nRANDY COLE; KAREN COLE; RYAN COLE,\\n\\n Plaintiffs - Appellees\\nv.\\n\\nMICHAEL HUNTER; MARTIN CASSIDY,\\n\\n Defendants - Appellants\\n\\n __________________________\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n __________________________\\n\\n ON PETITION FOR REHEARING EN BANC\\n\\n (Opinion September 25, 2015, 5 Cir., 2015, 802 F.3d 752)\\n (Opinion on Remand from U.S. Sup.Ct. September 25, 2018,\\n 5 Cir., 2018, 905 F.3d 334)\\n\\f No. 14-10228 c/w No. 15-10045\\n\\n\\n\\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD,\\nSOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO,\\nDUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.\\n\\nBY THE COURT:\\n\\n A member of the court having requested a poll on the petition for\\nrehearing en banc, and a majority of the circuit judges in regular active\\nservice and not disqualified having voted in favor,\\n\\n IT IS ORDERED that this cause shall be reheard by the court en banc\\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\\nbriefing schedule for the filing of supplemental briefs.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}}],"truncated":false,"partial":false},"paginationData":{"pageIndex":5,"numItemsPerPage":100,"numTotalItems":31175,"offset":500,"length":100}},"jwt":"eyJhbGciOiJFZERTQSJ9.eyJyZWFkIjp0cnVlLCJwZXJtaXNzaW9ucyI6eyJyZXBvLmNvbnRlbnQucmVhZCI6dHJ1ZX0sImlhdCI6MTc3MjY3NTczNiwic3ViIjoiL2RhdGFzZXRzL2VpdGFucy1wdS9jbC1jb2RpbmctaW5wdXQiLCJleHAiOjE3NzI2NzkzMzYsImlzcyI6Imh0dHBzOi8vaHVnZ2luZ2ZhY2UuY28ifQ.J9vE7JEyS5g2F4M0mQiJftRBifucP4B3KTEjqwKZyhg_TAqR9RGXqoRKLdEkPInFeanjbfAtZNar5EK8SEQiBg","displayUrls":true,"splitSizeSummaries":[{"config":"default","split":"train","numRows":31175,"numBytesParquet":1629387251}]},"discussionsStats":{"closed":0,"open":1,"total":1},"fullWidth":true,"hasGatedAccess":true,"hasFullAccess":true,"isEmbedded":false,"savedQueries":{"community":[],"user":[]}}">
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8,443,882 | DISABILITY RIGHTS NEW YORK v. State of NEW YORK, New York State Unified Court System, Janet DiFiore, as Chief Judge of the New York State Unified Court System, Lawrence K. Marks, as Chief Administrative Judge of the New York State Unified Court System | Disability Rights N.Y. v. New York | 2019-02-15 | Docket No. 17-2812-cv; August Term 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Cabranes, Chin, Lynch", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415311/", "author_raw": ""}]} | CABRANES | CHIN | LYNCH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443882/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,443,883 | James A. HARNAGE v. Rikel LIGHTNER, Dr. Wu, Dr. Pillai, Dr. O'Hallaran, Dr. Nagvi, P.A. Kevin McChrystal, P.A. Rob, L.P. N. Francis, Lisa Caldonero, Nurse Caroline, Nurse Nikki, RN Heidi Greene, Nurse Marissa, Nurse Miya, Nurse James, Dr. David M. Giles, Surgical Intern Shari, Jane Does, 1-5, John Does, 1-5 | Harnage v. Lightner | 2019-02-15 | No. 18-1559-pr; August Term 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Cabranes, Calabresi, Chin", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415312/", "author_raw": "PER CURIAM"}]} | CABRANES | CALABRESI | CHIN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443883/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,443,884 | U.S. BANK NATIONAL ASSOCIATION, as Successor (Wells Fargo Bank, NA), as Trustee (Registered Holders of Citigroup Commercial Mortgage Trust 2007-C6, Commercial Mortgage Pass-Through Certificates, Series 2007-C6 ), Acting By and Through Special Servicer CWCapital Asset Management LLC v. BANK OF AMERICA N.A. | U.S. Bank Nat'l Ass'n v. Bank of Am. N.A. | 2019-02-15 | Docket No. 16-3560-cv; August Term 2017 | U.S. Court of Appeals for the Second Circuit | {"judges": "Chin, Leval, Livingston", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415313/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415314/", "author_raw": ""}]} | CHIN | LEVAL | LIVINGSTON | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443884/ | Published | 0 | 1 | 1 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,591,904 | NRP Holdings LLC v. City of Buffalo | 2019-02-20 | 17-783-cv | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: SACK, PARKER, and CARNEY, Circuit Judges.", "parties": "", "opinions": [{"author": "SUSAN L. CARNEY, Circuit Judge:", "type": "010combined", "text": "17-783-cv\nNRP Holdings LLC v. City of Buffalo\n\n\n 17-783-cv\n NRP Holdings LLC v. City of Buffalo\n\n\n\n United States Court of Appeals\n FOR THE SECOND CIRCUIT \n ______________ \n\n August Term, 2017 \n\n (Argued: January 31, 2018 Decided: February 20, 2019) \n\n Docket No. 17‐783‐cv \n ______________ \n\n NRP HOLDINGS LLC, NRP PROPERTIES LLC, \n\n Plaintiffs‐Appellants, \n\n –v.–\n\n CITY OF BUFFALO, BYRON W. BROWN, DEMONE A. SMITH, BUFFALO URBAN\n RENEWAL AGENCY, STEVEN M. CASEY, \n\n Defendants‐Appellees, \n\n RICHARD A. STENHOUSE, BUFFALO JEREMIAH PARTNERSHIP FOR COMMUNITY\n DEVELOPMENT, INC., JOHN DOE 1‐10, JOHN DOE COMPANIES, 1‐5, \n\n Defendants.* \n ______________ \n\n Before:\n\n SACK, PARKER, and CARNEY, Circuit Judges. \n\n\n\n\n * The Clerk of Court is directed to amend the case caption to conform to the above.\n\f \n\n ______________ \n \n Plaintiffs‐Appellants NRP Holdings LLC and NRP Properties LLC (together, \n“NRP”) made preliminary arrangements from 2007 through 2009 with the City of \nBuffalo to build affordable housing on City‐owned land and to finance the project in \npart with public funds. The project never came to fruition, allegedly because NRP \nrefused to hire a political ally of the mayor. NRP sued the City, the Buffalo Urban \nRenewal Agency, the mayor, and other City officials, seeking redress. Between 2012 and \n2017, the United States District Court for the Western District of New York (Skretny, J.) \nresolved all of NRP’s claims in favor of defendants, some by dismissal under Rules \n12(b)(6) and 12(c) and others by summary judgment. NRP appeals. We affirm. NRP’s \ncivil RICO claim against the City officials is barred by common‐law legislative \nimmunity because the mayor’s refusal to take the final steps necessary to approve the \nproject was discretionary legislative conduct, and NRP’s prima facie case would require \na factfinder to inquire into the motives behind that protected conduct. NRP’s “class of \none” Equal Protection claim was properly dismissed because NRP failed to allege in \nsufficient detail the similarities between NRP’s proposed development and other \nprojects that previously received the City’s approval. NRP’s claim for breach of contract \nwas properly dismissed because the City’s “commitment letter” did not create a \nbinding preliminary contract in conformity with the Buffalo City Charter’s \nrequirements for municipal contracting. Finally, NRP fails to state a claim for \npromissory estoppel. Under New York law, promissory estoppel is unavailable against \nmunicipal entities except in rare cases of “manifest injustice.” N.Y. State Med. \nTransporters Ass’n, Inc. v. Perales, 77 N.Y.2d 126, 130 (1990). NRP’s claim in the end fails \nto meet this demanding standard. \n \n AFFIRMED. \n ______________ \n \n NELSON PEREL (Thomas S. Lane, on the brief), Webster Szanyi \n LLP, Buffalo, NY, for Plaintiffs‐Appellants. \n \n\n\n\n\n \n\n 2 \n\n \n\f \n\n MICHAEL A. BRADY (Daniel J. Brady, on the brief), Hagerty & \n Brady, Buffalo, NY, for Defendants‐Appellees City of \n Buffalo, Byron W. Brown, and Demone A. Smith. \n \n RICHARD T. SULLIVAN, Harris Beach PLLC, Buffalo, NY, for \n Defendant‐Appellee Buffalo Urban Renewal Agency. \n \n Rodney O. Personius, Personius & Melber LLP, Buffalo, NY, \n for Defendant‐Appellee Steven M. Casey. \n ______________ \n\nSUSAN L. CARNEY, Circuit Judge: \n\n We confront here primarily a question of legislative immunity raised by a \n\nmayor’s inaction in the face of well‐developed but extra‐contractual expectations of the \n\nprospective developer of a low‐income housing project. \n\n A real estate development team that included plaintiffs‐appellants NRP \n\nHoldings LLC and NRP Properties LLC (together, “NRP”) made preliminary \n\narrangements with the City of Buffalo (“Buffalo,” or the “City”) from 2007 to 2009 to \n\nbuild affordable housing on City‐owned land, a project that would be financed in large \n\npart by public grants, loans, and tax exemptions (the “Project”). As the planning phase \n\ndrew to a close, NRP felt pressure from the City to hire an organization sponsored by a \n\npolitical ally of Mayor Byron W. Brown as a contractor on the Project. After NRP hired a \n\ndifferent contractor—one that, in NRP’s estimation, offered a more attractive proposal \n\nat lower cost—the City failed to take the steps necessary to approve the Project, and the \n\nwhole undertaking died on the vine. \n\n In the aftermath, NRP filed suit seeking damages in the United States District \n\nCourt for the Western District of New York (Skretny, J.). As defendants, NRP named, \n\ninter alia, the City, the City’s Urban Renewal Agency, and three City officials (the latter \n\nthree, the “individual defendants”): Mayor Brown; Deputy Mayor Steven M. Casey; and \n\n\n 3 \n\f \n\nDemone A. Smith, a member of the Buffalo Common Council (the City’s legislative \n\nbody). From 2012 through 2017, the District Court issued orders that resolved all of \n\nNRP’s claims in defendants’ favor, some by dismissal under Federal Rule of Civil \n\nProcedure 12(b)(6) and 12(c), and others by award of summary judgment under Rule 56. \n\nNRP now appeals the District Court’s 2017 final judgment as to four claims that it \n\nlodges against all of these defendants: one under the Racketeer Influenced and Corrupt \n\nOrganizations Act (“RICO”), 18 U.S.C. §§ 1961–1968; an equal protection claim asserted \n\nunder 42 U.S.C. § 1983; and two New York common‐law claims, one for breach of \n\ncontract and one under a theory of promissory estoppel. \n\n We are troubled by the implications of the evidence that NRP adduced in \n\nsupport of its claims. That evidence suggests that defendants’ motives for scuttling the \n\nProject—a development that, it appears, might have benefited low‐income individuals \n\nand families in Buffalo—stemmed from either caprice or a form of political engagement \n\nwhose ethical valence seems dubious. Nonetheless, as a matter of law, we conclude that \n\nNRP’s damages claims fail. We therefore AFFIRM the District Court’s judgment in \n\nfavor of defendants. \n\n\n BACKGROUND \n\nI. Factual background \n\n The following account is drawn from the record before the District Court when it \n\nadjudicated defendants’ motions for summary judgment.2 The facts as described here \n\nare undisputed by the parties unless otherwise indicated. \n\n\n \n\n This evidence is relevant to our review of the District Court’s summary judgment rulings, but \n2\n\nwe look only to NRP’s pleadings when reviewing the District Court’s earlier rulings on \ndefendants’ Rule 12 motions. \n\n 4 \n\f \n\n A. The proposed affordable housing project \n\n In late 2007, NRP’s development team began discussions with the City and the \n\nCity of Buffalo Urban Renewal Agency (“BURA”) about a possible affordable housing \n\nproject to be located on Buffalo’s East Side.3 The Project was dubbed “East Side Housing \n\nOpportunities II” (“East Side II”) because it was intended to resemble a recent similar \n\ndevelopment project in the City, “East Side Housing Opportunities I” (“East Side I”), in \n\nwhich certain members of NRP’s development team had played key roles. \n\n As they had for East Side I, the parties developed a plan under which NRP \n\nwould purchase real property from the City and finance construction of the buildings \n\nand infrastructure with a combination of private funds and four types of public \n\nsupport: \n\n (1) Federal “HOME” fund loans, which are made available under \n the HOME Investment Partnerships Program and allocated by \n state and local entities like BURA, see 42 U.S.C. §§ 12741–12756; \n\n (2) An agreement for “payments in lieu of taxes” (a “PILOT \n agreement”), under which NRP would be exempted from local \n and county property taxes, and would instead comply with a \n predefined schedule of payments to the City and to Erie \n County; \n\n (3) State tax credits provided under the New York State Low‐\n Income Housing Tax Credit Program, see N.Y. Pub. Hous. Law \n §§ 21–25; and \n\n \n\n3 In early 2008, NRP entered into an agreement with the Belmont Shelter Corporation \n(“Belmont”) under which Belmont would act as a developer on the Project, while NRP would \nact as general contractor and assume responsibility for obtaining the necessary government \napprovals. NRP later agreed to absorb Belmont’s Project‐related expenses in exchange for an \nassignment of Belmont’s Project‐related rights and legal claims. In light of that assignment, it is \nunnecessary here to differentiate between the two companies’ specific roles, and so we will refer \nto “NRP” when describing actions taken by either company with respect to the Project. \n\n 5 \n\f \n\n (4) A low‐interest loan from the New York State Housing Trust \n Fund, see N.Y. Priv. Hous. Fin. Law §§ 1100–1103. \n\nNot surprisingly, each of these programs requires various applications and sets \n\nprocesses for obtaining the necessary governmental approvals. As relevant for this \n\nappeal, Buffalo municipal law provides that the City may enter into contracts for \n\ntransfers of City‐owned property and for PILOT agreements only if such contracts have \n\nbeen approved by a vote of the City’s legislative body, called the “Common Council.” \n\nCity law vests Buffalo’s mayor with broad discretion over whether to introduce to the \n\nCommon Council the resolutions necessary to secure City approval. \n\n B. The Wanamaker letter \n\n In February 2008, the City and BURA set forth the fundamentals of their \n\nundertakings with regard to East Side II in a series of letters addressed to NRP by \n\nTimothy Wanamaker, who then served as BURA’s Vice President and (concurrently) as \n\nthe Executive Director of Buffalo’s Office of Strategic Planning. Most relevant for our \n\npurposes is a letter addressed to NRP and dated February 25, 2008 (the “Wanamaker \n\nletter”). \n\n In what he called a “commitment letter,” Wanamaker described East Side II as \n\n“redevelop[ing] a significant number of long vacant properties and creat[ing] much \n\nneeded affordable housing” in Buffalo by providing “fifty . . . units of single‐family \n\nhomes in the Masten Park and Cold Springs neighborhoods.” App’x 408‐09. He \n\nconfirmed to NRP that BURA had “earmarked” $1.6 million in HOME funds for the \n\nProject, App’x 408, noting at the same time that before issuing any such funds, “BURA \n\nis required to meet all applicable Federal, State and local rules and regulations,” App’x \n\n409. Wanamaker also declared that “[t]he City will provide” $1.6 million in HOME \n\nfunds, will extend its “usual” Low‐Income Housing PILOT agreement to NRP, and will \n\n\n 6 \n\f \n\nprovide “51 buildable vacant lots . . . at a price no greater than $2,000 per buildable lot, \n\nand not to exceed a total price of $100,000.” Id. He cautioned, still, that “[t]his \n\ncommitment letter is only valid if [NRP] is successful in securing a 2008 Low‐Income \n\nHousing Tax Credit allocation to complete the project” from New York State. Id. \n\n C. Preliminary steps, but no final approval \n\n In 2008 and early 2009, the City, BURA, and NRP took further steps to make East \n\nSide II a reality. The City proposed a list of specific lots to be included in the Project. \n\nBURA unanimously passed a resolution allocating $1.6 million in federal HOME funds \n\nto the Project, an allocation decision that was then approved by the Buffalo Fiscal \n\nStability Authority (“BFSA”), which oversees the City’s financial operations. Serving as \n\nan ex officio member of BFSA’s Board of Directors, Mayor Brown voiced no objection to \n\nBURA’s proposed allocation of HOME funds in the BFSA proceedings. In his capacity \n\nas Mayor, in March 2009 he filed a request with the United States Department of \n\nHousing and Urban Development (“HUD”) for the release of $1.6 million of HOME \n\nfunds to support the Project. \n\n In deposition, Mayor Brown testified that he and the City “were trying to move \n\nthis project forward” during this period, and “had every intention of supporting this \n\nproject.” App’x 1055. He further acknowledged that, based on communications such as \n\nthe Wanamaker letter and actions such as the City’s request to HUD for the release of \n\nfunds, NRP’s development team “could definitely feel that they were receiving support \n\nfrom the city,” and “that it made sense for them to do everything that they were \n\nsupposed to do to try to complete [the] project.” Id. at 1059–60. \n\n NRP did precisely that. It secured over $3 million in tax credits and low‐interest \n\nloans from New York State and completed various other Project‐related tasks: it \n\nconducted appraisals and title searches for the proposed lots, prepared architectural \n\n 7 \n\f \n\ndesigns, took out private loans, obtained insurance coverage, and submitted \n\napplications for requisite permissions to various governmental bodies with jurisdiction \n\nover the Project, such as the City Planning Board and the City’s Department of \n\nEconomic Development, Permit and Inspection Services. During this planning phase, \n\nNRP spent more than $489,000 on unreimbursed Project‐related expenses and \n\nuncompensated labor devoted to Project‐related tasks. \n\n By mid‐2009, almost all the preliminary arrangements were in place. NRP was \n\nprepared to begin construction as soon as Mayor Brown signed off on certain final \n\nmatters. Critically, the City’s legislature—the Common Council—had not yet approved \n\nthe property transfer or the PILOT agreement because Mayor Brown had not yet \n\nintroduced the necessary resolutions for the Council’s action. \n\n As it turned out, he never would. As a result, the Project never received the \n\nCity’s final approval. NRP never broke ground, and East Side II was never built. \n\n To encounter such an impasse so late in the development process was apparently \n\na rarity. Mayor Brown could not identify any other instance when an affordable \n\nhousing project failed to proceed after BURA approved the needed allocation of HOME \n\nfunds. As described above, he further testified that as late as March 2009, he and the \n\nCity “had every intention of moving . . . forward” with East Side II. App’x 1828. \n\nDefendants have not offered any substantial explanation for the Mayor’s reversal. \n\n D. The City’s request to include the Jeremiah Partnership in East Side II \n\n NRP proffers this explanation: it asserts that Brown blocked East Side II in \n\nretaliation for NRP’s refusal to comply with the Mayor’s demand, Appellants’ Br. 2, \n\nnamely, that NRP create a paid contractor role for a not‐for‐profit coalition of faith‐\n\nbased organizations based in Buffalo’s East Side, referred to locally as the Buffalo \n\n\n\n 8 \n\f \n\nJeremiah Partnership for Community Development (the “Jeremiah Partnership”). That \n\norganization was led by the Reverend Richard A. Stenhouse, whom NRP characterizes \n\nas a “key opinion[ ]maker” in Buffalo and Brown’s “political ally.” Appellants’ Br. 10. \n\nNot surprisingly, the facts relevant to NRP’s assertion are disputed by the parties. \n\nBecause this appeal arises out of defendants’ successful motions for summary \n\njudgment, we resolve all ambiguities and draw all reasonable inferences from the \n\nrecord in NRP’s favor. See Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015). \n\n 1. The City’s request that NRP hire the Jeremiah Partnership \n\n According to sworn statements made by defendant Casey (then Buffalo’s deputy \n\nmayor), and Steven Weiss (NRP’s outside counsel during the planning phase of East \n\nSide II), Mayor Brown stated on multiple occasions in late 2008 and early 2009 that the \n\nProject would move forward only if NRP provided a prominent paid role for the \n\nJeremiah Partnership.4 The Mayor expressed frustration, Casey and Weiss averred, that \n\nlarge development projects like East Side II were often orchestrated by “out of town \n\nwhite developers,” and said he wanted Reverend Stenhouse to be involved “as the face \n\nof [this] Project in the Black community.” App’x 2151. \n\n\n \n\n4 NRP relied on Casey’s and Weiss’s sworn statements rather than deposition testimony because \nDefendants moved for summary judgment before the close of discovery, when NRP had not yet \ndeposed Casey and various other witnesses whom it had slated for examination. See Dist. Ct. \nDkt. 154‐1 at 9–10 (declaration in support of NRP’s motion to strike or defer resolution of \ndefendants’ summary judgment motions until completion of discovery). The District Court \nconcluded, however, that NRP had presented no legal basis for deferring adjudication of \ndefendants’ motions. Dist. Ct. Dkt. 175 at 3‐4 (Decision and Order filed Nov. 17, 2016). The \ncourt’s order denying deferral noted, too, the individual defendants’ assertion of qualified and \nlegislative immunity as defenses against NRP’s federal claims and, in acting before the close of \ndiscovery, cited this Circuit’s directive that “questions of immunity should be resolved ‘at the \nearliest possible stage of the litigation.’” Id. at 3 (alteration omitted) (quoting Drimal v. Tai, 786 \nF.3d 219, 225 (2d Cir. 2015)). \n\n 9 \n\f \n\n Several contemporaneous emails and letters corroborate these accounts. On \n\nMarch 12, 2009, for example, a BURA official emailed NRP seeking a signed agreement \n\nwith NRP for the purposes, among other things, of meeting certain goals for local hiring \n\nand for inclusion of minority‐ and women‐owned business enterprises (“MWBEs”), and \n\nof “[w]ork[ing] with the . . . Jeremiah Partnership on this project.” App’x 1986. The \n\nBURA official wrote that she had met with Stenhouse and “worked out” an agreement \n\nunder which the Jeremiah Partnership would “assist in recruiting local minority sub‐\n\ncontractors,” and NRP would permit Jeremiah‐affiliated individuals to “shadow” NRP \n\nstaff throughout the Project so that those individuals could gain experience in \n\ncontracting and development. Id. \n\n In a March 30, 2009 email to members of NRP’s development team, NRP Vice \n\nPresident Aaron Pechota complained that he had “just [been] put on the spot” when a \n\nCity official reiterated to him the City’s request that NRP secure a “service contract” \n\nunder which the Jeremiah Partnership would “help” NRP meet its goals for contracting \n\nwith MWBEs (as requested by the City) and for employing low‐income individuals (as \n\nrequired by federal law for projects financed by HOME funds, see 12 U.S.C. §§ 1701u, et \n\nseq.). App’x 2000. Pechota noted that he was “waiting to hear how much [Jeremiah] \n\nwant[s]” for those services, but explained to his colleagues that the City “want[s] an \n\nanswer asap (next 1.5 hours) if we are going to get our land approved [by the Common \n\nCouncil] tomorrow.” Id. \n\n Only one hour later, Stenhouse emailed NRP and City officials, proposing in a \n\nfive‐line email that Jeremiah “provide mwbe and [low‐income] subcontractors for the \n\nfifty houses” to NRP in exchange for $30,000 and a year’s worth of “management \n\ntraining” for Jeremiah members. App’x 1984. Shortly thereafter on March 30, after \n\nmeeting, NRP emailed a counter‐proposal, which it fleshed out the following day. NRP \n\n\n 10 \n\f \n\nwithdrew that offer, however, in a letter dated April 8, 2009, explaining that, “[t]o avoid \n\neven the appearance of any impropriety,” NRP had opted for “an open and public \n\nprocess to engage a local organization” for assistance with its hiring goals. App’x 1696. \n\nWhen Weiss notified Mayor Brown of NRP’s decision to proceed with competitive \n\nbidding, Brown replied (as Weiss averred) “that he didn’t care what [NRP] did so long \n\nas [it] hired ‘the right company.’” App’x 2170. \n\n On April 15—before NRP released its request for proposals for Project \n\nsubcontractors (the “RFP”)—a Jeremiah representative emailed Pechota a proposed \n\nservice agreement, advising that “Reverend Stenhouse is ready to place his call to the \n\nMayor endorsing our approach, provided I can show him an executed agreement with \n\nyour firm.” App’x 2004. Two weeks later, the City’s Commissioner of Economic \n\nDevelopment told Mayor Brown and Deputy Mayor Casey that he’d met with Weiss, \n\nwho “said [NRP] knows what to do” and “will do it.” App’x 2008. The Commissioner \n\nwrote further, “Rev. Stenhouse will call [the] Mayor should that contract be signed this \n\nAM. IF that happens, presumably the file could be introduced for passage today [before \n\nthe Common Council].” Id. When a City official promptly followed up, however, \n\nPechota responded that NRP “cannot execute any documentation prior to undertaking \n\nthe RFP process.” App’x 2010. \n\n 2. NRP’s competitive bidding process \n\n In late April 2009, NRP released its RFP for outreach services. It received \n\nresponsive proposals from, among others, the Jeremiah Partnership, and the University \n\nat Buffalo’s Center for Urban Studies (the “University Center”). As compared to \n\nJeremiah’s three‐page offering, the University Center’s twelve‐page proposal provided \n\nsubstantial detail when describing the Center’s past successes and its proposed work \n\nplan for East Side II. Moreover, Jeremiah’s bid of $80,000—which included an opaque \n\n\n 11 \n\f \n\nlump‐sum “administrative” fee of $35,000—was nearly double the University Center’s \n\nbid of $40,524 for what to all appearances was a substantially similar set of services. \n\n In a letter dated May 12 of that year, NRP notified the City that it had selected \n\nthe University Center for the job, explaining that the Center’s proposal “ranked far \n\nsuperior to the others.” App’x 2094. Weiss shared this news with Mayor Brown in a \n\nconversation. As Weiss remembered it, the Mayor responded, “I told you what you had \n\nto do and you hired the wrong company.” App’x 2171. \n\n 3. Mayor Brown’s professed reasons for declining to approve East Side II \n\n According to Deputy Mayor Casey, Mayor Brown’s attitude toward East Side II \n\n“pivoted” after NRP selected the University Center over the Jeremiah Partnership. \n\nApp’x 2152. For the first time, Brown began expressing concerns about two features of \n\nthe Project: first, that the housing units would be built on scattered sites rather than in \n\none consolidated area; and second, that the units would be made available on a 30‐year \n\nrent‐to‐own basis rather than on other terms. Those two features had been part of East \n\nSide II’s design from the very beginning, however, as confirmed by the February 2008 \n\nWanamaker letter. The City itself identified the specific lots to be included in the \n\nProject, and later approved at least one other housing project that was similarly built on \n\nscattered sites. Meanwhile, Wanamaker had declared in his February 2008 letter that the \n\nCity supported the lease‐to‐own financial structure because it would “provide[] future \n\nhomeownership opportunities to residents who are not currently prepared to become \n\nhomeowners, while providing them with clean, state‐of‐the‐art housing today.” \n\nApp’x 409. \n\n Meanwhile, June passed with no action by the Mayor. In a letter dated July 10, \n\n2009, NRP protested to Mayor Brown that “[t]he only reason the Project has not and \n\nwill not move forward is the inaction of your office,” including Brown’s failure to \n\n 12 \n\f \n\n“forward[] necessary resolutions to the Buffalo Common Council.” App’x 2119. In \n\nNRP’s view, the City had “repeatedly communicated . . . that the real reason for the \n\ninaction” was NRP’s decision not to “contract with the Jeremiah Partnership as a \n\nconsultant.” Id. \n\n\nII. Procedural history \n\n NRP filed suit in June 2011, asserting claims under federal and New York State \n\nlaw against the City, BURA, and the individual defendants.5 From 2012 through 2017, \n\nthe District Court issued a series of orders that collectively resolved all claims in \n\ndefendants’ favor. See NRP Holdings LLC v. City of Buffalo, No. 11‐CV‐472S, 2012 WL \n\n2873899, 2012 U.S. Dist. LEXIS 97027 (W.D.N.Y. July 12, 2012) (granting in part a motion \n\nto dismiss by the City and the individual defendants); NRP Holdings LLC v. Buffalo \n\nUrban Renewal Agency, No. 11‐CV‐472S, 2013 WL 5276540, 2013 U.S. Dist. LEXIS 132602 \n\n(W.D.N.Y. Sept. 17, 2013) (granting in part BURA’s motion to dismiss); NRP Holdings \n\nLLC v. City of Buffalo, No. 11‐CV‐472S, 2015 WL 9463199, 2015 U.S. Dist. LEXIS 172153 \n\n(W.D.N.Y. Dec. 28, 2015) (granting in part defendants’ motions for judgment on the \n\npleadings); NRP Holdings LLC v. City of Buffalo, No. 11‐CV‐472S, 2017 WL 745860, 2017 \n\nU.S. Dist. LEXIS 27064 (W.D.N.Y. Feb. 27, 2017) (granting defendants’ motions for \n\nsummary judgment). \n\n NRP timely appealed the resulting judgment entered for defendants, challenging \n\nthe District Court’s resolution of the following four sets of claims: \n\n (1) A civil RICO claim asserted against the individual defendants \n (resolved by summary judgment); \n \n\n5 NRP also named Reverend Stenhouse and the Jeremiah Partnership as defendants in its \noriginal complaint. In 2012, however, NRP voluntarily dismissed all claims against them with \nprejudice. \n\n 13 \n\f \n\n (2) A violation of the Equal Protection Clause, asserted via section \n 1983 against the City, BURA, and the individual defendants \n (dismissed under Rule 12(b)(6)); \n\n (3) A claim for breach of contract asserted against the City and \n BURA (dismissed under Rule 12(b)(6)); and \n\n (4) A claim for promissory estoppel asserted against the City, \n BURA, and the individual defendants (dismissed in part under \n Rule 12(c), and later resolved by summary judgment).6 \n\n DISCUSSION \n\n We review de novo dismissals under Rules 12(b)(6) and 12(c), asking whether the \n\nallegations in the complaint, taken as true, state a plausible claim for relief. Willey, 801 \n\nF.3d at 61‐62. We also review de novo an order granting summary judgment under Rule \n\n56, construing all record evidence in the light most favorable to the non‐moving party. \n\nId. at 62. We will affirm a summary judgment only if “there is no genuine dispute as to \n\nany material fact and the movant is entitled to judgment as a matter of law.” Fed. R. \n\nCiv. P. 56(a). \n\n NRP’s allegations and evidence raise troubling questions about defendants’ \n\nconduct regarding the East Side II development, particularly insofar as it can reasonably \n\nbe inferred that the City would have approved the Project had NRP only agreed to pay \n\nthe Mayor’s ally for services in an amount that might be subject to question. For the \n\n \n\n6 In addition to the claims listed in the text above, NRP asserted claims against the City, BURA, \nand the individual defendants for due process violations, tortious interference with contract, \nand tortious interference with prospective economic advantage. The District Court dismissed \nthese claims under Rules 12(b)(6) and 12(c). Although NRP’s notice of appeal purports to appeal \nthe District Court’s disposition of all of NRP’s causes of action against the City, BURA, and the \nindividual defendants, NRP’s appellate briefs make no mention of due process violations or \ntortious interference. We thus treat these claims as abandoned. See Mortimer Off Shore Servs., Ltd. \nv. Fed. Republic of Germany, 615 F.3d 97, 103 n.9 (2d Cir. 2010). \n\n 14 \n\f \n\nreasons set forth below, however, we are nonetheless constrained to affirm the District \n\nCourt’s judgment on all claims. We conclude first that NRP’s civil RICO claim is barred \n\nby the common‐law doctrine of legislative immunity. Second, as to its claim for a “class \n\nof one” equal protection violation, NRP’s complaint fails because it does not sufficiently \n\nallege the existence of similarly situated comparators. Next, NRP does not state a viable \n\nclaim for breach of contract because NRP has failed to show that either the City or \n\nBURA entered into a binding preliminary agreement under municipal contracting rules \n\nthat obligated the parties to continue negotiating in good faith. Finally, NRP fails to \n\nstate a claim for promissory estoppel under New York law because it has not shown \n\nthat defendants’ conduct worked a “manifest injustice”—a stringent standard that is \n\nonly rarely met by a plaintiff desiring to pursue a promissory estoppel claim against a \n\nmunicipal entity in New York. \n\n\nI. Civil RICO \n\n NRP asserts a civil RICO claim under 18 U.S.C. § 1964 against the individual \n\ndefendants, each in his individual capacity.7 It characterizes these defendants as \n\nconspiring to extort concessions from NRP (and from other unnamed developers \n\nworking on other affordable housing projects), in violation of 18 U.S.C. § 1962(c) and \n\n(d).8 To succeed on this claim, however, as we explain below, NRP must adduce facts \n\nconcerning Mayor Brown’s failure to introduce certain Project‐related resolutions before \n\n \n\n7 Section 1964 provides a private right of action for “[a]ny person injured in his business or \nproperty by reason of a violation of section 1962 of this chapter,” referring to title 18, chapter 96, \n“Racketeer influenced and corrupt organizations.” \n\n8 As relevant here, section 1962(c) makes it unlawful “for any person . . . associated with any \nenterprise . . . to conduct or participate, directly or indirectly, in the conduct of such enterprise’s \naffairs through a pattern of racketeering activity . . . .” Section 1962(d) makes it unlawful to \nconspire to do (among other acts) what section 1962(c) prohibits. \n\n 15 \n\f \n\nthe City’s Common Council—ultimately the action, or perhaps better termed the \n\ninaction, that ended the East Side II Project. Because we conclude that his failure to \n\nintroduce the necessary resolutions amounted to protected legislative conduct, we agree \n\nwith the District Court that NRP’s civil RICO claim is barred by the common‐law \n\ndoctrine of legislative immunity. Accordingly, we affirm the court’s award of summary \n\njudgment to the individual defendants on NRP’s civil RICO claim. \n\n A. Legislative immunity for state and local officials \n\n Under the Speech or Debate Clause of the federal Constitution, members of the \n\nUnited States Congress enjoy absolute immunity from civil and criminal liability for \n\nconduct that falls “within the sphere of legitimate legislative activity.” Eastland v. U. S. \n\nServicemenʹs Fund, 421 U.S. 491, 503 (1975) (discussing U.S. Const. art. I, § 6, cl. 1).9 The \n\nSupreme Court has determined that, under the common law, state and local \n\ngovernment officials similarly enjoy absolute immunity against federal civil claims \n\nasserted against them in their individual capacities for equivalent legislative activity. \n\nBogan v. Scott‐Harris, 523 U.S. 44, 49 (1998). “Regardless of the level of government,” the \n\nBogan Court explained, “the exercise of legislative discretion should not be inhibited by \n\njudicial interference or distorted by the fear of personal liability.”10 Id. at 52. \n\n\n \n\n9 The clause provides in relevant part: \n The Senators and Representatives . . . shall in all Cases, except Treason, Felony \n and Breach of the Peace, be privileged from Arrest during their Attendance at the \n Session of their respective Houses, and in going to and returning from the same; \n and for any Speech or Debate in either House, they shall not be questioned in \n any other Place. \nU.S. Const. art. I, § 6, cl. 1. \n\n The Supreme Court observed in Bogan at the same time that “certain deterrents to legislative \n10\n\nabuse may be greater at the local level than at other levels of government.” Bogan, 523 U.S. at 53. \n\n 16 \n\f \n\n The related common‐law immunity that the Court has recognized attaches to \n\nparticular types of conduct, not to particular job titles. See Gravel v. United States, 408 U.S. \n\n606, 624–25 (1972). Thus, “officials outside the legislative branch” may be entitled to \n\nlegislative immunity when “they perform legislative functions.” Bogan, 523 U.S. at 55 \n\n(mayor performed “formally legislative” activities when introducing a budget \n\nresolution and signing an ordinance); see also Sup. Ct. of Va. v. Consumers Union of U. S., \n\nInc., 446 U.S. 719, 731 (1980) (state supreme court acted legislatively when it issued \n\nattorney code of conduct). Analysis of the function at issue is therefore critical to a \n\ndetermination of whether legislative immunity will shield a defendant. \n\n As discussed in greater detail below, a defendant may be entitled to invoke \n\nlegislative immunity when the plaintiff’s prima facie case depends on an inquiry into \n\nthe defendant’s legislative activity. United States v. Brewster, 408 U.S. 501, 512 (1972). A \n\ncomprehensive immunity analysis thus would require a court to determine each \n\nindividual defendant’s potential entitlement to legislative immunity by considering \n\nwhether NRP’s civil RICO claim targets legislative conduct engaged in by that defendant. \n\nHere, that would call for scrutiny of NRP’s civil RICO claim with respect to each \n\n \n\nUnlike the states and the federal government, it observed, municipal entities “can be held \n[directly] liable for constitutional violations . . . . And, of course, the ultimate check on \nlegislative abuse—the electoral process—applies with equal force at the local level, where \nlegislators are often more closely responsible to the electorate.” Id. We note, in addition, that \nfederal common‐law legislative immunity protects state and local officials only against federal \ncivil law claims; it does not preclude federal or state criminal prosecutions or the pursuit of \nstate‐law causes of action for damages. United States v. Gillock, 445 U.S. 360, 373 (1980); Lake \nCountry Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 405 (1979). And significantly, \nunlike the constitutional immunity enjoyed by federal legislators, common‐law immunity may \nbe abrogated by statute. See, e.g., Tenney v. Brandhove, 341 U.S. 367, 376 (1951) (concluding that \nCongress intended no such abrogation with respect to liability under section 1983 for state \nlegislators). But we need not decide here whether the federal civil RICO statute abrogates \ncommon‐law immunity: NRP has made no argument to that effect. \n\n 17 \n\f \n\ndefendant. Neither the District Court nor the parties performed that type of \n\nindividualized assessment here, however. Instead, they focused solely on the question \n\nwhether Mayor Brown performed a legislative function when he declined to introduce \n\nthose anticipated resolutions before the Common Council that would have approved a \n\nsale of City‐owned property to NRP and a PILOT agreement. In the sections that follow, \n\nwe adopt the parties’ general approach and address each element of the legislative \n\nimmunity defense, asking, first, whether Brown’s conduct was legislative in nature and, \n\nif so, whether NRP must adduce facts concerning that conduct to state a valid civil \n\nRICO claim against one or more of the individual defendants. \n\n B. Characterizing Brown’s conduct as “legislative” or “administrative” \n\n As we have observed, the Supreme Court directed courts to accord absolute \n\nlegislative immunity to “all actions taken in the sphere of legitimate legislative activity.” \n\nBogan, 523 U.S. at 54 (internal quotation marks omitted). In doing so, it stressed that \n\n“[w]hether an act is legislative turns on the nature of the act, rather than on the motive \n\nor intent of the official performing it.” Id. \n\n Drawing on Bogan, our Court has defined a two‐part inquiry for determining \n\nwhether an act is legislative: \n\n First, it is relevant whether the defendants’ actions were \n legislative in form, i.e., whether they were integral steps in \n the legislative process. Second, it may also be relevant \n whether defendants’ actions were legislative in substance, i.e., \n whether the actions bore all the hallmarks of traditional \n legislation, including whether they reflected discretionary, \n policymaking decisions implicating the budgetary priorities \n of the government and the services the government provides \n to its constituents. \nState Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 89 (2d Cir. 2007) (first \n\nemphasis added) (internal quotation marks, citations, and alterations omitted). When \n\n\n 18 \n\f \n\n“high‐level executive branch officials” like Mayor Brown seek to “claim the protections \n\nof an immunity traditionally accorded to members of the legislative branch,” they must \n\n“show that their activities were ‘legislative’ both in form and in substance.” Id. (final \n\nemphasis added). \n\n We conclude that Mayor Brown’s discretionary conduct in declining to introduce \n\nthe necessary resolutions before the Common Council satisfies both elements of the \n\nRowland test, and therefore constitutes protected legislative activity. Our reasons are as \n\nfollows. \n\n As an initial matter, Brown’s actions (or specific inaction, here) seem to us \n\nwithout doubt legislative in form. Introducing a measure for a vote by a legislative body \n\namounts to an “integral step[] in the legislative process,” and is therefore a “formally \n\nlegislative” act, even when performed by an executive official. Bogan, 523 U.S. at 55; see \n\nalso Kilbourn v. Thompson, 103 U.S. 168, 204 (1880) (legislative immunity protects \n\n“resolutions offered”). If introducing a resolution is a legislative act, then, precedent \n\nsuggests, so must be refusal to introduce a resolution. See Sup. Ct. of Va., 446 U.S. at 731–\n\n34 (concluding that Virginia Supreme Court acted legislatively both when it \n\npromulgated attorney code of conduct and when it declined to amend code of conduct); \n\nsee also Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1063 (11th Cir. 1992) (explaining \n\nthat legislative immunity “protect[s] the democratic integrity of the legislative process” \n\nby preventing individuals from suing legislators “to ensure that a certain piece of \n\nlegislation is brought before [a legislative] body for a vote”). The “exercise of legislative \n\ndiscretion” that legislative immunity is meant to protect, Bogan, 523 U.S. at 52, surely \n\nimplies a genuine choice whether or not to perform a given legislative act. \n\n We turn, therefore, to the second element of the Rowland test, which asks \n\nwhether Brown’s conduct was legislative in substance. On this point, we lack the benefit \n\n\n 19 \n\f \n\nof any precedential cases presenting similar facts. Since Bogan, our discussions of \n\nlegislative immunity for state and local officials in precedential opinions have arisen \n\nprimarily from disputes concerning individuals in public employment, not real estate or \n\nlarge‐scale public projects.11 Those employment cases established the following \n\nprinciples, instructive here: “The elimination of a position . . . is a substantively \n\nlegislative act . . . . By contrast, a personnel decision is administrative in nature if it is \n\ndirected at a particular employee . . . and is not part of a broader legislative policy.” \n\nRowland, 494 F.3d at 91 (emphases added) (internal quotation marks, citations, and \n\nalterations omitted). 12 \n\n Reasoning from those cases, NRP argues that “[i]n the land development context, \n\nrefusal to process a proposed development plan and/or issue a needed permit is \n\nadministrative in nature, and thus not protected by legislative immunity.” Appellants’ \n\nBr. 36. In support, it cites Anderson Group, LLC v. City of Saratoga Springs, 557 F. Supp. 2d \n\n332 (N.D.N.Y. 2008), in which the district court concluded that legislative immunity \n\nprotected members of the Saratoga Springs City Council who voted to rezone a district, \n\nbut not members of the City Planning Board who—allegedly in bad faith—delayed \n\nadjudicating a particular application for a special use permit. Id. at 345. The Planning \n \n\n See Rowland, 494 F.3d at 91‐92; Almonte v. City of Long Beach, 478 F.3d 100, 108 (2d Cir. 2007); \n11\n\nHarhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 210–11 (2d Cir. 2003); Camacho v. Brandon, \n317 F.3d 153, 164‐65 (2d Cir. 2003); see also Jessen v. Town of Eastchester, 114 F.3d 7, 8–9 (2d Cir. \n1997) (per curiam) (pre‐Bogan decision assessing immunity for state legislators in connection \nwith a public‐employment dispute). \n\n We recognize that the categories of “legislative” and “administrative” acts, while mutually \n12\n\nexclusive, are not necessarily exhaustive of the conduct of officialdom: the Supreme Court has \nalso defined legislative activity by way of comparison to, for example, “political” activity, \nBrewster, 408 U.S. at 512, and “enforcement” actions, Sup. Ct. of Va., 446 U.S. at 735–36. We focus \nhere on Rowland’s legislative/administrative distinction because this analytical framework \nappears best‐suited to the facts at hand, and because it occupied a central role in both the \nDistrict Court’s analysis and the briefing on appeal. \n\n 20 \n\f \n\nBoard defendants appealed and, in a non‐precedential order, this Court affirmed the \n\ndenial of legislative immunity to those defendants on the grounds that the action taken \n\nwith regard to the special use permit application was “administrative in nature.” \n\nAnderson Grp., LLC v. Lenz, 336 F. App’x 21, 23 (2d Cir. 2009) (summary order). NRP \n\nargues that Mayor Brown’s “conduct was [similarly] administrative in nature \n\nbecause . . . it was directed [at] a single developer on a single project and was not part of \n\na broader legislative policy.” Appellants’ Br. 35. \n\n Although the argument has some force, it fails to persuade us. Even if the \n\nAnderson rulings were binding here (and they are not), their factual setting is quite \n\nunlike that presented by NRP, and their conclusions would not affect our result. In this \n\ncase, NRP did not merely apply to a planning board seeking, pursuant to well‐\n\nestablished zoning rules, a permit to build homes on its own land using its own money. \n\nRather, East Side II was conceived as a joint public‐private venture through which the \n\nCity would expand affordable housing options for its residents by contributing \n\nsubstantial municipal resources. Had the Project proceeded, these contributions would \n\nhave taken the form of (as listed supra Background Section I.A) a PILOT tax incentive, \n\nthe transfer of City‐owned property, and the allocation of $1.6 million in BURA‐\n\nadministered HOME funds. Mayor Brown, the City’s chief executive, faced the decision \n\nwhether to seek Common Council approval for certain aspects of the Project. Those \n\naspects affected municipal resources in their own right and carried additional \n\nsignificance when viewed in context: approval of those features was needed before NRP \n\ncould secure financing and begin construction. Unlike the zoning board in Anderson, \n\nBrown was not deciding simply whether to seek the Common Council’s blessing for a \n\nprivate development project; he was deciding whether a multimillion‐dollar housing \n\nproject, which would use extensive City resources, should proceed at all. \n\n\n\n 21 \n\f \n\n Upon review of these circumstances, we agree with the District Court that Mayor \n\nBrown’s decision not to introduce the resolutions for Common Council action \n\namounted to a “discretionary, policymaking decision[]” that implicated the City’s \n\n“budgetary priorities . . . and the services [it] provides to its constituents.” NRP \n\nHoldings, 2017 WL 745860, at *8, 2017 U.S. Dist. LEXIS 27064, at *24 (quoting Rowland, \n\n494 F.3d at 89). We decide, therefore, that Mayor Brown’s conduct in failing to present \n\nthe resolution for Common Council action was legislative in substance, as well as in \n\nform, and thus constitutes protected legislative conduct for purposes of our analysis of \n\ncommon‐law legislative immunity. \n\n NRP argues that Brown’s conduct is nonetheless not entitled to legislative \n\nimmunity because his alleged pay‐to‐play scheme removes his actions from the “sphere \n\nof legitimate legislative activity.” Rowland, 494 F.3d at 89 (quoting Bogan, 523 U.S. at 54) \n\n(emphasis added). This argument fails, however, because it conflates Brown’s \n\nlegislative conduct—his inaction before the Common Council—with other possibly \n\nillicit and unprotected acts in his alleged scheme—that is, his purported demands that \n\nNRP hire Stenhouse for what NRP describes as substantially a no‐show role. The term \n\n“legitimate,” as we and the Supreme Court have used it in this context, serves no \n\nfunction other than to emphasize that legislative immunity attaches only when a given \n\nact is validly classified as legislative. See Tenney v. Brandhove, 341 U.S. 367, 377 (1951) \n\n(“The claim of an unworthy purpose does not destroy the privilege.”). \n\n C. Identifying the relevant conduct for civil RICO purposes \n\n Having concluded that by declining to submit the resolutions for approval, \n\nMayor Brown engaged in protected legislative conduct, we next consider whether that \n\nconduct is an essential component of NRP’s civil RICO claim. We conclude that NRP’s \n\ntheory of RICO liability against all three individual defendants depends, in part, on a \n\n\n 22 \n\f \n\nshowing that Brown’s legislative decision not to introduce Common Council \n\nresolutions was fatally tainted by improper motive.13 The Mayor could have declined to \n\nintroduce the resolutions for either legitimate or illegitimate reasons; either way, this \n\ndecision is protected by legislative immunity. We therefore affirm the District Court’s \n\nconclusion that legislative immunity bars NRP’s civil RICO claim against the individual \n\ndefendants. \n\n 1. The defense of legislative immunity is available against only those claims \n\nthat would require a factfinder to consider evidence of an official’s legislative actions. \n\nThe Supreme Court defined the contours of this test in a pair of decisions arising out of \n\nfederal corruption prosecutions: United States v. Johnson, 383 U.S. 169 (1966), and United \n\nStates v. Brewster, 408 U.S. 501 (1972). Before discussing these cases, we pause to explain \n\nwhy, in a civil appeal concerning common‐law legislative immunity asserted by city \n\nofficials, we see fit to rely on criminal cases that addressed constitutional legislative \n\nimmunity asserted by federal officials in defending criminal prosecutions. \n\n The District Court appeared to disclaim reliance on any legislative immunity \n\ncases arising out of criminal proceedings, explaining that, unlike constitutional \n\nlegislative immunity, common‐law legislative immunity does not protect against \n\nfederal criminal prosecutions. The District Court is correct that constitutional immunity \n\nprotects against a broader set of claims than does the common‐law doctrine. See United \n\nStates v. Gillock, 445 U.S. 360, 373 (1980); Lake Country Estates, Inc. v. Tahoe Reg’l Planning \n\nAgency, 440 U.S. 391, 405 (1979). That difference in scope aside, however, courts have \n\n\n \n\n13 As noted above in Discussion Section I.A, courts should generally consider the defense of \nlegislative immunity on a defendant‐by‐defendant basis. We nonetheless affirm the District \nCourt’s aggregated immunity analysis in this instance based on the record and the arguments \npresented to us in this appeal. \n\n 23 \n\f \n\ngenerally construed the two doctrines to be closely parallel in application. See Sup. Ct. of \n\nVa., 446 U.S. at 733 (“[W]e generally have equated the legislative immunity to which \n\nstate legislators are entitled . . . to that accorded Congressmen under the Constitution.”); \n\nStar Distributors, Ltd. v. Marino, 613 F.2d 4, 8 (2d Cir. 1980) (“The shared origins and \n\njustifications of these two doctrines would render it inappropriate for us to differentiate \n\nthe scope of the two without good reason.”); Schmidt v. Contra Costa Cty., 693 F.3d 1122, \n\n1132 (9th Cir. 2012) (characterizing “common‐law immunity against civil suits” as \n\n“parallel to the immunity provided by the Speech or Debate Clause”). \n\n Here, neither the District Court nor the parties have offered any basis for \n\npresuming that the civil or criminal nature of a case would influence a court’s \n\ndetermination that a defendant’s conduct constitutes (or does not constitute) protected \n\nlegislative activity, or that the conduct is (or is not) integral to the opposing side’s prima \n\nfacie case. We thus see no reason not to look for guidance to Supreme Court precedent \n\narising out of criminal, as well as civil, proceedings, as have our sister circuits in other \n\ncivil appeals. See, e.g., Youngblood v. DeWeese, 352 F.3d 836, 840 (3d Cir. 2004) (in civil \n\ncase, citing criminal decisions that address definition of “legislative” activity); Thillens, \n\nInc. v. Cmty. Currency Exch. Ass’n of Ill., Inc., 729 F.2d 1128, 1131 (7th Cir. 1984) (in civil \n\ncase, citing criminal decisions that discuss “prima facie” standard). Because these \n\ncriminal cases may provide useful insight, then, we now turn to a closer discussion of \n\nJohnson and Brewster. \n\n In 1966, in Johnson, the Court affirmed the Fourth Circuit’s decision setting aside \n\na federal representative’s criminal conspiracy convictions on legislative immunity \n\ngrounds. The charged offense conduct at issue on appeal consisted primarily of \n\naccepting bribes in exchange for making a speech in the House of Representatives; the \n\nprosecution’s conspiracy theory “depended upon a showing that the speech was made \n\n\n 24 \n\f \n\nsolely or primarily to serve private interests.” 383 U.S. at 177. In other words, the \n\nprosecution asked the jury to consider both the “motives underlying the making of the \n\nspeech” and the speech’s “contents” to convict. Id. at 184. Finding that the act of \n\ndelivering the speech in the House was quintessentially legislative activity, the Court \n\ndeclined to consider the asserted motivations for the act, and concluded that the \n\nrepresentative was entitled to constitutional legislative immunity.14 \n\n In contrast, in Brewster, the Court determined that a former U.S. Senator was not \n\nentitled to legislative immunity. The former legislator was charged under a statute that \n\nthe Court characterized as criminalizing “accepting a bribe in exchange for a promise \n\nrelating to an official act.” 408 U.S. at 502 (describing 18 U.S.C. § 201(c)(1), (g)). \n\nCritically, in Brewster the government bore no obligation to show that the defendant \n\nformer Senator “fulfilled the alleged illegal bargain” because the statutory violation was \n\ncomplete upon accepting something of value in exchange for a promise. Id. at 526 \n\n(emphasis added). As the Court observed, “Taking a bribe is, obviously, . . . not a \n\nlegislative act.” Id. Thus, the defendant was not entitled to legislative immunity: unlike \n\nin Johnson, “no inquiry into legislative acts or motivation for legislative acts [was] \n\nnecessary for the [prosecution] to make out a prima facie case.” Id. at 525. All that was \n\nneeded was the threshold determination that the act for which he was prosecuted—\n\naccepting a bribe—was not legislative. \n\n 2. Applying this framework to the case at hand, we begin by identifying the \n\nrequired elements of NRP’s civil RICO claim against the three individual defendants. \n\nWe next consider whether NRP, as plaintiff, can satisfy those elements without \n\n \n\n The Court noted that the representative’s “speech . . . was only a part of the conspiracy \n14\n\ncharge” lodged under 18 U.S.C. § 371. Johnson, 383 U.S. at 185. It left open the possibility of a \nretrial “wholly purged of elements offensive to the Speech or Debate Clause.” Id. \n\n 25 \n\f \n\nconsidering the fact of, or motives for, Mayor Brown’s refusal to seek Common Council \n\napproval for the transfer of City‐owned lots or the PILOT agreement. Because we \n\ndetermine that the circumstances of this case preclude NRP from doing so, we hold that \n\nthe three individual defendants are shielded by legislative immunity. \n\n To state a civil RICO claim, NRP must show, first, that the individual defendants \n\ncommitted a substantive RICO violation, and second, that the violation proximately \n\ncaused an injury to NRP’s business or property. See 18 U.S.C. § 1964(c); DʹAddario v. \n\nDʹAddario, 901 F.3d 80, 96 (2d Cir. 2018). As to the second element, NRP asserts that it \n\nwas directly injured by the individual defendants’ demands that it provide the Jeremiah \n\nPartnership with an (overpriced) paid consulting role in East Side II. Attempting to \n\ndraw an analogy to Brewster, NRP insists that “the extortion[ate] demand itself [gave] \n\nrise to fear of economic loss, regardless of whether . . . [the individual defendants] made \n\ngood on this threat.” Appellants’ Reply Br. 21. This fear, they urge, was injury enough \n\nto sustain that claim. \n\n NRP’s theory falls short of the mark. NRP has cited no authority to support its \n\nassertion that mere fear of economic loss is sufficient to satisfy the required RICO \n\nelement of a compensable injury to business or property. In our view, the only \n\npotentially cognizable injury to NRP in this matter consists of the $489,000 in \n\nexpenditures that it incurred during the Project’s preliminary planning phases. Those \n\nexpenditures did not become losses, however, until the Project failed to move forward \n\nas planned. To show a proximately caused injury, NRP must demonstrate that East Side \n\nII failed to move forward because of a substantive RICO violation committed by the \n\nindividual defendants. DʹAddario, 901 F.3d at 96 (requiring RICO plaintiffs to show \n\n“some direct relation between the injury asserted and the injurious conduct alleged”); \n\nsee, e.g., Chappell v. Robbins, 73 F.3d 918, 921 (9th Cir. 1996) (concluding that a state \n\n\n 26 \n\f \n\nsenator’s “acceptance of bribes caused no injury” to plaintiff, a private citizen, until the \n\nsenator “acted on those bribes and pushed legislation through” that harmed plaintiff’s \n\nbusiness (emphasis added)). This, they cannot do without reference to the Mayor’s \n\nfailure to introduce the required resolutions—the act that is legislative in substance and \n\nin form. \n\n It is undisputed that the East Side Housing II development could not be realized \n\nwithout a transfer of City‐owned property and execution of a PILOT agreement, and \n\nthat both of these acts required the Common Council’s approval. It is also undisputed \n\nthat Mayor Brown retained sole discretion over whether to introduce the resolutions \n\nnecessary to obtain that approval. Brown’s decision not to introduce those resolutions \n\nthus constitutes a “necessary step in the causal chain linking the [individual] \n\ndefendant[s’] alleged [misconduct] to [NRP’s] injury.” Sergeants Benevolent Ass’n Health \n\n& Welfare Fund v. Sanofi‐Aventis U.S. LLP, 806 F.3d 71, 87 (2d Cir. 2015). Whatever RICO \n\nviolations the individual defendants may have committed during the Project’s planning \n\nphase, NRP cannot show an injury proximately caused by those violations without \n\ninquiring into Brown’s discretionary decision not to seek Common Council approval for \n\nthe land transfer and the PILOT agreement. If Brown’s decision was not itself a RICO \n\nviolation, and if he was authorized to make the same decision irrespective of any prior \n\nracketeering activity, that decision would amount to an intervening cause sufficient to \n\nbreak the causal chain. See id.15 \n\n \n\n In Sergeants Benevolent Association, we discussed the import of such intervening causes as \n15\n\nfollows in the context of an asserted RICO mail‐fraud violation: \n Although reliance on the defendant’s alleged misrepresentation is not an element \n of a RICO mail‐fraud claim, the plaintiffs’ theory of injury in most RICO mail‐\n fraud cases will nevertheless depend on establishing that someone . . . relied on \n the defendant’s misrepresentation. . . . [I]f the person who was allegedly \n\n 27 \n\f \n\n We determined above that Brown’s inaction regarding the Common Council \n\nresolutions was protected legislative conduct. We now conclude that NRP is unable to \n\n“make out a prima facie case” on its RICO claim without reliance on that legislative \n\nconduct. Brewster, 408 U.S. at 525. NRP’s civil RICO claim as against all three individual \n\ndefendants is therefore barred by the legislative immunity that attaches to Brown’s \n\nprotected legislative conduct. See, e.g., Chappell, 73 F.3d at 921‐22 (affirming dismissal of \n\ncivil RICO claim “because the conduct by which the [defendant senator’s] bribe \n\nproximately caused [plaintiff’s] injury was legislative, and therefore immune”). \n\n For these reasons, we affirm the District Court’s grant of summary judgment on \n\nNRP’s civil RICO claim to the three individual defendants. \n\n\nII. Equal Protection \n\n NRP also charges that the City, BURA, and the individual defendants violated \n\nNRP’s rights, as a “class of one,” under the Equal Protection Clause, thereby entitling it \n\nto damages under 42 U.S.C. § 1983. The District Court dismissed this claim under \n\nRule 12(b)(6). We affirm the dismissal because NRP failed to sufficiently allege the \n\nexistence of similarly situated comparators.16 \n\n\n \n\n deceived by the misrepresentation . . . would have acted in the same way \n regardless of the misrepresentation, then the misrepresentation cannot be a but‐\n for, much less proximate, cause of the plaintiffs’ injury. \n806 F.3d at 87 (emphasis added) (internal citations and footnote omitted). \n\n The District Court provided two grounds for its dismissal of NRP’s class‐of‐one claim. First, \n16\n\nthe District Court suggested that NRP had likely failed to establish itself as similarly situated to \nother developers because NRP allegedly “was treated differently from other developers (i.e., not \nhired for the project) because it acted differently (i.e., refused to involve Stenhouse) than the other \ndevelopers who allegedly complied with the City’s demands.” NRP Holdings LLC, 2012 WL \n2873899, at *16, 2012 U.S. Dist. LEXIS 97027, at *47 (emphasis in original). Second, the court \n\n 28 \n\f \n\n Although “[t]he Equal Protection Clause has traditionally been applied to \n\ngovernmental classifications that treat certain groups of citizens differently than others,” \n\nthe Supreme Court has also endorsed “a class‐of‐one theory for equal protection claims, \n\nunder which a single individual can claim a violation of her Equal Protection rights \n\nbased on arbitrary disparate treatment.” Fortress Bible Church v. Feiner, 694 F.3d 208, 221 \n\n(2d Cir. 2012) (emphasis added) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564 \n\n(2000) (per curiam)). To establish a “class of one” claim, a plaintiff must show that: \n\n (i) no rational person could regard the circumstances of the \n plaintiff to differ from those of a comparator to a degree that \n would justify the differential treatment on the basis of a \n legitimate government policy; and (ii) the similarity in \n circumstances and difference in treatment are sufficient to \n exclude the possibility that the defendants acted on the basis \n of a mistake. \n\nId. at 222 (quoting Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 60 (2d Cir. \n\n2010)). \n\n NRP’s second amended complaint alleges that, pursuant to an “official custom or \n\npolicy established by Brown, Casey, and/or Smith,” \n\n NRP was treated differently than other developers of \n projects in the City of Buffalo. When other developers found \n \n\nnoted that in Engquist v. Oregon Dep’t of Agr., 553 U.S. 591 (2008), the Supreme Court held that \n“class of one” claims are not available “in the public employment context,” id. at 594, and \nconcluded that “this holding logically extends to the government‐contractor relationship.” NRP \nHoldings, 2012 WL 2873899, at *16, 2012 U.S. Dist. LEXIS 97027, at *48. We rely on neither of \nthese grounds here. See Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 413 (2d Cir. 2014) \n(appeals court may “affirm on any basis for which there is sufficient support in the record, \nincluding grounds not relied on by the district court”). In addition, we decline to consider \nNRP’s newly asserted claim that Mayor Brown discriminated against NRP on the basis of racial \nanimus. NRP failed to articulate this racially based “selective treatment” equal protection \ntheory before the District Court, either in its operative complaint or in its opposition to \ndefendants’ motion to dismiss. NRP has therefore forfeited any such claim. \n\n 29 \n\f \n\n a way to pay monies to Stenhouse and/or affiliated \n organizations, [defendants] allowed their projects to proceed \n to completion. Because NRP refused to make such \n payments, [defendants] . . . actively took steps to kill the \n Project. The difference in treatment was not on the basis of \n any legitimate government policy or the product of a \n mistake. \n2d Am. Compl. ¶¶ 153, 156. This differential, NRP urges, entitles it to relief under \n\nsection 1983. \n\n To establish a class‐of‐one claim, a plaintiff must “show an extremely high \n\ndegree of similarity between itself and its comparators.” Fortress Bible, 694 F.3d at 222. \n\nNRP’s complaint, however, provides insufficient detail about the “other developers” \n\nand the projects that were allegedly approved. Potentially relevant facts include \n\nwhether those developers’ projects concerned affordable housing or some other type of \n\nconstruction; whether they involved transfers of City‐owned property; and whether \n\nthey required public funding or tax exemptions.17 Those silences are fatal to NRP’s \n\nclaim. Compare Olech, 528 U.S. at 565 (permitting a “class of one” claim where the \n\nplaintiff alleged that “the Village intentionally demanded a 33‐foot easement as a \n\ncondition of connecting her property to the municipal water supply where the Village \n\nrequired only a 15‐foot easement from other similarly situated property owners”), with \n\nRuston, 610 F.3d at 59–60 (affirming dismissal because, although plaintiffs “identif[ied] \n\nseveral properties that allegedly were allowed to connect to the Village’s sewer \n\n\n \n\n NRP does allege, it is true, that “[t]he difference in treatment” among the development \n17\n\nprojects “was not on the basis of any legitimate government policy,” 2d Am. Compl. ¶ 156, but \nwas based on the Mayor’s improper demands. But this conclusory allegation regarding the \nother projects does not cure the claim’s deficiencies: a “formulaic recitation of the elements of a \ncause of action” will not protect a claim against dismissal absent additional factual support. \nAshcroft v. Iqbal, 556 U.S. 662, 678 (2009). \n\n 30 \n\f \n\nsystem,” including commercial facilities and single homes, none of those properties was \n\nsufficiently “similar to [plaintiffs’] proposed 14‐home development”). \n\n For these reasons, we conclude that NRP’s allegations fail to establish that any \n\nindividual defendant violated NRP’s Equal Protection rights.18 We further conclude that \n\nNRP has failed to allege a valid equal protection claim against the City or BURA: \n\nbecause NRP’s alleged injuries are solely attributable to the actions of named individual \n\ndefendants, NRP’s failure to allege a constitutional violation by the individual \n\ndefendants necessarily forecloses a claim of municipal liability. Matican v. City of New \n\nYork, 524 F.3d 151, 154 (2d Cir. 2008) (If the individual officials’ actions did not “violate \n\n[plaintiff’s] constitutional rights . . . , then the City cannot be liable to [plaintiff] under \n\n§ 1983, regardless of whether the [officials] acted pursuant to a municipal policy or \n\ncustom.”). \n\n For these reasons, we affirm the District Court’s dismissal of NRP’s class‐of‐one \n\nclaim as against all defendants. \n\n\nIII. Breach of Contract \n\n NRP asserts a claim for breach of contract against the City and BURA. In its \n\nsecond amended complaint, NRP alleges that Wanamaker’s February 25, 2008 letter \n\nestablished a “preliminary agreement obligating [the City] and/or BURA to make good \n\nfaith efforts to realize the specific commitments set forth in the agreement,” and that \n\ndefendants breached that agreement by “failing . . . to move the Project forward in good \n\nfaith.” 2d Am. Compl. ¶¶ 118, 121. The District Court dismissed this claim under Rule \n\n\n \n\n18 Because we conclude that NRP failed to sufficiently allege an Equal Protection violation by \nany defendant, we need not consider defendants’ related arguments regarding abandonment, \nlegislative immunity, or qualified immunity. \n\n 31 \n\f \n\n12(b)(6) on the grounds that the Wanamaker letter does not evince the parties’ mutual \n\nintent to be bound to continued negotiations in good faith. We agree, and therefore \n\naffirm the dismissal. \n\n To create a binding contract under New York law, the parties must provide a \n\n“manifestation of mutual assent sufficiently definite to assure that [they] are truly in \n\nagreement with respect to all material terms.” Stonehill Capital Mgmt., LLC v. Bank of the \n\nWest, 28 N.Y.3d 439, 448 (2016) (internal quotation marks and citations omitted). In \n\ndetermining whether mutual assent has been shown, courts “look to the objective \n\nmanifestations of the intent of the parties as gathered by their expressed words and \n\ndeeds.” Id. (internal quotation marks and citations omitted). Even in situations where \n\nthe parties have not manifested mutual assent as to all material terms, New York courts \n\nhave held that “parties may enter into a binding contract under which the obligations of \n\nthe parties are conditioned on the negotiation of future agreements.”19 IDT Corp. v. Tyco \n\nGrp., S.A.R.L., 23 N.Y.3d 497, 502–03 (2014) (emphasis added). In New York, a \n\npreliminary agreement of that nature obligates the parties to continue “negotiat[ions] in \n\ngood faith.” Id at 503. \n\n Beyond these common‐law requirements, state and local statutes and ordinances \n\nmay impose additional requirements on municipal contracting “to protect the public \n\nfrom corrupt or ill‐considered actions [by] municipal officials.” Henry Modell & Co. v. \n\nCity of New York, 159 A.D.2d 354, 355 (1st Dep’t 1990). “Municipal contracts which \n\n \n\n Although the nomenclature has not been uniformly adopted, our Court has sometimes \n19\n\nreferred to such agreements as “Type II” preliminary agreements. See Brown v. Cara, 420 F.3d \n148, 157 (2d Cir. 2005) (“While a Type I preliminary agreement is fully binding as to the final \ncontractual goal, a Type II agreement does not commit the parties to their ultimate contractual \nobjective but rather to the obligation to negotiate the open issues in good faith.” (internal \nquotation marks omitted)). \n\n 32 \n\f \n\nviolate express statutory provisions are invalid,” even if the purported contracts bear \n\nthe hallmarks of mutual assent. Granada Bldgs., Inc. v. City of Kingston, 58 N.Y.2d 705, \n\n708 (1982); see also Casa Wales Hous. Dev. Fund Corp. v. City of New York, 129 A.D.3d 451, \n\n451 (1st Dep’t 2015) (applicable “statutory” law includes municipal charters). Moreover, \n\na party wishing to contract with a municipality “is chargeable with knowledge of the \n\nstatutes which regulate its contracting powers and is bound by them.” Mans Const. \n\nOversite, Ltd. v. City of Peekskill, 114 A.D.3d 911, 912 (2d Dep’t 2014) (citing Parsa v. State, \n\n64 N.Y.2d 143, 147 (1984)). \n\n Buffalo’s City Charter provides that “[e]very contract to which the city is a party \n\nshall be made and executed in the name of the city and approved as to form by the \n\ncorporation counsel, and signed and acknowledged by the head of the department \n\ncharged with the execution of the matter therein provided for.” City Charter § 22‐1.20 \n\nThe Charter does not expressly direct that municipal contracts be in writing, but that \n\nexpectation is unmistakably conveyed through the concurrent requirements that city \n\ncontracts be “executed” and “signed” by certain officials. In determining whether the \n\nWanamaker letter created a binding preliminary agreement among the parties, then, we \n\nsearch for evidence of mutual assent within the four corners of the letter itself and do \n\nnot consider extrinsic evidence. See Parsa, 64 N.Y.2d at 147 (“Even though a promise to \n\npay may be spelled out from the parties’ conduct, a contract between them may not be \n\nimplied to provide ‘rough justice’ and fasten liability on the [government] when \n\napplicable statutes expressly prohibit it.”). \n\n\n\n\n \n\n The Charter is publicly available at https://ecode360.com/13550986 (last visited February 19, \n20\n\n2019). The Charter provisions relevant for this appeal were effective as of July 1, 2000, City \nCharter § 32‐8, long before the events that led to this lawsuit. \n\n 33 \n\f \n\n Having conducted this review, we conclude that the Wanamaker letter did not \n\ncreate a binding preliminary agreement. We are unable to discern in the letter evidence \n\nof a shared commitment by the parties to continue negotiations with each other in good \n\nfaith. The letter provides no evidence of the parties’ mutual assent to be bound. Acting \n\nin his capacity as Executive Director of Buffalo’s Office of Strategic Planning, \n\nWanamaker signed the letter on behalf of BURA and the City. No member of NRP’s \n\ndevelopment team executed or otherwise endorsed the letter. The letter contains no \n\nundertakings by NRP, and, as the District Court observed, the letter does not even \n\ncontain a “signature line where NRP could have signed.” NRP Holdings, 2012 WL \n\n2873899, at *7, 2012 U.S. Dist. LEXIS 97027, at *22 (emphasis added). \n\n In arguing that the Wanamaker letter bound them both, NRP relies primarily on \n\nBrown v. Cara, 420 F.3d 148 (2d Cir. 2005), and Goodstein Construction Corp. v. City of New \n\nYork, 67 N.Y.2d 990 (1986), each of which held that the parties entered into an \n\nenforceable preliminary agreement. Those cases are easily distinguishable, however. In \n\nBrown, the parties’ memorandum of understanding (“MOU”) forthrightly stated and \n\ndefined “the parties’ agreement to ‘work together to develop, build, market, and \n\nmanage [the property]’ and to ‘work together in accordance with the terms and \n\nconditions outlined [in the MOU].’” 420 F.3d at 158 (alterations in original) (quoting the \n\nMOU). Similarly, in Goodstein Construction, the terms of the agreement committed the \n\ndefendant city to “cooperate with [the] plaintiff in developing [certain documents] for \n\neventual submission” to municipal entities. 67 N.Y.2d at 991. Here, by contrast, the \n\nWanamaker letter says nothing about future negotiations or NRP’s obligations. Rather, \n\nthe letter articulates commitments by BURA and the City to perform governmental acts by \n\nallocating HOME funds, approving a PILOT agreement, and transferring City‐owned \n\nlots. NRP does not seek to enforce those commitments, however; rather, NRP seeks to \n\n\n\n 34 \n\f \n\nenforce an unstated understanding that the parties would continue negotiating in good \n\nfaith to bring the planned project to fruition. \n\n NRP insists that Wanamaker’s letter “memorialized the parties’ prior \n\nagreements” and “must be read in the context of the parties’ agreement to take the steps \n\nnecessary to complete the Project.” Appellants’ Br. 65. It emphasizes Brown’s statement \n\nin deposition that, based on the Wanamaker letter, NRP’s team could “definitely feel \n\nthat they were receiving support from the city,” and “that it made sense for them to do \n\neverything that they were supposed to do to try to complete [the] project.” App’x 1059–\n\n60. Because NRP’s breach of contract claim failed on a motion to dismiss under Rule \n\n12(b)(6), however, Brown’s testimony is not properly before us with respect to this \n\nclaim. In any event, that testimony would not alter our analysis. As the New York Court \n\nof Appeals has stated, “The mere expectation that a contract will be entered into does \n\nnot constitute a contract.” Papa v. New York Tel. Co., 72 N.Y.2d 879, 881 (1988) (quoting 1 \n\nWilliston, Contracts § 27, at 66 (3d ed. 1957)) (alterations omitted). The Buffalo Charter \n\nrequires that municipal contracts be in writing. Thus, the putative contractual document \n\nmust, on its face, evince the requisite meeting of the minds. Although the Wanamaker \n\nletter evinces the city’s serious interest in the project, it does not embody mutual assent \n\nof any kind, never mind to any enforceable proposition.21 \n\n We conclude that the Wanamaker letter did not establish a binding agreement \n\nrequiring the City or BURA to engage in continued negotiations with NRP, and so we \n\naffirm the District Court’s dismissal of NRP’s claim for breach of contract. \n\n \n\n It is true that New York recognizes unilateral contracts, under which one party makes a \n21\n\nunilateral “offer to contract, which . . . becomes a binding obligation” if another party takes \nwhatever actions are specified as conditions of acceptance. I. & I. Holding Corp. v. Gainsburg, 276 \nN.Y. 427, 433 (1938). NRP has not argued, however, that the Wanamaker letter constituted a \nunilateral offer to contract, and so we do not consider whether it would qualify as such. \n\n 35 \n\f \n\nIV. Promissory Estoppel \n\n Finally, NRP asserts a claim for promissory estoppel against the City, BURA, and \n\nthe individual defendants, seeking to hold them liable for NRP’s reliance on the \n\n“commitments” articulated in the Wanamaker letter. The District Court dismissed the \n\nclaim under Rule 12(c) as to some of those alleged promises, and later granted summary \n\njudgment to defendants as to the remaining promises. \n\n We affirm the judgment in favor of defendants on this count. Under New York \n\nlaw, municipal defendants may not be subject to promissory estoppel claims except in \n\nrare cases of “manifest injustice,” N.Y. State Med. Transporters Ass’n, Inc. v. Perales, 77 \n\nN.Y.2d 126, 130‐31 (1990). This exception is not available to NRP on the facts of this \n\ncase.22 \n\n To establish a claim of promissory estoppel, a plaintiff “must demonstrate that \n\nthe [defendant] made a clear and unambiguous promise, upon which the [plaintiff] \n\nreasonably relied, to its detriment.” Wilson v. Dantas, 29 N.Y.3d 1051, 1062 (2017). Even \n\nif a plaintiff can establish those elements, however, promissory estoppel is generally \n\n“not available against a governmental agency engaging in the exercise of its \n\ngovernmental functions.”23 Advanced Refractory Techs., Inc. v. Power Auth. of State of N.Y., \n\n81 N.Y.2d 670, 677 (1993) (internal quotation marks omitted); see also Perales, 77 N.Y.2d \n\n\n \n\n22 The District Court relied on other grounds in adjudicating defendants’ various dispositive \nmotions, but as noted above, we “may affirm on any basis for which there is sufficient support \nin the record.” Lotes, 753 F.3d at 413. This rationale was available to defendants both on the face \nof the pleadings and at the summary judgment stage, and so it is immaterial for present \npurposes that the District Court resolved different components of NRP’s claims at different \nphases of the case. \n\n NRP has not contested that defendants performed a “governmental function” when making \n23\n\ndecisions about whether to proceed with the East Side II project. \n\n 36 \n\f \n\nat 130–31 (articulating similar limit on equitable estoppel). In particular, if a putative \n\nagreement fails to satisfy municipal contracting requirements, courts will generally \n\ndismiss both “contractual and noncontractual . . . causes of actions, including . . . \n\npromissory estoppel.” Michael R. Gianatasio, PE, P.C. v. City of New York, 159 A.D.3d 659, \n\n660 (1st Dep’t 2018); accord Casa Wales, 129 A.D.3d at 451 (affirming dismissal of claims \n\nfor breach of contract and promissory estoppel because, “where there is a lack of \n\nauthority on the part of agents of a municipal corporation to create a liability, except by \n\ncompliance with well‐established regulations, no liability can result unless the \n\nprescribed procedure is complied with and followed”). \n\n New York courts have carved out a narrow exception to this rule in cases where \n\nthe government’s “misleading nonfeasance would otherwise result in a manifest \n\ninjustice.” Agress v. Clarkstown Cent. Sch. Dist., 69 A.D.3d 769, 771 (2d Dep’t 2010). Thus, \n\nwhile “the possibility of estoppel against a governmental agency” is not “absolutely \n\nprecluded,” the doctrine is unavailable “in all but the rarest cases.” Perales, 77 N.Y.2d at \n\n130. “[T]hose who deal with the government are expected to know the law, and cannot \n\nrely on the conduct of government agents contrary to law as a basis for ‘manifest \n\ninjustice’ claims.” Id. at 131; see also Granada, 58 N.Y.2d at 708 (“[A] governmental \n\nsubdivision cannot be held answerable [under estoppel] for the unauthorized acts of its \n\nagents.”). \n\n NRP seeks to hold defendants liable for the commitments articulated in the \n\nWanamaker letter: namely, the City’s stated intention to allocate $1.6 million in HOME \n\nfunds, to approve the PILOT agreement, and to transfer City‐owned property. We have \n\nalready concluded that the Wanamaker letter did not create a binding contract; NRP’s \n\npromissory estoppel claims based on the same document are therefore presumptively \n\ninvalid absent a showing of “manifest injustice.” \n\n\n 37 \n\f \n\n NRP contends with some force that the exception should apply here based on \n\ndefendants’ unsavory and “extortionate pay‐to‐play scheme.” Appellants’ Br. 57. The \n\nNew York case law applying this exception strongly suggests, however, that the \n\ncircumstances presented here do not meet the manifest injustice standard as those \n\ncourts have understood it. New York appellate courts have permitted estoppel claims \n\nagainst municipal entities to proceed where individual persons relied to their detriment \n\non a city’s erroneous promises concerning, for example, their financial benefits as public \n\nemployees,24 or their obligation to file a timely notice of claim when suing the \n\nmunicipality.25 We are not aware of any case, however, in which a sophisticated \n\nbusiness entity was permitted to use a promissory estoppel theory to enforce an alleged \n\nagreement with a municipality that failed to comply with municipal contracting \n\nrequirements. New York courts have denied estoppel to contractors who fully performed \n\ntheir extensive contractual duties and then were denied payment when the contract was \n\nfound to be invalid. In a recent case, a New York Supreme Court decision \n\nacknowledged that New York City had “failed to pay [the plaintiff] more than $1.5 \n\nmillion for work done and money outlaid” under two construction contracts. Michael R. \n\nGianatasio, PE, P.C. v. City of New York, 53 Misc. 3d 757, 771 (N.Y. Sup. 2016). The \n \n\n See Vassenelli v. City of Syracuse, 138 A.D.3d 1471, 1475 (4th Dep’t 2016) (“Plaintiff alleged that, \n24\n\nbased on his reliance on the city defendants’ payment for services and medications prior to \nAugust 2009, he failed to apply for Medicare Part B benefits when he became eligible to do so, \nthereby requiring the payment of significant penalties.”); Agress, 69 A.D.3d at 771 (Plaintiff \n“made certain employment and insurance decisions based upon the [erroneous] representations \nthat she was entitled to receive continuing health insurance coverage from the School District.”). \n\n Konner v. New York City Transit Auth., 143 A.D.3d 774, 775–77 (2d Dep’t 2016) (“[A] municipal \n25\n\ncorporation may be equitably estopped from asserting lack of notice of claim when it has \nwrongfully or negligently engaged in conduct that misled or discouraged a party from serving \na timely notice of claim or making a timely application for leave to serve a late notice of claim, \nand when that conduct was justifiably relied upon by that party.” (citing Bender v. N.Y. City \nHealth & Hosps. Corp., 38 N.Y.2d 662, 668 (1976))). \n\n 38 \n\f \n\nAppellate Division nonetheless affirmed the trial court’s dismissal of the plaintiff’s \n\nclaims for breach of contract and promissory estoppel, finding dispositive its conclusion \n\nthat “the contract at issue never met the requirements of . . . the New York City \n\nCharter.” Michael R. Gianatasio, 159 A.D.3d at 660; see also Mans Const., 114 A.D.3d at 912 \n\n(“The mere acceptance of benefits does not estop the municipality from denying \n\nliability for payment for services rendered, where a contract was neither validly entered \n\ninto nor ratified.”). Here, NRP merely incurred costs while preparing to perform on an \n\nexpected agreement. NRP has not pointed to any analogous case in which a New York \n\ncourt has applied promissory estoppel against a New York municipality, even after \n\nperformance has occurred. \n\n The New York Court of Appeals acknowledged long ago that results like these \n\n“may seem unjust.” Parsa, 64 N.Y.2d at 147. It explained its decision hewing to the high \n\nstandard of “manifest injustice” by reasoning that “any other rule would completely \n\nfrustrate statutes designed to protect the public from governmental misconduct or \n\nimprovidence.” Id. To protect themselves, municipal contractors may “withhold [their] \n\nservices unless an agreement is executed and approved as the statutes require.” Id. They \n\nmay not, however, invoke estoppel to salvage otherwise unenforceable agreements. \n\n We conclude that NRP’s claim of promissory estoppel as against all defendants \n\ncannot be sustained under prevailing principles of New York law. We therefore affirm \n\nthe District Court’s judgment in defendants’ favor on this claim. \n\n\n CONCLUSION \n\n NRP argues that a proposed 50‐home affordable housing project in the City of \n\nBuffalo fell apart at the eleventh hour because City officials prioritized cronyism over \n\ncivic responsibility. Those are serious allegations, and NRP has come forward with \n\n\n\n 39 \n\f \n\nsubstantial evidence of their accuracy. That evidence, however, is insufficient to \n\novercome the significant legal flaws in NRP’s claims for damages. Municipal officials \n\nare shielded against certain federal civil claims by the common‐law doctrine of \n\nlegislative immunity. Plaintiffs asserting equal protection “class of one” claims bear the \n\nburden of sufficiently alleging similarly situated comparators. Municipal entities may \n\nnot be sued under New York law if the plaintiff detrimentally relied on promises by \n\nmunicipal officials but failed to secure a binding contract that complied with municipal \n\nlaw. NRP has failed to surmount these barriers. We therefore AFFIRM the judgment of \n\nthe District Court. \n\n\n\n\n 40", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369157/", "author_raw": "SUSAN L. CARNEY, Circuit Judge:"}]} | SACK | PARKER | CARNEY | 1 | {"SACK": ", Circuit", "PARKER": ", Circuit", "CARNEY": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4591904/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,591,905 | Dhinsa v. Krueger | 2019-02-20 | 17-874-pr | U.S. Court of Appeals for the Second Circuit | {"judges": "B e f o r e : CABRANES, CARNEY, Circuit Judges, and VILARDO, District Judge.", "parties": "", "opinions": [{"author": "SUSAN L. CARNEY, Circuit Judge:", "type": "010combined", "text": "17-874-pr\nDhinsa v. Krueger\n\n\n 17-874-pr\n Dhinsa v. Krueger\n\n\n\n United States Court of Appeals\n FOR THE SECOND CIRCUIT \n ______________ \n\n August Term, 2017 \n\n (Argued: March 7, 2018 Decided: February 20, 2019) \n\n Docket No. 17‐874‐pr \n ______________ \n\n GURMEET SINGH DHINSA, \n\n Petitioner‐Appellant, \n\n –v.–\n\n J. E. KRUEGER, as Warden of FCI Schuylkill, \n\n Respondent‐Appellee. \n ______________ \n\n B e f o r e :\n\n CABRANES, CARNEY, Circuit Judges, and VILARDO, District Judge.* \n\n ______________ \n\n Petitioner‐appellant Gurmeet Singh Dhinsa appeals from a judgment in the United \n States District Court for the Eastern District of New York (Edward R. Korman, Judge) \n denying his petition for a writ of habeas corpus. Dhinsa brings his petition under 28 \n U.S.C. § 2241 by virtue of the “savings clause” in 28 U.S.C. § 2255(e). Dhinsa is serving \n six concurrent life sentences arising out of multiple convictions concerning his \n\n\n\n *Judge Lawrence J. Vilardo, of the United States District Court for the Western District of New\n York, sitting by designation.\n\f \n\nleadership role in a racketeering enterprise. Dhinsa’s petition challenges only two of \nthose convictions. Although the habeas relief he seeks would not affect the length of his \nincarceration, we conclude that Dhinsa has standing to bring the petition in light of the \n$100 special assessment that attaches to each of his convictions. If he successfully \nchallenges any of his convictions, he may be entitled to vacatur of the corresponding \nsentence, including the special assessment. The special assessment, while a small sum, \nnevertheless is a concrete, redressable injury sufficient to establish Dhinsa’s Article III \nstanding. \n We therefore next consider whether Dhinsa has satisfied the jurisdictional \nprerequisites for a § 2241 habeas petition under the § 2255(e) savings clause, which is \navailable if “the remedy by motion is inadequate or ineffective to test the legality of his \ndetention.” Dhinsa challenges two convictions on counts of murdering a potential \nwitness or informant in violation of 18 U.S.C. § 1512(a)(1)(C). He asserts his innocence \nunder the Supreme Court’s intervening decision in Fowler v. United States, 563 U.S. 668 \n(2011), which requires the government to show in a § 1512(a)(1)(C) prosecution that the \nmurder victim was “reasonably likely” to have communicated with a federal official \nhad he not been murdered. Upon review of the trial record, we conclude that Dhinsa \nhas failed to demonstrate his innocence under Fowler. Dhinsa’s extensive racketeering \nenterprise represents a type of criminal activity that is commonly investigated and \nprosecuted by federal officials. A juror could reasonably find that each of Dhinsa’s \nvictims was “reasonably likely” to have communicated with federal officials. The \nDistrict Court was thus correct to conclude that Dhinsa failed to meet the requirements \nof the § 2255(e) savings clause. Because this test is jurisdictional, however, the District \nCourt erred insofar as it entered a judgment denying the petition on the merits. We \ntherefore vacate that portion of the judgment denying the petition and remand to the \nDistrict Court with instructions to enter a judgment dismissing the petition for lack of \njurisdiction. \n\nVACATED AND REMANDED. \n ______________ \n \n MARC FERNICH (Giuliana Graham, on the brief), Law Office of \n Marc Fernich, New York, NY, for Petitioner‐Appellant. \n \n\n\n \n\n 2 \n \n\f \n\n NICHOLAS J. MOSCOW (James D. Gatta, Jo Ann M. Navickas, \n Assistant United States Attorneys, on the brief), for \n Richard P. Donoghue, United States Attorney for the \n Eastern District of New York, Brooklyn, NY, for \n Respondent‐Appellee. \n ______________ \n\nSUSAN L. CARNEY, Circuit Judge: \n\n Petitioner‐appellant Gurmeet Singh Dhinsa appeals from a judgment entered in \n\nthe United States District Court for the Eastern District of New York (Edward R. \n\nKorman, Judge) denying his petition for a writ of habeas corpus. Dhinsa claims that he is \n\nentitled to bring a petition under 28 U.S.C. § 2241 because the standard remedies under \n\n28 U.S.C. § 2255 are “inadequate or ineffective to test the legality of his detention,” \n\nthereby entitling him to invoke the “savings clause” codified in 28 U.S.C. § 2255(e). \n\n In 1999, a jury convicted Dhinsa on numerous counts arising out of his \n\nleadership role in an extensive racketeering enterprise, including two counts of \n\nmurdering a potential witness or informant in violation of 18 U.S.C. § 1512(a)(1)(C) \n\n(“informant murder”).1 He is now serving six concurrent life sentences, including a life \n\n\n \n\n1 The District Court and the parties refer to this crime as “obstruction of justice murder.” We \nfind this term inadequately precise. The “Obstruction of Justice” chapter of the United States \nCode, chapter 73 of title 18, contains multiple provisions that prohibit the killing, threatened \nkilling, or attempted killing of particular types of victims for particular illicit purposes. See, e.g., \n18 U.S.C. §§ 1503(a) (prohibiting “threats or force” intended to influence, intimidate, or impede, \nor to retaliate against jurors or officers of the court); 1512(a) (prohibiting a killing or attempted \nkilling intended to prevent any person from testifying, producing evidence, or communicating \nwith law enforcement or judicial officers); 1513(a) (prohibiting a killing or attempted killing \nintended as retaliation against a witness or informant). For these reasons, we refer to the instant \ncrime of conviction as “informant murder.” \n \n\n 3 \n \n\f \n\nterm on each count of informant murder. In his habeas petition, he challenges only \n\nthose two convictions, and so the relief he seeks would not affect the length of his \n\nincarceration. This circumstance raises the question whether he has standing to \n\nmaintain his petition. We conclude that he does, in light of the $100 special assessment \n\nthat attaches to each of the challenged convictions. If Dhinsa’s challenge is successful as \n\nto either conviction, he may be entitled to vacatur of the corresponding sentence, \n\nincluding the special assessment. Although the special assessments are slight in \n\namount, we think that each is a concrete, redressable injury sufficient to establish \n\nDhinsa’s Article III standing to challenge these two convictions. \n\n Having confirmed Dhinsa’s constitutional standing to assert the petition, we next \n\nconsider whether Dhinsa is entitled to bring a § 2241 habeas petition under the § 2255(e) \n\nsavings clause. A petitioner who invokes the savings clause must demonstrate, on the \n\nexisting record, that he is innocent of the crime of conviction under a legal theory that \n\nwas not previously available to him. Here, Dhinsa asserts that he is innocent of both \n\ncounts of informant murder under the Supreme Court’s decision in Fowler v. United \n\nStates, 563 U.S. 668 (2011), which requires the prosecution to show that the murder \n\nvictim was “reasonably likely” to have communicated with a federal official. Id. at 678. \n\nWe conclude that, on the existing record, Dhinsa has failed to make the threshold \n\nshowing of innocence. He ordered the killing of the two victims after they began \n\ninvestigating his multi‐year, multimillion‐dollar racketeering enterprise, through which \n\nDhinsa committed acts of violence, fraud, and bribery. Racketeering enterprises of this \n\nnature are commonly investigated and prosecuted by federal officials. Thus, a juror \n\ncould reasonably find that each of Dhinsa’s victims was “reasonably likely” to have \n\ncommunicated with federal officials had Dhinsa not ordered him killed. The District \n \n\n 4 \n \n\f \n\nCourt was thus correct to conclude that Dhinsa has failed to make the required \n\nthreshold showing under § 2255(e). This threshold test is jurisdictional, however, and so \n\nthe District Court erred insofar as it entered a judgment denying the petition on the \n\nmerits. Accordingly, we VACATE that portion of the judgment and REMAND the case \n\nwith instructions for the District Court to enter a judgment dismissing the petition for \n\nlack of jurisdiction. \n\n\n BACKGROUND \n\nI. Dhinsa’s criminal trial and direct appeal \n\n In 1999, a jury convicted Dhinsa on twenty‐one counts arising out of Dhinsa’s \n\nrole in a racketeering enterprise. The evidence adduced during Dhinsa’s four‐month \n\ntrial before the District Court is described at length in this Court’s opinion ruling on his \n\nmulti‐faceted direct appeal. See United States v. Dhinsa (“Dhinsa I”), 243 F.3d 635 (2d Cir. \n\n2001). We set forth those facts here only as necessary to understand and resolve the \n\ninstant appeal.2 \n\n Dhinsa was indicted on twenty‐nine counts in connection with his role as “the \n\nself‐professed leader of the ‘Singh Enterprise,’ a vast racketeering organization built \n\naround a chain of fifty‐one gasoline stations that Dhinsa owned and operated \n\nthroughout the New York City metropolitan area under the name ‘Citygas.’” Id. at 643. \n\n \n\n2 Because Dhinsa’s direct appeal challenged a jury’s guilty verdicts, this Court considered the \ntrial evidence “in the light most favorable to the government, crediting any inferences that the \njury might have drawn in its favor.” Dhinsa I, 243 F.3d at 643 (internal quotation marks \nomitted). That approach is equally appropriate for our review of Dhinsa’s habeas claims in the \ninstant appeal, as explained below in Discussion Section II.A. \n \n\n 5 \n \n\f \n\nDhinsa installed “pump‐rigging” technology that overcharged consumers for gas, \n\ngenerating tens of millions of dollars of excess revenues over a period of a decade. Id. \n\nHe protected the enterprise by bribing public officials, purchasing weapons, and \n\nthreatening, kidnapping, or murdering individuals whom he viewed as threats to his \n\noperations. Id. at 643–46. \n\n The convictions at issue in this appeal arise out of the 1997 killings of Manmohan \n\nSingh (“Manmohan”) and Satinderjit Singh (“Satinderjit”), each of whom was \n\n“murdered on Dhinsa’s orders” after they began independently questioning the \n\nactivities of the Singh Enterprise. Id. at 643. As we found when this case was last before \n\nus: \n\n Prior to his death, Manmohan made numerous inquiries, and \n confronted various members of the Singh Enterprise, about \n the July 1995 disappearance of his brother Kulwant, a Citygas \n employee. Dhinsa ordered Satinderjit murdered after \n learning that he was cooperating with police regarding, inter \n alia, Kulwant’s disappearance, Manmohan’s murder, and the \n enterprise’s pump‐rigging scheme. \n\nId. The jury convicted Dhinsa on multiple counts in connection with these murders, \n\nincluding two counts of informant murder (because of Manmohan and Satinderjit’s \n\n“active or potential cooperation with the police”), along with two counts of murder in \n\naid of racketeering and two counts of conspiracy to murder in aid of racketeering, in \n\nviolation of 18 U.S.C. §§ 1959(a)(1), (5). Id. at 644. Overall, the jury convicted Dhinsa on \n\ntwenty‐one of the twenty‐nine counts in the superseding indictment. Id. at 642. On \n\nappeal, we vacated three of Dhinsa’s convictions and affirmed the remaining eighteen, \n\n\n\n \n\n 6 \n \n\f \n\nincluding all convictions on the counts arising out of the murders of Manmohan and \n\nSatinderjit. Id. at 677–78. \n\n Dhinsa’s incarceratory sentence, as adjusted after the appeal, consists of six \n\nconcurrent terms of life imprisonment—four of which arise out of his convictions for \n\ninformant murder and murder in aid of racketeering in connection with the murders of \n\nManmohan and Satinderjit—plus several lesser concurrent and consecutive sentences of \n\nvarying lengths. The District Court also imposed financial penalties, including a \n\nstatutorily mandated special assessment of $50 to $100 for each count of conviction. See \n\n18 U.S.C. § 3013(a) (specifying the amount of money courts “shall assess on any person \n\nconvicted of an offense against the United States”). \n\n\nII. Collateral proceedings \n\n In 2002, after Dhinsa’s convictions became final, he filed two habeas petitions \n\nasserting claims of ineffective assistance of counsel: a petition under 28 U.S.C. § 2241 in \n\nthe Central District of California, where he was then incarcerated, and a motion to \n\nvacate his sentence under 28 U.S.C. § 2255 in the District Court in the Eastern District of \n\nNew York. Both petitions were rejected on procedural grounds. \n\n In May 2012, Dhinsa filed a new § 2241 habeas petition asserting that he is \n\ninnocent of both counts of informant murder under the standard articulated in the \n\nSupreme Court’s 2011 decision in Fowler.3 The District Court transferred the § 2241 \n\n \n\n3 Dhinsa filed the 2012 § 2241 petition in the Middle District of Pennsylvania, his then‐current \ndistrict of incarceration. Shortly thereafter, he asserted substantially identical arguments in a \n§ 2255 motion filed in the District Court in Eastern District of New York. The District Court \ntransferred that motion to this Court on May 31, 2012, for possible certification as a second or \n \n\n 7 \n \n\f \n\npetition to this Court for possible certification as a second or successive § 2255 motion \n\nunder 28 U.S.C. § 2255(h). In May 2013, a motions panel concluded that Dhinsa’s \n\nmotion did not qualify as a successive § 2255 motion. The Court remanded, however, \n\nwith instructions for the District Court to consider: (1) whether Dhinsa is entitled to file \n\na § 2241 petition via the savings clause in § 2255(e), and if so, (2) whether Dhinsa is \n\nentitled to relief under § 2241. \n\n On remand, after the parties filed briefs addressing those two questions, the \n\nDistrict Court requested additional briefing on the so‐called “concurrent sentence” \n\ndoctrine, under which “an appellate court affirming a conviction and sentence” may, in \n\nits discretion, choose “not [to] hear a challenge to a conviction on another count if [that \n\nsecond conviction] carries a sentence that is equal to or less than the affirmed \n\nconviction.” Concurrent‐Sentence Doctrine, Black’s Law Dictionary (10th ed. 2014); see \n\ngenerally United States v. Vargas, 615 F.2d 952, 956–60 (2d Cir. 1980). In response, Dhinsa \n\nacknowledged that even if he receives all the relief sought in his habeas petition, he will \n\nremain incarcerated pursuant to his four additional concurrent life sentences. \n\n On March 2, 2017, the District Court issued an order denying Dhinsa’s petition. \n\nDhinsa v. Krueger (“Habeas Order”), 238 F. Supp. 3d 421 (E.D.N.Y. 2017). The District \n\nCourt concluded, first, that the petition should be dismissed under the concurrent \n\nsentence doctrine because Dhinsa had not identified any meaningful collateral \n\nconsequences arising specifically out of the two challenged convictions. Id. at 427–33. In \n\n\n \nsuccessive § 2255 motion. While that matter was pending, the parties agreed to transfer \nDhinsa’s § 2241 petition from the Middle District of Pennsylvania to the Eastern District of New \nYork, at which time Dhinsa voluntarily dismissed the pending § 2255 motion. \n \n\n 8 \n \n\f \n\nconducting that analysis, the District Court cited extensively to cases discussing subject \n\nmatter jurisdiction and Article III standing, but did not expressly articulate any \n\njurisdictional conclusions regarding this case. Next, the District Court responded to the \n\nquestions posted in this Court’s mandate and concluded that Dhinsa is neither eligible \n\nto file a § 2241 petition nor entitled to any habeas relief. Id. at 433–38. The court entered \n\na judgment denying the petition, but issued a certificate of appealability on all issues. \n\nDhinsa timely appealed. \n\n\n DISCUSSION \n\n We review de novo the District Court’s conclusions of law as to both subject \n\nmatter jurisdiction and the merits of Dhinsa’s § 2241 habeas petition. Adams v. United \n\nStates, 372 F.3d 132, 134 (2d Cir. 2004). The District Court’s analysis raises questions as \n\nto Dhinsa’s Article III standing, and so we begin by assuring ourselves that Dhinsa has \n\nstanding to bring the petition. We next conclude, however, that Dhinsa is not entitled to \n\npursue a § 2241 habeas petition via the savings clause in § 2255(e), and that the District \n\nCourt therefore lacked jurisdiction over the petition. On the existing record, a juror \n\ncould reasonably conclude, as required under Fowler v. United States, 563 U.S. at 678 \n\n(2011), that each of Dhinsa’s victims was “reasonably likely” to communicate with a \n\nfederal official had he not been murdered. The District Court reached a similar \n\nconclusion, but entered a judgment denying the petition on the merits. We therefore \n\nvacate that portion of the judgment and remand for entry of an amended judgment \n\ndismissing the petition for lack of jurisdiction. Because we resolve Dhinsa’s appeal on \n\njurisdictional grounds, we need not consider the government’s invitation to dispose of \n\n\n\n \n\n 9 \n \n\f \n\nthe case under the discretionary concurrent sentence doctrine.4 Cf. Tavarez v. Larkin, 814 \n\nF.3d 644, 648 (2d Cir. 2016). \n\n\nI. Article III standing \n\n The District Court concluded that Dhinsa’s petition should be dismissed under \n\nthe concurrent sentence doctrine, but the court’s reasoning was consistent with a \n\nconclusion that Dhinsa lacked Article III standing to assert the petition at all. We have \n\n“a special obligation” to assure ourselves that the District Court properly exercised \n\njurisdiction over the petition, whether or not that issue has been raised by the parties on \n\nappeal. Wright v. Musanti, 887 F.3d 577, 583 (2d Cir. 2018). If we determine that District \n\nCourt “was without jurisdiction,” our appellate jurisdiction is limited to the “purpose of \n\ncorrecting the [District Court’s] error” in reaching the merits of the petition. Id. (internal \n\nquotation marks omitted). We conclude that Dhinsa has Article III standing based on \n\nthe $100 special assessment that attaches to each of his challenged convictions, and \n\ntherefore that the District Court properly exercised jurisdiction over the petition. \n\n\n\n\n \n\n4 In Ray v. United States, 481 U.S. 736 (1987) (per curiam), the Supreme Court vacated an \nappellate court’s invocation of the concurrent sentence doctrine in a direct appeal. The \nconcurrent sentence doctrine was unavailable, the Court explained, because “the District Court \nimposed a $50 assessment on each count” of conviction, and so the defendant’s “sentences are \nnot concurrent” in all respects. Id. at 737. Because all federal convictions carry a mandatory \nspecial assessment, see 18 U.S.C. § 3013(a), Ray is understood to have “abolished the [concurrent \nsentence] doctrine for direct review of federal convictions.” 7 Wayne R. LaFave et al., Crim. \nProc. § 27.5(b) (4th ed.). We decline to decide whether Ray similarly precludes application of the \nconcurrent sentence doctrine in the habeas context. \n \n\n 10 \n \n\f \n\n A. Legal standard: Habeas petitions and standing \n\n Article III of the Constitution limits the federal courts’ power to the resolution of \n\n“Cases” and “Controversies.” U.S. Const. art. III, § 2. A litigant who invokes federal \n\njurisdiction therefore must demonstrate “[s]tanding to sue,” a requirement “rooted in \n\nthe traditional understanding” of what it means to assert a “case or controversy” under \n\nArticle III. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The “‘irreducible \n\nconstitutional minimum’ of standing consists of three elements”: the individual \n\ninitiating the suit “must have (1) suffered an injury in fact, (2) that is fairly traceable to \n\nthe challenged conduct of the defendant, and (3) that is likely to be redressed by a \n\nfavorable judicial decision.” Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560‐61 \n\n(1992)). “[S]tanding doctrine evaluates a litigant’s personal stake as of the outset of \n\nlitigation.” Klein, on behalf of Qlik Techs., Inc. v. Qlik Techs., Inc., 906 F.3d 215, 221 (2d Cir. \n\n2018) (quoting Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 70 (2d Cir. 2001)). \n\n B. Analysis \n\n The District Court concluded that Dhinsa’s petition should be dismissed under \n\nthe concurrent sentence doctrine based on the court’s determination that “the success of \n\n[Dhinsa’s] current petition will not alter the length or nature of his custody,” and \n\nfurther, that Dhinsa had failed to demonstrate any redressable collateral consequences \n\narising specifically from the two convictions challenged in his petition. Habeas Order, \n\n\n\n\n \n\n 11 \n \n\f \n\n238 F. Supp. 3d at 431–32. The District Court thus implicitly concluded that Dhinsa \n\nlacked standing to bring his petition.5 \n\n We need not revisit the District Court’s analysis of collateral consequences \n\nbecause we conclude that Dhinsa has established Article III standing based on a \n\nredressable injury‐in‐fact: the $100 special assessment that attaches to each of his two \n\nchallenged convictions.6 We offer here a more extended discussion of special \n\nassessments and Article III standing, and in particular, of how our standing analysis in \n\n\n\n\n \n\n5 The District Court applied the legal framework developed in Nowakowski v. New York, 835 F.3d \n210 (2d Cir. 2016), and, in so doing, implicitly concluded that Dhinsa’s petition is not justiciable. \nIn Nowakowski, we articulated a burden‐shifting framework for determining whether a habeas \npetition is rendered moot by a petitioner’s release from custody. We explained that the \npetitioner bears the burden, in the first instance, of “identify[ing] some continuing collateral \nconsequences that may flow from his criminal conviction.” Id. at 225. Once the petitioner has \nidentified specific collateral consequences, the government may attempt to “prove . . . that there \nis ‘no possibility’ such consequences will attach to [the petitioner’s] conviction.” Id. (quoting \nSibron v. New York, 392 U.S. 40, 57 (1968)). The District Court concluded here that the \ngovernment “easily met” its burden of showing that Dhinsa’s informant murder convictions \nwould not produce any future collateral consequence distinct from those arising from his other, \nunchallenged convictions. Habeas Order, 238 F. Supp. 3d at 432. We need not apply the \nNowakowski framework in this case, however, because Dhinsa remains in custody and no \n“intervening circumstance” has deprived him “‘of a personal stake in the outcome of the \nlawsuit, at any point during litigation’ after its initiation” so as to render his petition moot. \nKlein, on behalf of Qlik Techs., Inc., 906 F.3d 215, 221 (2d Cir. 2018) (quoting Genesis Healthcare \nCorp. v. Symczyk, 569 U.S. 66, 72 (2013)). \n\n6 Nowakowski, by way of contrast, involved a petitioner who was unable to assert standing based \non financial collateral consequences. Robert Nowakowski’s state conviction carried a $100 fine, \nbut before Nowakowki filed his habeas petition under 28 U.S.C. § 2254, the state criminal court \nvacated the fine based on Nowakowski’s inability to pay. See Nowakowski, 835 F.3d at 214. \n \n\n 12 \n \n\f \n\nthe habeas context differs from the question whether a habeas petitioner is “in custody” \n\nwhen he files his petition. \n\n We note, as a preliminary matter, that “monetary loss” is a quintessential injury \n\nin fact, and “even a small financial loss suffices” to establish standing. Carter v. \n\nHealthPort Techs., LLC, 822 F.3d 47, 55 (2d Cir. 2016) (alteration and internal quotation \n\nmarks omitted). An “identifiable trifle is enough,” the Supreme Court has explained, \n\nbecause standing doctrine’s purpose is “to distinguish a person with a direct stake in \n\nthe outcome of a litigation—even though small—from a person with a mere interest in \n\nthe problem.” United States v. Students Challenging Regulatory Agency Procedures \n\n(SCRAP), 412 U.S. 669, 689 n.14 (1973) (internal quotations marks omitted). We thus \n\nconclude that each of Dhinsa’s special assessments “constitutes a concrete injury” that \n\nwas “caused by the [challenged] conviction.” Spencer v. Kemna, 523 U.S. 1, 7 (1998). The \n\nsole remaining question for purposes of standing, then, is whether a special assessment \n\nis “redressable by invalidation of the [underlying] conviction.” Id. We conclude that it \n\nis. \n\n Dhinsa contends in his habeas petition that two of his convictions are unlawful. \n\nIf his petition is granted, he may be entitled to vacatur of the judgments of conviction, \n\nthe corresponding sentences, or both. See 28 U.S.C. § 2243 (authorizing courts to \n\n“dispose of” a § 2241 habeas petition “as law and justice require”);7 United States v. \n\n \n\n7 This “broad” provision has been interpreted to authorize relief beyond immediate “discharge \nof the applicant from physical custody.” Carafas, 391 U.S. at 239. For additional guidance, we \nmay consult the text of § 2255, which directs that a court, upon granting a habeas petition, “shall \nvacate and set the judgment aside,” and shall also “discharge the prisoner or resentence him . . . \nor correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b); see also Hill v. United \n \n\n 13 \n \n\f \n\nTriestman, 178 F.3d 624, 629 (2d Cir. 1999) (“Courts hearing § 2241 motions have \n\ntraditionally had the power to vacate or reduce . . . sentences” that were entered in \n\nviolation of “the Constitution or federal law.”); see also, e.g., Willette v. Fischer, 508 F.3d \n\n117, 123 (2d Cir. 2007) (affirming, as habeas relief, vacatur of sentences entered pursuant \n\nto convictions that violated the Double Jeopardy Clause). The special assessments are \n\npart of Dhinsa’s sentence, as listed in the criminal judgment that was entered in the \n\nDistrict Court. Thus, if Dhinsa succeeds in securing habeas relief as to one or both \n\nchallenged convictions, he may be entitled to seek return of the related special \n\nassessments. See Prost, 636 F.3d at 582 n.3. \n\n This is not to say, however, that Dhinsa could file a habeas petition that directly \n\nchallenges the imposition of the special assessments. He could not, for example, seek \n\nhabeas review based on a claim that the District Court incorrectly calculated the amount \n\nof a given special assessment. It is well‐established that courts may not entertain a \n\npetition “addressed solely to noncustodial punishments.” Kaminski v. United States, 339 \n\nF.3d 84, 87 (2d Cir. 2003). Sections 2241, 2254, and 2255 authorize courts to adjudicate a \n\npetition filed by an individual who is “in custody” and who challenges the basis for that \n\ncustody.8 We have characterized this statutory “custody” requirement as \n\n“jurisdictional,” and therefore mandatory and non‐waivable. United States v. Rutigliano, \n\n\n \nStates, 368 U.S. 424, 427 (1962) (Section 2255 “was intended [] to provide in the sentencing court a \nremedy exactly commensurate with that which had previously been available by habeas corpus \n[under § 2241] in the court of the district where the prisoner was confined.” (emphasis added)). \n\n8 See, e.g., 28 U.S.C. § 2241(c)(3) (“The writ of habeas corpus shall not extend to a prisoner \nunless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United \nStates.”). \n \n\n 14 \n \n\f \n\n887 F.3d 98, 104 (2d Cir. 2018) (internal quotation marks omitted). “[T]he monetary \n\ncomponents of criminal sentences, such as fines and restitution orders, generally do not \n\nrestrict liberty so severely as to satisfy the custody requirement,” and so generally do \n\nnot fall within the purview of a permissible collateral challenge.9 Id. at 104‐05. (citing \n\nKaminski, 339 F.3d at 86–87). Nor may a party “avoid this conclusion by challenging \n\nboth the custodial and noncustodial parts of his sentence in the same [habeas petition].” \n\nId. at 105. \n\n Here, however, Dhinsa does not challenge the special assessments themselves. \n\nRather, he challenges the two underlying convictions for informant murder, pursuant to \n\nwhich the District Court imposed both special assessments and life terms of \n\nincarceration. We have no trouble concluding that, when Dhinsa filed his § 2241 \n\npetition, he was “in custody in relation to the claims” asserted therein. Kaminski, 339 \n\nF.3d at 91; see also Spencer, 523 U.S. at 7 (noting that the “custody” requirement must be \n\nsatisfied only at the time the petition is filed). That Dhinsa’s custody was independently \n\njustified under concurrent, coterminous sentences does not preclude him from \n\nsatisfying the “custody” requirement. See Maleng v. Cook, 490 U.S. 488, 490–91 (1989) \n\n(per curiam) (specifying that a “habeas petitioner [must] be ‘in custody’ under the \n\nconviction or sentence under attack at the time his petition is filed”); see also, e.g., \n\n\n \n\n9 Although this Court has “left open the possibility of a [monetary penalty] imposing such a \nsevere restraint on individual liberty as to equate to custody, [we have] also observed that such \nsituations will likely be rare.” Rutigliano, 887 F.3d at 106 (internal quotation marks omitted). \nHere, Dhinsa expressly waived any argument “that the burden of a special assessment itself \namounts to custody.” Appellant’s Br. 19 (internal quotation marks and alterations omitted) \n(emphasis in original). \n \n\n 15 \n \n\f \n\nTavarez, 814 F.3d 644 (reaching the merits of a habeas petition challenging only one of \n\ntwo concurrent sentences, with no discussion of the jurisdictional “custody” \n\nrequirement); cf. Garlotte v. Fordice, 515 U.S. 39, 41 (1995) (explaining that a habeas \n\npetitioner “remains ‘in custody’ under all of his sentences until all are served,” and so \n\npermitting a § 2254 habeas petitioner to challenge an expired sentence because he \n\nremained incarcerated under additional consecutive sentences). \n\n Although Dhinsa may not assert a direct collateral attack on his special \n\nassessments, the assessments are nonetheless redressable injuries for the purposes of \n\nArticle III standing. “Where a habeas challenge to incarceration results in the \n\noverturning of a conviction or of a whole sentence so that the defendant must later be \n\nresentenced in toto, the defendant on resentencing may . . . question the basis of any \n\n[monetary penalty] that might then be assessed.” Kaminski, 339 F.3d at 89 n.3. Indeed, \n\nthis principle extends beyond monetary penalties; if Dhinsa successfully vacates one or \n\nmore of his convictions, he may be entitled to resentencing on his remaining convictions \n\nif he can show that the District Court’s sentencing determinations depended in some \n\nway on the now‐vacated conviction. See Triestman, 178 F.3d at 630 (holding that “the \n\ndistrict court had . . . the power to resentence [the § 2241 petitioner] to the overall term \n\nthat he would have received on his interdependent sentencing package absent his \n\nunlawful § 924(c) conviction”). \n\n For these reasons, we conclude that the special assessment attached to each \n\nconviction constitutes a concrete, redressable injury sufficient to establish Article III \n\nstanding. See Prost, 636 F.3d at 582 n.3. We therefore conclude that Dhinsa has standing \n\nto bring the petition notwithstanding his unchallenged concurrent sentences. \n\n \n\n 16 \n \n\f \n\nII. Jurisdiction under § 2241 and the § 2255(e) savings clause \n\n Dhinsa seeks to collaterally attack his conviction on two counts of informant \n\nmurder. His prior motion under § 2255, the typical path for a collateral attack by a \n\nfederal prisoner, leaves him unable to assert these claims in a second such motion \n\nabsent our permission, which we earlier denied. Dhinsa argues, however, that his \n\nclaims fall within the “savings clause” in § 2255(e) and that he may therefore bring a \n\nhabeas petition under § 2241. A petitioner who seeks to establish habeas jurisdiction \n\nunder this savings clause must make a threshold showing, based on the existing record, \n\nthat he is innocent of his crime of conviction under a legal theory that was not \n\npreviously available to him. Here, Dhinsa argues that the conduct for which he was \n\nconvicted is insufficient to establish guilt under the intervening standard for informant \n\nmurder articulated in Fowler v. United States, 563 U.S. 668 (2011). \n\n We disagree. Rather, we find persuasive the District Court’s analysis concluding \n\nthat Dhinsa has failed to meet the requirements of the savings clause.10 Because the \n\nDistrict Court entered a judgment denying the petition on the merits, however, we \n\nvacate that portion of the judgment and remand for entry of a judgment dismissing the \n\npetition for lack of jurisdiction. \n\n\n \n\n The District Court also suggested that Dhinsa’s unchallenged concurrent life sentences make \n10\n\nhim per se ineligible to assert a § 2241 petition under the savings clause in § 2255(e). See Habeas \nOrder, 238 F. Supp. 3d at 427 (discussing Triestman v. United States, 124 F.3d 361, 379 (2d Cir. \n1997)). We need not review the District Court’s reasoning on this point because we affirm the \nDistrict Court’s conclusion regarding the savings clause on other grounds. See Lotes Co. v. Hon \nHai Precision Indus. Co., 753 F.3d 395, 413 (2d Cir. 2014) (“[T]his Court may affirm on any basis \nfor which there is sufficient support in the record.” (internal quotation marks omitted)). \n \n\n 17 \n \n\f \n\n A. Legal standard \n\n In general, federal prisoners who seek to collaterally attack the basis for \n\nimposing a sentence—including by challenging the underlying conviction—must move \n\n“to vacate, set aside or correct the sentence” under 28 U.S.C. § 2255(a). See 28 U.S.C. \n\n§§ 2255(e), 2244(a); Adams, 372 F.3d at 134. To challenge “the execution of a sentence,” \n\nincluding challenges to disciplinary actions, prison conditions, or parole decisions, by \n\ncontrast, an application under 28 U.S.C. § 2241 provides the “proper means.” Adams, \n\n372 F.3d at 135. In his present petition, Dhinsa challenges the sufficiency of the evidence \n\nas to two of his convictions. Section 2255 thus at first glance appears to be the \n\nappropriate vehicle for Dhinsa’s claims. The remedies under § 2255 are unavailable to \n\nhim, however: he filed an initial § 2255 motion in 2002, and this Court has already \n\ndetermined that the instant application does not satisfy the requirements of § 2255(h) \n\nfor allowing a “second or successive” motion. Faced with that obstacle, Dhinsa invokes \n\nthe savings clause in § 2255(e), which, in some circumstances, confers federal habeas \n\njurisdiction where it would not otherwise exist: a federal prisoner may pursue a petition \n\nunder § 2241 if it “appears that the remedy [under § 2255] is inadequate or ineffective to \n\ntest the legality of his detention.” 28 U.S.C. § 2255(e). \n\n A petitioner cannot claim that § 2255 is “inadequate or ineffective” merely \n\nbecause his prior § 2255 motion was denied, however. Id. We have interpreted the \n\nsavings clause of subsection (e) to authorize a § 2241 petition only when § 2255 is \n\nunavailable and the petition is filed by an individual who (1) “can prove ‘actual \n\ninnocence on the existing record,’” and (2) “‘could not have effectively raised [his] \n\nclaim[] of innocence at an earlier time,’” perhaps due to an intervening change in the \n\n \n\n 18 \n \n\f \n\ngoverning interpretation of the statute of conviction. Cephas v. Nash, 328 F.3d 98, 104 (2d \n\nCir. 2003) (quoting Triestman v. United States, 124 F.3d 361, 363 (2d Cir. 1997)). To make a \n\nthreshold showing of “actual innocence” under the first prong, a petitioner “must \n\ndemonstrate that, in light of all the evidence, it is more likely than not that no \n\nreasonable juror would have convicted him.” Bousley v. United States, 523 U.S. 614, 623 \n\n(1998) (internal quotation marks omitted). The petitioner must “state a colorable . . . \n\nclaim,” in other words, that the trial evidence was insufficient to support his conviction \n\non a correct understanding of the law. Cephas, 328 F.3d at 108. The court must thus \n\ndetermine whether, “after viewing the evidence in the light most favorable to the \n\nprosecution, any rational trier of fact could have found the essential elements of the \n\ncrime beyond a reasonable doubt.” Coleman v. Johnson, 566 U.S. 650, 654 (2012) (per \n\ncuriam) (emphasis in original) (internal quotation marks omitted). \n\n Because the savings clause articulates a jurisdictional requirement, a court \n\nadjudicating a § 2241 petition must confirm that the savings clause can be applied at all \n\nbefore proceeding with a full merits review of the petitioner’s claims. See 28 U.S.C. \n\n§ 2255(e) (providing that a § 2241 petition seeking the type of relief available under \n\n§ 2255 “shall not be entertained . . . unless [the savings clause applies]” (emphasis added)); \n\nAdams, 372 F.3d at 136 (“[I]f a prisoner moving under § 2241 cannot make the necessary \n\nshowing that a § 2255 motion is ‘inadequate or ineffective,’ the district court ‘must \n\neither dismiss the habeas petition for lack of jurisdiction or recast it as a § 2255 motion.’” \n\n(quoting Cephas, 328 F.3d at 104)). In many cases—this one included—such analysis will \n\n\n\n\n \n\n 19 \n \n\f \n\noverlap with analysis on the merits.11 The threshold savings clause analysis does not \n\nreplace a full merits analysis, however; they are not co‐extensive. For example, the \n\ndistrict court may in the merits proceeding provide the government an opportunity to \n\n“rebut” the factual basis for the petitioner’s claim by “present[ing] any admissible \n\nevidence of petitioner’s guilt[,] even if that evidence was not presented” during the \n\nunderlying criminal proceedings.” Bousley, 523 U.S. at 623‐24 (1998) (cautioning that \n\n“‘actual innocence’ means factual innocence, not mere legal insufficiency”). Thus, a \n\npetitioner who makes the threshold showing of legal innocence on the existing record \n\nwill not necessarily be entitled to habeas relief. We therefore proceed here with our \n\nscrutiny of Dhinsa’s “actual innocence” claims. \n\n B. Analysis \n\n Section 1512(a)(1)(C) criminalizes the act of killing a person with the intent to, \n\ninter alia, prevent someone from “communicat[ing] . . . information relating to the \n\ncommission or possible commission of a Federal offense” to a federal “law enforcement \n\nofficer.” 18 U.S.C. § 1512(a)(1)(C). A jury convicted Dhinsa on two counts of informant \n\nmurder based on evidence that he ordered the murders of Manmohan Singh and \n\nSatinderjit Singh. Shortly after the trial—but before judgment was entered—this Court \n\ndeclared in United States v. Diaz, 176 F.3d 52 (2d Cir. 1999), that § 1512(a)(1)(C) requires \n\nthe “government [to] prove that at least one of the law‐enforcement‐officer \n\ncommunications which the defendant sought to prevent would have been with a \n\n \n\n The District Court reached the same substantive conclusion that we do but denied the petition \n11\n\non the merits. Because the jurisdictional inquiry must precede merits analysis, however, we find \nthat dismissing the petition on jurisdictional grounds is the correct result. \n \n\n 20 \n \n\f \n\nfederal officer.” Diaz, 176 F.3d at 91 (internal quotation marks omitted). In his direct \n\nappeal, Dhinsa did not challenge the evidentiary basis for his § 1512(a)(1)(C) \n\nconvictions as insufficient under Diaz’s standard. In 2011, a decade after this Court \n\naffirmed Dhinsa’s convictions, the Supreme Court specified in Fowler that a defendant is \n\nguilty of informant murder only if the victim was “reasonably likely” to have \n\ncommunicated with a federal law enforcement officer. 563 U.S. at 678. We need not \n\ndecide whether Fowler materially altered this Circuit’s standard for informant murder, \n\nas Dhinsa claims, because we conclude that Dhinsa has failed to satisfy the first prong \n\nof the savings clause analysis: demonstrating his innocence on the existing record. \n\nTriestman, 124 F.3d at 363. In our view, a juror could reasonably conclude that both \n\nManmohan and Satinderjit were “reasonably likely” to have communicated with \n\nfederal officials, as Fowler requires. \n\n The trial evidence showed that Manmohan and Satinderjit were both “murdered \n\non Dhinsa’s orders” after they started making inquiries into the Singh Enterprise’s \n\ncriminal activities. Dhinsa I, 243 F.3d at 643. Manmohan was inquiring about the \n\ndisappearance of his brother Kulwant, who had worked at one of Dhinsa’s Citygas \n\nstations. Id. Testimony showed that Dhinsa believed that Manmohan also saw Dhinsa \n\nand an accomplice “shoot somebody,” id. at 657, making him a potential witness against \n\nDhinsa regarding a second crime. After Manmohan was killed in March 1997, \n\nSatinderjit began cooperating with the New York State Police investigation of the Singh \n\nEnterprise’s role in, inter alia, Kulwant’s disappearance, Manmohan’s murder, and \n\nCitygas’s fraudulent pump‐rigging technology. See id. at 644. As part of that \n\ncooperation, Satinderjit participated in a May 1997 raid of the Citygas offices in \n\n\n \n\n 21 \n \n\f \n\nBrooklyn during which state police seized firearms and arrested four individuals, \n\nincluding Dhinsa himself. Id. The following month, in June 1997, Satinderjit was \n\nmurdered. \n\n We are aware of no record evidence suggesting that either Manmohan or \n\nSatinderjit communicated directly with any federal law enforcement officials before he \n\ndied. Dhinsa acknowledges, however, that federal authorities began “investigat[ing] the \n\nSingh Enterprise in relation to the seized firearms” in July 1997, only one month after \n\nSatinderjit’s death and four months after Manmohan’s. Appellant’s Br. 5. Shortly \n\nthereafter, federal prosecutors indicted Dhinsa on twenty‐nine counts, several of which \n\nrelated to the conduct that Manmohan and Satinderjit had been investigating before \n\nthey were killed: Kulwant’s kidnapping, Manmohan’s murder, and the pump‐rigging \n\ntechnology.12 \n\n In Dhinsa’s view, this record fails to establish that either Manmohan or \n\nSatinderjit was “reasonably likely” to communicate with a federal law enforcement \n\nofficer, notwithstanding any communications they made, or might have made, to state \n\npolice officers. We disagree. \n\n We conclude, first, that Dhinsa’s crimes would likely have been investigated and \n\nprosecuted by federal officials even if Dhinsa had not murdered Manmohan and \n\nSatinderjit. We are conscious that our “federal nexus inquiry” under § 1512(a)(1)(C) \n\nshould not place “undue weight [on] the mere fact” that the defendant was, in fact, \n\n\n \n\n The jury acquitted Dhinsa on the kidnapping charges related to Kulwant, but convicted him \n12\n\non charges related to Manmohan’s murder and the pump‐rigging technology scheme. \n \n\n 22 \n \n\f \n\n“convicted of [] federal crime[s]” beyond the informant murders themselves. United \n\nStates v. Veliz, 800 F.3d 63, 75 (2d Cir. 2015). “[T]he frequent overlap between state and \n\nfederal crimes” means that many unremarkable criminal acts will constitute violations \n\nof federal law, even though, “as a practical matter,” the “crimes, investigations, and \n\nwitness tampering . . . are purely state in nature.” Fowler, 563 U.S. at 677. Dhinsa’s \n\ncrimes, though, were hardly unremarkable. As described above, Dhinsa headed a multi‐\n\nyear, multimillion‐dollar racketeering enterprise through which he defrauded \n\nconsumers, bribed public officials, and committed heinous acts of violence and murder. \n\nMoreover, the government suspected Dhinsa of fraud and kidnapping that involved \n\nactivity outside New York State.13 See Dhinsa I, 243 F.3d at 645–46; App’x 96–97. A juror \n\ncould reasonably conclude that a racketeering enterprise of this interstate scope and on \n\nsuch a large scale was likely to be investigated and prosecuted by federal officials. See, \n\ne.g., Veliz, 800 F.3d at 75 (finding federal involvement reasonably likely where defendant \n\n“committed multiple related crimes across multiple states, with multiple accomplices \n\nthat a jury found to constitute an association‐in‐fact RICO enterprise”). \n\n\n\n\n \n\n13 The jury convicted Dhinsa on two counts related to interstate kidnapping, but this Court \nvacated those convictions on procedural grounds. Dhinsa I, 243 F.3d at 669, 677–78. For our \npurposes in this appeal, it is immaterial whether Dhinsa was found guilty on the kidnapping \ncharges. We are concerned with the likelihood that federal law enforcement officials would see \nfit to investigate Dhinsa’s activities or prosecute Dhinsa’s case in federal court. That likelihood \nincreases when federal prosecutors believe they have sufficient evidence to charge a defendant \nwith interstate criminal activity. See Veliz, 800 F.3d at 75 (noting the “interstate nature of the \noffenses” as a relevant factor when determining the likelihood of “federal involvement” in a \ncriminal investigation). \n \n\n 23 \n \n\f \n\n This conclusion does not end our inquiry, however. As Dhinsa points out, “[i]t is \n\nnot enough that federal authorities simply become involved in an investigation. \n\nRather, . . . the government must prove it reasonably likely that a relevant \n\ncommunication would have been made to a federal officer.” Appellant’s Reply Br. 5 \n\n(emphases in original); see 18 U.S.C. § 1512(a)(1)(C) (criminalizing a killing intended to \n\n“prevent [a] communication . . . to a [federal] law enforcement officer or judge” \n\n(emphasis added)). In arguing that the government failed to meet this standard, Dhinsa \n\nemphasizes that state police took the lead in investigating the Singh Enterprise, while \n\nfederal officers—at least initially—played a more limited role by, for example, \n\nproviding technical assistance related to tracking firearms. \n\n We are unpersuaded. Dhinsa fails to recognize that § 1512’s reference to “law \n\nenforcement officer[s]” encompasses not only the officials who investigate the case, but \n\nalso those who prosecute it. See Fowler, 563 U.S. at 675–76 (Section 1512 “appl[ies] where \n\nit is plain that federal officers would have been involved in investigating and prosecuting \n\nthe offense.” (emphasis added)); United States v. Snyder, 865 F.3d 490, 497 (7th Cir. 2017) \n\n(“[I]f the underlying crime . . . would have been prosecuted in federal court, then it \n\nis reasonably likely that the witness would have spoken with a federal officer during \n\nthe course of that prosecution.”). The government may satisfy its burden, then, by \n\nshowing that a victim was reasonably likely to have served as a witness in a federal \n\ncriminal trial or otherwise to have communicated with a federal officer as the \n\nprosecution prepared its case. \n\n A juror could reasonably find that the government met that burden here, and, \n\ntherefore, Dhinsa cannot demonstrate actual innocence on the existing record. As we \n\n \n\n 24 \n \n\f \n\nfirst observed some years ago, “[t]he [trial] record amply demonstrates that Dhinsa \n\nmurdered Manmohan and Satinderjit to deprive the government of potential \n\nwitnesses.” Dhinsa I, 243 F.3d at 657 (internal quotation marks and alterations omitted). \n\nWe have already concluded that a federal prosecution was reasonably likely, and, as \n\nnoted above, Dhinsa’s superseding indictment included several charges related to the \n\nvery criminal conduct that Manmohan and Satinderjit had been investigating. Both \n\nvictims had been looking into Kulwant’s disappearance. Dhinsa believed that \n\nManmohan had personally witnessed Dhinsa shoot someone. Satinderjit was \n\ncooperating with a state investigation of the Singh Enterprise and had participated in a \n\nraid that resulted in Dhinsa’s arrest. Given those facts, a juror could reasonably find that \n\nManmohan and Satinderjit’s likelihood of speaking with a federal official was far from \n\n“remote, outlandish, or simply hypothetical.” Fowler, 563 U.S. at 678. \n\n Dhinsa has failed to state a colorable claim that “no reasonable juror would have \n\nconvicted him” on either count of informant murder. Bousley, 523 U.S. at 623. Thus, the \n\nDistrict Court correctly concluded that Dhinsa has fallen short of satisfying the \n\nthreshold analysis required under the § 2255(e) savings clause and that he is therefore \n\nnot entitled to bring a § 2241 habeas petition. Although the savings clause imposes a \n\njurisdictional threshold, the District Court entered a judgment denying the petition on \n\nthe merits. Accordingly, we remand that portion of the judgment so that the District \n\nCourt may enter an amended judgment that dismisses the petition for lack of \n\njurisdiction. \n\n\n\n\n \n\n 25 \n \n\f \n\n CONCLUSION \n\n Dhinsa’s § 2241 habeas petition challenges only two of six concurrent life \n\nsentences. Thus, a successful petition would not affect the length of his confinement. He \n\nhas standing to bring his petition, however, because the special assessment that attaches \n\nto each of the challenged convictions presents a concrete, redressable injury sufficient to \n\nestablish Article III standing. We are nonetheless precluded from reaching the merits of \n\nDhinsa’s habeas claims because he has failed to show that his petition satisfies the \n\njurisdictional requirements of the savings clause contained in § 2255(e). We conclude \n\nthat, on the existing record, a juror could reasonably find that Dhinsa is guilty of both \n\ncharged counts of informant murder pursuant to 18 U.S.C. § 1512(a)(1)(C). Dhinsa \n\ntherefore is not entitled to bring a habeas petition under § 2241. \n\n Because the District Court entered a judgment denying the petition on the merits, \n\nwe VACATE that portion of the judgment that denied the petition and REMAND the \n\ncause with instructions for the District Court to enter a judgment dismissing the petition \n\nfor lack of jurisdiction. \n\n\n\n\n \n\n 26", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369158/", "author_raw": "SUSAN L. CARNEY, Circuit Judge:"}]} | CABRANES | CARNEY | VILARDO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4591905/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,591,906 | CONNECTICUT FINE WINE AND SPIRITS, LLC, D/B/a, Total Wine & More, Plaintiff-Appellant, v. Commissioner Michelle H. SEAGULL, Department of Consumer Protection, John Suchy, Director, Division of Liquor Control, Defendants-Appellees, Wine & Spirits Wholesalers of Connecticut, Inc., Connecticut Beer Wholesalers Association, Inc., Connecticut Restaurant Association, Connecticut Package Stores Association, Inc., Brescome Barton, Inc., Intervenors-Defendants-Appellees. | Connecticut Fine Wine and Spirits LLC v. Seagull | 2019-02-20 | Docket 17-2003-cv; August Term, 2017 | U.S. Court of Appeals for the Second Circuit | {"judges": "Pooler, Sack, Engelmayer", "parties": "", "opinions": [{"author": "PAUL A. ENGELMAYER, District Judge:", "type": "010combined", "text": "17-2003\nConnecticut Fine Wine and Spirits LLC v. Seagull\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n\n\n August Term, 2017\n\n (Argued: February 1, 2018 Decided: February 20, 2019)\n\n Docket No. 17-2003-cv\n\n\nCONNECTICUT FINE WINE AND SPIRITS, LLC, d/b/a, TOTAL WINE & MORE,\n\n Plaintiff-Appellant,\n\n — v. —\n\n COMMISSIONER MICHELLE H. SEAGULL, DEPARTMENT OF CONSUMER\nPROTECTION, JOHN SUCHY, DIRECTOR, DIVISION OF LIQUOR CONTROL,\n\n Defendants-Appellees,\n\n WINE & SPIRITS WHOLESALERS OF CONNECTICUT, INC., CONNECTICUT\n BEER WHOLESALERS ASSOCIATION, INC., CONNECTICUT RESTAURANT\n ASSOCIATION, CONNECTICUT PACKAGE STORES ASSOCIATION, INC.,\n BRESCOME BARTON, INC.,\n Intervenors-Defendants-\n Appellees.*\n\n\n*\n The Clerk of Court is respectfully directed to amend the official caption in this\ncase as set forth above.\n\n 1\n\fB e f o r e:\n\n POOLER, SACK, Circuit Judges, and ENGELMAYER,** District Judge.\n\n\n\n\n Connecticut Fine Wine and Spirits, d/b/a Total Wine & More (“Total\n\nWine”), challenged certain provisions of Connecticut’s Liquor Control Act and\n\nrelated regulations. Total Wine alleged that these provisions were preempted by\n\nthe Sherman Act, 15 U.S.C. § 1. The United States District Court for the District\n\nof Connecticut, Janet Hall, J., granted the defendants’ motion to dismiss the\n\ncomplaint, holding, inter alia, that the post-and-hold provisions and the\n\nminimum-retail-price provisions of the Connecticut Liquor Control Act were\n\nhybrid restraints on trade, but that Total Wine failed to plead facts that plausibly\n\nsupport the conclusion that those provisions constitute per se violations of, and\n\ntherefore were preempted by, the Sherman Act. The District Court also held that\n\nTotal Wine did not plausibly allege that the price discrimination provision was a\n\nhybrid restraint on trade; therefore, that provision imposes a unilateral restraint\n\n\n**\n Judge Paul A. Engelmayer, of the United States District Court for the Southern\nDistrict of New York, sitting by designation.\n\n 2\n\fon trade that falls outside the scope of the Sherman Act. We agree with the\n\nDistrict Court that the post-and-hold, minimum-retail-price, and price-\n\ndiscrimination provisions are not preempted by the Sherman Act. We therefore\n\nAFFIRM.\n\n\n\n\n WILLIAM J. MURPHY (John J. Connolly, Adam B. Abelson, on the brief)\n Zuckerman Spaeder LLP, Baltimore, Maryland; James T. Shearin,\n Edward B. Lefebvre, Pullman & Comley, LLC, New York, New\n York, for Plaintiff-Appellant Connecticut Fine Wine & Spirits,\n LLC.\n\n GARY M. BECKER, ASSISTANT ATTORNEY GENERAL (Robert Deichert,\n Assistant Attorney General, on the brief), George Jepsen, Attorney\n General for the State of Connecticut for Defendants-Appellees\n Michelle H. Seagull, Commissioner, Department of Consumer\n Protection; John Suchy, Director, Division of Labor, Hartford,\n Connecticut.\n\n DEBORAH SKAKEL (Craig M. Flanders, on the brief) Blank Rome LLP,\n New York, New York; David S. Hardy, Damian K.\n Gunningsmith, Carmody Torrance Sandak & Hennessey LLP,\n New Haven, Connecticut; Robert M. Langer, Benjamin H.\n Diessel, Wiggin and Dana LLP, Hartford, Connecticut; Meredith\n G. Diette, Siegel, O’Connor, O’Donnell & Beck P.C., Hartford,\n Connecticut; Patrick A. Klingman, Klingman Law, LLC,\n Hartford, Connecticut, for Intervenors-Defendants-Appellees\n Wine & Spirits Wholesalers of Connecticut, Inc.; Connecticut\n Beer Wholesalers Association, Inc.; Connecticut Restaurant\n Association, Connecticut Package Stores Association, Inc.\n\n\n\n 3\n\f Jeffrey J. Mirman, John F. Droney, Hinckley, Allen & Snyder, LLP,\n Hartford, Connecticut, for Intervenor-Defendant-Appellee\n Brescome Barton, Inc.\n\n\n\nPAUL A. ENGELMAYER, District Judge:\n\n Connecticut Fine Wine and Spirits, d/b/a Total Wine & More (“Total\n\nWine”) appeals from a judgment of the United States District Court for the\n\nDistrict of Connecticut (Janet C. Hall, District Judge) dismissing its complaint\n\nagainst the Connecticut Department of Consumer Protection (“DCP”) and the\n\nDirector of the Connecticut Division of Liquor Control (“DLC”). Total Wine\n\nclaimed that certain statutory and regulatory provisions that govern the\n\ndistribution and sale of alcoholic beverages in Connecticut, and which often\n\nresult in common retail-level pricing across the state for particular such\n\nbeverages, are preempted by federal antitrust law. For the reasons that follow,\n\nwe hold that these laws are not preempted. We therefore affirm.\n\n BACKGROUND\n\n A. Connecticut’s Laws Regarding Alcohol Distribution and Sale\n\n Like many other states, Connecticut heavily regulates the distribution and\n\nsale of alcoholic beverages within its borders. The state’s Liquor Control Act\n\n\n\n\n 4\n\fprohibits the sale of alcoholic beverages in a manner that fails to comply with\n\nthat statute. See Conn. Gen. Stat. § 30-74(a).\n\n At issue here are three sets of provisions under Connecticut statutes and\n\nregulations that bear on the price at which alcoholic beverages may lawfully be\n\nsold: “post-and-hold” provisions; minimum retail pricing provisions; and\n\nprovisions prohibiting price discrimination and volume discounts.1 These, in\n\ntandem, establish the method by which alcoholic beverage prices are set by the\n\nmanufacturer, the wholesaler, and the retailer.\n\n The three sets of provisions at issue are as follows:\n\n Post-and-hold provisions: Connecticut’s “post and hold” provisions\n\nrequire state-licensed manufacturers, wholesalers, and “out-of-state permittees”\n\n(together, “wholesalers”) to post a “bottle price” and a “case price” each month\n\nwith the DCP for each alcoholic product that the wholesaler intends to sell\n\nduring the following month. (For beer, the wholesaler must post a “can price.”)\n\n1\n Total Wine challenges the following provisions: (1) section 30-63 of the\nConnecticut General Statutes and section 30-6-B12 of the Regulations of\nConnecticut State Agencies (referred to here as the “post-and-hold” provisions);\n(2) sections 30-68m(a)(1) and 30-68m(b) of the Connecticut General Statutes (the\n“minimum retail price” provisions); and (3) sections 30-63(b), 30-68(k), and 30-\n94(b) of the Connecticut General Statutes and section 30-6-A29(a) of the\nRegulation of Connecticut State Agencies (the “price discrimination prohibition”\nprovisions). In the ensuing discussion, the Court reproduces the central\nprovisions.\n\n 5\n\fPosted prices are then made available to industry participants. During the four\n\ndays after the posting of the prices, wholesalers may “amend” their posted prices\n\nto “match” competitors’ lower prices—specifically, “to meet a lower price posted\n\nby another wholesaler with respect to alcoholic liquor bearing the same brand or\n\ntrade name.” Those amended prices, however, may not be “lower than those\n\n[prices] being met.” Wholesalers are obligated to “hold” their prices at the\n\nposted price (amended or not) for a month. These post-and-hold\n\nprovisions—variations of which are found in many states—are the heart of the\n\nConnecticut regulatory regime that Total Wine challenges.2\n\n2\n Section 30-63(c) of the Connecticut General Statutes provides:\n\n For alcoholic liquor other than beer, each manufacturer, wholesaler and\n out-of-state shipper permittee shall post with the department, on a\n monthly basis, the bottle, can and case price of any brand of goods\n offered for sale in Connecticut, which price when so posted shall be the\n controlling price for such manufacturer, wholesaler or out-of-state\n permittee for the month following such posting. On and after July 1,\n 2005, for beer, each manufacturer, wholesaler and out-of-state shipper\n permittee shall post with the department, on a monthly basis, the\n bottle, can and case price, and the price per keg or barrel or fractional\n unit thereof for any brand of goods offered for sale in Connecticut\n which price when so posted shall be the controlling price for such\n brand of goods offered for sale in this state for the month following\n such posting. Such manufacturer, wholesaler and out-of-state shipper\n permittee may also post additional prices for such bottle, can, case, keg\n or barrel or fractional unit thereof for a specified portion of the\n following month which prices when so posted shall be the controlling\n prices for such bottle, can, case, keg or barrel or fractional unit thereof\n\n 6\n\f Minimum-retail-price provisions: Connecticut’s minimum-retail-price\n\nprovisions require that retailers sell to customers at or above a statutorily defined\n\n“[c]ost.” “Cost,” however, is not defined as the retailer’s actual cost. Instead,\n\ngenerally, a retailer’s “[c]ost” for a given alcoholic beverage, is determined by\n\nadding the posted bottle price—as set by the wholesaler—and a markup for\n\n\n\n for such specified portion of the following month. Notice of all\n manufacturer, wholesaler and out-of-state shipper permittee prices\n shall be given to permittee purchasers by direct mail, Internet web site\n or advertising in a trade publication having circulation among the retail\n permittees except a wholesaler permittee may give such notice by hand\n delivery. Price postings with the department setting forth wholesale\n prices to retailers shall be available for inspection during regular\n business hours at the offices of the department by manufacturers and\n wholesalers until three o'clock p.m. of the first business day after the\n last day for posting prices. A manufacturer or wholesaler may amend\n such manufacturer's or wholesaler's posted price for any month to meet\n a lower price posted by another manufacturer or wholesaler with\n respect to alcoholic liquor bearing the same brand or trade name and\n of like age, vintage, quality and unit container size; provided that any\n such amended price posting shall be filed before three o'clock p.m. of\n the fourth business day after the last day for posting prices; and\n provided further such amended posting shall not set forth prices lower\n than those being met. Any manufacturer or wholesaler posting an\n amended price shall, at the time of posting, identify in writing the\n specific posting being met. On and after July 1, 2005, all wholesaler\n postings, other than for beer, for the following month shall be provided\n to retail permittees not later than the twenty-seventh day of the month\n prior to such posting. All wholesaler postings for beer shall be\n provided to retail permittees not later than the twentieth day of the\n month prior to such posting.\n\n\n\n 7\n\fshipping and delivery. The post-and-hold provision, because it supplies the\n\ncentral component of the “[c]ost” at which the retailer may sell its product, thus\n\nlargely dictates the price at which Connecticut retailers must sell their alcoholic\n\nproducts.3\n\n\n\n\n3\n Section 30-68m of the Connecticut General Statutes provides, in pertinent part:\n\n (a) For the purposes of this section:\n (1) “Cost” for a retail permittee means (A) for alcoholic liquor other\n than beer, the posted bottle price from the wholesaler plus any charge\n for shipping or delivery to the retail permittee's place of business paid\n by the retail permittee in addition to the posted price, and (B) for beer,\n the lowest posted price during the month in which the retail permittee\n is selling plus any charge for shipping or delivery to the retail\n permittee’s place of business paid by the retail permittee in addition to\n the price originally paid by the retail permittee;\n\n (b) No retail permittee shall sell alcoholic liquor at a price below his or\n her cost.\n\nRelatedly, Section 30-68m(a)(C) defines “bottle price” as:\n\n [the] price per unit of the contents of any case of alcoholic liquor, other\n than beer [which] shall be arrived at by dividing the case price by the\n number of units or bottles making up such case price and adding to the\n quotient an amount that is not less than the following: A unit or bottle\n one-half pint or two hundred milliliters or less, two cents; a unit or\n bottle more than one-half pint or two hundred milliliters but not more\n than one pint or five hundred milliliters, four cents; and a unit or bottle\n greater than one pint or five hundred milliliters, eight cents.\n\n\n\n 8\n\f Plaintiffs allege that wholesalers will occasionally lower their posted case\n\nprices for a given month, without lowering posted bottle prices, during what are\n\ncalled “off-post” months. Although retailers buy almost exclusively by the case,\n\ntheir prices remain fixed by the minimum-retail-price provisions, which are\n\nkeyed to bottle prices.\n\n Price discrimination/volume discounts: Finally, Connecticut bans volume\n\ndiscounts and other forms of price discrimination. Wholesalers must sell a given\n\nproduct to all retailers at the same price. Wholesalers may not offer discounts to\n\nretailers who are high-volume purchasers.4\n\n4\n Section 30-68k of the Connecticut General Statutes provides:\n\n No holder of any wholesaler's permit shall ship, transport or deliver\n within this state or any territory therein or sell or offer for sale, to a\n purchaser holding a permit for the sale of alcoholic liquor for on or off\n premises consumption, any brand of alcoholic liquor, including\n cordials, as defined in section 30-1, at a bottle, can or case price higher\n than the lowest price at which such item is then being sold or offered\n for sale or shipped, transported or delivered by such wholesaler to any\n other such purchaser to which the wholesaler sells, offers for sale,\n ships, transports or delivers that brand of alcoholic liquor within this\n state.\n\nSimilarly, Section 30-63(b) of the Connecticut General Statutes provides:\n\n No manufacturer, wholesaler or out-of-state shipper permittee shall\n discriminate in any manner in price discounts between one permittee\n and another on sales or purchases of alcoholic liquors bearing the same\n brand or trade name and of like age, size and quality, nor shall such\n\n 9\n\f While multiple policy interests have been asserted in support of these\n\nprovisions, they (particularly the post-and-hold and minimum-retail-price\n\nprovisions) commonly have been justified as means of guarding against\n\nescalating price wars among alcohol retailers that may lead to excessive\n\nconsumption. See Slimp v. Dep’t of Liquor Control, 687 A.2d 123, 129 (Conn. 1996)\n\n(noting “legislature’s concern that artificial inducements to purchase liquor will\n\nresult in increased consumption”); Eder Bros. v. Wine Merchants of Conn., Inc., 800\n\nA.2d 138, 147 (Conn. 2005) (noting that “price wars among retail dealers” for\n\nliquor “may induce persons to purchase, and therefore consume, more liquor\n\nthan they would if higher prices were maintained”); Eder Bros., 800 A.2d at\n\n147–48 (noting that “the cutthroat competition” characteristic of price wars “is\n\napt to induce the retailers to commit such infractions of the law as selling to\n\nminors and keeping open after hours in order to withstand the economic\n\npressure”). These provisions (particularly the price-discrimination provision)\n\nhave also been justified as guarding against favoritism within the liquor industry\n\n\n manufacturer, wholesaler or out-of-state shipper permittee allow in any\n form any discount, rebate, free goods, allowance or other inducement\n for the purpose of making sales or purchases. Nothing in this\n subsection shall be construed to prohibit beer manufacturers, beer\n wholesalers or beer out-of-state shipper permittees from differentiating\n in the manner in which their products are packaged on the basis of on-\n site or off-site consumption.\n\n 10\n\fand protecting smaller retailers. See Slimp, 687 A.2d at 129. Unsurprisingly,\n\ncountervailing arguments have also been made, including ones noting the anti-\n\ncompetitive nature of these price restraints.\n\n B. Total Wine’s Complaint\n\n Total Wine is the largest retailer of wine and spirits in the United States.\n\nHeadquartered in Bethesda, Maryland, Total Wine, with its affiliates, owns and\n\noperates wine and liquor stores in 21 states.\n\n In December 2012, Total Wine opened a retail beverage store in Norwalk,\n\nConnecticut, its first such store in the state. Since then, Total Wine has opened\n\nadditional stores, in Milford, Manchester, and West Hartford, Connecticut.\n\n On August 23, 2016, Total Wine filed suit against Jonathan Harris, the\n\nCommissioner of the DCP, and John Suchy, Director of the DLC, in their official\n\ncapacities.5 Seeking injunctive and declaratory relief, it brought a facial challenge\n\nto the three sets of statutory and regulatory provisions reviewed above\n\ngoverning the distribution and sale of alcoholic beverages in Connecticut: (1) the\n\npost-and-hold provisions, (2) the minimum-retail-price provisions, and (3) the\n\nprice-discrimination and volume-discount-prohibition provisions. Total Wine\n\n\n\n5\n Michelle H. Seagull replaced Jonathan Harris as Commissioner of the DCP on May 1,\n2017.\n\n 11\n\falleged that these provisions bring about per se violations of § 1 of the Sherman\n\nAntitrust Act, 15 U.S.C. § 1, and so are preempted by that statute.\n\n Total Wine’s claim was that the Connecticut regulatory scheme eliminates\n\nincentives for alcoholic beverage wholesalers to compete on the basis of price and\n\ninvites wholesalers to maintain prices “substantially above what fair and\n\nordinary market forces would dictate.” App. at 19, Compl. ¶ 16. Total Wine\n\nfurther claimed that Connecticut’s regulations inhibit meaningful price\n\ncompetition at the retail level.\n\n Specifically, Total Wine claimed, the regulations, in two ways, bring about\n\nprices that exceed those that a competitive market would produce.\n\n First, it argued, the post-and-hold provisions—and the opportunity they\n\ngive wholesalers to match a lower price during the forthcoming month for a\n\ngiven product with no risk of sparking a price war—reduce any wholesaler’s\n\nincentive to be the first to reduce price. The post-and-hold provisions, Total\n\nWine argued, effectively bring about horizontal price fixing. As it put the point\n\non appeal: “If a wholesaler were to drop its price on a particular product, its\n\ncompetitors would know immediately (from having seen the posted price), and\n\nwould have four days to match the posted price.” Appellant Br. at 8–9. Even if\n\nthe wholesaler who had been the first to reduce its price still wished to set a price\n\n\n 12\n\fbeneath its competitors, Total Wine noted, it would then be required to “hold the\n\nlower price for an entire month—during which it would have no competitive\n\nadvantage because its competitors would be charging the same price.”6 Id. at 9.\n\n Second, Total Wine argued, Connecticut’s system precludes retailers from\n\ncompeting on the basis of cost. Fundamentally, Total Wine noted, the minimum-\n\nretail-price provision is keyed to a definition of “[c]ost” that turns not on the\n\nretailer’s actual cost but on the price charged to the retailer by the wholesaler.\n\nThis, Total Wine argued, prevents a high-volume, lower-average-cost retailer\n\nsuch as itself from attracting customers by offering discounts enabled by its\n\nlower-cost structure. This result is exacerbated, Total Wine alleged, by a practice\n\nin which wholesalers often engage: They set high minimum bottle prices, and\n\nthen lower the case prices for the product without making corresponding\n\nreductions to the bottle price. While retailers (who buy almost exclusively by the\n\ncase) take advantage of the reduced case price and buy larger quantities during\n\nmonths where the case price is lower, this, Total Wine alleged, does not benefit\n\nthe consumer because retailers are required to sell the product at a margin fixed\n\n6\n Total Wine’s claim that the Connecticut regulations promote horizontal price\nfixing was substantially developed in its briefs on the motion to dismiss and\nfurther refined on appeal. Its Complaint overwhelmingly focused instead on its\nclaims as to vertical price fixing. We conclude, however, that the Complaint\nsatisfactorily pled both theories.\n\n 13\n\fby the higher minimum bottle price, which has effectively been set by the\n\nwholesaler. In this manner, Total Wine alleged, “wholesalers effectively control\n\nboth retail price and retailers’ profit margins,” and retailers like Total Wine that\n\nwish to use their business efficiencies to reduce the prices offered to consumers\n\nare blocked from doing so. App. at 20, Compl. ¶ 17.\n\n The end result, Total Wine alleged, is a market without meaningful price\n\ncompetition: “Competing wholesalers for the same brands routinely set the same\n\nbottle and case prices down to the penny, month after month, with each\n\nwholesaler exactly tracking its competitors’ . . . case prices.” Id., Compl. ¶ 19. In\n\nother words, Total Wine argued, the regulatory scheme promotes vertical price\n\nfixing. Total Wine’s complaint attached data tables reflecting that, over long\n\nperiods, leading wholesalers often have charged the same amount for each\n\nalcoholic beverage product—e.g., Bombay Sapphire, Grey Goose, Jose Cuervo\n\nGold—and have adjusted prices in lockstep. These prices, Total Wine claimed,\n\nexceed those which a competitive market would produce: Citing a study, Total\n\nWine alleged that Connecticut’s regulatory scheme “result[s] in retail prices for\n\nwine and spirits in Connecticut that are as much as 24% higher than prices\n\noffered for identical products in the surrounding states.” Id., Compl. ¶ 18.\n\n\n\n\n 14\n\f Finally, Total Wine alleged, the Connecticut regulatory scheme does not\n\nentail active supervision by any state agency or instrumentality. Wholesalers\n\npost and retailers charge the prices they see fit, it alleged, without any review or\n\nintervention by regulators, save where a lawsuit has been brought claiming\n\nnoncompliance with the state’s regulations.\n\n C. The Motion to Dismiss\n\n On October 14, 2016, the defendants moved to dismiss. They were\n\nsupported in this motion by five intervenors, four of which were trade\n\nassociations and the fifth of which was a liquor distributor.7\n\n On June 6, 2017, the district court, following argument, granted the motion\n\nto dismiss. See Conn. Fine Wine & Spirits v. Harris, LLC, 255 F. Supp. 3d 355 (D.\n\nConn 2017). Analyzing the challenged provisions separately,8 the district court\n\n7\n These were: the Wine & Spirit Wholesalers of Connecticut (“WSWC”), the\nConnecticut Beer Wholesalers Association (“CBWA”), the Connecticut\nRestaurant Association (“CRA”) and the Connecticut Package Stores Association\n(“CPSA”) (collectively, “the trade associations”), as well as Brescome Barton, Inc.\n(“Brescome” and, with the trade associations, “intervenors”).\n\n8\n The district court stated that separate consideration of each challenged\nprovision was required (1) under principles of federalism, (2) because each\nprovision presented distinct analytic issues under principles of antitrust\npreemption, and (3) because Connecticut’s general rule of statutory construction\nprovides that the invalidity of some sections of a statute should not invalidate the\nstatute as a whole. See Conn. Fine Wine & Spirits, 255 F. Supp. 3d at 366–67; Conn.\nGen. Stat. § 1-3.\n\n 15\n\fapplied as to each the first step in the two-step framework used to assess claims\n\nof preemption by § 1 of the Sherman Act in this Circuit.9 As a threshold matter,\n\nthe court inquired whether the restraints are unilateral (“imposed by the\n\ngovernment . . . to the exclusion of private control”) and hence immune from\n\npreemption by § 1, or hybrid (imposed by both the government and by granting\n\n“private actors a degree of regulatory control over competition” and hence\n\ncapable of preemption. Id. at 364. Then, the court inquired whether the\n\nchallenged provision brought about facially, or per se, unlawful restraints on\n\ntrade, in which case they are preempted, or restraints that are subject to rule of\n\nreason scrutiny, in which case they are not. Id.\n\n As to the post and hold restraint, the district court held that it is a hybrid\n\nrestraint, but that the conduct it brings about is not per se unlawful, and so is\n\nsubject to rule of reason analysis. Id. at 371. Therefore, it is not preempted. Id.\n\nThe district court relied on Battipaglia v. New York State Liquor Authority, 745 F.2d\n\n166 (2d Cir. 1984), in which we upheld New York State’s post-and-hold provision\n\nas similarly not preempted.\n\n\n\n\n9\n The district court dismissed Total Wine’s claims at the first step of the\npreemption analysis and neither the defendants nor any of the intervenors have\nargued that Total Wine’s claims should be dismissed at the second step.\n\n 16\n\f As to the minimum resale price restraint, the district court held that it too\n\nwas hybrid, but that it also implicated only the rule of reason, not condemnation\n\nper se. Id. at 373. The district court held that this provision imposed a vertical\n\nrestraint. And, it noted, recent Supreme Court cases, in particular Leegin Creative\n\nLeather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007), have held that courts are to\n\napply rule of reason, not per se, analysis to vertical restraints, meaning that this\n\nprovision is not facially preempted. Id. at 378.\n\n Finally, the district court held that Connecticut’s provisions forbidding\n\nprice discrimination amounted to a unilateral restraint on trade, imposed solely\n\nby the state and not involving private conduct. Id. That was because these\n\nprovisions “simply prohibit[] liquor wholesalers from charging different prices to\n\ndifferent retailers,” and do not “grant[] private actors a degree of regulatory\n\nauthority over competition.” Id. at 379. Thus, it held that these provisions, too,\n\nare not preempted. Id. at 380.\n\n Accordingly, the district court upheld all challenged aspects of\n\nConnecticut’s alcoholic beverage regulatory regime.\n\n On June 26, 2017, Connecticut Fine Wine appealed.\n\n\n\n\n 17\n\f DISCUSSION\n\n This case presents questions of preemption: Does § 1 of the Sherman\n\nAntitrust Act, 15 U.S.C. § 1, which makes illegal “[e]very contract, combination\n\n. . . or conspiracy, in restraint of trade or commerce,” preempt the challenged\n\nprovisions of Connecticut’s Liquor Control Act?\n\n We begin by reviewing the two key precedents that frame the § 1\n\npreemption inquiry: Rice v. Norman Williams Co., 458 U.S. 654 (1982), and Fisher v.\n\nCity of Berkeley, California, 475 U.S. 260 (1986). Then, because the analysis differs\n\nby provision, we review serially the three sets of challenged provisions. We first\n\naddress the minimum-resale-price restraint and then the prohibition on price\n\ndiscrimination. We last address the post-and-hold provisions, which are the\n\nprimary focus of plaintiffs’ challenge. None of the provisions, we hold, are\n\npreempted.10\n\n A. Principles of Preemption Under § 1: Rice and Fisher\n\n The Supreme Court’s decisions in Rice and Fisher frame the § 1 preemption\n\ninquiry.\n\n10\n While we address the three areas separately here, we have also considered\nthem in tandem. The outcome is the same: considered separately or as a whole,\nthe provisions are not preempted. We therefore do not reach the question of\nwhich analysis would have been the right one had the difference been\ndeterminative.\n\n 18\n\f 1. Rice: The Requirement That the State Law “Mandate or\n Authorize,” or “Place Irresistible Pressure” on Private Parties to\n Bring About, a Per Se Violation of § 1\n\n In Rice, the Court held that the preemption inquiry under § 1 requires\n\ncourts to\n\n apply principles similar to those which we employ in considering\n whether any state statute is pre-empted by a federal statute pursuant\n to the Supremacy Clause. As in the typical pre-emption case, the\n inquiry is whether there exists an irreconcilable conflict between the\n federal and state regulatory schemes. The existence of hypothetical\n or potential conflict is insufficient to warrant the pre-emption of the\n state statute. A state regulatory scheme is not pre-empted by the\n federal antitrust laws simply because in a hypothetical situation a\n private party’s compliance with the statute might cause him to\n violate the antitrust laws. A state statute is not preempted by the\n federal antitrust laws simply because the state scheme might have an\n anticompetitive effect.\n\n458 U.S. at 659 (citations omitted). Rather, the Court held, “[a] party may\n\nsuccessfully enjoin the enforcement of a state statute only if the statute on its face\n\nirreconcilably conflicts with federal antitrust policy.” Id. In other words, for a\n\nstate statute to be preempted by § 1, the statute must bring about conduct that\n\nwould require per se condemnation under § 1:\n\n Our decisions in this area instruct us, therefore, that a state statute,\n when considered in the abstract, may be condemned under the\n antitrust laws only if it mandates or authorizes conduct that\n necessarily constitutes a violation of the antitrust laws in all cases, or\n if it places irresistible pressure on a private party to violate the\n antitrust laws in order to comply with the statute. Such\n\n\n 19\n\f condemnation will follow under § 1 of the Sherman Act when the\n conduct contemplated by the statute is in all cases a per se violation.\n If the activity addressed by the statute does not fall into that\n category, and therefore must be analyzed under the rule of reason,\n the statute cannot be condemned in the abstract. Analysis under the\n rule of reason requires an examination of the circumstances\n underlying a particular economic practice, and therefore does not\n lend itself to a conclusion that a statute is facially inconsistent with\n federal antitrust laws.\n\nId. at 661.\n\n Applying these principles, the Rice Court upheld the codes at issue:\n\nCalifornia Alcoholic Beverage Control provisions which prohibited a licensed\n\nimporter from importing any brand of distilled spirits for which it was not a\n\ndesignated importer. These, the Court explained, would not give rise in all\n\ninstances to per se illegal conduct. Id. at 661–62.\n\n 2. Fisher: The Requirement of Concerted Action\n\n In Fisher, the Court identified a related hurdle that a claim of preemption by\n\n§ 1 must clear. At issue was a rent stabilization law enacted by the City of\n\nBerkeley, California, that placed strict controls on certain classes of real property\n\nrented for residential use. The ordinance required landlords to adhere to the\n\nprescribed rent ceilings; violators were subject to civil and criminal penalties. 475\n\nU.S. at 262–63. A group of landlords sued the city, arguing that the ordinance\n\nwas a traditional—and per se invalid—form of fixing prices.\n\n\n 20\n\f The Supreme Court rejected that argument. Sherman Act § 1, it noted, can\n\nbe violated only by collective action: “unreasonable restraints of trade effected by\n\na ‘contract, combination . . ., or conspiracy’ between separate entities.” Id. at 266\n\n(quoting Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 768 (1984)). But, the\n\nCourt held, Berkeley’s unilateral imposition of rent control did not amount to\n\nagreement or “concerted action.” Id. The Court acknowledged that, had the\n\nBerkeley landlords banded together to fix rental prices in the absence of an\n\nordinance, their action would have been a per se violation of the Sherman Act. Id.\n\nBut the fact that the price-fixing ordinance resulted from the city acting\n\nunilaterally, not the landlords acting concertedly, saved it from preemption:\n\n A restraint imposed unilaterally by government does not become\n concerted-action within the meaning of the [Sherman Act] simply\n because it has a coercive effect upon parties who must obey the law.\n The ordinary relationship between the government and those who\n must obey its regulatory commands whether they wish to or not is\n not enough to establish a conspiracy. Similarly, the mere fact that all\n competing property owners must comply with the same provisions\n of the Ordinance is not enough to establish a conspiracy among\n landlords. Under Berkeley’s Ordinance, control over the maximum\n rent levels of every affected residential unit has been unilaterally\n removed from the owners of these properties and given to the Rent\n Stabilization Board.\n\nId. at 267. In sum, the challenged rent control laws could exist, alongside § 1,\n\nbecause “the rent ceilings imposed by the Ordinance and maintained by the Rent\n\n\n\n 21\n\fStabilization Board have been unilaterally imposed by government upon\n\nlandlords to the exclusion of private control.” Id. at 266. As the Court put the\n\npoint: “There is no meeting of the minds here.” Id. at 267.\n\n The Supreme Court in Fisher was careful to limit its holding to unilateral\n\naction by a government entity. It recognized that a governmentally imposed\n\nrestraint on trade that enforces private pricing decisions would be a “hybrid\n\nrestraint” that fulfills the Sherman Act’s “concerted action” requirement. The\n\nCourt explained:\n\n Not all restraints imposed upon private actors by government units\n necessarily constitute unilateral action outside the purview of § 1.\n Certain restraints may be characterized as ‘hybrid,’ in that\n nonmarket mechanisms merely enforce private marketing decisions.\n See Rice, 458 U.S. at 665 (Stevens, J., concurring in the judgment).\n Where private actors are thus granted “a degree of private\n regulatory power,” id. at 66 n.1, the regulatory scheme may be\n attacked under § 1.”\n\nId. at 267–68.\n\n We have previously read Rice and Fisher to constitute the first step in a\n\ntwo-step inquiry to decide whether a statute is preempted by § 1. See, e.g.,\n\nFreedom Holdings Inc. v. Spitzer, 357 F.3d 205, 223 (2d Cir. 2004).11\n\n11\n In cases in which alcoholic-beverage laws are claimed to be preempted by § 1,\nstates have sometimes additionally defended by asserting state action immunity,\nwhich is the second step in our Circuit’s two-step preemption inquiry, and\nimmunity derived from the Twenty First Amendment to the U.S. Constitution.\n\n 22\n\f B. Connecticut’s Minimum-Retail-Price Provisions\n\n The Court applies these principles, first, to the minimum-retail-price\n\nprovisions. As noted, these provisions (e.g., Conn. Gen. Stat. § 30-68m) dictate\n\nthe relationship between the liquor prices set by wholesalers and those set by\n\nretailers.\n\n In 324 Liquor v. Duffy Corp., 479 U.S. 335 (1987), the Supreme Court\n\nconsidered a similar New York statute, which “impose[d] a regime of resale price\n\nmaintenance on all New York liquor retailers” and required them to charge at\n\nleast 112% of the wholesaler’s posted bottle price. Id. at 337, 341. The Supreme\n\nCourt classified the New York statute, under Fisher, as a hybrid restraint. Id. at\n\n345 n.8 (describing provisions as having granted “’private actors . . . a degree of\n\nprivate regulatory power’”) (quoting Fisher, 475 U.S. at 268). Then, applying the\n\nRice framework, the Court found the statute was “inconsistent with § 1” because\n\nit authorized per se violations of § 1 under precedents that, “‘since the early years\n\nof national antitrust enforcement,’” had so treated resale price maintenance\n\nagreements. Id. at 341 (quoting Monsanto Co. v. Spray-Rite Service Corp., 465 U.S.\n\n752, 761 (1984)). Hence, the New York statute was preempted. Id. at 343.\n\n\n\n\nConnecticut has not raised such defenses in connection with this appeal.\n\n 23\n\f The Supreme Court’s classification in 324 Liquor of the minimum-retail-\n\nprice restraints as hybrid, and hence capable of preemption by § 1, binds the\n\nCourt here. The New York statute there is substantively identical to the\n\nConnecticut statute here. And the hybrid classification in 324 Liquor remains\n\ngood law. See Freedom Holdings, 357 F.3d at 223–24 (noting that 324 Liquor found\n\na hybrid arrangement based on limited private acts: “the individual\n\ndeterminations of each wholesaler as to what bottle price to post”).\n\n The same, however, cannot be said for the Supreme Court’s application of\n\nRice in 324 Liquor. The Court’s premise, that the New York statute mandated per\n\nse violations of § 1, has been overtaken by a change in antitrust law. In 2007, the\n\nSupreme Court, culminating a line of decisions, held that rule of reason—and not\n\nper se—analysis applies to all vertical restraints. See Leegin, 551 U.S. at 882.\n\nLeegin overruled Dr. Miles Medical. Co. v. John D. Park & Sons Co., 220 U.S. 373\n\n(1911), the precedent cited by 324 Liquor as the fount of the doctrine that vertical\n\nprice fixing arrangements are per se illegal. See 324 Liquor, 479 U.S. at 341.\n\nHenceforth, the Supreme Court stated, “vertical price restraints are to be judged\n\nby the rule of reason.” Leegin, 551 U.S. at 882. Justifying the doctrinal change, the\n\nCourt explained that “it cannot be stated with any degree of confidence that\n\nresale price maintenance ‘always or almost always tend[s] to restrict competition\n\n\n 24\n\fand decrease output,’” id. at 894 (quoting Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485\n\nU.S. 717, 723 (1988)), noting that Leegin capped a gradual doctrinal move “away\n\nfrom Dr. Miles’ strict approach,” id. at 900.\n\n In light of Leegin, 324 Liquor’s holding that minimum-retail-price provisions\n\nconstitute a per se violation of antitrust laws in all cases, 479 U.S. at 343, is,\n\nnecessarily, no longer good law. The need to analyze vertical pricing\n\narrangements under the rule of reason means that § 1 cannot preempt as per se\n\nunlawful even a statute that overtly mandates such arrangements. See Rice, 458\n\nU.S. at 658 (“If the activity addressed by the statute . . . must be analyzed under\n\nthe rule of reason, the statute cannot be condemned in the abstract. Analysis\n\nunder the rule of reason requires an examination of the circumstances underlying\n\na particular economic practice, and therefore does not lend itself to a conclusion\n\nthat a statute is facially inconsistent with the federal antitrust laws.”).\n\n We therefore hold that Connecticut’s minimum-retail-price provisions,\n\ncompelling as they do only vertical pricing arrangements among private actors,\n\nare not preempted under § 1.12\n\n\n12\n Total Wine alternatively attempts to characterize minimum-retail-price\nprovisions such as Connecticut’s as impelling horizontal price-fixing. For the\nreasons given by the district court, this characterization is wrong. Conn. Fine\nWine & Spirits, 255 F. Supp. 3d at 375.\n\n 25\n\f C. Connecticut’s Provisions Prohibiting Price Discrimination\n\n The Court next considers Connecticut’s provisions prohibiting price\n\ndiscrimination. These provisions, as noted, require that wholesalers sell a given\n\nalcoholic product to all retailers at the same price.\n\n For two reasons, we hold that these provisions are not preempted.\n\n First, as the district court recognized, these provisions impose a unilateral\n\nrestraint. They leave each wholesaler at liberty to choose the price it will charge\n\nall retailers for a product while prohibiting each from charging different prices to\n\ndifferent retailers. Although limiting a wholesaler’s range of motion, this\n\nprovision does not grant any private actor “a degree of regulatory control over\n\ncompetition.” Freedom Holdings Inc. v. Cuomo, 624 F.3d 38, 50 (2d Cir. 2010).\n\nRather, like the rent cap set by the Berkeley municipality in Fisher, it is a restraint\n\n“imposed by government . . . to the exclusion of private control.” Id. (citing\n\nFisher, 475 U.S. at 266). Such a restraint does not implicate the concerns of\n\nconcerted activity animating § 1.\n\n Second, the price restraint worked by § 30-68k is purely vertical in\n\noperation. It limits the ability of a wholesaler that has already charged one\n\nretailer a given price to charge another retailer a different price. Therefore, even\n\nif this provision could be viewed as a hybrid, rather than a unilateral, price-fixing\n\n\n 26\n\fprovision, after Leegin, it would no longer implicate a category of conduct that\n\nremains per se unlawful. While its impact may be to harmonize prices at a retail\n\nlevel of beverages sold by a common wholesaler, the provision does not\n\nmandate—or even incent—collaboration among horizontal competitors. For this\n\nseparate reason, under Rice, it is not preempted by § 1.\n\n D. Connecticut’s Post-and-Hold Provisions\n\n The Court finally considers the post-and-hold provisions, described above.\n\nOn the question whether § 1 preempts these provisions, the parties primarily\n\ndispute whether, as the district court held, Battipaglia, 745 F.2d 166, which\n\nrejected a claim that § 1 preempted a New York liquor-pricing statute, is\n\ncontrolling here.\n\n 1. Review of Battipaglia\n\n In Battipaglia, decided after Rice and before Fisher, a divided panel of this\n\nCourt, per Judge Friendly, upheld a New York statute whose price restraint\n\ncomponents governing the sale of liquor were strikingly similar to those at issue\n\nhere. The New York law contained post-and-hold provisions that obliged\n\nwholesalers to file monthly price schedules with the state liquor authority by the\n\nfifth day of the preceding month, Id. at 168 (citing N.Y. Alco. Bev. Cont. § 101-\n\nb(3)(b)), and authorized wholesalers to amend their filed schedules “to meet\n\n\n 27\n\flower competing prices and discounts ‘provided such amended prices and\n\ndiscounts are not lower and discounts are not greater than those to be met,’” id.\n\n(quoting N.Y. Alco. Bev. Cont. Law § 101-b(4)). The New York law also\n\ncontained price-discrimination and minimum-retail-price provisions that\n\nconstrained sales prices at the retail level. See id. (citing N.Y. Alco. Bev. Cont. §\n\n101-b(2)).\n\n In the relevant portion of its analysis,13 Battipaglia held that the challenged\n\npost-and-hold provisions were not preempted because they “do not compel any\n\nagreement” among wholesalers, but only individual action. Id. at 170. The\n\nCourt stated: “The schedules required to be filed by the wholesalers are their\n\nindividual acts.” Id. And the Battipaglia plaintiffs (a liquor store owner and a\n\nwholesaler) had not alleged that “any agreement among the wholesalers” arose\n\nas a result of these laws. Id.\n\n Battipaglia addressed and rejected two arguments the plaintiffs had made\n\nfor preemption.\n\n13\n Battipaglia addressed two other issues not presented here. It discussed—but\ndid not resolve—whether, if the New York law were in conflict with § 1, it was\nnonetheless insulated from attack by the “state action” doctrine of Parker v.\nBrown, 317 U.S. 341 (1943). See Battipaglia, 745 F.2d at 176–77. And it addressed\nwhether, if the New York law were in conflict with § 1, the state’s important\npolicy interests warranted deference under § 2 of the Twenty-First Amendment.\nId. at 177–79 (holding that, on the case record, such deference was warranted).\n\n 28\n\f First, the Court distinguished California Retail Liquor Dealers Ass’n v. Midcal\n\nAluminum, 445 U.S. 97 (1980), which, like 324 Liquor, had held preempted a state\n\nstatute that “created a resale price maintenance system for wine.” Battipaglia, 745\n\nF.2d at 170; see also id. at 171 (describing California statute as having forced “all\n\npersons at various levels of the chain of distribution . . . to establish identical\n\nprices fixed by the brand owner for each brand of wine” and stating that this\n\ntype of “vertical control” was impermissible under § 1). In contrast, the Court\n\nstated, New York’s post-and-hold provisions “plainly are not a resale price\n\nmaintenance scheme.” Id. at 172. And, the Court again noted, the New York law\n\ndid not constrain wholesalers, each of which “is completely free to file whatever\n\nprice schedule he desires.” Id. As Judge Friendly put the point: “Midcal simply\n\ndid not deal with a statute like New York’s which merely requires wholesalers to\n\npost and adhere to their own unilaterally determined prices and nothing more.”\n\nId.\n\n Second, the Court addressed the argument that the post-and-hold law gave\n\nrise to a per se violation of § 1 because (1) it “forces each wholesaler to inform\n\nother wholesaler[s] of its prices and then to adhere for a month to them (or a\n\nlowered price meeting that of a competitor filed within three days)” and (2) “if\n\nthis had been done pursuant to an agreement [among wholesalers], the\n\n\n 29\n\fagreement would have constituted a violation of § 1.” Id. Rejecting this\n\nargument, the Court reiterated that § 1 “is directed only at joint action and does\n\nnot prohibit independent business actions and decisions.” Id. (internal citations\n\nomitted).\n\n The Court then paused on the conceptual issue of whether, to be\n\npreempted by § 1, a state law must compel an actual agreement among\n\ncompetitors. The Court described as “appealing” the reasoning that:\n\n Section 1 requires an agreement, state compulsion of individual\n action is the very antithesis of an agreement, and the argument that\n an agreement could have been inferred if the wholesalers had\n voluntarily done what they been compelled to do is simply too ‘iffy.’\n\nId. at 173.14 At the same time, the Court acknowledged “some force” to the\n\ncounterargument: that “a statute compelling conduct which, in its absence,\n\nwould permit the inference of an agreement unlawful under § 1 is inconsistent\n\nwith that section.” Id. In the end, the Court stated, there was no need to resolve\n\nthis conceptual issue. That was because the New York law did not meet the Rice\n\nstandard for preemption. Id.\n\n14\n As support for this view, the Court cited a district court decision finding\nagainst preemption and rejecting the argument that “simply because the statute\ncompelled individual actions which, if taken pursuant to an agreement, might\nhave constituted a violation,” the statute was preempted. Id. at 173 (quoting U.S.\nBrewers Ass’n, Inc. v. Healy, 532 F. Supp. 1312, 1329–30 (D. Conn.), rev’d on other\ngrounds, 692 F.2d 275 (2d Cir. 1982), aff’d, 464 U.S. 909 (1983)).\n\n 30\n\f Rice, the Court emphasized, had held that “[a] state regulatory scheme is\n\nnot pre-empted by the federal antitrust laws simply because in a hypothetical\n\nsituation a private party’s compliance with the statute might cause him to violate\n\nthe antitrust laws.” Id. at 174 (quoting Rice, 458 U.S. at 659). Rather, under Rice, a\n\nstate law could be “condemned under the antitrust laws only if it mandates or\n\nauthorizes conduct that necessarily constitutes a violation of the antitrust laws in\n\nall cases, or if it places irresistible pressure on a private party to violate the\n\nantitrust laws in order to comply with the statute.” Id. (quoting Rice, 458 U.S. at\n\n661). New York’s statute did not do that, the Court stated, because the only\n\nconduct that it compelled—“the exchange of price information” among\n\ncompetitors—does not “constitute a violation of the antitrust laws in all cases.”\n\nId. at 174. Such an exchange might or might not signify an agreement among\n\nthem. See id. at 175 (“[T]he dissemination of price information is not a per se\n\nviolation of the Sherman Act.” (quoting United States v. Citizens & S. Nat’l Bank,\n\n422 U.S. 86, 113 (1975) (internal citations omitted)). That the post-and-hold law\n\nmight result in common wholesaler pricing did not support inferring an\n\nagreement either, the Court stated. Absent “plus factors” signifying an\n\nagreement, “conscious parallelism” among competitors did not equate to an\n\nagreement. Id. (citations omitted).\n\n\n 31\n\f The Battipaglia Court concluded:\n\n Section 101-b thus does not mandate or authorize conduct that\n necessarily constitutes a violation of the antitrust laws in all cases.\n New York wholesalers can fulfill their obligations under the statute\n without either conspiring to fix prices or engaging in consciously\n parallel pricing. So, even more clearly, the New York law does not\n place irresistible pressure on a private party to violate the antitrust\n laws in order to comply with it. It requires only that, having\n announced a price independently chosen by him, the wholesaler\n shall stay with it for a month.\n\nId. (internal quotation marks omitted).\n\n In dissent, Judge Winter faulted Judge Friendly’s majority opinion for\n\ndwelling on the “post” component of New York’s law and paying too little heed\n\nto the law’s “hold” component. Were competitors to enter into an agreement to\n\nhold their prices in place for 30 days, he observed, such a private agreement\n\nwould be horizontal price fixing and per se illegal. See 745 F.2d at 179–80 (Winter,\n\nJ., dissenting). The Fourth and Ninth Circuits, the only two circuit courts to\n\naddress similar laws, have sided with Judge Winter. Each has emphasized that\n\nthe statutory requirement of adherence to posted prices, were it adopted by\n\nprivate agreement, would be per se illegal price fixing. See Costco Wholesale Corp.\n\nv. Maleng, 522 F.3d 874 (9th Cir. 2008) (holding Washington provisions\n\npreempted by § 1); Miller v. Hedlund, 813 F.2d 1344 (9th Cir. 1987) (holding\n\nOregon provisions not exempt from § 1 and remanding the case to the district\n\n\n 32\n\fcourt for a determination whether the Twenty First Amendment shielded the\n\nchallenged regulations); TFWS, Inc. v. Schaefer, 242 F.3d 198, 210 (4th Cir. 2001)\n\n(holding Maryland provisions preempted by § 1, while reserving on whether,\n\nunder the Twenty First Amendment, Maryland’s regulatory interests with\n\nrespect to alcohol trumped federal interest under the Sherman Act); see also 1\n\nPhillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 217, at 388–89 &\n\nnn.45–53 (4th ed. 2013) (reviewing reported decisions, including lower court\n\ndecisions in each direction).\n\n 2. Battipaglia Controls Here\n\n We find Battipaglia controlling authority here.\n\n Connecticut’s post-and-hold provisions are substantially identical to the\n\nNew York post-and-hold provisions upheld in that case. Total Wine does not\n\ncontend otherwise. Both sets of provisions required the wholesaler to set and\n\npublicly file a price that it is going to charge the retailer; both provided a brief\n\ntime window in which wholesalers may match a lower price set by a competitor;\n\nand both required the wholesaler to hold that price for one month.\n\n Further, as the above discussion reflects, the Court in Battipaglia considered\n\nat length the § 1 preemption question in the face of similar arguments to those\n\nTotal Wine makes here. The Court applied the controlling standards, from Rice,\n\n\n 33\n\fto these provisions. The Court held that the post-and-hold provisions did not\n\n“mandate or authorize conduct ‘that necessarily constitutes a violation of the\n\nantitrust laws in all cases’” or “place[ ] irresistible pressure on a private party to\n\nviolate the antitrust laws in order to comply” with it. Id. at 175 (quoting Rice, 458\n\nU.S. at 661). Those are the questions presented here.\n\n Finally, Total Wine has not identified any later precedent of the Supreme\n\nCourt or this Court that fairly calls Battipaglia’s vitality into question.\n\n Total Wine argues that 324 Liquor and our decision in Freedom Holdings, 357\n\nF.3d at 223 (Winter, J.) are such precedent. A footnote in 324 Liquor suggested\n\nthat a statute need not bring about an actual agreement between private parties\n\nto be preempted by § 1. See 324 Liquor, 479 U.S. at 345–46 n.8 (rejecting New\n\nYork’s defense that provisions at issue had not yielded a “contract, combination,\n\nor conspiracy in restraint of trade”). Freedom Holdings picked up on that footnote\n\nto suggest, in a footnote of its own, that “an actual ‘contract, combination, or\n\nconspiracy’ need not be shown for a state statute to be preempted by the\n\nSherman Act.” See 357 F.3d at 223 n.17 (Winter, J.) (citing 324 Liquor, 479 U.S. at\n\n345–46 n.8). Total Wine argues, on account of these statements, that these\n\ndecisions vitiate Battipaglia.\n\n For three reasons, they do not.\n\n\n 34\n\f First, Freedom Holdings itself distinguished Battipaglia and treated it as good\n\nlaw. Freedom Holdings recognized that, although the Battipaglia majority had\n\ndiscussed whether a state law must give rise to an actual agreement for § 1 to\n\npreempt it, Battipaglia ultimately did not resolve nor rule on the basis of that\n\nconceptual issue. Rather, Battipaglia had relied on its application of the Rice\n\nstandard to New York’s post-and-hold provision. See id. (recognizing that\n\nBattipaglia “did not reach the question” whether “a private contract, combination,\n\nor conspiracy” must be shown for Sherman Act preemption to occur (internal\n\ncitation omitted)).\n\n Second, to the extent that Freedom Holdings and 324 Liquor opine on\n\nwhether the state law at issue must give rise to an actual private agreement for\n\nthere to be preemption, these cases are readily distinguished factually because\n\nthey involved express or readily implied agreements. Freedom Holdings involved\n\nan express contract among horizontal competitors—a “Master Settlement\n\nAgreement” among major tobacco manufacturers pursuant to which the\n\nchallenged New York legislation had been enacted. Freedom Holdings, 357 F.3d at\n\n208. Its discussion of whether the state law must give rise to such an agreement\n\nwas, therefore, dicta. See id. at 224 (“Even if a ‘contract’ among private parties is\n\nrequired in the first step of preemption analysis, therefore, it exists in the present\n\n\n 35\n\fmatter.”). As for 324 Liquor, it addressed vertical restraints affecting a\n\nwholesaler-retailer relationship. In that context, the wholesaler and each of its\n\nretailers were in privity and necessarily had an agreement to buy from and/or\n\nsell to each another. They entered into these agreements against the backdrop\n\n(and presumably with the knowledge) of the price-fixing term that state law\n\nwould supply. In fact, every Supreme Court case to hold state liquor laws\n\npreempted by § 1, has done so on the ground that these laws either mandated or\n\nauthorized forms of then per se unlawful vertical price-fixing arrangements\n\nbetween wholesalers and retailers. See, e.g., Midcal, 445 U.S. 97 (California law\n\nmandated resale price maintenance among wholesaler and its retailers); 324\n\nLiquor, 479 U.S. 335 (same as to New York law); Schwegmann Bros. v. Calvert\n\nDistillers Corp., 341 U.S. 384 (1951) (same as to Louisiana law per an interpretation\n\nof § 1 as amended by the now-repealed Miller-Tydings Act). Of course, as noted\n\nearlier, the application of preemption doctrine to vertical price fixing\n\narrangements has been overtaken by Leegin’s removal of vertical restraints from\n\nper se condemnation.\n\n Third, and finally, two post-Battipaglia decisions of the Supreme Court,\n\neach involving claims of horizontal price-fixing, lend support to Judge Friendly’s\n\nreasoning in finding against preemption. One, Fisher, discussed earlier, does so\n\n\n 36\n\fby narrowing the scope of state action within § 1’s preemptive reach. The other,\n\nBell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), does so by underscoring the\n\nlimited scope of private conduct capable of per se violating § 1.\n\n Fisher, as noted, upheld Berkeley’s rental-cap ordinance in the face of a § 1\n\npreemption claim that it brought about horizontal price fixing. The Supreme\n\nCourt recognized that “[h]ad the owners of residential rental property in\n\nBerkeley voluntarily banded together to stabilize rents in the city,” that concerted\n\nactivity would have worked a per se violation of § 1. Fisher, 475 U.S. at 266. But,\n\nthe Court emphasized, more was required. There needed to be concerted action.\n\n“A restraint imposed unilaterally by government does not become concerted-\n\naction within the meaning of the statute simply because it has a coercive effect\n\nupon parties who must obey the law.” Id. at 267. “[T]he mere fact that all\n\ncompeting property owners must comply with the same provisions of the\n\nOrdinance is not enough to establish a conspiracy among landlords.” Id.\n\n This requirement is significant here. We do not take issue with the holding\n\nof the district court here that, given the participation that a post-and-hold law\n\nrequires of each wholesaler in connection with the posting component,\n\n\n\n\n 37\n\fConnecticut’s law, viewed as a whole, qualifies as hybrid under Fisher.15 But we\n\ndoubt that such a law mandates or authorizes “concerted action” among the\n\nwholesalers subject to it. Particularly as to the “hold” component of the law that\n\nwas the basis of the Battipaglia dissent, Connecticut’s prohibition on altering\n\nprices for a 30-day period is a purely negative restraint. It does not call for any\n\nprivate action, let alone concerted action. See Hertz Corp. v. City of New York, 1\n\nF.3d 121, 127 (2d Cir. 1993) (finding hybrid, but upholding, city statute that\n\n“eliminate[d] an element of price competition” among rental-car industry\n\ncompetitors); cf. Flying J, Inc. v. van Hollen, 621 F.3d 658, 662--63 (7th Cir. 2010)\n\n(“[I]t is only when a state law mandates or authorizes collusive conduct that it is\n\npreempted by federal antitrust law.” (citing Fisher, 475 U.S. at 265)). Fisher’s\n\nemphasis on the need for concerted action reinforces that Judge Friendly was\n\nright both to focus on the posting, rather than the holding, component of New\n\nYork’s post-and-hold law, and to find the law non-preempted.\n\n As to Twombly, although it is more commonly cited for its articulation of\n\npleading standards, the Court in its substantive discussion homed in on the\n\n\n15\n In finding that the statute grants private actors “a degree of private regulatory\npower” so as to qualify as hybrid, Fisher, 475 U.S. at 268, the district court relied\non 324 Liquor, which had held hybrid a resale-price maintenance law with similar\nprice-posting features. See Conn. Fine Wines & Spirits, 255 F. Supp. 3d at 369.\n\n 38\n\fdiscrete evil prohibited by § 1. “§ 1 of the Sherman Act does not prohibit [all]\n\nunreasonable restraints of trade.” Twombly, 550 U.S. at 553. It prohibits “only\n\nrestraints effected by a contract, combination, or conspiracy.” Id. (emphasis added).\n\nThe Court explained, therefore, that in § 1 cases, “[t]he crucial question is\n\nwhether the challenged anticompetitive conduct stem[s] from independent\n\ndecision or from an agreement.” Id. (internal citations omitted). Even conscious\n\nparallel acts based on competitors’ mutual recognition of “shared economic\n\ninterests” are not “’in [themselves] unlawful.’” Id. at 553--54 (quoting Brooke Grp.\n\nLtd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 227 (1993)); see also United\n\nStates v. Apple, Inc., 791 F.3d 290, 315 (2d Cir. 2015) (“[P]arallel behavior that does\n\nnot result from an agreement is not unlawful even if it is anticompetitive.”). In\n\nother words, under § 1, that conscious parallel conduct can create an equally\n\nuncompetitive market to parallel conduct achieved by agreement is of no\n\nmoment. The gravamen of § 1 is an agreement among competitors.\n\n On this basis, Twombly upheld the dismissal of a complaint that alleged\n\nconsciously parallel decisions among recently deregulated telecommunications\n\ncarriers not to compete in one another’s (horizontal) regional markets. The\n\ncomplaint had not alleged actual agreement among the carriers, and its\n\nallegations were consistent with “natural” and “unilateral” behavior by each\n\n\n 39\n\fcarrier, as each had good reason to appreciate that its self-interest lay in\n\nforebearing from initiating competition. See 550 U.S. at 564, 566; see also id. at 568\n\n(“[The carriers] doubtless liked the world the way it was, and surely knew the\n\nadage about him who lives by the sword. Hence, a natural explanation for the\n\nnoncompetition alleged is that the former Government-sanctioned monopolists\n\nwere sitting tight, expecting their neighbors to do the same thing.”)\n\n Twombly’s reasoning resonates here because, under a post-and-hold law,\n\nthere is a “natural” explanation—independent of any agreement or coordination\n\namong liquor wholesalers—for these competitors to arrive at common monthly\n\nproduct prices. Such a law authorizes a wholesaler, during the four days after\n\ninitial posting, to match a competitor’s lower price, with such prices then held for\n\na month. Under these circumstances, the law itself invites and facilitates\n\nconscious parallelism in pricing. It puts in public view each competing\n\nwholesaler’s price quotes. And it authorizes, but it does not oblige, wholesalers\n\nduring a defined window unilaterally to match (or parallel) a competitor’s lower\n\nprice as the “held” price for the coming month. Nothing about this arrangement\n\nrequires, anticipates, or incents communication or collaboration among the\n\ncompeting wholesalers. Quite the contrary: A post-and-hold law like\n\nConnecticut’s leaves a wholesaler little reason to make contact with a competitor.\n\n\n 40\n\fThe separate, unilateral acts by each wholesaler of posting and matching instead\n\nare what gives rise to any synchronicity of pricing. To mirror Twombly: “[A]\n\nnatural explanation for the noncompetition alleged,” id. at 568, is that the state-\n\nregulated wholesalers are independently making pricing decisions within a\n\nframework aimed at avoiding price wars that invites them, before being held to a\n\nprice for a month, to match that of their competitors. A post-and-hold law,\n\ntherefore, does not implicate the evil against which § 1 guards: an agreement to\n\nunreasonably restrain trade. It would make little sense to preempt a state statute\n\nwhich facilitates parallel conduct that parties can legally undertake on their own\n\nunder § 1.\n\n Under these circumstances, we do not find reason to conclude that\n\nBattipaglia has been, sub silentio, overruled. If anything, its reasoning has been\n\nfortified by intervening decisions like Fisher and Twombly. Battipaglia therefore\n\ncontrols Total Wine’s challenge to Connecticut’s post-and-hold provisions. See\n\nUnited States v. Moore, 949 F.2d 68, 71 (2d Cir. 1991) (prior opinions of a Second\n\nCircuit panel bind future panels “in the absence of a change in the law by higher\n\nauthority” or a ruling by the en banc Court). Any application to revisit Battipaglia\n\nis beyond this panel’s authority. Battipaglia remains good—and persuasive—law.\n\n\n\n\n 41\n\f CONCLUSION\n\n For the reasons above, we affirm the decision below. We hold that the\n\nchallenged provisions of Connecticut law governing liquor pricing are not\n\npreempted by § 1 of the Sherman Act.\n\n\n\n\n 42", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369159/", "author_raw": "PAUL A. ENGELMAYER, District Judge:"}]} | POOLER | SACK | ENGELMAYER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4591906/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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8,443,885 | NRP HOLDINGS LLC, NRP Properties LLC v. CITY OF BUFFALO, Byron W. Brown, Demone A. Smith, Buffalo Urban Renewal Agency, Steven M. Casey, Richard A. Stenhouse, Buffalo Jeremiah Partnership for Community Development, Inc., John Doe 1-10, John Doe Companies, 1-5 | NRP Holdings LLC v. City of Buffalo | 2019-02-20 | Docket No. 17-783-cv; August Term, 2017 | U.S. Court of Appeals for the Second Circuit | {"judges": "Carney, Parker, Sack", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415315/", "author_raw": ""}]} | CARNEY | PARKER | SACK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443885/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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8,443,903 | Gurmeet Singh DHINSA v. J. E. KRUEGER, as Warden of FCI Schuylkill | Dhinsa v. Krueger | 2019-02-20 | 17-874 | U.S. Court of Appeals for the Second Circuit | {"judges": "Cabranes, Carney, Vilardo", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415334/", "author_raw": ""}]} | CABRANES | CARNEY | VILARDO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443903/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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8,444,046 | CONNECTICUT FINE WINE AND SPIRITS, LLC, d/b/a, Total Wine & More v. Commissioner Michelle H. SEAGULL, Department of Consumer Protection, John Suchy, Director, Division of Liquor Control, Wine & Spirits Wholesalers of Connecticut, Inc., Connecticut Beer Wholesalers Association, Inc., Connecticut Restaurant Association, Connecticut Package Stores Association, Inc., Brescome Barton, Inc., Intervenors-Defendants-Appellees. | Conn Fine Wine & Spirits, LLC v. Seagull | 2019-02-20 | Docket No. 17-2003-cv; August Term, 2017 | U.S. Court of Appeals for the Second Circuit | {"judges": "Engelmayer, Pooler, Sack", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415484/", "author_raw": ""}]} | ENGELMAYER | POOLER | SACK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444046/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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4,592,356 | Chunn v. Amtrak | 2019-02-21 | 17-3617-cv | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: KEARSE, JACOBS, SACK, Circuit Judges.", "parties": "", "opinions": [{"author": "DENNIS JACOBS, Circuit Judge:", "type": "010combined", "text": "17‐3617‐cv \nChunn v. Amtrak\n\n\n United States Court of Appeals\n for the Second Circuit\n \n AUGUST TERM 2018 \n No. 17‐3617‐cv \n \n \n CHRISTOPHER CHUNN \n Plaintiff‐Appellant, \n \n v. \n \n AMTRAK, P.O. COLEMAN, P.O. LOONEY, \n Defendants‐Appellees, \n \n DRUG ENFORCEMENT ADMINISTRATION AGENCY, COLON, SUPERVISING JOHN DOE, \n AGENT, DEA OFFICER ALEX COLON, SPECIAL AGENT JOHN HANNON, \n Defendants. \n \n SUBMITTED ON: JANUARY 24, 2019 \n DECIDED: FEBRUARY 21, 2019 \n \n \n Before: KEARSE, JACOBS, SACK, Circuit Judges. \n \n Appellant Christopher Chunn, pro se, appeals the judgment of the United \nStates District Court for the Southern District of New York (Crotty, J.; Pitman, \nM.J.) granting summary judgment in favor of Amtrak with respect to his 42 \nU.S.C. § 1983 and state‐law conversion claims. Amtrak transferred to the DEA \ncash that Amtrak police seized from Chunn incident to his arrest. Chunn \ncontended that Amtrak’s transfer of his property without first offering him an \nopportunity to contest the transfer violated his due process rights and amounted \nto conversion under New York law. Because due process is afforded by the \n\frequired post‐deprivation procedures and because Chunn was not unlawfully \ndeprived of his property, we affirm. \n\n CHRISTOPHER CHUNN, pro se, Coxsackie, \n NY, for the Plaintiff‐Appellant. \n \n WILLAIM G. BALLAINE, TINA S. BHATT, \n THERESA A. FRAME, Landman Corsi Ballaine \n & Ford P.C., New York, NY, for the \n Defendants‐Appellees. \n \nDENNIS JACOBS, Circuit Judge: \n\n Appellant Christopher Chunn, pro se, appeals the judgment of the United \nStates District Court for the Southern District of New York (Crotty, J.; Pitman, \nM.J.) granting summary judgment in favor of Amtrak, dismissing his claims \nunder 42 U.S.C. § 1983 and the state law of conversion.1 Incident to Chunn’s \narrest in the waiting area at New York’s Pennsylvania Station, Amtrak police \nseized $10,400, which the Amtrak police then transferred to the Drug \nEnforcement Agency (“DEA”). Chunn contends that Amtrak’s transfer of his \nproperty without first affording him an opportunity to contest the transfer \nviolated his due process rights and amounted to conversion under New York \nlaw. We recount only the facts that bear upon our disposition. \n\n BACKGROUND \n\n Chunn was sleeping in the Amtrak waiting area in Pennsylvania Station \nwhen he was roused by Amtrak Police Officer Jerry Coleman. An altercation \nensued and Chunn was arrested for disorderly conduct, trespassing, and \nresisting arrest. During a search incident to this arrest, Amtrak officers \ndiscovered $10,400 cash in Chunn’s pocket. The officers confiscated the cash, \nand upon investigation by Amtrak’s Criminal Investigation Division and an \nAmtrak officer assigned to the Amtrak‐DEA joint task force, the DEA decided to \n \n\n1 Chunn has not argued on appeal that the district court erred in granting summary \njudgment to Amtrak Police Officers Coleman and Looney. Accordingly, his arguments \nconcerning these defendants are abandoned. See LoSacco v. City of Middletown, 71 \nF.3d 88, 92–93 (2d Cir. 1995). \n\n 2 \n\fseize the money for possible forfeiture as proceeds of drug sales. Amtrak \ntransferred the cash to the DEA and gave Chunn a receipt. \n\n Chunn sued Amtrak, Amtrak officers, the DEA, and DEA agents alleging a \nviolation of due process and conversion. Chunn agreed to dismiss his claims \nagainst the DEA and its agents. The district court granted summary judgment in \nfavor of the Amtrak defendants and denied Chunn’s motion to amend his \ncomplaint to add as a defendant the Amtrak officer responsible for turning over \nChunn’s property to the DEA. \n\n This appeal followed. \n\n DISCUSSION \n\n We review orders granting summary judgment de novo and focus on \nwhether the district court correctly concluded that there was no genuine dispute \nas to any material fact and that the moving party was entitled to judgment as a \nmatter of law. Sotomayor v. City of New York, 713 F.3d 163, 164 (2d Cir. 2013). \nWe review the denial of a motion to amend on the basis of futility de novo. \nNielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). \n\n I. \n\n Assuming without deciding that Amtrak is subject to suit under § 1983, we \nconclude that the district court properly granted Amtrak summary judgment on \nthe due process claim. Due process requires that an individual be given “notice \nand an opportunity to be heard” prior to the state’s permanent deprivation of his \nproperty interest. Dusenbery v. United States, 534 U.S. 161, 167 (2002) (internal \nquotation marks omitted). “Due process is flexible and calls for such procedural \nprotections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. \n319, 334 (1976) (brackets and quotation marks omitted). “[D]ue process \nordinarily requires an opportunity for some kind of a hearing prior to the \ndeprivation of a significant property interest.” Hodel v. Va. Surface Mining & \nReclamation Ass’n, Inc., 452 U.S. 264, 299 (1981) (internal quotation marks \nomitted) (emphasis added). The deprivation of money here was significant, and \nno pre‐deprivation hearing was afforded when the cash was transferred. \nHowever, it is generally “sufficient, where only property rights are concerned, \nthat there is at some stage an opportunity for a hearing and a judicial \ndetermination.” Id. at 303 (internal quotation marks omitted). \n\n 3 \n\f Compliance with the post‐seizure notice and hearing requirements of 21 \nU.S.C. § 881 and 18 U.S.C. §§ 981‐87 satisfies the due process obligations of a \nfederal agency that adopts the seizure of property by a state or local law \nenforcement agency. See, e.g., Dusenbery, 534 U.S. at 172–73 (notice by mail \npursuant to § 881 is constitutionally sufficient). We hold that these procedures \nalso satisfy the requirements of due process owed by the state agency that makes \nthe transfer. See Madewell v. Downs, 68 F.3d 1030, 1040 (8th Cir. 1995). \n\n The Eighth Circuit’s reasoning in Madewell is persuasive. Chunn argues \nthat the state officers transferred his money to the DEA without showing that it \nwas connected to a drug transaction. In similar circumstances, the Eighth Circuit \n“decline[d] to add such a requirement, because that is precisely the \ndetermination that must be made in the proceedings pursuant to 21 U.S.C. § 881 \nbefore federal forfeiture may be accomplished, and § 881 establishes the process \ndue the claimant in making that determination.” Id. at 1045. Likewise, due \nprocess does not require other pre‐seizure proceedings to determine whether \nproperty is subject to forfeiture, such as an opportunity to be heard. Here, the \npost‐seizure proceedings mandated by 21 U.S.C. § 881 and 18 U.S.C. § 981 \nprovided Chunn with due process. \n\n II. \n\n “[O]ne who comes lawfully into possession of property cannot be charged \nwith conversion thereof until after a demand and refusal,” MacDonnell v. \nBuffalo Loan, Tr. & Safe Deposit Co., 193 N.Y. 92, 101 (1908), except “in a case \nwhere the lawful custodian of property commits an overt and positive act of \nconversion by an unlawful . . . disposition of the same.” Id. Chunn has not \nchallenged the lawfulness of his arrest, or of Amtrak’s initial seizure of his \nproperty incident to his arrest; and Chunn made no demand on Amtrak for \nreturn of the money before Amtrak turned it over to the DEA. \n\n While “[n]o demand [is] necessary” to constitute conversion when a \ndefendant unlawfully disposes of the property, id., Amtrak’s transfer of Chunn’s \ncash to the DEA was lawful. New York law does not impose procedural \nrequirements on a state agency transferring to federal authorities property that \nhas been seized incident to arrest. Cf. N.Y. Crim. Proc. Law § 690.55(1) (turnover \norder from a state court required prior to transferring property seized pursuant \nto a search warrant). And the DEA was authorized to seize the property \n\n\n 4 \n\fpursuant to 18 U.S.C. § 981. See 18 U.S.C. § 981(b)(2)(C). Because neither agency \nwas ever wrongfully in possession of Chunn’s property and state law did not \nlimit Amtrak’s authority to transfer it, Amtrak’s actions were not “unlawful,” \nand summary judgment was proper. See Leveraged Leasing Admin. Corp. v. \nPacificorp. Capital, Inc., 87 F.3d 44, 50 (2d Cir. 1996). \n\n III. \n\n Leave to amend may be denied if the proposed amendment would be \nfutile. Tocker v. Phillip Morris Cos., 470 F.3d 481, 491 (2d Cir. 2006). \nAmendment is futile if it fails “to cure prior deficiencies.” Panther Partners, Inc. \nv. Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012). \n\n Chunn moved to amend his complaint to add as a defendant Sergeant \nPatterson, the Amtrak officer responsible for turning over Chunn’s property to \nthe DEA. This claim turns on the same transfer as Chunn’s claim against \nAmtrak, and fails for the same reasons. Accordingly, the amendment would \nhave been futile. \n\n CONCLUSION \n\n The judgment of the district court is AFFIRMED. \n\n\n\n\n 5", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369609/", "author_raw": "DENNIS JACOBS, Circuit Judge:"}]} | KEARSE | JACOBS | SACK | 1 | {"KEARSE": ", Circuit", "JACOBS": ", Circuit", "SACK": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4592356/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,592,357 | Rafael CEARA, Plaintiff-Appellant, v. DOCCS Officer Joseph DEACON, Defendant-Appellee. | Ceara v. Deacon | 2019-02-21 | 17-569-pr; August Term 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Cabranes, Parker, Matsumoto", "parties": "", "opinions": [{"author": "BARRINGTON D. PARKER, Circuit Judge:", "type": "010combined", "text": "17-569-pr\nCeara v. Deacon\n\n\n\n\n In the\n United States Court of Appeals\n For the Second Circuit\n\n August Term 2018\n\n No. 17-569-pr\n\n RAFAEL CEARA,\n\n Plaintiff-Appellant,\n\n v.\n\n DOCCS OFFICER JOSEPH DEACON,\n\n Defendant-Appellee.\n\n\n\n Appeal from the United States District Court\n for the Southern District of New York\n No. 13 Civ. 6023 (KMK), Kenneth M. Karas, District Judge, Presiding.\n\n (Submitted: October 5, 2018; Decided: February 21, 2019)\n\nBefore: CABRANES, PARKER, Circuit Judges, MATSUMOTO, District Judge.*\n\n*\n Judge Kiyo A. Matsumoto, of the United States District Court for the Eastern\nDistrict of New York, sitting by designation.\n\n 1\n\f 17-569-pr\n Ceara v. Deacon\n\n\n\n 1 Plaintiff Rafael Ceara, a state inmate who claims that he was assaulted by a\n 2 prison corrections officer, filed a pro se complaint raising claims under 42 U.S.C. §\n 3 1983. In his complaint, he named “John Doe” as the officer who allegedly\n 4 assaulted him but also described and named that officer as “Officer Deagan.”\n 5 After the statute of limitations had expired, Ceara amended his complaint to\n 6 correctly name “C.O. Deagan” as “Officer Joseph Deacon.” Deacon moved for\n 7 summary judgment claiming, among other things, that Ceara’s amended\n 8 complaint was time barred. The United States District Court for the Southern\n 9 District of New York (Karas, J.) granted Deacon’s motion on the ground that an\n10 amended complaint identifying a defendant to replace a “John Doe” placeholder\n11 does not relate back to the original complaint under Federal Rule of Civil\n12 Procedure 15(c)(1)(C). See Barrow v. Wethersfield Police Department, 66 F.3d 466 (2d\n13 Cir. 1995). We conclude that Ceara’s complaint was not a true John Doe\n14 complaint and that his amendment to correct a misspelling related back under\n15 Rule 15(c)(1)(C).\n16\n17 VACATED and REMANDED for further proceedings.\n18\n19 Alessandra DeBlasio, New York, N.Y., for\n20 appellant Rafael Ceara.\n21\n22 Steven C. Wu, Judith N. Vale, David\n23 Lawrence III, for Barbara D. Underwood,\n24 Solicitor General, Letitia A. James, Attorney\n25 General, New York, N.Y., for appellee DOCCS\n26 Officer Joseph Deacon.\n27\n28\n29\n30\n31\n\n\n 2\n\f 17-569-pr\n Ceara v. Deacon\n\n 1 BARRINGTON D. PARKER, Circuit Judge:\n\n 2 Plaintiff Rafael Ceara, a state inmate who alleges that he was attacked by a\n\n 3 prison guard, filed a pro se complaint under 42 U.S.C. § 1983 in which he\n\n 4 identified the defendant as both “John Doe” and “C.O. Deagan.” He filed within\n\n 5 the statute of limitations and then amended his complaint after the statute\n\n 6 expired to clarify that the name of the defendant officer was “Officer Joseph\n\n 7 Deacon.” Deacon moved for summary judgment on the ground that the\n\n 8 complaint was time barred. The United States District Court for the Southern\n\n 9 District of New York (Karas, J.) granted the motion on the ground that an\n\n10 amended complaint identifying the defendant to replace a “John Doe”\n\n11 placeholder does not relate back to the original complaint under Federal Rule of\n\n12 Civil Procedure 15(c)(1)(C). See Barrow v. Wethersfield Police Department, 66 F.3d\n\n13 466 (2d Cir. 1995). Accordingly, the District Court held that Ceara’s claims were\n\n14 barred by § 1983’s three-year statute of limitations. We conclude that the District\n\n15 Court erred in treating Ceara’s complaint as a “John Doe” complaint and that his\n\n16 amendment to correct a misspelling related back under Rule 15(c)(1)(C). We\n\n\n\n\n 3\n\f 17-569-pr\n Ceara v. Deacon\n\n 1 therefore vacate the January 25, 2017 judgment of the District Court and remand\n\n 2 for further proceedings.\n\n 3 BACKGROUND\n\n 4 Ceara was incarcerated at the Downstate Correctional Facility in Fishkill,\n\n 5 New York in Complex 1, D Block. Defendant Joseph Deacon was a corrections\n\n 6 officer who patrolled D Block. Deacon’s brother, who shared the last name\n\n 7 Deacon, also worked as an officer in D Block.\n\n 8 Ceara alleged that on September 5, 2010, a corrections officer pushed him\n\n 9 down a set of concrete stairs located just outside of D Block. Ceara was initially\n\n10 uncertain of the full name of the officer who had pushed him. After the incident,\n\n11 Ceara filed several grievances, many of which named a “C.O. Deagon” or\n\n12 “Officer Deagon.” He also filed an Inmate Injury Report, wrote to the prison\n\n13 superintendent, filed two official grievances with the New York State\n\n14 Department of Corrections, and spoke with an investigator from the Inspector\n\n15 General’s Office. In many of these communications, he referred to the officer in\n\n16 question as “Officer Deagan.”\n\n\n\n\n 4\n\f 17-569-pr\n Ceara v. Deacon\n\n 1 Ceara filed his original complaint on August 22, 2013, two weeks before\n\n 2 the statute of limitations expired. In the caption of the complaint, Ceara named as\n\n 3 the defendant “correctional officer John Doe[,] which worked at Downstate Corr.\n\n 4 Fac. on Sep. 5, 2010 on the 7:[00]AM – 3:[00]PM shift in D-Block, complex 1. I\n\n 5 have wrote [sic] to Inspector General for full names and have had no response\n\n 6 (c.o. Deagan, He has old brother [sic] by same name)[.]” App’x 12. Below that,\n\n 7 Ceara listed the defendant as “John Doe (c.o. Deagan younger brother)[.]” Id.\n\n 8 In September 2013, the District Court ordered the New York State Office of\n\n 9 the Attorney General to provide Ceara information to help determine the\n\n10 defendant’s precise identity. In October 2013, the Attorney General’s Office\n\n11 notified Ceara that both Officers John Haag and Joseph Deacon were on duty at\n\n12 the time and place of Ceara’s alleged incident. Finally, on November 22, 2013,\n\n13 after the three-year statute of limitations had expired, Ceara filed an amended\n\n14 complaint that replaced “Joseph Deacon” for “John Doe” as the defendant.\n\n15 After the case had proceeded through discovery, Deacon moved for\n\n16 summary judgment on the grounds that Ceara had not exhausted his\n\n17 administrative remedies and that Ceara’s claim was time barred. The District\n\n 5\n\f 17-569-pr\n Ceara v. Deacon\n\n 1 Court denied summary judgment on the ground of exhaustion, a ruling that has\n\n 2 not been appealed. The District Court, however, granted summary judgment on\n\n 3 the second ground, concluding that the amended complaint did not relate back\n\n 4 to the original complaint and was barred by the statute of limitations. Ceara\n\n 5 appeals, contending: (1) the District Court erred in determining that the amended\n\n 6 complaint did not relate back under Fed. R. Civ. P. 15(c)(1)(C) because it relied on\n\n 7 Barrow, a decision which Ceara claims was overruled by the Supreme Court’s\n\n 8 decision in Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010); and (2) the District\n\n 9 Court incorrectly concluded that the amended complaint did not relate back\n\n10 under Fed. R. Civ. P. 15(c)(1)(A) because Ceara had not satisfied the Rule’s due\n\n11 diligence requirement imported into that Rule by N.Y. C.P.L.R. § 1024. Because\n\n12 we agree with Ceara’s first contention—that his amended complaint related back\n\n13 to the original complaint pursuant to Rule 15(c)(1)(C)—we do not reach his\n\n14 second.\n\n15 This Court reviews a grant of summary judgment de novo. Gorman v.\n\n16 Rensselaer Cty., 910 F.3d 40, 44-45 (2d Cir. 2018). We also review de novo a district\n\n\n\n\n 6\n\f 17-569-pr\n Ceara v. Deacon\n\n 1 court’s determination that a pleading does not relate back under Rule 15(c). See\n\n 2 ASARCO LLC v. Goodwin, 756 F.3d 191, 202 (2d Cir. 2014).\n\n 3 DISCUSSION\n\n 4 I.\n\n 5 Rule 15(c)(1)(C) allows for an amended pleading to relate back to the date\n\n 6 of the original pleading if four conditions are met: “(1) the claim must have\n\n 7 arisen out of conduct set out in the original pleading; (2) the party to be brought\n\n 8 in must have received such notice that it will not be prejudiced in maintaining its\n\n 9 defense; (3) that party [knew or] should have known that, but for a mistake of\n\n10 identity, the original action would have been brought against it; and . . . [4] the\n\n11 second and third criteria are fulfilled within [the period provided by Rule\n\n12 4(m) for serving the summons and complaint], and . . . the original complaint\n\n13 [was] filed within the limitations period.” Hogan v. Fischer, 738 F.3d 509, 517 (2d\n\n14 Cir. 2013) (quoting Barrow, 66 F.3d at 468–69) (emphasis omitted).1\n\n 1\n Rule 15(c)(1)(C) states:\n (1) When an Amendment Relates Back. An amendment to a pleading relates\n back to the date of the original pleading when:\n ....\n (C) the amendment changes the party or the naming of the party against\n\n 7\n\f 17-569-pr\n Ceara v. Deacon\n\n 1 The parties agree that conditions (1), (2), and (4) have been met. The only\n\n 2 condition they contest is whether Deacon knew or should have known that the\n\n 3 original action would have been brought against him, but for a mistake of\n\n 4 identity. The District Court concluded that no mistake under Rule 15(c)(1)(C) had\n\n 5 occurred because of our Court’s decision in Barrow v. Wethersfield Police\n\n 6 Department. There we held that amendments to “John Doe complaints” to add\n\n 7 real names do not relate back under Rule 15(c)(1)(C) because such amendments\n\n 8 were made “not to correct a mistake but to correct a lack of knowledge.” 66 F.3d\n\n 9 at 470; see also Hogan, 738 F.3d at 518 (“This Court’s interpretation of Rule\n\n10 15(c)(1)(C) makes clear that the lack of knowledge of a John Doe defendant’s\n\n11 name does not constitute a ‘mistake of identity.’”). We conclude that although\n\n\n\n\n whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the\n period provided by Rule 4(m) for serving the summons and complaint, the\n party to be brought in by amendment:\n (i) received such notice of the action that it will not be prejudiced in\n defending on the merits; and\n (ii) knew or should have known that the action would have been\n brought against it, but for a mistake concerning the proper party’s\n identity.\n Fed. R. Civ. P. 15(c)(1)(C).\n\n 8\n\f 17-569-pr\n Ceara v. Deacon\n\n 1 Barrow remains good law, the District Court misapplied Barrow to the facts of this\n\n 2 case.\n\n 3 In Barrow, an incarcerated pro se plaintiff who contended that the\n\n 4 Wethersfield Police Department had used excessive force in arresting him filed a\n\n 5 timely complaint under § 1983 and named as defendants “the Wethersfield Police\n\n 6 Department, the Town of Wethersfield, and ten ‘John Doe’ officers.” 66 F.3d at\n\n 7 467. After the three-year statute of limitations for his § 1983 claims had expired,\n\n 8 the plaintiff moved to amend the complaint pursuant to Rule 15 to replace six\n\n 9 “John Does” with the names of six police officers. Id. The court granted the\n\n10 motion to amend. The six officers then moved to dismiss the amended complaint\n\n11 as untimely, which the district court granted.\n\n12 The Barrow court noted that the version of Rule 15(c)(1)(C) in effect at the\n\n13 time allowed relation back only if “the misidentified party ‘knew or should have\n\n14 known that, but for a mistake concerning the identity of the proper party, the\n\n15 action would have been brought against the party.’” Id. at 469 (quoting former\n\n16 Fed. R. Civ. P. 15(c)(3)(B)). Applying this Rule, the court explained that it was not\n\n17 faced with a plaintiff who mistakenly believed that suing the “John Does” rather\n\n 9\n\f 17-569-pr\n Ceara v. Deacon\n\n 1 than the actual officers would suffice. “Instead [the plaintiff] was informed by\n\n 2 the court . . . that he needed to name the individual officers as defendants.\n\n 3 Therefore, [the plaintiff] was not ‘mistaken’ for purposes of rule 15(c) . . . . [His]\n\n 4 subsequent failure to identify the individual officers is a separate matter to which\n\n 5 Rule 15(c) does not speak.” Id. Thus, the court held that “Rule 15(c) does not\n\n 6 allow an amended complaint adding new defendants to relate back if the newly-\n\n 7 added defendants were not named originally because the plaintiff did not know\n\n 8 their identities.” Id. at 470.\n\n 9 Barrow illustrates the rule in this Circuit regarding the relation back of\n\n10 amended John Doe complaints. There has been, however, substantial\n\n11 disagreement in the district courts in this Circuit regarding whether the Supreme\n\n12 Court’s decision in Krupski implicitly overruled Barrow. In Krupski, the Supreme\n\n13 Court “granted certiorari to resolve tension among the Circuits over the breadth\n\n14 of Rule 15(c)(1)(C)(ii).” Krupski v. Costa Crociere S.p.A., 560 U.S 538, 546 (2010).\n\n15 There, the plaintiff originally named as a defendant “Costa Cruise,” when she\n\n16 should have named the closely-related corporate entity, “Costa Crociere,” based\n\n17 on an incorrect understanding of the roles the respective entities played in the\n\n 10\n\f 17-569-pr\n Ceara v. Deacon\n\n 1 underlying events. Id. at 544. Before the statute of limitations had expired, the\n\n 2 plaintiff was made aware of the existence of Costa Crociere. Realizing her factual\n\n 3 error after the statute of limitations had expired, the plaintiff moved to amend\n\n 4 her complaint to substitute Costa Crociere as the defendant. The lower court held\n\n 5 that because the plaintiff knew (or should have known) of the proper party’s\n\n 6 identity, she had made a deliberate choice in not naming Costa Crociere as a\n\n 7 party in her original pleading. Accordingly, her failure to name the correct\n\n 8 defendant was not a “mistake,” and thus the amended complaint did not relate\n\n 9 back under Rule 15.\n\n10 The Supreme Court reversed. It held that the plaintiff’s knowledge of\n\n11 Costa Crociere’s existence did not preclude the possibility that the plaintiff had\n\n12 made a “mistake” by initially suing Costa Cruise. A determinative question for\n\n13 the Court was whether, under Rule 15(c)(1)(C)(ii), “Costa Crociere knew or\n\n14 should have known that it would have been named as a defendant but for an\n\n15 error. . . . For purposes of that inquiry, it would be error to conflate knowledge of\n\n16 a party’s existence with the absence of mistake.” Id. at 548. The Court explained\n\n17 that “a plaintiff’s knowledge of the existence of a party does not foreclose the\n\n 11\n\f 17-569-pr\n Ceara v. Deacon\n\n 1 possibility that she has made a mistake of identity about which that party should\n\n 2 have been aware.” Id. at 550.\n\n 3 Contrary to Ceara’s contention, Krupski did not abrogate Barrow, which\n\n 4 remains the law of this Circuit. This Court has continued to apply the rule\n\n 5 articulated in Barrow after Krupski was decided. See Hogan v. Fischer, 738 F.3d 509\n\n 6 (2d Cir. 2013) (applying Barrow); see also Sewell v. Bernardin, 795 F.3d 337, 342 (2d\n\n 7 Cir. 2015) (citing Barrow as the law of this Circuit after Krupski was decided);\n\n 8 Southerland v. City of New York, 680 F.3d 127, 138 n.12 (2d Cir. 2012) (same). In\n\n 9 Krupski the plaintiff had made an actual mistake because she “misunderstood\n\n10 crucial facts regarding the two companies’ identities” and sought to replace one\n\n11 party with another. Krupski, 560 U.S. at 555. She was not a “John Doe” litigant\n\n12 who did not know whom to name as a defendant; she made a mistake as to\n\n13 which of two parties to sue—parties whose identities she knew—because of her\n\n14 factual misunderstanding of the roles each played in the underlying events. In\n\n15 other words, unlike the plaintiff in Barrow, she was not replacing a John Doe\n\n16 placeholder with a party because she was initially unaware of the defendant’s\n\n17 true identity. Barrow, by contrast, deals with that precise situation. Thus Krupski\n\n 12\n\f 17-569-pr\n Ceara v. Deacon\n\n 1 neither abrogated nor reconfigured Barrow’s holding that an amendment to\n\n 2 replace a John Doe defendant is made “not to correct a mistake but to correct a\n\n 3 lack of knowledge” and is therefore not a mistake under Rule 15(c)(1)(C). Barrow,\n\n 4 66 F.3d at 470.\n\n 5 II.\n\n 6 Applying Barrow, we hold that the District Court erred by treating Ceara’s\n\n 7 complaint as a true “John Doe” complaint for the purposes of “mistake” under\n\n 8 Rule 15(c)(1)(C). It is of considerable significance that Ceara was an\n\n 9 unrepresented incarcerated litigant and the District Court was required to\n\n10 construe Ceara’s pro se pleading liberally and with “special solicitude.” Williams\n\n11 v. Correction Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (internal quotation\n\n12 marks omitted). As the Supreme Court has made clear, “a pro se complaint,\n\n13 however inartfully pleaded, must be held to less stringent standards than formal\n\n14 pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal\n\n15 quotation marks omitted).\n\n16 In the original complaint, Ceara referred to Deacon as “C.O. Deagan,”\n\n17 which is two letters removed from Deacon’s true last name. In addition, the\n\n 13\n\f 17-569-pr\n Ceara v. Deacon\n\n 1 complaint contained details identifying Deacon, including that he had a brother\n\n 2 who worked at the facility, that he was the younger of the two brothers, and that\n\n 3 he worked at Downstate on September 5, 2010 on the 7:00am-3:00pm shift in a\n\n 4 particular area of the facility. Having named “Deagan” as the defendant and\n\n 5 included additional identifying information, it is implausible that DOCCS and\n\n 6 Deacon did not know to whom Ceara was referring.\n\n 7 The amended complaint substituted “Joseph Deacon, D.O.C.C. Officer” for\n\n 8 “Correctional Officer John Doe.” It was clear from the first complaint to whom\n\n 9 Ceara was referring, and it was clear from the amended complaint that he was\n\n10 referring to the same individual. Consequently, no “new” party was added.\n\n11 Accordingly, we conclude that Ceara’s complaint was not a true “John Doe”\n\n12 complaint subject to the no-relation-back rule of Barrow, and the District Court\n\n13 erred by treating it as such.\n\n14 This conclusion is consistent with our law and with decisions from other\n\n15 circuits. In Datskow v. Teledyne, Inc. Cont’l Prod. Div., 899 F.2d 1298, 1301 (2d Cir.\n\n16 1990) we reversed the denial of a motion to amend because the “plaintiff did not\n\n17 select the wrong defendant but committed the lesser sin of mislabeling the right\n\n 14\n\f 17-569-pr\n Ceara v. Deacon\n\n 1 defendant.” And in Ingram v. Kumar, 585 F.2d. 566, 571 (2d Cir. 1978) we held that\n\n 2 relation back was proper when there was a “minor misspelling of defendant’s\n\n 3 name” as “Vijaya N. Kumar” in the original complaint rather than “Vijay S.\n\n 4 Kumar.” The court in Lindley v. Birmingham, City of Alabama, 652 F. App’x 801, 804\n\n 5 (11th Cir. 2016) held that relation back under Rule 15(c)(1)(C) was appropriate\n\n 6 when plaintiff named defendant “Nurse Frida” in the complaint and later filed\n\n 7 an amended complaint with the defendant’s correct, full name “Nurse Fredia L.\n\n 8 Taylor.” Similarly, the court in Roberts v. Michaels, 219 F.3d 775, 777-78 (8th Cir.\n\n 9 2000) held that “[t]he district court erred in failing to consider the well-\n\n10 recognized distinction between a complaint that sues the wrong party, and a\n\n11 complaint that sues the right party by the wrong name.”2\n\n 2\n See also Dandrea v. Malsbary Mfg. Co., 839 F.2d 163, 168 (3d Cir. 1988) (allowing\n relation back when plaintiff “sued the correct entity . . . using its former name”\n and sought “to amend the complaint . . . solely for the purpose of including the\n same party’s correct name”); c.f. Morrel v. Nationwide Mut. Fire Ins. Co., 188 F.3d\n 218, 224 (4th Cir. 1999) (“[Defendant’s] argument is premised on a thin reed—a\n misnomer in the spelling of the name of its insured—and is meritless. It has long\n been the rule in this circuit that service of process is not legally defective simply\n because the complaint misnames the defendant in some insignificant way.”);\n Barsten v. Dep’t of Interior, 896 F.2d 422, 423 (9th Cir. 1990) (determining that\n plaintiff’s misnaming of defendant was insignificant where “the allegations made\n in the body of the complaint make it plain that the party is intended as a\n\n 15\n\f 17-569-pr\n Ceara v. Deacon\n\n 1 As the Supreme Court noted in Krupski, “The only question under Rule\n\n 2 15(c)(1)(C)(ii) . . . is whether [a prospective defendant] knew or should have\n\n 3 known that, absent some mistake, the action would have been brought against\n\n 4 him.” Krupski, 560 U.S. at 549. While adding a new party, the Court reasoned,\n\n 5 may unfairly deny protection to which that party was entitled under the statute\n\n 6 of limitations, id. at 550, no such concern is present when a plaintiff correctly\n\n 7 names a previously misnamed party.\n\n 8 Ceara’s use of “John Doe” did not create a John Doe placeholder complaint\n\n 9 of the type at issue in Barrow. See Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir.\n\n10 1999) (quoting Barrow, 66 F.3d at 470) (addressing a typical “John Doe”\n\n11 complaint). Ceara knew and included Deacon’s name, but garbled the spelling.\n\n12 Mistakes of this kind, as Barrow recognized, fall squarely within the ambit of Rule\n\n13 15. Barrow, 66 F.3d at 469 (noting the Rule’s purpose as allowing amendments “to\n\n14 correct a formal defect such as a misnomer or misidentification” (internal\n\n15 emphasis and quotation marks omitted)). This conclusion is in keeping with the\n\n16 Rule’s general premise that “[t]he court should freely give leave [to amend] when\n\n defendant” (internal quotation marks omitted)).\n\n 16\n\f 17-569-pr\n Ceara v. Deacon\n\n1 justice so requires.” Fed. R. Civ. P. 15(a)(2). Therefore, Ceara’s amendment to\n\n2 correctly spell the defendant’s name relates back to his original timely complaint.\n\n3 CONCLUSION\n\n4 For the foregoing reasons, the judgment of the District Court is VACATED\n\n5 and the case is REMANDED to the District Court for further proceedings.\n\n\n\n\n 17", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369610/", "author_raw": "BARRINGTON D. PARKER, Circuit Judge:"}]} | CABRANES | PARKER | MATSUMOTO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4592357/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,443,886 | Christopher CHUNN v. AMTRAK, P.O. Coleman, P.O. Looney, Drug Enforcement Administration Agency, Colon, Supervising John Doe, Agent, DEA Officer Alex Colon, Special Agent John Hannon | Chunn v. Amtrak | 2019-02-21 | No. 17-3617-cv; August Term 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Jacobs, Kearse, Sack", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415316/", "author_raw": ""}]} | JACOBS | KEARSE | SACK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443886/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,593,002 | Fernandez v. Capra | 2019-02-22 | 16-4053 | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: JACOBS, CALABRESI, Circuit Judges; RAKOFF,* District Judge.", "parties": "", "opinions": [{"author": "DENNIS JACOBS, Circuit Judge:", "type": "010combined", "text": "16‐4053 \nFernandez v. Capra \n \n\n\n United States Court of Appeals\n for the Second Circuit\n AUGUST TERM 2018 \n No. 16‐4053 \n\n \n\n PABLO FERNANDEZ, \n Petitioner‐Appellant, \n\n v. \n\n MICHAEL CAPRA, \n Respondent‐Appellee, \n\n CHRISTOPHER ARTUZ, PHILIP HEATH, CHARLES GREINER, \n Respondents. \n\n \n\n ARGUED: DECEMBER 12, 2018 \n DECIDED: FEBRUARY 22, 2019 \n\n Before: JACOBS, CALABRESI, Circuit Judges; RAKOFF,* District Judge. \n\n Pablo Fernandez appeals from a judgment of the United States District \nCourt for the Southern District of New York (Woods, J., on recommendation \nfrom Gorenstein, J.), denying his petition for a writ of habeas corpus pursuant to \n28 U.S.C. § 2254. The district court concluded that the high bar for relief under \nthe Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was not \nsatisfied, and rejected Fernandez’s claims that: (i) the prosecutors violated his \nBrady rights, and (ii) the prosecutors violated his right to a fair trial by \nknowingly offering perjured testimony at his trial. We agree with the district \ncourt that the state courts properly rejected Fernandez’s Brady claim. However, \nwe conclude that the state courts unreasonably determined the facts in light of \n\n*Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, \nsitting by designation. \n\fthe evidence presented in the state court proceeding when it rejected Fernandez’s \nfair trial claim. Accordingly, we reverse and remand the judgment of the district \ncourt, with direction to comply with our February 5, 2019 order. \n \n MAIA S. LICHTENSTEIN (WITH DAVID W. \n BROWN, DANIEL J. BELLER, JONATHAN \n SILBERSTEIN‐LOEB ON THE BRIEF), PAUL, \n WEISS, RIFKIND, WHARTON & GARRISON \n LLP, NEW YORK, NY. \n \n SHEILA ANNE MARIE O’SHEA, ASSISTANT \n DISTRICT ATTORNEY, FOR CYRUS VANCE, \n DISTRICT ATTORNEY FOR NEW YORK \n COUNTY, NEW YORK, NY. \n\nDENNIS JACOBS, Circuit Judge: \n\n The petitioner, Pablo Fernandez, brings suit under § 2254 challenging his \n\nstate court conviction for murder‐for‐hire. Fernandez was convicted by a jury of \n\nmurdering Manny Quintero, a member of a rival gang. Fernandez argues that he \n\nis entitled to a writ of habeas corpus on two bases. First, Fernandez claims that \n\nhis rights under Brady v. Maryland, 373 U.S. 83 (1963), were violated because the \n\nprosecutors failed to promptly disclose evidence that the lead investigator on his \n\ncase, Albert Officer Melino, had been caught selling cocaine to an undercover \n\npolice officer before he joined the New York Police Department (“NYPD”). \n\nSecond, Fernandez claims that the prosecutors violated his right to a fair trial by \n\nknowingly offering perjured testimony of two eyewitnesses‐‐Jesus Canela and \n\n\n 2 \n\n \n\fHickliff Rosario, both of whom recanted years after the trial and claimed that \n\nOfficer Melino had pressured them into accusing Fernandez. \n\n The New York State Supreme Court rejected Fernandez’s claims. As to the \n\nBrady claim, the state court held that the prosecutors’ duty to disclose the \n\nevidence of Officer Melino’s prior criminal activity was not triggered until two \n\ndays after Fernandez was convicted, and was promptly disclosed then. The \n\ncourt also concluded that there was no reasonable probability that this evidence \n\nwould have changed the outcome of the trial in any event, because of the \n\noverwhelming evidence of guilt, including identifications by four eyewitnesses. \n\nAs to the fair trial claim, the state court found that the recanting witnesses were \n\nnot credible, and therefore concluded that the prosecutors had not offered \n\nperjured testimony at Fernandez’s trial. \n\n Fernandez filed a § 2254 petition in the United States District Court for the \n\nSouthern District of New York, claiming that the state courts erred in denying \n\nrelief. The district court (Woods, J., on recommendation of Gorenstein, M.J.) \n\ndenied the petition, concluding that the high bar for relief under the \n\nAntiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was not \n\nsurmounted. \n\n\n 3 \n\n \n\f We conclude that state courts reasonably applied clearly established \n\nfederal law by: (1) denying Fernandez’s Brady claim on the ground of \n\nmateriality; and (2) denying Fernandez’s motion for a new trial based on the \n\nrecantation of Hickliff Rosario. However, we conclude that the state court’s \n\nrejection of Jesus Canela’s recantation‐‐in part premised on the finding that \n\nCanela was “trying too hard to be convincing,” App’x 44‐‐was an “unreasonable \n\ndetermination of the facts in light of the evidence presented,” 28 U.S.C. § 2254(d), \n\nand therefore that the state court unreasonably denied Fernandez’s (second) \n\nmotion for a new trial. Accordingly, we reverse. \n\n I. BACKGROUND \n\n A. The Crime and Investigation \n\n Fernandez was convicted of murdering Manny Quintero. The \n\ncircumstances of the murder are as follows. \n\n On June 10, 1993, Quintero was standing outside an apartment building at \n\n504 West 135th Street at Amsterdam Avenue. At approximately 6:00 p.m., a car \n\narrived at the block, and a man jumped out of the passenger side. He fired \n\nseveral shots, killing Quintero, and injuring a bystander, Henry Gomez. The \n\nshooter got back into the car, and drove away. Neither the shooter nor the driver \n\nof the car was apprehended at that time. \n 4 \n\n \n\f The police interviewed several of the bystanders, including two teenage \n\nbrothers, Hickliff and George Rosario, who were cousins of Quintero. Hickliff \n\n(we refer to the brothers by their first name) signed a written statement in which \n\nhe described the shooter as a white Hispanic male, approximately 35 years old, \n\nabout 5’8’’ tall, and with gray hair tied in a ponytail. Hickliff was also brought to \n\nthe police station and shown a photo array that did not include a picture of \n\nFernandez. He selected a picture of a gray‐haired man who he claimed looked \n\nlike the shooter but was not the shooter. George was also brought to the police \n\nstation and shown three photographs, none of Fernandez. He did not identify \n\nany of the men as the shooter. The investigation stalled, and the case went cold. \n\n Two years later, Officer Albert Melino, an investigator at the NYPD \n\nHomicide Investigation Unit, renewed the search for Quintero’s killer, based on \n\ninformation provided by two cooperators, Martin Mejias and Raymond Rivera, \n\nwho identified Fernandez as the murderer hired for $2,500 by one Jose Luis \n\nMarte to kill Quintero. Marte had murdered a relative of Quintero, and feared \n\nretaliation. Neither of them observed the murder, but Mejias reported to Officer \n\nMelino that Fernandez had confessed to him. \n\n\n\n\n 5 \n\n \n\f As part of his re‐investigation, Officer Melino met with the Rosario \n\nbrothers at their home in April 1995. They confirmed that they had witnessed \n\nthe murder, and described what they had seen that day. Officer Melino showed \n\nHickliff a photo array, and Hickliff identified Fernandez as the shooter. At a \n\nlater meeting, George was also shown a photo array, and identified Fernandez as \n\nthe shooter. On July 20, 1995, Officer Melino brought the brothers to the District \n\nAttorney’s Office to separately show them a line‐up. Both identified Fernandez \n\nas the shooter. Later, in recantation, the Rosario brothers averred that their \n\nidentification of Fernandez was procured by Officer Melino’s improper \n\nsuggestions and cues. \n\n Officer Melino had also been canvassing the neighborhood for additional \n\nwitnesses. Two weeks before trial, in January 1996, he located two new \n\neyewitnesses: Jesus Canela and Manuel Medina. Canela, a teenager, told Officer \n\nMelino that he had observed the murder, and described the shooter as 30‐40 \n\nyears old, 5’11’’, and with gray hair in a ponytail. Canela had never spoken to \n\nany law enforcement about the murder. Medina reported to Officer Melino that \n\nhe saw the shooter fleeing in the passenger seat of a car that was stopped at a red \n\n\n\n\n 6 \n\n \n\flight in front of where Medina was sitting. Medina reported that the passenger \n\nwas wearing dark clothing and had medium‐length brown or gray hair. \n\n B. The Trial \n\n Fernandez went on trial in February 1996. The following evidence was \n\npresented. (As discussed more below, some of this testimony was later \n\nrecanted.) \n\n The prosecution offered testimony from Rivera and Mejias, who testified \n\nthat Marte had hired Fernandez to kill Quintero. Rivera testified that he met up \n\nwith Fernandez and Marte after the murder, and that Fernandez told them that \n\nhe shot Quintero and “left him like a piece of shit on the floor.” App’x 1023. \n\nMejias testified that he observed Marte give Fernandez money at Marte’s home \n\nless than a month after the murder. Neither Mejias nor Rivera observed the \n\nmurder. \n\n Four eyewitnesses testified: Hickliff, George, Canela, and Medina. \n\n Hickliff testified that he was playing basketball near 504 West 135th Street \n\nwhen a car pulled up in front of the building, and a man emerged and began \n\nshooting. He identified Fernandez as the shooter. He also testified that he \n\nidentified Fernandez as the shooter in a lineup prior to trial. \n\n\n\n 7 \n\n \n\f George testified that he was riding his bicycle on West 135th Street when he \n\nsaw a car make a U‐turn on the block and a man get out. The man fired four or \n\nfive shots, and George saw Quintero run toward the building. He identified \n\nFernandez as the shooter. George also testified that he identified Fernandez in a \n\nlineup prior to trial. \n\n Canela testified that he was standing in front of 504 West 135th Street when \n\nhe saw a car pull up in front of the building. A man got out and started shooting \n\nan Uzi. He identified Fernandez as the shooter, and testified that he recognized \n\nhis nose, his eyes, and his mouth. He denied ever viewing a photo array or \n\nlineup. \n\n Medina testified that he was playing dominos at the scene when he heard \n\ngun shots. In the passenger seat of a car driving down the street at a low speed, \n\nMedina recognized the right profile of Fernandez’s face, including his cheek \n\nbones, his eyebrows, jaw, nose, and ear. He recalled that the passenger’s hair \n\nwas brown or gray. \n\n The second victim of the shooting, Henry Gomez, did not testify at \n\nFernandez’s trial because he could not be located. \n\n\n\n\n 8 \n\n \n\f The defense case primarily focused on the differences between \n\nFernandez’s appearance at the time of the shooting (he was a dark‐skinned \n\nHispanic, in his 20s, with short hair) and the description of the shooter given by \n\nthe eyewitnesses to the investigators, who described the shooter as a \n\nlight‐skinned Hispanic male, 30‐40 years old, and wearing his gray hair in a \n\nponytail. A defense witness testified that Fernandez had short hair, and never \n\nwore his hair in a ponytail. Fernandez also offered one eyewitness who testified \n\nthat Fernandez was not the shooter. \n\n On February 6, 1996, Fernandez was convicted of Quintero’s murder. He \n\nwas sentenced to 25 years to life. \n\n C. Post‐Trial Proceedings \n\n On February 15, 1996, nine days after the trial concluded, the prosecution \n\ndisclosed to the defense that, on February 9, Officer Melino had been arrested \n\nand charged with Criminal Sale of a Controlled Substance. The charges \n\nstemmed from events that took place in 1991 and 1992, before Officer Melino had \n\nentered the police academy. The prosecutors had obtained videotape and \n\naudiotape evidence from New York State troopers in which Officer Melino sold a \n\nhalf a kilogram of cocaine to an undercover cop. \n\n\n\n 9 \n\n \n\f The defense filed a motion to set aside the verdict, arguing under Brady \n\nthat the prosecution violated his rights by failing to promptly disclose criminal \n\nconduct by the lead police investigator. The state court held a hearing, at which \n\nthe Chief of the Official Corruption Unit of the New York District Attorney’s \n\nOffice, William Burmeister, set forth the timeline of the discovery of Officer \n\nMelino’s criminal wrongdoing, and offered evidence that the prosecutors had no \n\nmore than speculative evidence of the drug sales prior to February 8, two days \n\nafter Fernandez was convicted. \n\n The state court found no Brady violation because the prosecutors disclosed \n\nthe evidence promptly after Melino was arrested, and ruled that any Brady \n\nviolation would have been harmless in any event, because trial evidence of guilt \n\nwas overwhelming. The Appellate Division, First Department unanimously \n\naffirmed the conviction on the ground of harmlessness only. A judge on the \n\nCourt of Appeals denied leave to appeal. \n\n Seven years later, in 2003, Fernandez filed his first motion for a new trial. \n\nThe motion was supported by affidavits in which the Rosario brothers recanted \n\ntheir identification of Fernandez, and swore that their pre‐trial identifications of \n\nFernandez in the photo array and at the line‐up were coerced by Officer Melino. \n\n\n 10 \n\n \n\fFernandez also offered an affidavit from Gomez (the second victim of the \n\nshooting), who swore that Fernandez had not shot him. \n\n After a hearing at which Hickliff and Gomez testified, the state court \n\nfound that Hickliff’s recantation and Gomez’s negative identification were not \n\ncredible, and that there was therefore no basis for a new trial. The Appellate \n\nDivision, First Department unanimously affirmed, and a judge on the Court of \n\nAppeals denied leave to appeal. \n\n Another four years later, in 2010, Fernandez filed a second motion for a \n\nnew trial. In support of this motion, Fernandez offered an affidavit in which \n\nCanela also recanted his identification of Fernandez, and also claimed that his \n\naccusation was coerced by Officer Melino. The trial court held another hearing \n\nand heard testimony from Canela. The court again denied the motion, finding \n\nthat Canela’s recantation was not credible, and therefore that there was no basis \n\nfor a new trial. The Appellate Division, First Department denied leave to appeal. \n\n D. Current Proceedings \n\n On October 10, 2000, Fernandez filed a § 2254 petition for a writ of habeas \n\ncorpus in the Southern District of New York. There is no point in recounting the \n\nfull procedural history of this case. As relevant to this appeal, on August 30, \n\n\n\n 11 \n\n \n\f2013, Fernandez filed a Third Amended Petition for a writ of habeas corpus, \n\narguing that: (i) the prosecution violated his Brady rights; and (ii) the \n\nprosecution violated his right to a fair trial by procuring and knowingly using \n\nfalse testimony at trial. On October 9, 2014, Magistrate Judge Gorenstein issued a \n\nReport and Recommendation concluding that the petition did not satisfy the \n\nhigh standard for relief under AEDPA. Judge Wood adopted the \n\nrecommendation, largely for the same reasons, and entered judgment in favor of \n\nthe respondents. \n\n This appeal ensued. \n\n II. STANDARD OF REVIEW \n\n III. BRADY \n\n “There are three components of a true Brady violation: [1] The evidence at \n\nissue must be favorable to the accused, either because it is exculpatory, or \n\nbecause it is impeaching; [2] that evidence must have been suppressed by the \n\nState, either willfully or inadvertently; and [3] prejudice must have ensued.” \n\nStrickler v. Greene, 527 U.S. 263, 281–82 (1999). \n\n Fernandez argues that the state court unreasonably applied clearly \n\nestablished federal law when it concluded: (i) that, because the prosecutors \n\npromptly disclosed the evidence of Officer Melino’s misconduct to his counsel, \n 12 \n\n \n\fthere was no Brady violation; and (ii) that any Brady violation was, in any event, \n\nharmless. \n\n A. \n\n As to the timing of the disclosure, the only witness at the state court \n\nhearing was the Chief of the Official Corruption Unit of the New York County \n\nDistrict Attorney’s Office, William Burmeister, who offered the following \n\ntestimony. \n\n Fernandez’s trial ended in the jury verdict on February 6. On January 30, \n\n1996, Burmeister learned in an internal NYPD meeting that the Internal Affairs \n\nunit had received a “log” that morning that Officer Melino had been involved in \n\nthe sale of narcotics. The tip had come from the New York State troopers, who \n\nhad initially conducted the investigation. On February 5, Burmeister met with \n\nthe NYPD officers who had interviewed the troopers. The NYPD officers \n\nreported that they had been told that Officer Melino had been investigated in \n\n1991 and 1992 regarding the sale of 500 grams of cocaine, as well as proposed \n\nadditional sales of additional kilos of cocaine. \n\n On February 6, Burmeister interviewed the state troopers, one of whom \n\nhad negotiated the drug sale with Officer Melino while undercover. The \n\n\n 13 \n\n \n\ftroopers also brought tapes, photographs, and documents that supported their \n\nallegations, and Burmeister reviewed at least part of one of the tapes at the \n\nmeeting. The same day, the troopers provided copies of all of the tapes to the \n\nNYPD Internal Affairs Unit. Burmeister began reviewing the tapes on February \n\n7, he finished his review on February 8, and ordered Officer Melino’s arrest that \n\nsame day. The prosecutors disclosed the arrest to Fernandez’s counsel on \n\nFebruary 15. \n\n The state court denied the Brady motion, concluding that the prosecutor’s \n\nduty to disclose the evidence was not triggered until February 8, 1996 (two days \n\nafter the jury verdict), because until then the evidence of Melino’s drug dealing \n\nwas only speculative, and because the prosecution disclosed the evidence \n\npromptly thereafter. 2 See United States v. Agurs, 427 U.S. 97, 109 n.16 (1976) \n\n\n\n\n \n2 The state court stated in full: \n\n In the instant case, ADA Burmeister had only an unconfirmed \n allegation that Officer Melino had sold narcotics approximately four years \n ago to an undercover New York State trooper. The court finds that after \n receiving this information on January 30, 1996, ADA Burmeister \n investigated the allegations in an expedient and professional manner. He \n met with the law enforcement agents involved in the investigation \n including the undercover officer, examined the documents available and \n listened to the audiotapes. Once he decided that the allegations had merit, \n he ordered that the defendant be arrested and the arrest took place on \n 14 \n\n \n\f(noting that the prosecution need not disclose “preliminary, challenged, or \n\nspeculative information”). Fernandez argues that this was an unreasonable \n\napplication of clearly established federal law. We agree. \n\n On February 6, Burmeister met with the two State Troopers who had \n\ninvestigated Officer Melino, including the trooper who negotiated the narcotics \n\nsale with Officer Melino while undercover, and questioned the troopers “at some \n\nlength.” App’x 1342. Having spoken to the state trooper who actually \n\nparticipated in the drug sale with Officer Melino, Burmeister’s knowledge of \n\nOfficer Melino’s wrongdoing was no longer “preliminary, challenged, or \n\n\n\n\n \n February 9, 1996. The People promptly notified defense counsel that \n Officer Melino had been arrested. \n\n The court finds that the People’s Brady obligation was not \n triggered until February 8, 1996, the day the People reviewed the \n audiotapes and concomitantly ordered the arrest of the defendant. Up to \n this point, the court finds that the allegations were presumed to be more a \n matter of supposition than substance. Thus, since the People were under \n no duty to disclose this information to the defendant until February 8, \n 1996, which was after the jury reached its verdict, the defendant’s motion \n is denied. \n\nApp’x 1392. \n\n \n\n 15 \n\n \n\fspeculative”. Agurs, 427 U.S. at 109 n.16. The source was sufficiently credible to \n\ntrigger a disclosure obligation on February 6. \n\n The state court concluded that “[t]he People’s Brady obligation was not \n\ntriggered until February 8, 1996, the day the People reviewed the audiotapes and \n\nconcomitantly ordered the arrest of the defendant.” App’x 1392. The state court \n\nfound that Burmeister “investigated the allegations in an expedient and \n\nprofessional manner.” App’x 1392. But while Burmeister may have reasonably \n\nsought a high degree of certainty in the credibility of the accusation before \n\nordering the arrest of a NYPD officer, it was not reasonable for Burmeister to \n\ndelay the disclosure to Fernandez of credible evidence from an undercover \n\nofficer that Officer Melino had negotiated a sale of cocaine. \n\n The state court also relied on Burmeister’s skepticism of the allegations \n\nagainst Officer Melino. See App’x 1391 (“ADA Burmeister testified and the court \n\nfinds as a fact that he did not attempt to contact anyone regarding Melino prior \n\nto reviewing the audiotapes because he assumed that law enforcement officials \n\nwould have followed up on this information sooner if it were reliable.”). But “if \n\nthere were questions about the reliability of the exculpatory information, it was \n\nthe prerogative of the defendant and his counsel‐‐and not of the prosecution‐‐to \n\n\n 16 \n\n \n\fexercise judgment in determining whether the defendant should make use of it.” \n\nDiSimone v. Phillips, 461 F.3d 181, 195 (2d Cir. 2006). \n\n Accordingly, we conclude that the state court’s determination that no \n\nBrady obligation arose until February 8, 1996 was an unreasonable application of \n\nclearly established federal law. \n\n B. \n\n However, the state court denied the motion on the alternative ground that \n\nany Brady violation was, in any event, harmless. 3 This was a reasonable \n\napplication of clearly established law. \n\n\n \n3 The state court concluded: \n\n Impeachment material may be exculpatory in some cases as probative of \n the credibility of a witness, especially where the testimony is critical to the \n People’s case. See People v. Steadman, supra. However, Melinaʹs \n testimony was largely collateral to the issues at trial. He did not testify to \n seeing the defendant commit the murders or fleeing the scene but told the \n jury of his unsuccessful attempts to locate certain witnesses. Instead, the \n People called four eyewitnesses to the shooting and one witness who was \n present when the defendant bragged about committing the murder. \n\n In light of this evidence against the defendant, defense counsel’s claim \n that she would have employed a different trial technique is spurious. The \n main witnesses against the defendant were the four witnesses to the \n homicide and the witness who discussed the defendant’s admissions. \n Officer Melino’s prior drug sale is totally irrelevant to this critical \n testimony and would have been of no avail to counsel in cross examining \n these witnesses. \n\n 17 \n\n \n\f Fernandez argues that evidence of Melino’s drug deals would have been \n\npowerful impeachment material at his trial. The state court acknowledged that \n\n“[i]mpeachment material may be exculpatory in some cases as probative of the \n\ncredibility of a witness, especially where the testimony is critical to the People’s \n\ncase.” App’x 1393. But the court reasonably concluded that the impeachment \n\nmaterial would have been of little value to Fernandez’s counsel given that \n\nMelino’s testimony was “largely collateral to the issues at trial”, “ministerial in \n\nnature”, and “totally irrelevant to th[e] critical testimony” “of four witnesses to \n\nthe homicide and the witness who discussed the defendant’s admissions.” \n\n\n \n Finally, as the People indicate in their response, if they knew of the \n allegation against Officer Melino, they would not have called him as a \n witness since his testimony was cumulative. \n\n The court finds that Melino’s testimony was ministerial in nature and not \n material to the issue of the defendantʹs guilt. Furthermore, the charges \n against Melino involve activities that occurred allegedly prior to his \n becoming a police officer. In evaluating the allegations against Melino and \n the limited nature of his testimony, the court finds that had the defense \n been aware that Officer Melino was accused of selling a half‐kilo of \n cocaine in 1991/92, prior to becoming a New York City Police Officer, \n there is no reasonable probability or possibility that the result would have \n been different. Although the defendant may have found some productive \n use of the undisclosed information concerning Melino, that is simply not \n enough to transform it into Brady material. See People v. Howard, 127 \n A.D.2d 109 (1st Depʹt 1987). \n\nApp’x 1393. \n\n 18 \n\n \n\fApp’x 1393. A review of the record reveals that this characterization of Officer \n\nMelino’s testimony (and the other evidence offered at trial) is well‐supported. \n\nOfficer Melino testified at trial primarily about his work on the investigation, \n\nincluding his efforts to locate witnesses and his assistance in arranging lineups \n\nfor Hickliff and George. And, at the time the state court considered this motion, \n\nthere were four eyewitnesses who had unequivocally identified Fernandez as the \n\nshooter. \n\n On appeal, Fernandez argues that his trial counsel might have uncovered \n\nevidence of witness tampering if his counsel had cross‐examined Officer Melino \n\nabout his prior drug sales. But the state court reasonably credited the State’s \n\nassertion they would not have called Officer Melino as a witness if they knew of \n\nthe drug allegations against him. Moreover, the bad act evidence that would \n\nhave been used to impeach Officer Melino (sale of drugs) does not directly \n\nimplicate the allegations of wrongdoing at trial (suborning perjury), making it \n\nless likely that cross‐examination would have achieved such a revelation. \n\n Fernandez points out that the recantations by the Rosarios and Canela \n\nsupport his argument that his attorneys would have discovered investigative \n\nmisconduct if they were aware of Officer Melino’s drug dealing. But at the time \n\n\n 19 \n\n \n\fthe state court made its decision, these witnesses had not recanted, and, as the \n\nFirst Department then noted, “[t]here is not one iota of evidence that the \n\nidentifications were the product of coercion or suggestion, or that Melino \n\nharbored some secret motive to influence four witnesses to falsely implicate the \n\ndefendant.” App’x 1444. We review the reasonableness of the state court’s \n\ndecision based on the evidence available to the state court at the time it decided \n\nthe motion. Given that there was no evidence of such misconduct at the time it \n\ndenied this motion, the state court acted reasonably. \n\n Accordingly, the state court’s denial of Fernandez’s motion to set aside his \n\nconviction on the basis of Brady was in no way an unreasonable application of \n\nclearly established federal law. \n\n IV. \n\n Fernandez filed two motions for a new trial on the ground that the \n\nprosecutors violated his right to a fair trial by knowingly offering perjured \n\ntestimony at his trial. On this appeal, he argues that the state court’s credibility \n\nfindings in these decisions were “unreasonable determination[s] of the facts in \n\nlight of the evidence presented at the State court proceeding.” 28 U.S.C. \n\n§ 2254(d). \n\n\n\n 20 \n\n \n\f “In order to be granted a new trial on the ground that a witness committed \n\nperjury, the defendant must show that (i) the witness actually committed \n\nperjury; (ii) the alleged perjury was material; (iii) the government knew or \n\nshould have known of the perjury at [the] time of trial; and (iv) the perjured \n\ntestimony remained undisclosed during trial.” United States v. Cromitie, 727 \n\nF.3d 194, 221 (2d Cir. 2013) (alteration in original) (quoting United States v. \n\nJosephberg, 562 F.3d 478, 494 (2d Cir. 2009)). \n\n A. \n\n Fernandez’s first motion for a new trial, filed in 2003, was supported by \n\naffidavits from the two Rosario brothers, in which they recanted their \n\nidentification of Fernandez as the shooter at trial, and swore that their pre‐trial \n\nidentifications of Fernandez in the photo array and at the line‐up were coerced \n\nby Officer Melino. Fernandez also offered an affidavit from the second victim of \n\nthe shooting, Henry Gomez, who swore that the person who shot him was not \n\nFernandez. Gomez had not been located at the time of Fernandez’s trial. \n\n The state court held a five‐day hearing on the motion at which, among \n\nothers, Hickliff and Gomez testified. \n\n\n\n\n 21 \n\n \n\f Hickliff testified that he lied when he testified at Fernandez’s trial; that, \n\ncontrary to his trial testimony, Fernandez was not the shooter; and that \n\n“[e]verything is different” about the appearance of the shooter as compared to \n\nFernandez. App’x 1683. As to his photo array identification, Hickliff testified \n\nthat he “d[id]n’t see the shooter [in the photo array],” but was convinced to \n\nchoose Fernandez’s photo by Officer Melino, who “had his finger on number \n\nfour like that so [Hickliff’s] focus was just there.” App’x 1673‐74. He identified \n\nFernandez at trial because he was “brain‐washed, you know, to pick him out,” \n\nand “never believed it [was him]” but he “just went along with what the \n\ndetective was telling [him].” App’x 1685. \n\n Gomez testified that, on the day of the murder, he was standing in front of \n\n504 West 135th street when “a car pulled up and a man came out and with a like a \n\ntype of like an Uzi and he started shooting us all.” App’x 1549. He testified that \n\nhe “g[o]t a good look at the man who got out of the car,” and that it was not \n\nFernandez, who did not look “anything like [the man who shot him].” App’x \n\n1550‐52. Gomez decided to testify after two of Fernandez’s relatives approached \n\nhim in prison (where he was serving a term for kidnapping), and showed him a \n\npicture of Fernandez, and explained that he had been convicted of Quintero’s \n\n\n 22 \n\n \n\fmurder. Gomez told them that Fernandez was not the shooter, and agreed to \n\ntestify in this case “[b]ecause [he] want[ed] to free someone who is innocent.” \n\nApp’x 1563. \n\n The Government called Detective Connolly, the NYPD officer who \n\ninvestigated the recantations of George and Hickliff. Detective Connolly testified \n\nthat he met with Hickliff in August 2004, that Hickliff said that he had gone to \n\nFernandez’s lawyer’s office with his mother (and Fernandez’s mother), and that \n\nhe signed a piece of paper that he had not read to “avoid [a] confrontation.” \n\nApp’x 1790‐91. He also told Connolly that a man “started coming around the \n\nneighborhood looking for him, [who h]e believed . . . to be a relative of Pablo \n\nFernandez,” App’x 1791, and who had “offered him some money to stay \n\ninvolved in it, but he refused the money and did not take it,” App’x 1791. \n\nHickliff also told Connolly that he had told the truth at trial when he accused \n\nFernandez. At the same hearing, Hickliff denied making any of these statements \n\nto Connolly. \n\n George Rosario did not testify at the hearing, and the state court’s decision \n\ndid not address his affidavit in which he recanted. \n\n\n\n\n 23 \n\n \n\f The state court found that Hickliff’s recantation was incredible and that \n\nthere was therefore no basis to find that the prosecutor had offered perjured \n\ntestimony at Fernandez’s trial: \n\n I did not find Mr. Rosario to be a credible witness. While he testified \n that the defendant was not the shooter and described the \n identification process, he avoided virtually every other question that \n was put to him, claiming a lack of memory even as to recent events. \n I also found credible Detective Connelly’s account that Mr. Rosario \n had made statements several months earlier that contradicted his \n testimony at the hearing. . . . Given Hickliff Rosario’s lack of \n credibility, I do not believe his recantation testimony would be likely \n to affect the verdict. \n\nApp’x 35. 4 This was not an unreasonable finding in light of the evidence \n\npresented at the hearing. \n\n The record supports the state court’s finding that Hickliff was extremely \n\nevasive during his testimony. Among other things, Hickliff did not remember: \n\nparticulars of the meeting at which he signed his recantation affidavit; details \n\nfrom his affidavit; what he did when he walked into court on the morning of his \n\n\n\n\n \n4 The state court also denied Fernandez’s motion for a new trial on the basis of new \nevidence, finding that Gomez’s testimony was incredible, and therefore that Fernandez \nhad not established that the “new evidence is of such a character as to create a \nprobability that . . . the verdict would have been more favorable to the defendant.” \nApp’x 35. Fernandez does not collaterally appeal the denial of his motion on this \nground. \n\n 24 \n\n \n\ftestimony; and anything about his initial meeting with the private investigator to \n\nwhom he recanted. \n\n The state court’s finding that Detective Connolly’s testimony was credible \n\nwas supported by Connolly’s clear memory of the details of the meeting he \n\nattended with Hickliff and what Hickliff told him at that meeting (including that \n\nHickliff had signed an affidavit that he hadn’t read and that he did not lie at \n\nFernandez’s trial). That testimony was supported by a memorandum that \n\nDetective Connolly wrote soon after he met with Hickliff. Moreover, Connolly’s \n\ntestimony‐‐specifically, that Hickliff admitted to receiving an offer of money to \n\nrecant‐‐supplied a motive to lie, notwithstanding Hickliff’s statement that he \n\nrefused the money. \n\n Accordingly, we defer to the state court’s reasonable finding that the \n\nrecantation of Hickliff was not credible, and conclude that the state court \n\nreasonably denied Fernandez’s motion for a new trial. \n\n B. \n\n Fernandez’s second motion for a new trial, filed in 2010, was supported by \n\nan affidavit from Jesus Canela, which recanted his identification of Fernandez \n\n\n\n\n 25 \n\n \n\fand claimed that Officer Melino had coerced his accusation. The state court held \n\na five‐day hearing, at which the following evidence was offered. \n\n 1. \n\n Canela testified that he identified Fernandez as the shooter at trial even \n\nthough he did not recognize him, did not believe that Fernandez had shot \n\nQuintero, and had “[n]ever [seen Fernandez] in [his] life.” App’x 2523. When \n\nasked why he falsely accused Fernandez, Canela testified that he was scared \n\nbecause it was his first time in court, and he felt pressure from the detectives. \n\n At Fernandez’s trial, Canela had testified that he was never shown any \n\nphotos by the detectives. At the hearing, however, Canela testified that he had \n\nbeen shown a photo array by Officer Melino when he met with him two years \n\nafter the murder, and though he did not recognize anyone in the pictures, he \n\nchose the picture of Fernandez because the detectives “were emphasizing one \n\nspecific picture, and that picture was shown to [him] over and over and over \n\nagain.” App’x 2522. The detectives told him that they “ha[d] the guy”, and it \n\nwas Fernandez; and they “actually helped [him] believe that [Fernandez] was the \n\nguy.” App’x 2589. Canela also testified that the detectives told him where \n\nFernandez would be sitting in the courtroom when Canela testified. \n\n\n 26 \n\n \n\f Canela’s wife, Edmonds, testified that Canela told her when they first \n\nstarted dating in the early 2000s that he had falsely identified Fernandez and he \n\nhad felt coerced into making an ID. \n\n The Government called Detective Tebbens, the officer who worked with \n\nOfficer Melino recanvassing the neighborhood where the homicide took place \n\nbefore trial. Tebbens testified that, at Canela’s first meeting with them, he told \n\nthem what happened on the day of the murder, and gave a physical description \n\nof the shooter. While Canela did not identify the shooter by name, he told the \n\ndetectives he would “recognize the shooter again if he saw him.” App’x 2622. \n\nDetective Tebbens and Officer Melino then made arrangements to bring Canela \n\nto the District Attorney’s Office, where he was interviewed by the Assistant \n\nDistrict Attorney. Detective Tebbens testified that he never showed Canela any \n\nmugshots or photos at any time during the investigation; and that he never \n\nobserved Officer Melino showing Canela any mugshots or photos. He further \n\ndenied that he ever told Canela where Fernandez would be seated at the trial. \n\n Officer Melino did not testify. \n\n\n\n\n 27 \n\n \n\f 2. \n\n The state court denied Fernandez’s motion, finding that Canela’s \n\nrecantation was not credible and that there was therefore no basis to find that the \n\nprosecutor had offered perjured testimony at the trial. Fernandez argues that \n\nthis credibility determination was an unreasonable determination of the facts in \n\nlight of the evidence presented at the hearing. See 28 U.S.C. § 2254(d). We agree. \n\nA close reading of the state court decision demonstrates that its conclusion is \n\nunsupported and unsupportable. \n\n The state court’s decision opened with an acknowledgment that “the main \n\nissue at the hearing was the credibility of Jesus Canela. Indeed, if his hearing \n\ntestimony were to be fully credited, then the defendant would be entitled to a \n\nnew trial.” App’x 44. Given the record facing the state court at the time of \n\nFernandez’s second motion, this was a sound observation. At that time, Officer \n\nMelino had been compromised; two of four witnesses who identified Fernandez \n\nat trial had recanted (one by affidavit); and the second victim of the shooting \n\n(who had not been located at the time of trial) had come forward to say that \n\nFernandez did not shoot him. In light of this record, the credibility of Canela’s \n\ntestimony took on critical weight. \n\n\n 28 \n\n \n\f The state court allowed that, “[a]t first blush, Mr. Canela’s hearing \n\ntestimony seemed somewhat plausible. A troubled teenager at the time of the \n\ntrial, he has become a responsible adult who has lived a stable, normal life for \n\nsome time.” App’x 44. This observation was well‐supported by the record. \n\nCanela testified at the hearing that he was living with his parents in Harlem, that \n\nhe had been working as a cook at a restaurant for six years, and that he was a few \n\ncredits shy of receiving an associate degree from Monroe College in Hospitality \n\nand Culinary Arts. \n\n Moreover, the court found that “there [was no] showing at the hearing that \n\nhe had a motive to lie.” App’x 44. Again, this finding was well‐supported by the \n\nrecord. There was no credited evidence at the hearing that Canela had been \n\nthreatened or coerced by Fernandez or any of his family members to come \n\nforward with his recantation. \n\n The court then acknowledged that Canela’s testimony had a ring of truth \n\nin light of the allegations against Melino: “[Canela’s] primary assertion at the \n\nhearing‐‐that he had been pressured and assisted by corrupt police officers into \n\ngiving false testimony at trial‐‐could not be rejected summarily, given his youth \n\n\n\n\n 29 \n\n \n\fand lack of sophistication at the time coupled with the fact that one of the officers \n\nwas terminated for unrelated misconduct.” App’x 44. \n\n The state court’s first negative observation about Canela’s testimony was \n\nthat his “demeanor at the hearing . . . left much room for doubt,” specifically, \n\nthat Canela “came across as someone who was trying too hard to be convincing.” \n\nApp’x 44. While deference is owed to a judge who observed the witness’s \n\ndemeanor, see In re Payne, 707 F.3d 195, 201 (2d Cir. 2013), this observation is \n\nunderwhelming. Moreover, that same reason was the only reason given for \n\ndisbelieving Canela’s wife, who testified that Canela had confessed to her‐‐long \n\nbefore‐‐that he lied at Fernandez’s trial. \n\n The state court went on to question why Canela “had waited so long to \n\ncome forward” if he “had felt terrible about the situation for years.” App’x 44. \n\nBut the state court did not consider the compelling explanation that Canela \n\noffered: “I did not tell [earlier] about the things I am telling you now, for the \n\nsimple fact, the reason that I was afraid myself. . . . I did not want to get into any \n\nmore trouble with the law. So I did not say anything.” App’x 2580. Canela’s \n\nrecantation was a confession to a felony (perjury); it was unreasonable for the \n\n\n\n\n 30 \n\n \n\fstate court to place great weight on a citizen’s prolonged hesitation to voluntarily \n\nplace himself in peril of imprisonment. \n\n The state court pointed out that, “like anyone who recants, we now know \n\nthat [Canela] has lied under oath on at least one occasion.” App’x 45. True \n\nenough as far as it goes, and it is a useful canon about recantation. But this \n\nobservation says nothing about the one critical inquiry here, which is when he \n\nlied, then or now‐‐and whether he lied to his wife in the years intervening. It is \n\nnot a sufficient basis for discrediting a witness’s recantation testimony, because it \n\nis true of every witness who recants. \n\n The state court then turned away from Canela’s testimony at the hearing, \n\nand focused on his testimony at Fernandez’s trial: \n\n Any lingering doubts concerning Mr. Canela’s credibility at \n the hearing were put to rest by his trial testimony which I have read \n and re‐read countless times. As I said, I can accept the possibility \n that in the heyday of the crack epidemic in the 90’s a young person \n might have been coached and even coerced by overzealous police \n officers. But I find it very hard to believe that such a compromised \n witness would be able to withstand the cross‐examination of a \n highly‐skilled defense attorney. Even though Mr. Canela was an \n unsophisticated teenager at the defendant’s trial, he not only stuck \n to his story but he was also able to provide the kind of details on \n direct and cross that one would expect from a truthteller. \n\nApp’x 45. As the court conceded, an 18‐year‐old witness would be vulnerable to \n\ncoercion by an overzealous cop. But the state court went on to discredit the \n 31 \n\n \n\frecantation because Canela’s detailed testimony at trial could be “expect[ed] \n\nfrom a truthteller”, App’x 45, and drew the (unaccountable) inference that if he \n\ntold the truth about facts and circumstances that he did not recant, he likely told \n\nthe whole truth. This amounts to very little. \n\n As an initial matter, the state court judge did not preside over Fernandez’s \n\ntrial; so his determination that Canela’s testimony at that trial was credible is \n\ntherefore entitled to reduced deference. See In re Payne, 707 F.3d at 201 (“We \n\nhave given . . . somewhat lesser deference to credibility findings based on an \n\nanalysis of a witness’s testimony.”). More important, much of Canela’s trial \n\ntestimony can be reconciled with his recantation. At trial, Canela testified \n\nprimarily about the circumstances of the murder: what he was doing that day, \n\nwhat the car carrying the gunman looked like, where and how the car parked on \n\nthe street, what the shooter did when he emerged from the car, who was shot, \n\nhow the car left the scene, and who he spoke to after the murder. Canela’s \n\nrecantation does not cast doubt on any of these particulars, because, as the state \n\ncourt acknowledged later in the opinion, Canela “has not recanted his testimony \n\nregarding the manner in which the shooting carried out, including his \n\ndescription of the car and the gun.” App’x 49. \n\n\n 32 \n\n \n\f Canela’s recantation contradicts only a small part of his trial testimony, \n\nregarding a few discrete (albeit critical) issues: who the shooter was, whether \n\nCanela was shown mugshots by the detectives at any point, whether Canela was \n\ntold where the defendant would be sitting in court, and whether anyone took \n\nnotes during his meetings with the detectives and the Assistant District Attorney. \n\nOver the nearly 100 pages of testimony on direct and cross‐examination, Canela \n\nwas asked fewer than 30 questions on these topics, and his answers did not \n\nrequire detail or elaboration; Canela answered the majority of those questions \n\nwith a simple “no”. The credibility of monosyllables is difficult to glean from \n\nreading a transcript. It was, therefore, unreasonable for the state court to infer \n\nthat Canela’s recantation was not credible simply because Canela provided \n\ncredible “details” and withstood “cross‐examination of a highly‐skilled defense \n\nattorney” at Fernandez’s trial. \n\n The state court did appropriately consider the portions of Canela’s trial \n\ntestimony that were directly contradicted by his recantation, specifically that he \n\n“had not been shown any mug shots by the police, that no one had told him \n\nwhere the defendant would be sitting, and that no one had been taking notes \n\nwhen he was interviewed by the Assistant District Attorney.” App’x 46. But \n\n\n 33 \n\n \n\fCanela explained twice during his testimony that he had lied at trial about these \n\nissues because the detectives told him not to testify at trial about their \n\ndiscussions. See App’x 2523 (“[T]hey mentioned that I don’t have to say \n\nanything that they, you know, they asked me not to say.”); App’x 2588 (“I \n\ntestified untruthfully at trial because, when I met with the detectives, they told \n\nme I don’t have to say anything that I speak with them, like anything that I talk \n\nabout with them doesn’t have to be said in court.”). A teenager’s admitted fear \n\nof the detectives, and of appearing in court, lends plausibility to testimony that \n\nhe felt pressure to follow the detectives’ instructions regarding how to testify in \n\ncourt (and what to testify about). Having found that Canela was plausible at first \n\nblush, with the ring of truth, and no motive to lie, the state court offered no \n\nreason to disbelieve this explanation. \n\n The state court also discredited Canela because his testimony “regarding \n\nthe claimed efforts of police officers to solicit a false identification” was “short on \n\ndetails.” App’x 45. The record demonstrates that Canela explained several times \n\nhow, at some length, and in detail why he felt pressured by the officers to \n\nidentify Fernandez in the photo array and to accuse him at trial. Canela testified \n\nthat the officers brought him to an office, they showed him some pictures, and \n\n\n 34 \n\n \n\fthey pressured him into identifying Fernandez by repeatedly emphasizing that \n\none photo: \n\n Well, they were showing me pictures of the people they were \n showing me, but they were emphasizing one specific picture, and \n that picture was shown to me over and over and over again. And I \n felt, in a sense, I mean, I felt like if there was some sort of pressure \n being applied towards me, when it came to that same picture, and \n there came a point where it was asked so many times where I said, \n you know what, if that’s the person, then that’s the person. You \n know. I pretty much gave into saying itʹs obvious that you want me \n to point this person out, so I pointed the person out. \n\nApp’x 2522. This testimony is a straightforward account that Officer Melino \n\nheavy‐handedly encouraged Canela to select Fernandez. Canela also testified \n\nthat the detectives directly told him that they “ha[d] the guy,” and it was \n\nFernandez; and they “actually helped [him] believe that [Fernandez] was the \n\nguy.” App’x 2589. Canela’s account is much too specific to support an adverse \n\ncredibility finding based on vagueness. Certainly, the state court did not \n\nmention anything it found missing. \n\n Finally, the state court discredited Canela’s testimony that he lied at \n\nFernandez’s trial because he was “afraid” and “scared,” finding that Canela \n\nfailed to “describe anything the officers said or did to instill such fear in him.” \n\nApp’x 47. But Canela testified that he was afraid because he had never been a \n\nwitness in court before: “I was afraid. I didn’t know what to do anymore. It was \n 35 \n\n \n\fmy first time in court. I had never seen anything. I had never been in court \n\nbefore.” App’x 2589. The state court offered no a reason to discount this \n\nexplanation. Canela’s statement that he was frightened is corroborated by \n\ntestimony he gave at Fernandez’s trial, in which Canela explained that he only \n\nspoke with investigators about the murder “[b]ecause they said that they was \n\n[sic] going to protect me. Nothing would happen to me.” App’x 507. \n\n The state court’s decision contains sound reasons to credit Canela’s \n\nrecantation, and no plausible reason to discredit it. Accordingly, the state court’s \n\nrejection of Canela’s recantation was an “unreasonable determination of the facts \n\nin light of the evidence presented,” 28 U.S.C. § 2254(d); therefore, the state court \n\nunreasonably denied Fernandez’s second motion for a new trial. \n\n Based on Canela’s testimony at the state court hearing, Fernandez has \n\nsatisfied the first element of his claim for a new trial based on prosecutorial \n\nmisconduct: Canela’s perjured testimony at the trial. We still must determine \n\nwhether Fernandez has made out the other elements of his claim, namely that: \n\n“(ii) the alleged perjury was material; (iii) the government knew or should have \n\nknown of the perjury at [the] time of trial; and (iv) the perjured testimony \n\nremained undisclosed during trial.” Cromitie, 727 F.3d at 221. As the state court \n\n\n 36 \n\n \n\fconcluded, the other elements are satisfied: “[I]f [Canela’s] hearing testimony [is] \n\nfully credited, then the defendant would be entitled to a new trial.” App’x 44. \n\n The State does not dispute that knowledge of the perjury is imputed from \n\nOfficer Melino to the prosecution team, or that the perjured testimony remained \n\nundisclosed at trial. \n\n As to materiality, Fernandez is entitled to a new trial “if there is any \n\nreasonable likelihood that the false testimony could have affected the judgment \n\nof the jury.” Cromitie, 727 F.3d at 221‐22 (quoting Agurs, 427 U.S. at 103). \n\n“Indeed, if it is established that the government knowingly permitted the \n\nintroduction of false testimony reversal is ‘virtually automatic.’” United States v. \n\nWallach, 935 F.2d 445, 456 (2d Cir. 1991) (quoting United States v. Stofsky, 527 \n\nF.2d 237, 243 (2d Cir. 1975)). \n\n There was more than a “reasonable likelihood” that Canela’s eyewitness \n\ntestimony influenced the jury. Canela unequivocally identified Fernandez as the \n\nshooter at trial, and “eyewitness testimony is among the most influential, even as \n\nit is among the least reliable, forms of proof.” Kampshoff v. Smith, 698 F.2d 581, \n\n587 (2d Cir. 1983). “Whenever such proof is admitted, there is a genuine \n\nlikelihood that the jury will base its decision on it.” Id. \n\n\n 37 \n\n \n\f IV. CONCLUSION \n\n Accordingly, we REVERSE and REMAND to the district court, with \n\ninstruction to comply with our February 5, 2019 Order, directing the district \n\ncourt to issue a writ of habeas corpus to Fernandez by the sixtieth calendar day \n\nafter February 5, 2019 unless the state has, by that time, taken concrete and \n\nsubstantial steps to retry Fernandez. \n\n \n\n\n\n\n 38", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370255/", "author_raw": "DENNIS JACOBS, Circuit Judge:"}]} | JACOBS | CALABRESI | RAKOFF | 1 | {"JACOBS": ", Circuit", "CALABRESI": ", Circuit", "RAKOFF": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593002/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,593,435 | Fernandez v. Capra | 2019-02-22 | 16-4053 | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: JACOBS, CALABRESI, Circuit Judges; RAKOFF,* District Judge.", "parties": "", "opinions": [{"author": "DENNIS JACOBS, Circuit Judge:", "type": "010combined", "text": "16‐4053 \nFernandez v. Capra \n \n\n\n United States Court of Appeals\n for the Second Circuit\n AUGUST TERM 2018 \n No. 16‐4053 \n\n \n\n PABLO FERNANDEZ, \n Petitioner‐Appellant, \n\n v. \n\n MICHAEL CAPRA, \n Respondent‐Appellee, \n\n CHRISTOPHER ARTUZ, PHILIP HEATH, CHARLES GREINER, \n Respondents. \n\n \n\n ARGUED: DECEMBER 12, 2018 \n DECIDED: FEBRUARY 22, 2019 \n\n Before: JACOBS, CALABRESI, Circuit Judges; RAKOFF,* District Judge. \n\n Pablo Fernandez appeals from a judgment of the United States District \nCourt for the Southern District of New York (Wood, J., on recommendation from \nGorenstein, J.), denying his petition for a writ of habeas corpus pursuant to 28 \nU.S.C. § 2254. The district court concluded that the high bar for relief under the \nAntiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was not \nsatisfied, and rejected Fernandez’s claims that: (i) the prosecutors violated his \nBrady rights, and (ii) the prosecutors violated his right to a fair trial by \nknowingly offering perjured testimony at his trial. We agree with the district \ncourt that the state courts properly rejected Fernandez’s Brady claim. However, \nwe conclude that the state courts unreasonably determined the facts in light of \n\n*Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, \nsitting by designation. \n\fthe evidence presented in the state court proceeding when it rejected Fernandez’s \nfair trial claim. Accordingly, we reverse and remand the judgment of the district \ncourt, with direction to comply with our February 5, 2019 order. \n \n MAIA S. LICHTENSTEIN (WITH DAVID W. \n BROWN, DANIEL J. BELLER, JONATHAN \n SILBERSTEIN‐LOEB ON THE BRIEF), PAUL, \n WEISS, RIFKIND, WHARTON & GARRISON \n LLP, NEW YORK, NY. \n \n SHEILA ANNE MARIE O’SHEA, ASSISTANT \n DISTRICT ATTORNEY, FOR CYRUS VANCE, \n DISTRICT ATTORNEY FOR NEW YORK \n COUNTY, NEW YORK, NY. \n\nDENNIS JACOBS, Circuit Judge: \n\n The petitioner, Pablo Fernandez, brings suit under § 2254 challenging his \n\nstate court conviction for murder‐for‐hire. Fernandez was convicted by a jury of \n\nmurdering Manny Quintero, a member of a rival gang. Fernandez argues that he \n\nis entitled to a writ of habeas corpus on two bases. First, Fernandez claims that \n\nhis rights under Brady v. Maryland, 373 U.S. 83 (1963), were violated because the \n\nprosecutors failed to promptly disclose evidence that the lead investigator on his \n\ncase, Albert Officer Melino, had been caught selling cocaine to an undercover \n\npolice officer before he joined the New York Police Department (“NYPD”). \n\nSecond, Fernandez claims that the prosecutors violated his right to a fair trial by \n\nknowingly offering perjured testimony of two eyewitnesses‐‐Jesus Canela and \n\n\n 2 \n\n \n\fHickliff Rosario, both of whom recanted years after the trial and claimed that \n\nOfficer Melino had pressured them into accusing Fernandez. \n\n The New York State Supreme Court rejected Fernandez’s claims. As to the \n\nBrady claim, the state court held that the prosecutors’ duty to disclose the \n\nevidence of Officer Melino’s prior criminal activity was not triggered until two \n\ndays after Fernandez was convicted, and was promptly disclosed then. The \n\ncourt also concluded that there was no reasonable probability that this evidence \n\nwould have changed the outcome of the trial in any event, because of the \n\noverwhelming evidence of guilt, including identifications by four eyewitnesses. \n\nAs to the fair trial claim, the state court found that the recanting witnesses were \n\nnot credible, and therefore concluded that the prosecutors had not offered \n\nperjured testimony at Fernandez’s trial. \n\n Fernandez filed a § 2254 petition in the United States District Court for the \n\nSouthern District of New York, claiming that the state courts erred in denying \n\nrelief. The district court (Wood, J., on recommendation of Gorenstein, M.J.) \n\ndenied the petition, concluding that the high bar for relief under the \n\nAntiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was not \n\nsurmounted. \n\n\n 3 \n\n \n\f We conclude that state courts reasonably applied clearly established \n\nfederal law by: (1) denying Fernandez’s Brady claim on the ground of \n\nmateriality; and (2) denying Fernandez’s motion for a new trial based on the \n\nrecantation of Hickliff Rosario. However, we conclude that the state court’s \n\nrejection of Jesus Canela’s recantation‐‐in part premised on the finding that \n\nCanela was “trying too hard to be convincing,” App’x 44‐‐was an “unreasonable \n\ndetermination of the facts in light of the evidence presented,” 28 U.S.C. § 2254(d), \n\nand therefore that the state court unreasonably denied Fernandez’s (second) \n\nmotion for a new trial. Accordingly, we reverse. \n\n I. BACKGROUND \n\n A. The Crime and Investigation \n\n Fernandez was convicted of murdering Manny Quintero. The \n\ncircumstances of the murder are as follows. \n\n On June 10, 1993, Quintero was standing outside an apartment building at \n\n504 West 135th Street at Amsterdam Avenue. At approximately 6:00 p.m., a car \n\narrived at the block, and a man jumped out of the passenger side. He fired \n\nseveral shots, killing Quintero, and injuring a bystander, Henry Gomez. The \n\nshooter got back into the car, and drove away. Neither the shooter nor the driver \n\nof the car was apprehended at that time. \n 4 \n\n \n\f The police interviewed several of the bystanders, including two teenage \n\nbrothers, Hickliff and George Rosario, who were cousins of Quintero. Hickliff \n\n(we refer to the brothers by their first name) signed a written statement in which \n\nhe described the shooter as a white Hispanic male, approximately 35 years old, \n\nabout 5’8’’ tall, and with gray hair tied in a ponytail. Hickliff was also brought to \n\nthe police station and shown a photo array that did not include a picture of \n\nFernandez. He selected a picture of a gray‐haired man who he claimed looked \n\nlike the shooter but was not the shooter. George was also brought to the police \n\nstation and shown three photographs, none of Fernandez. He did not identify \n\nany of the men as the shooter. The investigation stalled, and the case went cold. \n\n Two years later, Officer Albert Melino, an investigator at the NYPD \n\nHomicide Investigation Unit, renewed the search for Quintero’s killer, based on \n\ninformation provided by two cooperators, Martin Mejias and Raymond Rivera, \n\nwho identified Fernandez as the murderer hired for $2,500 by one Jose Luis \n\nMarte to kill Quintero. Marte had murdered a relative of Quintero, and feared \n\nretaliation. Neither of them observed the murder, but Mejias reported to Officer \n\nMelino that Fernandez had confessed to him. \n\n\n\n\n 5 \n\n \n\f As part of his re‐investigation, Officer Melino met with the Rosario \n\nbrothers at their home in April 1995. They confirmed that they had witnessed \n\nthe murder, and described what they had seen that day. Officer Melino showed \n\nHickliff a photo array, and Hickliff identified Fernandez as the shooter. At a \n\nlater meeting, George was also shown a photo array, and identified Fernandez as \n\nthe shooter. On July 20, 1995, Officer Melino brought the brothers to the District \n\nAttorney’s Office to separately show them a line‐up. Both identified Fernandez \n\nas the shooter. Later, in recantation, the Rosario brothers averred that their \n\nidentification of Fernandez was procured by Officer Melino’s improper \n\nsuggestions and cues. \n\n Officer Melino had also been canvassing the neighborhood for additional \n\nwitnesses. Two weeks before trial, in January 1996, he located two new \n\neyewitnesses: Jesus Canela and Manuel Medina. Canela, a teenager, told Officer \n\nMelino that he had observed the murder, and described the shooter as 30‐40 \n\nyears old, 5’11’’, and with gray hair in a ponytail. Canela had never spoken to \n\nany law enforcement about the murder. Medina reported to Officer Melino that \n\nhe saw the shooter fleeing in the passenger seat of a car that was stopped at a red \n\n\n\n\n 6 \n\n \n\flight in front of where Medina was sitting. Medina reported that the passenger \n\nwas wearing dark clothing and had medium‐length brown or gray hair. \n\n B. The Trial \n\n Fernandez went on trial in February 1996. The following evidence was \n\npresented. (As discussed more below, some of this testimony was later \n\nrecanted.) \n\n The prosecution offered testimony from Rivera and Mejias, who testified \n\nthat Marte had hired Fernandez to kill Quintero. Rivera testified that he met up \n\nwith Fernandez and Marte after the murder, and that Fernandez told them that \n\nhe shot Quintero and “left him like a piece of shit on the floor.” App’x 1023. \n\nMejias testified that he observed Marte give Fernandez money at Marte’s home \n\nless than a month after the murder. Neither Mejias nor Rivera observed the \n\nmurder. \n\n Four eyewitnesses testified: Hickliff, George, Canela, and Medina. \n\n Hickliff testified that he was playing basketball near 504 West 135th Street \n\nwhen a car pulled up in front of the building, and a man emerged and began \n\nshooting. He identified Fernandez as the shooter. He also testified that he \n\nidentified Fernandez as the shooter in a lineup prior to trial. \n\n\n\n 7 \n\n \n\f George testified that he was riding his bicycle on West 135th Street when he \n\nsaw a car make a U‐turn on the block and a man get out. The man fired four or \n\nfive shots, and George saw Quintero run toward the building. He identified \n\nFernandez as the shooter. George also testified that he identified Fernandez in a \n\nlineup prior to trial. \n\n Canela testified that he was standing in front of 504 West 135th Street when \n\nhe saw a car pull up in front of the building. A man got out and started shooting \n\nan Uzi. He identified Fernandez as the shooter, and testified that he recognized \n\nhis nose, his eyes, and his mouth. He denied ever viewing a photo array or \n\nlineup. \n\n Medina testified that he was playing dominos at the scene when he heard \n\ngun shots. In the passenger seat of a car driving down the street at a low speed, \n\nMedina recognized the right profile of Fernandez’s face, including his cheek \n\nbones, his eyebrows, jaw, nose, and ear. He recalled that the passenger’s hair \n\nwas brown or gray. \n\n The second victim of the shooting, Henry Gomez, did not testify at \n\nFernandez’s trial because he could not be located. \n\n\n\n\n 8 \n\n \n\f The defense case primarily focused on the differences between \n\nFernandez’s appearance at the time of the shooting (he was a dark‐skinned \n\nHispanic, in his 20s, with short hair) and the description of the shooter given by \n\nthe eyewitnesses to the investigators, who described the shooter as a \n\nlight‐skinned Hispanic male, 30‐40 years old, and wearing his gray hair in a \n\nponytail. A defense witness testified that Fernandez had short hair, and never \n\nwore his hair in a ponytail. Fernandez also offered one eyewitness who testified \n\nthat Fernandez was not the shooter. \n\n On February 6, 1996, Fernandez was convicted of Quintero’s murder. He \n\nwas sentenced to 25 years to life. \n\n C. Post‐Trial Proceedings \n\n On February 15, 1996, nine days after the trial concluded, the prosecution \n\ndisclosed to the defense that, on February 9, Officer Melino had been arrested \n\nand charged with Criminal Sale of a Controlled Substance. The charges \n\nstemmed from events that took place in 1991 and 1992, before Officer Melino had \n\nentered the police academy. The prosecutors had obtained videotape and \n\naudiotape evidence from New York State troopers in which Officer Melino sold a \n\nhalf a kilogram of cocaine to an undercover cop. \n\n\n\n 9 \n\n \n\f The defense filed a motion to set aside the verdict, arguing under Brady \n\nthat the prosecution violated his rights by failing to promptly disclose criminal \n\nconduct by the lead police investigator. The state court held a hearing, at which \n\nthe Chief of the Official Corruption Unit of the New York District Attorney’s \n\nOffice, William Burmeister, set forth the timeline of the discovery of Officer \n\nMelino’s criminal wrongdoing, and offered evidence that the prosecutors had no \n\nmore than speculative evidence of the drug sales prior to February 8, two days \n\nafter Fernandez was convicted. \n\n The state court found no Brady violation because the prosecutors disclosed \n\nthe evidence promptly after Melino was arrested, and ruled that any Brady \n\nviolation would have been harmless in any event, because trial evidence of guilt \n\nwas overwhelming. The Appellate Division, First Department unanimously \n\naffirmed the conviction on the ground of harmlessness only. A judge on the \n\nCourt of Appeals denied leave to appeal. \n\n Seven years later, in 2003, Fernandez filed his first motion for a new trial. \n\nThe motion was supported by affidavits in which the Rosario brothers recanted \n\ntheir identification of Fernandez, and swore that their pre‐trial identifications of \n\nFernandez in the photo array and at the line‐up were coerced by Officer Melino. \n\n\n 10 \n\n \n\fFernandez also offered an affidavit from Gomez (the second victim of the \n\nshooting), who swore that Fernandez had not shot him. \n\n After a hearing at which Hickliff and Gomez testified, the state court \n\nfound that Hickliff’s recantation and Gomez’s negative identification were not \n\ncredible, and that there was therefore no basis for a new trial. The Appellate \n\nDivision, First Department unanimously affirmed, and a judge on the Court of \n\nAppeals denied leave to appeal. \n\n Another four years later, in 2010, Fernandez filed a second motion for a \n\nnew trial. In support of this motion, Fernandez offered an affidavit in which \n\nCanela also recanted his identification of Fernandez, and also claimed that his \n\naccusation was coerced by Officer Melino. The trial court held another hearing \n\nand heard testimony from Canela. The court again denied the motion, finding \n\nthat Canela’s recantation was not credible, and therefore that there was no basis \n\nfor a new trial. The Appellate Division, First Department denied leave to appeal. \n\n D. Current Proceedings \n\n On October 10, 2000, Fernandez filed a § 2254 petition for a writ of habeas \n\ncorpus in the Southern District of New York. There is no point in recounting the \n\nfull procedural history of this case. As relevant to this appeal, on August 30, \n\n\n\n 11 \n\n \n\f2013, Fernandez filed a Third Amended Petition for a writ of habeas corpus, \n\narguing that: (i) the prosecution violated his Brady rights; and (ii) the \n\nprosecution violated his right to a fair trial by procuring and knowingly using \n\nfalse testimony at trial. On October 9, 2014, Magistrate Judge Gorenstein issued a \n\nReport and Recommendation concluding that the petition did not satisfy the \n\nhigh standard for relief under AEDPA. Judge Wood adopted the \n\nrecommendation, largely for the same reasons, and entered judgment in favor of \n\nthe respondents. \n\n This appeal ensued. \n\n II. STANDARD OF REVIEW \n\n AEDPA instructs federal courts in habeas cases to give great deference \n\nto state court decisions when those decisions are “on the merits.” 28 U.S.C. \n\n§ 2254(d). In such cases, we may grant a habeas petition only if the state court \n\ndecision: \n\n (1) resulted in a decision that was contrary to, or involved an \n unreasonable application of, clearly established Federal law, as \n determined by the Supreme Court of the United States; or \n\n (2) resulted in a decision that was based on an unreasonable \n determination of the facts in light of the evidence presented in the \n State court proceeding. \n\n\n\n 12 \n\n \n\fId.1 The standard for granting the writ is deliberately “difficult to meet and \n\nhighly deferential.” Contreras v. Artus, 778 F.3d 97, 106 (2d Cir. 2015) (internal \n\npunctuation omitted) (quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)). \n\n The petitioner’s claims were adjudicated on the merits in the state court \n\nproceedings. \n\n III. BRADY \n\n “There are three components of a true Brady violation: [1] The evidence at \n\nissue must be favorable to the accused, either because it is exculpatory, or \n\nbecause it is impeaching; [2] that evidence must have been suppressed by the \n\nState, either willfully or inadvertently; and [3] prejudice must have ensued.” \n\nStrickler v. Greene, 527 U.S. 263, 281–82 (1999). \n\n Fernandez argues that the state court unreasonably applied clearly \n\nestablished federal law when it concluded: (i) that, because the prosecutors \n\npromptly disclosed the evidence of Officer Melino’s misconduct to his counsel, \n\n\n \n1 Section 2254(e)(1) also provides a standard for evaluating a state court’s findings of \nfacts: “[A] determination of a factual issue made by a State court shall be presumed to \nbe correct” unless the petitioner rebuts that presumption “by clear and convincing \nevidence.” The Supreme Court has declined to define the “precise relationship between \n§ 2254(d)(2) and § 2243(e)(1).” Brumfield v. Cain, 135 S.Ct. 2269, 2282 (2015). We \nproceed under the assumption that “satisfaction of either inquiry is sufficient.” \nChanner v. Brooks, 320 F.3d 188, 194 (2d Cir. 2003). \n\n 13 \n\n \n\fthere was no Brady violation; and (ii) that any Brady violation was, in any event, \n\nharmless. \n\n A. \n\n As to the timing of the disclosure, the only witness at the state court \n\nhearing was the Chief of the Official Corruption Unit of the New York County \n\nDistrict Attorney’s Office, William Burmeister, who offered the following \n\ntestimony. \n\n Fernandez’s trial ended in the jury verdict on February 6. On January 30, \n\n1996, Burmeister learned in an internal NYPD meeting that the Internal Affairs \n\nunit had received a “log” that morning that Officer Melino had been involved in \n\nthe sale of narcotics. The tip had come from the New York State troopers, who \n\nhad initially conducted the investigation. On February 5, Burmeister met with \n\nthe NYPD officers who had interviewed the troopers. The NYPD officers \n\nreported that they had been told that Officer Melino had been investigated in \n\n1991 and 1992 regarding the sale of 500 grams of cocaine, as well as proposed \n\nadditional sales of additional kilos of cocaine. \n\n On February 6, Burmeister interviewed the state troopers, one of whom \n\nhad negotiated the drug sale with Officer Melino while undercover. The \n\n\n 14 \n\n \n\ftroopers also brought tapes, photographs, and documents that supported their \n\nallegations, and Burmeister reviewed at least part of one of the tapes at the \n\nmeeting. The same day, the troopers provided copies of all of the tapes to the \n\nNYPD Internal Affairs Unit. Burmeister began reviewing the tapes on February \n\n7, he finished his review on February 8, and ordered Officer Melino’s arrest that \n\nsame day. The prosecutors disclosed the arrest to Fernandez’s counsel on \n\nFebruary 15. \n\n The state court denied the Brady motion, concluding that the prosecutor’s \n\nduty to disclose the evidence was not triggered until February 8, 1996 (two days \n\nafter the jury verdict), because until then the evidence of Melino’s drug dealing \n\nwas only speculative, and because the prosecution disclosed the evidence \n\npromptly thereafter. 2 See United States v. Agurs, 427 U.S. 97, 109 n.16 (1976) \n\n\n\n\n \n2 The state court stated in full: \n\n In the instant case, ADA Burmeister had only an unconfirmed \n allegation that Officer Melino had sold narcotics approximately four years \n ago to an undercover New York State trooper. The court finds that after \n receiving this information on January 30, 1996, ADA Burmeister \n investigated the allegations in an expedient and professional manner. He \n met with the law enforcement agents involved in the investigation \n including the undercover officer, examined the documents available and \n listened to the audiotapes. Once he decided that the allegations had merit, \n he ordered that the defendant be arrested and the arrest took place on \n 15 \n\n \n\f(noting that the prosecution need not disclose “preliminary, challenged, or \n\nspeculative information”). Fernandez argues that this was an unreasonable \n\napplication of clearly established federal law. We agree. \n\n On February 6, Burmeister met with the two State Troopers who had \n\ninvestigated Officer Melino, including the trooper who negotiated the narcotics \n\nsale with Officer Melino while undercover, and questioned the troopers “at some \n\nlength.” App’x 1342. Having spoken to the state trooper who actually \n\nparticipated in the drug sale with Officer Melino, Burmeister’s knowledge of \n\nOfficer Melino’s wrongdoing was no longer “preliminary, challenged, or \n\n\n\n\n \n February 9, 1996. The People promptly notified defense counsel that \n Officer Melino had been arrested. \n\n The court finds that the People’s Brady obligation was not \n triggered until February 8, 1996, the day the People reviewed the \n audiotapes and concomitantly ordered the arrest of the defendant. Up to \n this point, the court finds that the allegations were presumed to be more a \n matter of supposition than substance. Thus, since the People were under \n no duty to disclose this information to the defendant until February 8, \n 1996, which was after the jury reached its verdict, the defendant’s motion \n is denied. \n\nApp’x 1392. \n\n \n\n 16 \n\n \n\fspeculative”. Agurs, 427 U.S. at 109 n.16. The source was sufficiently credible to \n\ntrigger a disclosure obligation on February 6. \n\n The state court concluded that “[t]he People’s Brady obligation was not \n\ntriggered until February 8, 1996, the day the People reviewed the audiotapes and \n\nconcomitantly ordered the arrest of the defendant.” App’x 1392. The state court \n\nfound that Burmeister “investigated the allegations in an expedient and \n\nprofessional manner.” App’x 1392. But while Burmeister may have reasonably \n\nsought a high degree of certainty in the credibility of the accusation before \n\nordering the arrest of a NYPD officer, it was not reasonable for Burmeister to \n\ndelay the disclosure to Fernandez of credible evidence from an undercover \n\nofficer that Officer Melino had negotiated a sale of cocaine. \n\n The state court also relied on Burmeister’s skepticism of the allegations \n\nagainst Officer Melino. See App’x 1391 (“ADA Burmeister testified and the court \n\nfinds as a fact that he did not attempt to contact anyone regarding Melino prior \n\nto reviewing the audiotapes because he assumed that law enforcement officials \n\nwould have followed up on this information sooner if it were reliable.”). But “if \n\nthere were questions about the reliability of the exculpatory information, it was \n\nthe prerogative of the defendant and his counsel‐‐and not of the prosecution‐‐to \n\n\n 17 \n\n \n\fexercise judgment in determining whether the defendant should make use of it.” \n\nDiSimone v. Phillips, 461 F.3d 181, 195 (2d Cir. 2006). \n\n Accordingly, we conclude that the state court’s determination that no \n\nBrady obligation arose until February 8, 1996 was an unreasonable application of \n\nclearly established federal law. \n\n B. \n\n However, the state court denied the motion on the alternative ground that \n\nany Brady violation was, in any event, harmless. 3 This was a reasonable \n\napplication of clearly established law. \n\n\n \n3 The state court concluded: \n\n Impeachment material may be exculpatory in some cases as probative of \n the credibility of a witness, especially where the testimony is critical to the \n People’s case. See People v. Steadman, supra. However, Melinaʹs \n testimony was largely collateral to the issues at trial. He did not testify to \n seeing the defendant commit the murders or fleeing the scene but told the \n jury of his unsuccessful attempts to locate certain witnesses. Instead, the \n People called four eyewitnesses to the shooting and one witness who was \n present when the defendant bragged about committing the murder. \n\n In light of this evidence against the defendant, defense counsel’s claim \n that she would have employed a different trial technique is spurious. The \n main witnesses against the defendant were the four witnesses to the \n homicide and the witness who discussed the defendant’s admissions. \n Officer Melino’s prior drug sale is totally irrelevant to this critical \n testimony and would have been of no avail to counsel in cross examining \n these witnesses. \n\n 18 \n\n \n\f Fernandez argues that evidence of Melino’s drug deals would have been \n\npowerful impeachment material at his trial. The state court acknowledged that \n\n“[i]mpeachment material may be exculpatory in some cases as probative of the \n\ncredibility of a witness, especially where the testimony is critical to the People’s \n\ncase.” App’x 1393. But the court reasonably concluded that the impeachment \n\nmaterial would have been of little value to Fernandez’s counsel given that \n\nMelino’s testimony was “largely collateral to the issues at trial”, “ministerial in \n\nnature”, and “totally irrelevant to th[e] critical testimony” “of four witnesses to \n\nthe homicide and the witness who discussed the defendant’s admissions.” \n\n\n \n Finally, as the People indicate in their response, if they knew of the \n allegation against Officer Melino, they would not have called him as a \n witness since his testimony was cumulative. \n\n The court finds that Melino’s testimony was ministerial in nature and not \n material to the issue of the defendantʹs guilt. Furthermore, the charges \n against Melino involve activities that occurred allegedly prior to his \n becoming a police officer. In evaluating the allegations against Melino and \n the limited nature of his testimony, the court finds that had the defense \n been aware that Officer Melino was accused of selling a half‐kilo of \n cocaine in 1991/92, prior to becoming a New York City Police Officer, \n there is no reasonable probability or possibility that the result would have \n been different. Although the defendant may have found some productive \n use of the undisclosed information concerning Melino, that is simply not \n enough to transform it into Brady material. See People v. Howard, 127 \n A.D.2d 109 (1st Depʹt 1987). \n\nApp’x 1393. \n\n 19 \n\n \n\fApp’x 1393. A review of the record reveals that this characterization of Officer \n\nMelino’s testimony (and the other evidence offered at trial) is well‐supported. \n\nOfficer Melino testified at trial primarily about his work on the investigation, \n\nincluding his efforts to locate witnesses and his assistance in arranging lineups \n\nfor Hickliff and George. And, at the time the state court considered this motion, \n\nthere were four eyewitnesses who had unequivocally identified Fernandez as the \n\nshooter. \n\n On appeal, Fernandez argues that his trial counsel might have uncovered \n\nevidence of witness tampering if his counsel had cross‐examined Officer Melino \n\nabout his prior drug sales. But the state court reasonably credited the State’s \n\nassertion they would not have called Officer Melino as a witness if they knew of \n\nthe drug allegations against him. Moreover, the bad act evidence that would \n\nhave been used to impeach Officer Melino (sale of drugs) does not directly \n\nimplicate the allegations of wrongdoing at trial (suborning perjury), making it \n\nless likely that cross‐examination would have achieved such a revelation. \n\n Fernandez points out that the recantations by the Rosarios and Canela \n\nsupport his argument that his attorneys would have discovered investigative \n\nmisconduct if they were aware of Officer Melino’s drug dealing. But at the time \n\n\n 20 \n\n \n\fthe state court made its decision, these witnesses had not recanted, and, as the \n\nFirst Department then noted, “[t]here is not one iota of evidence that the \n\nidentifications were the product of coercion or suggestion, or that Melino \n\nharbored some secret motive to influence four witnesses to falsely implicate the \n\ndefendant.” App’x 1444. We review the reasonableness of the state court’s \n\ndecision based on the evidence available to the state court at the time it decided \n\nthe motion. Given that there was no evidence of such misconduct at the time it \n\ndenied this motion, the state court acted reasonably. \n\n Accordingly, the state court’s denial of Fernandez’s motion to set aside his \n\nconviction on the basis of Brady was in no way an unreasonable application of \n\nclearly established federal law. \n\n IV. \n\n Fernandez filed two motions for a new trial on the ground that the \n\nprosecutors violated his right to a fair trial by knowingly offering perjured \n\ntestimony at his trial. On this appeal, he argues that the state court’s credibility \n\nfindings in these decisions were “unreasonable determination[s] of the facts in \n\nlight of the evidence presented at the State court proceeding.” 28 U.S.C. \n\n§ 2254(d). \n\n\n\n 21 \n\n \n\f “In order to be granted a new trial on the ground that a witness committed \n\nperjury, the defendant must show that (i) the witness actually committed \n\nperjury; (ii) the alleged perjury was material; (iii) the government knew or \n\nshould have known of the perjury at [the] time of trial; and (iv) the perjured \n\ntestimony remained undisclosed during trial.” United States v. Cromitie, 727 \n\nF.3d 194, 221 (2d Cir. 2013) (alteration in original) (quoting United States v. \n\nJosephberg, 562 F.3d 478, 494 (2d Cir. 2009)). \n\n A. \n\n Fernandez’s first motion for a new trial, filed in 2003, was supported by \n\naffidavits from the two Rosario brothers, in which they recanted their \n\nidentification of Fernandez as the shooter at trial, and swore that their pre‐trial \n\nidentifications of Fernandez in the photo array and at the line‐up were coerced \n\nby Officer Melino. Fernandez also offered an affidavit from the second victim of \n\nthe shooting, Henry Gomez, who swore that the person who shot him was not \n\nFernandez. Gomez had not been located at the time of Fernandez’s trial. \n\n The state court held a five‐day hearing on the motion at which, among \n\nothers, Hickliff and Gomez testified. \n\n\n\n\n 22 \n\n \n\f Hickliff testified that he lied when he testified at Fernandez’s trial; that, \n\ncontrary to his trial testimony, Fernandez was not the shooter; and that \n\n“[e]verything is different” about the appearance of the shooter as compared to \n\nFernandez. App’x 1683. As to his photo array identification, Hickliff testified \n\nthat he “d[id]n’t see the shooter [in the photo array],” but was convinced to \n\nchoose Fernandez’s photo by Officer Melino, who “had his finger on number \n\nfour like that so [Hickliff’s] focus was just there.” App’x 1673‐74. He identified \n\nFernandez at trial because he was “brain‐washed, you know, to pick him out,” \n\nand “never believed it [was him]” but he “just went along with what the \n\ndetective was telling [him].” App’x 1685. \n\n Gomez testified that, on the day of the murder, he was standing in front of \n\n504 West 135th street when “a car pulled up and a man came out and with a like a \n\ntype of like an Uzi and he started shooting us all.” App’x 1549. He testified that \n\nhe “g[o]t a good look at the man who got out of the car,” and that it was not \n\nFernandez, who did not look “anything like [the man who shot him].” App’x \n\n1550‐52. Gomez decided to testify after two of Fernandez’s relatives approached \n\nhim in prison (where he was serving a term for kidnapping), and showed him a \n\npicture of Fernandez, and explained that he had been convicted of Quintero’s \n\n\n 23 \n\n \n\fmurder. Gomez told them that Fernandez was not the shooter, and agreed to \n\ntestify in this case “[b]ecause [he] want[ed] to free someone who is innocent.” \n\nApp’x 1563. \n\n The Government called Detective Connolly, the NYPD officer who \n\ninvestigated the recantations of George and Hickliff. Detective Connolly testified \n\nthat he met with Hickliff in August 2004, that Hickliff said that he had gone to \n\nFernandez’s lawyer’s office with his mother (and Fernandez’s mother), and that \n\nhe signed a piece of paper that he had not read to “avoid [a] confrontation.” \n\nApp’x 1790‐91. He also told Connolly that a man “started coming around the \n\nneighborhood looking for him, [who h]e believed . . . to be a relative of Pablo \n\nFernandez,” App’x 1791, and who had “offered him some money to stay \n\ninvolved in it, but he refused the money and did not take it,” App’x 1791. \n\nHickliff also told Connolly that he had told the truth at trial when he accused \n\nFernandez. At the same hearing, Hickliff denied making any of these statements \n\nto Connolly. \n\n George Rosario did not testify at the hearing, and the state court’s decision \n\ndid not address his affidavit in which he recanted. \n\n\n\n\n 24 \n\n \n\f The state court found that Hickliff’s recantation was incredible and that \n\nthere was therefore no basis to find that the prosecutor had offered perjured \n\ntestimony at Fernandez’s trial: \n\n I did not find Mr. Rosario to be a credible witness. While he testified \n that the defendant was not the shooter and described the \n identification process, he avoided virtually every other question that \n was put to him, claiming a lack of memory even as to recent events. \n I also found credible Detective Connelly’s account that Mr. Rosario \n had made statements several months earlier that contradicted his \n testimony at the hearing. . . . Given Hickliff Rosario’s lack of \n credibility, I do not believe his recantation testimony would be likely \n to affect the verdict. \n\nApp’x 35. 4 This was not an unreasonable finding in light of the evidence \n\npresented at the hearing. \n\n The record supports the state court’s finding that Hickliff was extremely \n\nevasive during his testimony. Among other things, Hickliff did not remember: \n\nparticulars of the meeting at which he signed his recantation affidavit; details \n\nfrom his affidavit; what he did when he walked into court on the morning of his \n\n\n\n\n \n4 The state court also denied Fernandez’s motion for a new trial on the basis of new \nevidence, finding that Gomez’s testimony was incredible, and therefore that Fernandez \nhad not established that the “new evidence is of such a character as to create a \nprobability that . . . the verdict would have been more favorable to the defendant.” \nApp’x 35. Fernandez does not collaterally appeal the denial of his motion on this \nground. \n\n 25 \n\n \n\ftestimony; and anything about his initial meeting with the private investigator to \n\nwhom he recanted. \n\n The state court’s finding that Detective Connolly’s testimony was credible \n\nwas supported by Connolly’s clear memory of the details of the meeting he \n\nattended with Hickliff and what Hickliff told him at that meeting (including that \n\nHickliff had signed an affidavit that he hadn’t read and that he did not lie at \n\nFernandez’s trial). That testimony was supported by a memorandum that \n\nDetective Connolly wrote soon after he met with Hickliff. Moreover, Connolly’s \n\ntestimony‐‐specifically, that Hickliff admitted to receiving an offer of money to \n\nrecant‐‐supplied a motive to lie, notwithstanding Hickliff’s statement that he \n\nrefused the money. \n\n Accordingly, we defer to the state court’s reasonable finding that the \n\nrecantation of Hickliff was not credible, and conclude that the state court \n\nreasonably denied Fernandez’s motion for a new trial. \n\n B. \n\n Fernandez’s second motion for a new trial, filed in 2010, was supported by \n\nan affidavit from Jesus Canela, which recanted his identification of Fernandez \n\n\n\n\n 26 \n\n \n\fand claimed that Officer Melino had coerced his accusation. The state court held \n\na five‐day hearing, at which the following evidence was offered. \n\n 1. \n\n Canela testified that he identified Fernandez as the shooter at trial even \n\nthough he did not recognize him, did not believe that Fernandez had shot \n\nQuintero, and had “[n]ever [seen Fernandez] in [his] life.” App’x 2523. When \n\nasked why he falsely accused Fernandez, Canela testified that he was scared \n\nbecause it was his first time in court, and he felt pressure from the detectives. \n\n At Fernandez’s trial, Canela had testified that he was never shown any \n\nphotos by the detectives. At the hearing, however, Canela testified that he had \n\nbeen shown a photo array by Officer Melino when he met with him two years \n\nafter the murder, and though he did not recognize anyone in the pictures, he \n\nchose the picture of Fernandez because the detectives “were emphasizing one \n\nspecific picture, and that picture was shown to [him] over and over and over \n\nagain.” App’x 2522. The detectives told him that they “ha[d] the guy”, and it \n\nwas Fernandez; and they “actually helped [him] believe that [Fernandez] was the \n\nguy.” App’x 2589. Canela also testified that the detectives told him where \n\nFernandez would be sitting in the courtroom when Canela testified. \n\n\n 27 \n\n \n\f Canela’s wife, Edmonds, testified that Canela told her when they first \n\nstarted dating in the early 2000s that he had falsely identified Fernandez and he \n\nhad felt coerced into making an ID. \n\n The Government called Detective Tebbens, the officer who worked with \n\nOfficer Melino recanvassing the neighborhood where the homicide took place \n\nbefore trial. Tebbens testified that, at Canela’s first meeting with them, he told \n\nthem what happened on the day of the murder, and gave a physical description \n\nof the shooter. While Canela did not identify the shooter by name, he told the \n\ndetectives he would “recognize the shooter again if he saw him.” App’x 2622. \n\nDetective Tebbens and Officer Melino then made arrangements to bring Canela \n\nto the District Attorney’s Office, where he was interviewed by the Assistant \n\nDistrict Attorney. Detective Tebbens testified that he never showed Canela any \n\nmugshots or photos at any time during the investigation; and that he never \n\nobserved Officer Melino showing Canela any mugshots or photos. He further \n\ndenied that he ever told Canela where Fernandez would be seated at the trial. \n\n Officer Melino did not testify. \n\n\n\n\n 28 \n\n \n\f 2. \n\n The state court denied Fernandez’s motion, finding that Canela’s \n\nrecantation was not credible and that there was therefore no basis to find that the \n\nprosecutor had offered perjured testimony at the trial. Fernandez argues that \n\nthis credibility determination was an unreasonable determination of the facts in \n\nlight of the evidence presented at the hearing. See 28 U.S.C. § 2254(d). We agree. \n\nA close reading of the state court decision demonstrates that its conclusion is \n\nunsupported and unsupportable. \n\n The state court’s decision opened with an acknowledgment that “the main \n\nissue at the hearing was the credibility of Jesus Canela. Indeed, if his hearing \n\ntestimony were to be fully credited, then the defendant would be entitled to a \n\nnew trial.” App’x 44. Given the record facing the state court at the time of \n\nFernandez’s second motion, this was a sound observation. At that time, Officer \n\nMelino had been compromised; two of four witnesses who identified Fernandez \n\nat trial had recanted (one by affidavit); and the second victim of the shooting \n\n(who had not been located at the time of trial) had come forward to say that \n\nFernandez did not shoot him. In light of this record, the credibility of Canela’s \n\ntestimony took on critical weight. \n\n\n 29 \n\n \n\f The state court allowed that, “[a]t first blush, Mr. Canela’s hearing \n\ntestimony seemed somewhat plausible. A troubled teenager at the time of the \n\ntrial, he has become a responsible adult who has lived a stable, normal life for \n\nsome time.” App’x 44. This observation was well‐supported by the record. \n\nCanela testified at the hearing that he was living with his parents in Harlem, that \n\nhe had been working as a cook at a restaurant for six years, and that he was a few \n\ncredits shy of receiving an associate degree from Monroe College in Hospitality \n\nand Culinary Arts. \n\n Moreover, the court found that “there [was no] showing at the hearing that \n\nhe had a motive to lie.” App’x 44. Again, this finding was well‐supported by the \n\nrecord. There was no credited evidence at the hearing that Canela had been \n\nthreatened or coerced by Fernandez or any of his family members to come \n\nforward with his recantation. \n\n The court then acknowledged that Canela’s testimony had a ring of truth \n\nin light of the allegations against Melino: “[Canela’s] primary assertion at the \n\nhearing‐‐that he had been pressured and assisted by corrupt police officers into \n\ngiving false testimony at trial‐‐could not be rejected summarily, given his youth \n\n\n\n\n 30 \n\n \n\fand lack of sophistication at the time coupled with the fact that one of the officers \n\nwas terminated for unrelated misconduct.” App’x 44. \n\n The state court’s first negative observation about Canela’s testimony was \n\nthat his “demeanor at the hearing . . . left much room for doubt,” specifically, \n\nthat Canela “came across as someone who was trying too hard to be convincing.” \n\nApp’x 44. While deference is owed to a judge who observed the witness’s \n\ndemeanor, see In re Payne, 707 F.3d 195, 201 (2d Cir. 2013), this observation is \n\nunderwhelming. Moreover, that same reason was the only reason given for \n\ndisbelieving Canela’s wife, who testified that Canela had confessed to her‐‐long \n\nbefore‐‐that he lied at Fernandez’s trial. \n\n The state court went on to question why Canela “had waited so long to \n\ncome forward” if he “had felt terrible about the situation for years.” App’x 44. \n\nBut the state court did not consider the compelling explanation that Canela \n\noffered: “I did not tell [earlier] about the things I am telling you now, for the \n\nsimple fact, the reason that I was afraid myself. . . . I did not want to get into any \n\nmore trouble with the law. So I did not say anything.” App’x 2580. Canela’s \n\nrecantation was a confession to a felony (perjury); it was unreasonable for the \n\n\n\n\n 31 \n\n \n\fstate court to place great weight on a citizen’s prolonged hesitation to voluntarily \n\nplace himself in peril of imprisonment. \n\n The state court pointed out that, “like anyone who recants, we now know \n\nthat [Canela] has lied under oath on at least one occasion.” App’x 45. True \n\nenough as far as it goes, and it is a useful canon about recantation. But this \n\nobservation says nothing about the one critical inquiry here, which is when he \n\nlied, then or now‐‐and whether he lied to his wife in the years intervening. It is \n\nnot a sufficient basis for discrediting a witness’s recantation testimony, because it \n\nis true of every witness who recants. \n\n The state court then turned away from Canela’s testimony at the hearing, \n\nand focused on his testimony at Fernandez’s trial: \n\n Any lingering doubts concerning Mr. Canela’s credibility at \n the hearing were put to rest by his trial testimony which I have read \n and re‐read countless times. As I said, I can accept the possibility \n that in the heyday of the crack epidemic in the 90’s a young person \n might have been coached and even coerced by overzealous police \n officers. But I find it very hard to believe that such a compromised \n witness would be able to withstand the cross‐examination of a \n highly‐skilled defense attorney. Even though Mr. Canela was an \n unsophisticated teenager at the defendant’s trial, he not only stuck \n to his story but he was also able to provide the kind of details on \n direct and cross that one would expect from a truthteller. \n\nApp’x 45. As the court conceded, an 18‐year‐old witness would be vulnerable to \n\ncoercion by an overzealous cop. But the state court went on to discredit the \n 32 \n\n \n\frecantation because Canela’s detailed testimony at trial could be “expect[ed] \n\nfrom a truthteller”, App’x 45, and drew the (unaccountable) inference that if he \n\ntold the truth about facts and circumstances that he did not recant, he likely told \n\nthe whole truth. This amounts to very little. \n\n As an initial matter, the state court judge did not preside over Fernandez’s \n\ntrial; so his determination that Canela’s testimony at that trial was credible is \n\ntherefore entitled to reduced deference. See In re Payne, 707 F.3d at 201 (“We \n\nhave given . . . somewhat lesser deference to credibility findings based on an \n\nanalysis of a witness’s testimony.”). More important, much of Canela’s trial \n\ntestimony can be reconciled with his recantation. At trial, Canela testified \n\nprimarily about the circumstances of the murder: what he was doing that day, \n\nwhat the car carrying the gunman looked like, where and how the car parked on \n\nthe street, what the shooter did when he emerged from the car, who was shot, \n\nhow the car left the scene, and who he spoke to after the murder. Canela’s \n\nrecantation does not cast doubt on any of these particulars, because, as the state \n\ncourt acknowledged later in the opinion, Canela “has not recanted his testimony \n\nregarding the manner in which the shooting carried out, including his \n\ndescription of the car and the gun.” App’x 49. \n\n\n 33 \n\n \n\f Canela’s recantation contradicts only a small part of his trial testimony, \n\nregarding a few discrete (albeit critical) issues: who the shooter was, whether \n\nCanela was shown mugshots by the detectives at any point, whether Canela was \n\ntold where the defendant would be sitting in court, and whether anyone took \n\nnotes during his meetings with the detectives and the Assistant District Attorney. \n\nOver the nearly 100 pages of testimony on direct and cross‐examination, Canela \n\nwas asked fewer than 30 questions on these topics, and his answers did not \n\nrequire detail or elaboration; Canela answered the majority of those questions \n\nwith a simple “no”. The credibility of monosyllables is difficult to glean from \n\nreading a transcript. It was, therefore, unreasonable for the state court to infer \n\nthat Canela’s recantation was not credible simply because Canela provided \n\ncredible “details” and withstood “cross‐examination of a highly‐skilled defense \n\nattorney” at Fernandez’s trial. \n\n The state court did appropriately consider the portions of Canela’s trial \n\ntestimony that were directly contradicted by his recantation, specifically that he \n\n“had not been shown any mug shots by the police, that no one had told him \n\nwhere the defendant would be sitting, and that no one had been taking notes \n\nwhen he was interviewed by the Assistant District Attorney.” App’x 46. But \n\n\n 34 \n\n \n\fCanela explained twice during his testimony that he had lied at trial about these \n\nissues because the detectives told him not to testify at trial about their \n\ndiscussions. See App’x 2523 (“[T]hey mentioned that I don’t have to say \n\nanything that they, you know, they asked me not to say.”); App’x 2588 (“I \n\ntestified untruthfully at trial because, when I met with the detectives, they told \n\nme I don’t have to say anything that I speak with them, like anything that I talk \n\nabout with them doesn’t have to be said in court.”). A teenager’s admitted fear \n\nof the detectives, and of appearing in court, lends plausibility to testimony that \n\nhe felt pressure to follow the detectives’ instructions regarding how to testify in \n\ncourt (and what to testify about). Having found that Canela was plausible at first \n\nblush, with the ring of truth, and no motive to lie, the state court offered no \n\nreason to disbelieve this explanation. \n\n The state court also discredited Canela because his testimony “regarding \n\nthe claimed efforts of police officers to solicit a false identification” was “short on \n\ndetails.” App’x 45. The record demonstrates that Canela explained several times \n\nhow, at some length, and in detail why he felt pressured by the officers to \n\nidentify Fernandez in the photo array and to accuse him at trial. Canela testified \n\nthat the officers brought him to an office, they showed him some pictures, and \n\n\n 35 \n\n \n\fthey pressured him into identifying Fernandez by repeatedly emphasizing that \n\none photo: \n\n Well, they were showing me pictures of the people they were \n showing me, but they were emphasizing one specific picture, and \n that picture was shown to me over and over and over again. And I \n felt, in a sense, I mean, I felt like if there was some sort of pressure \n being applied towards me, when it came to that same picture, and \n there came a point where it was asked so many times where I said, \n you know what, if that’s the person, then that’s the person. You \n know. I pretty much gave into saying itʹs obvious that you want me \n to point this person out, so I pointed the person out. \n\nApp’x 2522. This testimony is a straightforward account that Officer Melino \n\nheavy‐handedly encouraged Canela to select Fernandez. Canela also testified \n\nthat the detectives directly told him that they “ha[d] the guy,” and it was \n\nFernandez; and they “actually helped [him] believe that [Fernandez] was the \n\nguy.” App’x 2589. Canela’s account is much too specific to support an adverse \n\ncredibility finding based on vagueness. Certainly, the state court did not \n\nmention anything it found missing. \n\n Finally, the state court discredited Canela’s testimony that he lied at \n\nFernandez’s trial because he was “afraid” and “scared,” finding that Canela \n\nfailed to “describe anything the officers said or did to instill such fear in him.” \n\nApp’x 47. But Canela testified that he was afraid because he had never been a \n\nwitness in court before: “I was afraid. I didn’t know what to do anymore. It was \n 36 \n\n \n\fmy first time in court. I had never seen anything. I had never been in court \n\nbefore.” App’x 2589. The state court offered no a reason to discount this \n\nexplanation. Canela’s statement that he was frightened is corroborated by \n\ntestimony he gave at Fernandez’s trial, in which Canela explained that he only \n\nspoke with investigators about the murder “[b]ecause they said that they was \n\n[sic] going to protect me. Nothing would happen to me.” App’x 507. \n\n The state court’s decision contains sound reasons to credit Canela’s \n\nrecantation, and no plausible reason to discredit it. Accordingly, the state court’s \n\nrejection of Canela’s recantation was an “unreasonable determination of the facts \n\nin light of the evidence presented,” 28 U.S.C. § 2254(d); therefore, the state court \n\nunreasonably denied Fernandez’s second motion for a new trial. \n\n Based on Canela’s testimony at the state court hearing, Fernandez has \n\nsatisfied the first element of his claim for a new trial based on prosecutorial \n\nmisconduct: Canela’s perjured testimony at the trial. We still must determine \n\nwhether Fernandez has made out the other elements of his claim, namely that: \n\n“(ii) the alleged perjury was material; (iii) the government knew or should have \n\nknown of the perjury at [the] time of trial; and (iv) the perjured testimony \n\nremained undisclosed during trial.” Cromitie, 727 F.3d at 221. As the state court \n\n\n 37 \n\n \n\fconcluded, the other elements are satisfied: “[I]f [Canela’s] hearing testimony [is] \n\nfully credited, then the defendant would be entitled to a new trial.” App’x 44. \n\n The State does not dispute that knowledge of the perjury is imputed from \n\nOfficer Melino to the prosecution team, or that the perjured testimony remained \n\nundisclosed at trial. \n\n As to materiality, Fernandez is entitled to a new trial “if there is any \n\nreasonable likelihood that the false testimony could have affected the judgment \n\nof the jury.” Cromitie, 727 F.3d at 221‐22 (quoting Agurs, 427 U.S. at 103). \n\n“Indeed, if it is established that the government knowingly permitted the \n\nintroduction of false testimony reversal is ‘virtually automatic.’” United States v. \n\nWallach, 935 F.2d 445, 456 (2d Cir. 1991) (quoting United States v. Stofsky, 527 \n\nF.2d 237, 243 (2d Cir. 1975)). \n\n There was more than a “reasonable likelihood” that Canela’s eyewitness \n\ntestimony influenced the jury. Canela unequivocally identified Fernandez as the \n\nshooter at trial, and “eyewitness testimony is among the most influential, even as \n\nit is among the least reliable, forms of proof.” Kampshoff v. Smith, 698 F.2d 581, \n\n587 (2d Cir. 1983). “Whenever such proof is admitted, there is a genuine \n\nlikelihood that the jury will base its decision on it.” Id. \n\n\n 38 \n\n \n\f IV. CONCLUSION \n\n Accordingly, we REVERSE and REMAND to the district court, with \n\ninstruction to comply with our February 5, 2019 Order, directing the district \n\ncourt to issue a writ of habeas corpus to Fernandez by the sixtieth calendar day \n\nafter February 5, 2019 unless the state has, by that time, taken concrete and \n\nsubstantial steps to retry Fernandez. \n\n \n\n\n\n\n 39", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370688/", "author_raw": "DENNIS JACOBS, Circuit Judge:"}]} | JACOBS | CALABRESI | RAKOFF | 1 | {"JACOBS": ", Circuit", "CALABRESI": ", Circuit", "RAKOFF": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593435/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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8,443,887 | Pablo FERNANDEZ v. Michael CAPRA, Christopher Artuz, Philip Heath, Charles Greiner | Fernandez v. Capra | 2019-02-22 | 16-4053 | U.S. Court of Appeals for the Second Circuit | {"judges": "Calabresi, Jacobs, Rakoff", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415317/", "author_raw": ""}]} | CALABRESI | JACOBS | RAKOFF | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443887/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,593,433 | United States v. Moore | 2019-02-25 | 16-1604 (L) | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: KATZMANN, Chief Judge, WALKER and POOLER, Circuit Judges.", "parties": "", "opinions": [{"author": "No. 1:15-cr-27-1 - Thomas J. McAvoy, District Judge", "type": "010combined", "text": "16‐1604 (L) \n United States v. Moore \n\n 1\n\n 2 In the\n 3 United States Court of Appeals\n 4 For the Second Circuit\n 5 ________ \n 6 \n 7 AUGUST TERM, 2017 \n 8 \n 9 SUBMITTED: MARCH 27, 2018 \n10 DECIDED: FEBRUARY 25, 2019 \n11 \n12 No. 16‐1604 (L), No. 16‐1624 (con) \n13 \n14 UNITED STATES OF AMERICA, \n15 Appellee, \n16 \n17 v. \n18 \n19 CALVIN STEPHON MOORE, \n20 Defendant‐Appellant. \n21 ________ \n22 \n23 Appeal from the United States District Court \n24 for the Northern District of New York. \n25 No. 1:15‐cr‐27‐1 – Thomas J. McAvoy, District Judge. \n26 ________ \n27 \n28 Before: KATZMANN, Chief Judge, WALKER and POOLER, Circuit Judges. \n29 ________ \n30 \n31 Defendant‐Appellant Calvin Stephon Moore appeals his \n\n32 sentence following a guilty plea to three counts of federal bank \n\n33 robbery in the United States District Court for Northern District of \n\f 2 16‐1604 (L), 16‐1624 (con) \n\n\n 1 New York (Thomas J. McAvoy, Judge). Moore received three \n\n 2 concurrent 135‐month terms of imprisonment. \n\n 3 On appeal, Moore argues that the district court erred in \n\n 4 determining that he was subject to a sentencing enhancement as a \n\n 5 career offender under the 2015 version of the Career Offender \n\n 6 Guidelines of the United States Sentencing Guidelines, §§ 4B1.1–2. He \n\n 7 argues that neither federal bank robbery nor New York robbery in the \n\n 8 third degree are crimes of violence under U.S.S.G. § 4B1.2. \n\n 9 Rejecting Moore’s arguments, we AFFIRM. \n\n10 ________ \n\n11 Grant C. Jaquith, United States Attorney for the \n12 Northern District of New York (Michael S. Barnett \n13 and Steven D. Clymer, Assistant United States \n14 Attorneys, on the brief), Syracuse, NY, for Appellee. \n15 \n16 Lisa A. Pebbles, Federal Public Defender for the \n17 Northern District of New York (Molly Corbett and \n18 James P. Egan, Assistant Federal Public Defenders, \n19 on the brief), Albany, NY, for Defendant‐Appellant. \n20 ________ \n\n21 JOHN M. WALKER, JR., Circuit Judge: \n\n22 Defendant‐Appellant Calvin Stephon Moore appeals his \n\n23 sentence following a guilty plea to three counts of federal bank \n\n24 robbery in the United States District Court for Northern District of \n\n25 New York (Thomas J. McAvoy, Judge). Moore received three \n\n26 concurrent 135‐month terms of imprisonment. \n\f 3 16‐1604 (L), 16‐1624 (con) \n\n\n 1 On appeal, Moore argues that the district court erred in \n\n 2 determining that he was subject to a sentencing enhancement as a \n\n 3 career offender under the 2015 version of the Career Offender \n\n 4 Guidelines of the United States Sentencing Guidelines, §§ 4B1.1–2. He \n\n 5 argues that neither federal bank robbery nor New York robbery in the \n\n 6 third degree are crimes of violence under U.S.S.G. § 4B1.2. \n\n 7 Rejecting Moore’s arguments, we AFFIRM. \n\n 8 BACKGROUND \n\n 9 In October 2015, Moore pled guilty to committing the following \n\n10 three counts of robbery of federally insured banks in late 2014. On \n\n11 November 17, 2014, Moore and an accomplice robbed a branch of \n\n12 KeyBank in Schenectady, New York. During the robbery, Moore said, \n\n13 “[T]his is a hold up give me money.” App’x at 37. Moore’s \n\n14 accomplice was arrested and told the police that Moore threatened \n\n15 the teller by stating he had a gun. On November 18, 2014, Moore \n\n16 robbed a branch of Adirondack Bank in Utica, New York. According \n\n17 to a teller, Moore said, “I have a gun, I will start shooting, give me all \n\n18 bundles 100’s and 50’s.” Id. at 38. He also presented a note stating \n\n19 that he had a gun and would shoot if necessary. The final offense \n\n20 occurred on December 30, 2014, when Moore robbed a branch of First \n\n21 Citizens Bank in Columbia, South Carolina. Moore told a teller that \n\n22 he had a gun and presented a note demanding money. Later that \n\n23 evening, South Carolina police officers received a report of a person \n\f 4 16‐1604 (L), 16‐1624 (con) \n\n\n 1 at a Motel 6 tossing a suspicious item over a fence and into a parking \n\n 2 lot. The item was a dye pack and several $20 bills. Officers began \n\n 3 stopping people near the Motel 6 and asking for identification. At \n\n 4 some point, they stopped Moore and discovered that he was wanted \n\n 5 for federal bank robberies in New York. The officers searched his \n\n 6 motel room pursuant to a warrant and found currency stolen earlier \n\n 7 in the day from the Columbia branch of First Citizens Bank. \n\n 8 In January 2015, a federal grand jury in the Northern District of \n\n 9 New York returned an indictment charging Moore with two counts \n\n10 of bank robbery “by intimidation” in violation of 18 U.S.C. § 2113(a). \n\n11 Id. at 11. In February 2015, a federal grand jury in the District of South \n\n12 Carolina returned an indictment charging Moore with one count of \n\n13 bank robbery “by force and violence and by intimidation” in violation \n\n14 of 18 U.S.C. § 2113(a). Id. at 13. Subsequently, the South Carolina case \n\n15 was transferred to the Northern District of New York. \n\n16 In October 2015, Moore pled guilty to all three counts of federal \n\n17 bank robbery. The Probation Office recommended that Moore be \n\n18 sentenced under the Career Offender Guidelines. See U.S. Sentencing \n\n19 Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2015).1 \n\n\n 1 Citations to the Guidelines are hereinafter referred to as “U.S.S.G.” With \n only one exception not relevant here, district courts are to sentence \n defendants pursuant to the version of the Guidelines in effect on the date \n of sentencing. See 18 U.S.C. § 3553(a)(4)(A)(ii); see also Beckles v. United \n States, 137 S. Ct. 886, 890 n.1 (2017). Accordingly, unless otherwise stated, \n\f 5 16‐1604 (L), 16‐1624 (con) \n\n\n 1 Specifically, the Probation Office determined that: (1) Moore was at \n\n 2 least 18 years old when he committed the crimes; (2) federal bank \n\n 3 robbery is a crime of violence; and (3) Moore had two prior felony \n\n 4 convictions for New York robbery in the third degree, New York \n\n 5 Penal Law § 160.05, which the Probation Office considered to be \n\n 6 crimes of violence. With adjustments for Moore’s acceptance of \n\n 7 responsibility, his offense level of 29 and criminal history category of \n\n 8 VI yielded a Guidelines range of 151 to 188 months. \n\n 9 Moore objected to the Probation Office’s conclusion that he was \n\n10 a career offender, arguing that the Supreme Court’s decisions in \n\n11 Johnson v. United States, 559 U.S. 133 (2010) (“Johnson I”), and Johnson \n\n12 v. United States, 135 S. Ct. 2551 (2015) (“Johnson II”), narrowed the \n\n13 definition of a crime of violence under U.S.S.G. § 4B1.2(b) in such a \n\n14 way that he should not be considered a career offender because \n\n15 neither federal bank robbery nor New York robbery in the third \n\n16 degree are crimes of violence. Johnson I clarified that the term \n\n17 “physical force” in the definition of the term “violent felony” under \n\n18 the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i), \n\n19 means “violent” force, or “force capable of causing physical pain or \n\n20 injury to another person.” 559 U.S. at 140. Johnson II held that the \n\n\n all references to the Guidelines are to the November 2015 version, which \n was in effect when Moore was sentenced on May 9, 2016. Thus, the \n amendments to §§ 4B1.1–2 that were in effect between August 1, 2016, and \n October 31, 2016, do not apply to this appeal. See also infra note 2. \n\f 6 16‐1604 (L), 16‐1624 (con) \n\n\n 1 residual clause of the ACCA—which is worded identically to the 2015 \n\n 2 version of the Career Offender Guidelines under which Moore was \n\n 3 sentenced—was unconstitutionally void for vagueness. 135 S. Ct. at \n\n 4 2557. \n\n 5 Rejecting Moore’s arguments, the district court sentenced him \n\n 6 to concurrent 135‐month terms of imprisonment on each of the three \n\n 7 counts of conviction, followed by three years of supervised release. \n\n 8 App’x at 187–88. At the sentencing hearing, the district judge \n\n 9 announced, “[F]or the record . . . regardless of any potential difference \n\n10 in the guidelines calculations, including the fact that the criminal \n\n11 offender guideline application was not taken into account in the plea \n\n12 agreement, the Court would have imposed the same sentence based \n\n13 upon the [previously stated] factors and reasoning.” Id. at 188. Moore \n\n14 now challenges his sentence on the grounds that neither federal bank \n\n15 robbery nor New York robbery in the third degree qualifies as a crime \n\n16 of violence under the Career Offender Guidelines. \n\n17 Before we turn to the merits of Moore’s appeal, we note the \n\n18 somewhat unusual briefing schedule of this appeal. In November \n\n19 2016, after Moore had already filed his opening brief, we vacated our \n\n20 opinion in United States v. Jones, 830 F.3d 142 (2d Cir. 2016) (“Jones I”) \n\n21 in light of the Supreme Court’s grant of certiorari in Beckles v. United \n\n22 States, 137 S. Ct. 886 (2017). See United States v. Jones, 838 F.3d 296 (2d \n\n23 Cir. 2016) (order vacating Jones I). Moore’s opening brief heavily \n\f 7 16‐1604 (L), 16‐1624 (con) \n\n\n 1 relied on Jones I, so we stayed this appeal until Jones I could be \n\n 2 reconsidered in the wake of Beckles. In Beckles, the Supreme Court \n\n 3 held that because the Sentencing Guidelines are advisory and not \n\n 4 mandatory, see United States v. Booker, 543 U.S. 220, 245 (2005), they \n\n 5 are not subject to a void for vagueness challenge, and therefore, the \n\n 6 residual clause of the Career Offender Guidelines was not \n\n 7 unconstitutional. 137 S. Ct. at 894–95. In United States v. Jones, 878 \n\n 8 F.3d 10, 17 (2d Cir. 2017) (“Jones II”), we held that New York first \n\n 9 degree robbery qualified as a crime of violence under the residual \n\n10 clause of the 2014 version of the Career Offender Guidelines. The \n\n11 language of the 2014 version of the Career Offender Guidelines is \n\n12 substantively the same as the 2015 (pre‐amendment) version that \n\n13 applies to Moore’s sentence here. Compare U.S.S.G. § 4B1.2 (2014), \n\n14 with U.S.S.G. § 4B1.2 (2015). \n\n15 In September 2017, we lifted the stay, but Moore opted to rest \n\n16 on his originally filed opening brief, which relied substantially on our \n\n17 vacated and superseded opinion in Jones I. After the Government \n\n18 filed its brief in December 2017, Moore filed a reply brief relying on \n\n19 new arguments. At our request, the Government submitted \n\n20 additional briefing in response to Moore’s argument that, contrary to \n\n21 dictum in Jones II, New York’s definition of robbery lacks an element \n\n22 present in the generic definition of robbery. \n\n23 \n\f 8 16‐1604 (L), 16‐1624 (con) \n\n\n 1 DISCUSSION \n\n 2 The two issues in this appeal are whether the district court \n\n 3 erred in determining that federal bank robbery by intimidation in \n\n 4 violation of 18 U.S.C. § 2113(a) and New York third‐degree robbery \n\n 5 in violation of New York Penal Law § 160.05 are crimes of violence \n\n 6 under the 2015 version of the Career Offender Guidelines, U.S.S.G. \n\n 7 §§ 4B1.1–2. We review de novo a district court’s determination of \n\n 8 whether an offense is a crime of violence under the Guidelines. United \n\n 9 States v. Van Mead, 773 F.3d 429, 432 (2d Cir. 2014). \n\n10 I. The Career Offender Guidelines \n\n11 The Career Offender Guidelines provide for an enhanced \n\n12 sentence when the defendant: (1) is at least 18 years old at the time \n\n13 she committed the instant offense of conviction; (2) has an instant \n\n14 offense of conviction that is a felony crime of violence; and (3) has at \n\n15 least two prior felony convictions constituting crimes of violence or \n\n16 controlled substance offenses. U.S.S.G. § 4B1.1(a). \n\n17 When Moore was sentenced in May 2016, there were three \n\n18 separate provisions in the applicable U.S.S.G. § 4B1.2 Guideline \n\n19 defining “crime of violence.” The first clause, commonly known as \n\n20 the “force clause” or the “elements clause,” specifies that a crime of \n\n21 violence is a felony that “has as an element the use, attempted use, or \n\n22 threatened use of physical force against the person of another.” Id. \n\n23 § 4B1.2(a)(1). The second clause, known as the “enumerated clause,” \n\f 9 16‐1604 (L), 16‐1624 (con) \n\n\n 1 enumerates four offenses that qualify as crimes of violence: “burglary \n\n 2 of a dwelling, arson, or extortion, [or crimes] involv[ing the] use of \n\n 3 explosives. . . .” Id. § 4B1.2(a)(2). Finally, the residual clause specifies \n\n 4 that a crime of violence also includes any felony that “otherwise \n\n 5 involves conduct that presents a serious potential risk of physical \n\n 6 injury to another.”2 Id. \n\n 7 In addition to these three clauses in the text of the § 4B1.2(a) \n\n 8 Guideline, application note 1 in the commentary to the Guideline \n\n 9 includes an additional list of enumerated offenses that qualify as \n\n10 crimes of violence: “murder, manslaughter, kidnapping, aggravated \n\n11 assault, forcible sex offenses, robbery, arson, extortion, extortionate \n\n12 extension of credit, and burglary of a dwelling.” Id. § 4B1.2 cmt. n.1. \n\n13 For the sake of clarity, this opinion will refer to this fourth provision \n\n14 defining crimes of violence as the “commentary clause.”3 \n\n\n 2 After Johnson II, the Sentencing Commission amended the Career Offender \n Guidelines through a supplement to the 2015 Guidelines, effective August \n 1, 2016, to remove the residual clause. See Jones II, 878 F.3d at 14 n.1 (citing \n U.S. Sentencing Comm’n, Amendments to the Sentencing Guidelines 4–5 \n (Jan. 21, 2016), https://www.ussc.gov/sites/default/files/pdf/amendment‐\n process/official‐text‐amendments/20160121_Amendments_0.pdf (last \n visited Feb. 22, 2019)). This amendment does not apply to Moore, as noted \n supra note 1. \n 3 Other opinions inside and outside this circuit have referred to the \n\n enumerated offenses in the commentary simply as “enumerated offenses,” \n but that can lead to confusion because the four offenses specifically \n identified in the text of the 2015 (pre‐amendment) § 4B1.2(a)(2) Guideline \n are commonly referred to as the “enumerated offenses” or the “enumerated \n clause.” Other opinions have referred to these offenses listed in the \n\f 10 16‐1604 (L), 16‐1624 (con) \n\n\n 1 II. Federal Bank Robbery “by Force and Violence, or by \n 2 Intimidation” Is a Crime of Violence Because it Is \n 3 Specifically Enumerated in the Commentary Clause \n 4 and Conforms to the Definition of Generic Robbery \n\n 5 Moore argues that federal bank robbery does not qualify as a \n\n 6 crime of violence under the force clause because the offense can be \n\n 7 committed by mere intimidation, which does not necessarily require \n\n 8 the use, attempted use, or threatened use of violent force. Appellant’s \n\n 9 Br. at 27–29. We have yet to address in a published opinion the issue \n\n10 of whether federal bank robbery is a crime of violence under any of \n\n11 the Guidelines’ provisions defining a crime of violence.4 We take this \n\n\n commentary as specific examples of crimes of violence that would be \n captured under the residual clause. While this is true, the fact that they \n have been specifically enumerated provides them with a special status akin \n to the four enumerated offenses in the Guideline so that there is no need for \n a court to decide the central question under the residual clause of whether \n these offenses “involve[] conduct that presents a potential risk of physical \n injury to another.” U.S.S.G. § 4B1.2(a)(2). For this reason, these specifically \n enumerated offenses deserve their own designation, and we think the \n “commentary clause” is the most appropriate title. However, when the \n residual clause was eliminated on August 1, 2016, in the supplement to the \n 2015 Guidelines, the enumerated offenses in the commentary clause were \n incorporated into the text of § 4B1.2(a)(2). Therefore, references to the \n commentary clause are only relevant to cases applying § 4B1.2 before the \n August 1, 2016 amendments. \n 4 The issue was addressed in two recent summary orders. United States v. \n\n Dykes, 724 F. App’x 39, 44–45 (2d Cir. 2018) (summary order) concluded that \n because the definition of generic robbery “mirrors the elements of statutory \n federal bank robbery,” federal bank robbery qualifies as a crime of violence \n under the commentary clause of U.S.S.G. § 4B1.2. Killion v. United States, \n 728 F. App’x 19, 21–22 (2d Cir. 2018) (summary order) held that federal \n bank robbery qualifies as a crime of violence under the similarly‐worded \n force clause of the ACCA. \n\f 11 16‐1604 (L), 16‐1624 (con) \n\n\n 1 occasion now to hold that federal bank robbery “by force and \n\n 2 violence, or by intimidation” under 18 U.S.C. § 2113(a) qualifies as a \n\n 3 crime of violence under the commentary clause because it is \n\n 4 enumerated in the Guidelines commentary and conforms to the \n\n 5 definition of generic robbery. In so holding, we make no \n\n 6 determination as to whether federal bank robbery “by force and \n\n 7 violence, or by intimidation” is also a crime of violence under the \n\n 8 other clauses. \n\n 9 Commentary and application notes in the Guidelines must be \n\n10 given controlling weight unless they: (1) conflict with a federal \n\n11 statute, (2) violate the Constitution, or (3) are plainly erroneous or \n\n12 inconsistent with the Guidelines provision they purport to interpret. \n\n13 Jones II, 878 F.3d at 18 (citing Stinson v. United States, 508 U.S. 36, 45 \n\n14 (1993)). Neither party contends that any such flaws exist here. We \n\n15 must therefore treat robbery the same as if it were an enumerated \n\n16 offense in the Guidelines text. See United States v. Jackson, 60 F.3d 128, \n\n17 131 (2d Cir. 1995) (“Application Note 1 is authoritative because it \n\n18 interprets and explains § 4B1.2 by listing offenses that constitute . . . \n\n19 ‘crimes of violence’ . . . even though the broadened definition of \n\n20 [‘crimes of violence’] articulated in the commentary does not appear \n\n21 in an actual guideline. . . .”). \n\n22 Treating robbery as we would an enumerated offense in the \n\n23 Guidelines text, we must analyze its applicability to the bank \n\f 12 16‐1604 (L), 16‐1624 (con) \n\n\n 1 robberies in the case at hand by using what is known as the \n\n 2 categorical or modified categorical approach. See Jones II, 878 F.3d at \n\n 3 15–16 (citing Descamps v. United States, 570 U.S. 254, 257 (2013)). \n\n 4 Under the categorical approach we examine the legal elements of the \n\n 5 criminal statute of conviction (rather than the circumstances of the \n\n 6 criminal act) to determine whether they are identical to or narrower \n\n 7 than a “generic” version of the offense. See id. at 16; see also United \n\n 8 States v. Castillo, 896 F.3d 141, 149–50 (2d Cir. 2018). The generic \n\n 9 definition of an offense is the “contemporary understanding of the \n\n10 term,” as ascertained from the criminal codes of the states, federal \n\n11 criminal statutes, the Model Penal Code, scholarly treatises, legal \n\n12 dictionaries, and, when appropriate, the common law. Castillo, 896 \n\n13 F.3d at 150 (internal quotations omitted). If the offense matches or is \n\n14 narrower than the generic version, a conviction under the statute \n\n15 categorically qualifies as a predicate crime of violence offense. Jones \n\n16 II, 878 F.3d at 16. If, however, the statute criminalizes any conduct \n\n17 that would not fall within the scope of the generic offense, the offense \n\n18 cannot be considered a crime of violence. Castillo, 896 F.3d at 149–50. \n\n19 As noted, the categorical approach is confined to the legal elements of \n\n20 the statute, with no consideration of the facts of the underlying crime. \n\n21 Jones II, 878 F.3d at 16. \n\n22 In the event a statute criminalizes multiple acts in the \n\n23 alternative, thereby defining multiple crimes, it is considered \n\f 13 16‐1604 (L), 16‐1624 (con) \n\n\n 1 “divisible,” and we apply the modified categorical approach. Id. A \n\n 2 statute is not considered divisible if, instead of defining multiple \n\n 3 crimes, it lists various factual means of committing a single crime. Id. \n\n 4 For example, a statute that prohibits “the lawful entry or the unlawful \n\n 5 entry of a premises with intent to steal” is divisible because it \n\n 6 criminalizes two alternative offenses—the less serious offense of \n\n 7 burglary with lawful entry and the more serious offense of burglary \n\n 8 with unlawful entry. See Mathis v. United States, 136 S. Ct. 2243, 2249 \n\n 9 (2016) (internal quotations omitted). In a case like that, a court would \n\n10 apply the modified categorical approach and look to “a limited class \n\n11 of documents,” such as “the indictment, jury instructions, or plea \n\n12 agreement and colloquy” to determine which of those two alternative \n\n13 offenses was the offense of conviction. Id. (internal quotations \n\n14 omitted). The court would then return to the categorical analysis and \n\n15 compare the elements of the offense of conviction with the elements \n\n16 of the relevant generic offense. Id. \n\n17 The parties do not contest that § 2113(a) of the federal bank \n\n18 robbery statute is divisible, and we agree. That subsection delineates \n\n19 two methods of committing the crime of bank robbery: (1) “by force \n\n20 and violence, or by intimidation” or (2) “by enter[ing] or attempt[ing] \n\n21 to enter” a federal financial institution “with intent to commit . . . any \n\n22 felony affecting” such financial institution “and in violation of any \n\n23 statute of the United States, or any larceny.” 18 U.S.C. § 2113(a). \n\f 14 16‐1604 (L), 16‐1624 (con) \n\n\n 1 Therefore, § 2113(a) is divisible, and we may look to Moore’s plea \n\n 2 agreements to determine under which method he was convicted. See \n\n 3 United States v. Wilson, 880 F.3d 80, 84 n.3 (3d Cir. 2018) (accepting the \n\n 4 district court’s determination that § 2113(a) is divisible because it \n\n 5 contains two separate paragraphs, each containing a separate version \n\n 6 of the crime of federal bank robbery); United States v. Rinker, 746 F. \n\n 7 App’x 769, 772 n.21 (10th Cir. 2018) (unpublished) (collecting cases); \n\n 8 see also Jones II, 878 F.3d at 16. \n\n 9 According to Moore’s plea agreements, he was convicted under \n\n10 the first method: bank robbery “by force and violence, or by \n\n11 intimidation.” See Plea Agreement 3–4, United States v. Moore, No. 15‐\n\n12 cr‐27 (N.D.N.Y. Oct. 29, 2015), ECF No. 17; Plea Agreement 3–4, \n\n13 United States v. Moore, No. 15‐cr‐281 (N.D.N.Y. Oct. 29, 2015), ECF No. \n\n14 5. \n\n15 While the text of the 2015 version of the Guidelines only \n\n16 enumerates four general crimes that per se qualify as crimes of \n\n17 violence—“burglary of a dwelling, arson, or extortion, [or crimes] \n\n18 involv[ing the] use of explosives . . . ,” U.S.S.G. § 4B1.2(a)(2)—the \n\n19 commentary clause specifically lists robbery as a crime of violence, \n\n20 along with murder, manslaughter, kidnapping, aggravated assault, \n\n21 forcible sex offenses, arson, extortion, extortionate extension of credit, \n\n22 and burglary of a dwelling. Id. § 4B1.2 cmt. n.1. For the reasons stated \n\n23 earlier, we give these enumerated offenses in the commentary clause \n\f 15 16‐1604 (L), 16‐1624 (con) \n\n\n 1 the same effect as we would if they were in the text of the Guideline \n\n 2 itself. Jackson, 60 F.3d at 131. \n\n 3 Thus, we must determine whether the “by force and violence, \n\n 4 or by intimidation” clause of the federal bank robbery statute \n\n 5 corresponds in substance to the generic definition of robbery. See \n\n 6 United States v. Walker, 595 F.3d 441, 445–46 (2d Cir. 2010) (“[W]here a \n\n 7 specific offense . . . is listed as a qualifying [crime of violence], ‘then \n\n 8 the trial court need find only that the state statute corresponds in \n\n 9 substance to the generic meaning of [the specific offense].’” (quoting \n\n10 Taylor v. United States, 495 U.S. 575, 599 (1990))). We found in Walker \n\n11 that “all fifty states define robbery, essentially, as the taking of \n\n12 property from another person or from the immediate presence of \n\n13 another person by force or by intimidation,” thus meeting the generic \n\n14 definition of robbery Id. at 446 (emphasis in original). The relevant \n\n15 clause in § 2113(a) defines bank robbery as taking “by force and \n\n16 violence, or by intimidation, . . . from the person or presence of \n\n17 another . . . any property or money or any other thing of value \n\n18 belonging to, or in the care, custody, control, management, or \n\n19 possession of, any bank, credit union, or any savings and loan \n\n20 association.” 18 U.S.C. § 2113(a). This definition criminalizes conduct \n\n21 that contains all of the elements of generic robbery we announced in \n\n22 Walker. 595 F.3d at 446; accord United States v. Dykes, 724 F. App’x 39, \n\n23 45 (2d Cir. 2018) (summary order). Thus, because the “by force and \n\f 16 16‐1604 (L), 16‐1624 (con) \n\n\n1 violence, or by intimidation” clause of the federal bank robbery \n\n2 statute “is the same as, or narrower than, the relevant generic offense” \n\n3 of robbery, it constitutes a crime of violence subject to U.S.S.G. § \n\n4 4B1.2’s sentencing enhancement. Mathis, 136 S. Ct. at 2257.5 \n\n5 Accordingly, we hold that federal bank robbery “by force and \n\n6 violence, or by intimidation” is a crime of violence under the \n\n\n\n\n 5 Moore does not contend that federal bank robbery fails to meet the generic \n definition of robbery. Rather, he focuses his argument exclusively on the \n force clause, arguing that “intimidation” does not require the use or threat \n of violent force and that this bank robbery statute does not require the \n defendant make an intentional threat of physical force. Appellant’s Br. at \n 27–29. Since we conclude that federal bank robbery is a predicate crime of \n violence under the Guidelines’ commentary clause, we decline to resolve \n the question of whether federal bank robbery is also a crime of violence \n under the force clause. We note, however, that this circuit, in a summary \n order, and our sister circuits, in published opinions, have consistently held \n that federal bank robbery by intimidation is a crime of violence under the \n force clause of various sentence enhancement Guidelines and statutes. See \n Killion, 728 F. App’x at 21–22 (“Killion argues that in light of Johnson [I], \n federal armed bank robbery is no longer a violent felony . . . [because] the \n offense does not require the use of any force . . . [since] intimidation \n involves at most a threat of injury. . . . [However,] the threat of injury is still \n a threat to use physical force, and is punishable under the ACCA’s force \n clause.” (internal citations omitted)); see also United States v. Wilson, 880 F.3d \n 80, 84–85 (3d Cir. 2018); United States v. Harper, 869 F.3d 624, 626–27 (8th Cir. \n 2017); United States v. Ellison, 866 F.3d 32, 35–40 (1st Cir. 2017); United States \n v. Brewer, 848 F.3d 711, 715–16 (5th Cir. 2017); United States v. McGuire, 678 \n F. App’x 643, 645–46 (10th Cir. 2017) (summary order); McBride, 826 F.3d at \n 295–96; United States v. Jenkins, 651 F. App’x 920, 925 (11th Cir. 2016) (per \n curiam); United States v. McNeal, 818 F.3d 141, 152–53 (4th Cir. 2016); United \n States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991); United States v. Selfa, 918 F.2d \n 749, 751 (9th Cir. 1990). \n\f 17 16‐1604 (L), 16‐1624 (con) \n\n\n 1 commentary clause of the Career Offender Guidelines because it \n\n 2 conforms to the generic definition of robbery. \n\n 3 III. New York Robbery in the Third‐Degree Is a Crime of \n 4 Violence Under the Force Clause \n\n 5 Moore also argues that the district court erred in applying the \n\n 6 Career Offender Guidelines’ sentencing enhancement because New \n\n 7 York robbery in the third degree is not a crime of violence under \n\n 8 either the force clause or the commentary clause. We hold that New \n\n 9 York robbery in the third degree is categorically a crime of violence \n\n10 under the force clause of U.S.S.G. § 4B1.2(a)(1). Our holding today \n\n11 parallels this court’s recent decisions in United States v. Thrower, No. \n\n12 17‐445, 2019 WL 385652, at *3 (2d Cir. Jan. 31, 2019) (per curiam), and United \n\n13 States v. Pereira‐Gomez, 903 F.3d 155, 166 (2d Cir. 2018), in which we \n\n14 held that New York robbery in the third degree is a violent felony \n\n15 under the force clause of 18 U.S.C. § 924(3)(2)(B) and a crime of \n\n16 violence under the force clause of U.S.S.G. § 2L1.2 of the 2014 \n\n17 Guidelines, respectively. In light of our holding under the force \n\n18 clause, we do not consider Moore’s argument that the New York \n\n19 statute is broader than the definition of generic robbery and not a \n\n20 crime of violence under the commentary clause.6 \n\n\n 6 Moore also argues in his reply brief that New York robbery in the third \n degree is not a crime of violence under the residual clause but concedes that \n the district court did not rely on the residual clause in making the \n determination that New York robbery in the third degree is a crime of \n\f 18 16‐1604 (L), 16‐1624 (con) \n\n\n 1 As with the commentary clause, we analyze whether an offense \n\n 2 is a crime of violence under the force clause using the categorical \n\n 3 approach. Pereira‐Gomez, 903 F.3d at 164 (citing Stuckey v. United \n\n 4 States, 878 F.3d 62, 66–67 (2d Cir. 2017)). This approach, familiar by \n\n 5 now, involves two steps: first we identify the elements of the \n\n 6 predicate conviction by determining the minimum criminal conduct \n\n 7 a defendant must commit to be convicted; second, we determine \n\n 8 whether that minimum criminal conduct “has as an element the use, \n\n 9 attempted use, or threatened use of physical force,” U.S.S.G. \n\n10 § 4B1.2(a)(1). Stuckey, 878 F.3d at 67; see also United States v. Hill, 890 \n\n11 F.3d 51, 55–56 (2d Cir. 2018). “[T]o show a predicate conviction is not \n\n12 a crime of violence ‘requires more than the application of legal \n\n13 imagination to [the] . . . statute’s language.’ . . . [T]here must be a \n\n14 ‘realistic probability, not a theoretical possibility,’ that the statute at \n\n15 issue could be applied to conduct that does not constitute a crime of \n\n16 violence.” Hill, 890 F.3d at 56 (alterations omitted) (quoting Gonzales \n\n17 v. Duenas‐Alvarez, 549 U.S. 183, 193 (2007)). This means that a \n\n18 defendant must point to at least one case in which a court in fact \n\n19 applied a particular statute in a manner for which he or she argues. \n\n20 Id. \n\n\n\n violence. We decline to consider this argument given our holding that New \n York robbery in the third degree is a crime of violence under the force \n clause. \n\f 19 16‐1604 (L), 16‐1624 (con) \n\n\n 1 New York third‐degree robbery is not divisible, and therefore \n\n 2 we apple the categorical approach without modification. See Mathis, \n\n 3 136 S. Ct. at 2248–49. A person is guilty of New York third‐degree \n\n 4 robbery when she “forcibly steals property.” N.Y. Penal Law § 160.05. \n\n 5 A person forcibly steals property when, \n\n 6 in the course of committing a larceny, he uses or \n 7 threatens the immediate use of physical force upon \n 8 another person for the purpose of: (1) [p]reventing or \n 9 overcoming resistance to the taking of the property or to \n10 the retention thereof immediately after the taking; or \n11 (2) [c]ompelling the owner of such property or another \n12 person to deliver up the property or to engage in other \n13 conduct which aids in the commission of the larceny. \n\n14 N.Y. Penal Law § 160.00; see also Pereira‐Gomez, 903 F.3d at 165. \n\n15 Distilled to its basic elements, third‐degree robbery in New \n\n16 York requires the use or threat of immediate physical force upon \n\n17 another in furtherance of a larceny. Plainly then, the elements of this \n\n18 offense constitute a crime of violence under the force clause of the \n\n19 Career Offender Guidelines because they include “as an element the \n\n20 use, attempted use, or threatened use of physical force against the \n\n21 person of another.” U.S.S.G. § 4B1.2(a)(1). \n\n22 Moore’s arguments that New York robbery in the third degree \n\n23 does not qualify as a crime of violence under the force clause of the \n\n24 Career Offender Guidelines are unavailing. He argues that New York \n\n25 third‐degree robbery does not require violent force but can be violated \n\n26 with “relatively minor physical power,” Appellant’s Reply Br. at 14, \n\f 20 16‐1604 (L), 16‐1624 (con) \n\n\n 1 and therefore runs afoul of the Supreme Court’s requirement in \n\n 2 Johnson I that physical force be “violent force—that is, force capable \n\n 3 of causing physical pain or injury to another person,” Johnson I, 559 \n\n 4 U.S. at 140 (emphasis omitted).7 \n\n 5 To support his argument, Moore principally relies on our \n\n 6 vacated opinion in Jones I. To the extent anything in our vacated Jones \n\n 7 I opinion may have supported Moore’s position, it has no \n\n 8 precedential value. See In re Bernard L. Madoff Inv. Sec. LLC, 721 F.3d \n\n 9 54, 68 (2d Cir. 2013) (“[V]acatur dissipates precedential force.”); see \n\n10 also Pereira‐Gomez, 903 F.3d at 165 n.45 (“In [Jones I], this Court initially \n\n11 reversed Spencer on the basis of perceived supervening Supreme \n\n12 Court guidance. But Jones I was subsequently vacated and our ruling \n\n13 in Spencer was reinstated.”); Massey v. United States, 895 F.3d 248, 251 \n\n14 n.6 (2d Cir. 2018) (per curiam) (same). \n\n 7 In holding that physical force means violent force or force capable of \n causing physical pain or injury to another person, the Johnson I Court was \n interpreting the ACCA’s force clause defining a “violent felony” and not \n the Career Offender Guidelines’ force clause defining a “crime of violence.” \n 559 U.S. at 135, 140. The Supreme Court has never directly held that Johnson \n I’s definition of physical force applies to the Career Offender Guidelines’ \n force clause. However, the two clauses are substantively similar to one \n another, and, as discussed, the Supreme Court indicated in Johnson I that \n case law interpreting a specific force clause can be reliably applied to other, \n similarly phrased force clauses. See id. at 140. Therefore, we assume \n without holding that Johnson I’s definition of physical force applies to the \n force clause of the Career Offender Guidelines at issue in this case. See, e.g., \n Hill, 890 F.3d at 58 (assuming, without deciding, that Johnson I’s definition \n of physical force applies to 18 U.S.C. § 924(c)(3)(A)’s similar force clause \n definition of crime of violence). \n\f 21 16‐1604 (L), 16‐1624 (con) \n\n\n 1 Moore also relies on decisions from other circuits interpreting \n\n 2 other states’ robbery statutes to support his argument that New York \n\n 3 robbery in the third degree is not a crime of violence under the force \n\n 4 clause because it does not require violent force. Even if those other \n\n 5 states’ robbery statutes were identical to the relevant New York \n\n 6 statute, however, they are not controlling in this circuit. Our circuit \n\n 7 has addressed this exact argument in Pereira‐Gomez and concluded \n\n 8 that “[b]y its plain language . . . New York’s robbery statute includes \n\n 9 as an element the use of violent force.” 903 F.3d at 165 (emphasis \n\n10 added). Moore’s argument that New York robbery in the third degree \n\n11 does not require violent force as defined by Johnson I is foreclosed by \n\n12 our recent opinion in Pereira‐Gomez, as supported by the New York \n\n13 Court of Appeals’s interpretation of the statute. Id.8 \n\n 8 In Pereira‐Gomez, we held that robbery in any degree under New York law \n is a crime of violence under the force clause of § 2L1.2 of the 2014 \n Guidelines. 903 F.3d at 166. Even more recently in United States v. Thrower, \n we reached the same conclusion as it pertains to violent felonies under the \n force clause in the ACCA. 2019 WL 385652, at *3–4. We have reached \n similar conclusions on other, prior occasions. See, e.g., United States v. \n Spencer, 955 F.2d 814, 820 (2d Cir. 1992) (attempted New York robbery in \n the third degree “has as an element the use, attempted use, or threatened \n use of physical force against the person of another” because it requires \n “forcibly stealing property and using or threatening the immediate use of \n physical force upon another person” (internal quotations and alterations \n omitted)); United States v. Brown, 52 F.3d 415, 425–26 (2d Cir. 1995) (New \n York attempted robbery in the third degree constitutes a violent felony \n under the force clause of the ACCA, which uses the same language to define \n a violent felony as the Career Offender Guidelines: any crime that “has as \n an element the use, attempted use, or threatened use of physical force \n\f 22 16‐1604 (L), 16‐1624 (con) \n\n\n 1 Any doubt as to the lack of merit of Moore’s argument was \n\n 2 recently removed by the Supreme Court’s rejection of a similar \n\n 3 challenge to Florida’s robbery statute, which requires “resistance by \n\n 4 the victim that is overcome by the physical force of the offender.” See \n\n 5 Stokeling v. United States, 139 S. Ct. 544, 549 (2019) (internal quotations \n\n 6 omitted). The Court held that the Florida statute does constitute a \n\n 7 violent felony under the force clause of the ACCA despite the fact that \n\n 8 the force may be minor and may not cause pain or injury, because \n\n 9 Johnson I’s definition of violent force is concerned with only the \n\n10 potential of the force to cause pain or injury, rather than the likelihood \n\n11 that it will. Id. at 554. Like the Florida robbery statute at issue in \n\n\n against the person of another”) (internal quotations omitted); United States \n v. Miles, 748 F.3d 485, 490 (2d Cir. 2014) (per curiam) (same). Pereira‐Gomez, \n Thrower, Brown, and Miles addressed the force clauses of § 2L1.2 and the \n ACCA, but we see no reason why the reasoning of these prior cases should \n not apply with equal force to the materially identical force clause of the \n Career Offender Guidelines in § 4B1.2. See United States v. Parnell, 524 F.3d \n 166, 169–70 (2d Cir. 2008) (per curiam) (“We have previously relied on \n authorities interpreting the ACCA’s definition of a ‘violent felony’ to \n interpret the [Career Offender] Guidelines’ definition of ‘crime of violence’ \n . . . because those provisions are substantively similar, making authority \n interpreting one phrase persuasive in interpreting the other phrase.” \n (internal quotations, citations, and alterations omitted)); see also Johnson I, \n 559 U.S. at 140 (applying case law interpreting the force clause of 18 U.S.C. \n § 16’s crime of violence provision to an issue requiring interpretation of the \n ACCA’s “very similar” force clause provision). In this case, the force \n clauses in the 2014 Guidelines’ version of § 2L1.2 and in the ACCA have the \n exact same definition as the force clause in the 2015 version of § 4B1.2: an \n offense that “has as an element the use, attempted use, or threatened use of \n physical force against the person of another.” Compare Pereira‐Gomez, 903 \n F.3d at 164, and Thrower, 2019 WL 385652, at *2, with U.S.S.G. § 4B1.2(a)(1). \n\f 23 16‐1604 (L), 16‐1624 (con) \n\n\n1 Stokeling, the New York robbery statute requires the use or threat of \n\n2 force in order to overcome the victim’s resistance to the theft, and \n\n3 therefore, it is “capable of causing physical pain or injury.” Id. at 555 \n\n4 (quoting Johnson I, 559 U.S. at 140). \n\n5 CONCLUSION \n\n6 For all of the foregoing reasons, the district court appropriately \n\n7 applied the 2015 (pre‐amendment) Career Offender Guidelines’ \n\n8 sentencing enhancement in this case, and thus, we AFFIRM the \n\n9 judgment of the district court.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370686/", "author_raw": "No. 1:15-cr-27-1 - Thomas J. McAvoy, District Judge"}]} | KATZMANN | WALKER | POOLER | 1 | {"KATZMANN": ", Chief", "WALKER": ", Circuit", "POOLER": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593433/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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4,593,434 | In RE: Irving H. PICARD, TRUSTEE FOR the LIQUIDATION OF BERNARD L. MADOFF INVESTMENT SECURITIES LLC | In re Picard | 2019-02-25 | Docket 17-2992(L); 17-2995; 17-2996; 17-2999; 17-3003; 17-3004; 17-3005; 17-3006; 17-3007; 17-3008; 17-3009; 17-3010; 17-3011; 17-3012; 17-3013; 17-3014; 17-3016; 17-3018; 17-3019; 17-3020; 17-3021; 17-3023; 17-3024; 17-3025; 17-3026; 17-3029; 17-3032; 17-3033; 17-3034; 17-3035; 17-3038; 17-3039; 17-3040; 17-3041; 17-3042; 17-3043; 17-3044; 17-3047; 17-3050; 17-3054; 17-3057; 17-3058; 17-3059; 17-3060; 17-3062; 17-3064; 17-3065; 17-3066; 17-3067; 17-3068; 17-3069; 17-3070; 17-3071; 17-3072; 17-3073; 17-3074; 17-3075; 17-3076; 17-3077; 17-3078; 17-3080; 17-3083; 17-3084; 17-3086; 17-3087; 17-3088; 17-3091; 17-3100; 17-3101; 17-3102; 17-3106; 17-3109; 17-3112; 17-3113; 17-3115; 17-3117; 17-3122; 17-3126; 17-3129; 17-3132; 17-3134; 17-3136; 17-3139; 17-3140; 17-3141; 17-3143; 17-3144; 17-3862 | U.S. Court of Appeals for the Second Circuit | {"judges": "Jacobs, Pooler, Wesley", "parties": "", "opinions": [{"author": "WESLEY, Circuit Judge:", "type": "010combined", "text": "17‐2992(L) \nIn re Picard \n \n UNITED STATES COURT OF APPEALS \n FOR THE SECOND CIRCUIT \n ______________ \n \n August Term 2018 \n \n (Argued: November 16, 2018 | Decided: February 25, 2019) \n \n Docket Nos. 17‐2992(L), \n17‐2995, 17‐2996, 17‐2999, 17‐3003, 17‐3004, 17‐3005, 17‐3006, 17‐3007, 17‐3008, \n17‐3009, 17‐3010, 17‐3011, 17‐3012, 17‐3013, 17‐3014, 17‐3016, 17‐3018, 17‐3019, \n17‐3020, 17‐3021, 17‐3023, 17‐3024, 17‐3025, 17‐3026, 17‐3029, 17‐3032, 17‐3033, \n17‐3034, 17‐3035, 17‐3038, 17‐3039, 17‐3040, 17‐3041, 17‐3042, 17‐3043, 17‐3044, \n17‐3047, 17‐3050, 17‐3054, 17‐3057, 17‐3058, 17‐3059, 17‐3060, 17‐3062, 17‐3064, \n17‐3065, 17‐3066, 17‐3067, 17‐3068, 17‐3069, 17‐3070, 17‐3071, 17‐3072, 17‐3073, \n17‐3074, 17‐3075, 17‐3076, 17‐3077, 17‐3078, 17‐3080, 17‐3083, 17‐3084, 17‐3086, \n17‐3087, 17‐3088, 17‐3091, 17‐3100, 17‐3101, 17‐3102, 17‐3106, 17‐3109, 17‐3112, \n17‐3113, 17‐3115, 17‐3117, 17‐3122, 17‐3126, 17‐3129, 17‐3132, 17‐3134, 17‐3136, \n 17‐3139, 17‐3140, 17‐3141, 17‐3143, 17‐3144, 17‐3862. \n \nIN RE: IRVING H. PICARD, TRUSTEE FOR THE LIQUIDATION OF BERNARD \n L. MADOFF INVESTMENT SECURITIES LLC \n ______________ \n \nBefore: \n JACOBS, POOLER, AND WESLEY, Circuit Judges. \n \n These eighty‐eight consolidated appeals come from dozens of related orders \nof the United States Bankruptcy Court for the Southern District of New York \n(Bernstein, J.). Plaintiff‐Appellant Irving H. Picard, Trustee for the Liquidation of \nBernard L. Madoff Investment Securities LLC (“Madoff Securities”), alleges that \nMadoff Securities transferred property to foreign entities that subsequently \ntransferred it to other foreign entities, including the hundreds of Appellees. The \n\fTrustee contends that Madoff Securities’ transfers are avoidable (meaning \n“voidable”) as fraudulent under § 548(a)(1)(A) of the Bankruptcy Code. He \nthereby seeks to recover the property from the Appellees using § 550(a)(2) of the \nBankruptcy Code. These actions were dismissed on the grounds that the \npresumption against extraterritoriality and international comity principles limit \nthe scope of § 550(a)(2) such that the trustee of a domestic debtor cannot use it to \nrecover property that the debtor transferred to a foreign entity that subsequently \ntransferred it to another foreign entity. We disagree and hold that neither doctrine \nbars recovery in these actions. Accordingly, we VACATE the judgments of the \nbankruptcy court and REMAND for further proceedings. \n _________________ \n\n ROY T. ENGLERT, JR., Robbins, Russell, Englert, Orseck, Untereiner \n & Sauber LLP, Washington, D.C. (David J. Sheehan, Seanna R. \n Brown, Torello H. Calvani, Catherine E. Woltering, Baker & \n Hostetler LLP, New York, NY, for Plaintiff‐Appellant Irving H. \n Picard; Howard L. Simon, Windels Marx Lane & Mittendorf, \n LLP, New York, NY; Matthew B. Lunn, Young Conaway \n Stargatt & Taylor, LLP, New York, NY, Special Counsel for the \n Trustee, on the brief), for Plaintiff‐Appellant. \n\n JOSEPHINE WANG, General Counsel (Kevin H. Bell, Senior \n Associate General Counsel for Dispute Resolution, Nathanael \n S. Kelley, Associate General Counsel, on the brief), Securities \n Investor Protection Corporation, Washington, D.C., for \n Intervenor Securities Investor Protection Corporation. \n\n FRANKLIN B. VELIE, Sullivan & Worcester LLP, New York, NY; \n THOMAS J. MOLONEY, Cleary Gottlieb Steen & Hamilton \n LLP, New York, NY (Diarra M. Guthrie, Samuel P. Hershey, \n Cleary Gottlieb Steen & Hamilton LLP, New York, NY; \n Timothy P. Harkness, David Y. Livshiz, Jill K. Serpa, \n Freshfields Bruckhaus Deringer US LLP, New York, NY; \n Marshall R. King, Gibson, Dunn & Crutcher LLP, New York, \n NY; Jonathan G. Kortmansky, Mitchell C. Stein, Sullivan & \n Worcester LLP, New York, NY, on the brief), for Defendants‐\n \n \n \n 2\n\f Appellees HSBC Holdings plc, et al., UBS AG, et al., First Peninsula \n Trustees Limited, et al., and BA Worldwide Fund Management \n Limited. \n\nEugene R. Licker, Ballard Spahr LLP, New York, NY, for Defendants‐\n Appellees Lighthouse Investment Partners, LLC, Lighthouse \n Supercash Fund Limited, and Lighthouse Diversified Fund Limited. \n\nDean A. Ziehl (Harry D. Hochman, Alan J. Kornfeld, on the brief), \n Pachulski Stang Ziehl & Jones LLP, New York, NY, for Amicus \n Curiae National Association of Bankruptcy Trustees, in support of \n Plaintiff‐Appellant. \n\nRoger P. Sugarman, Kegler, Brown Hill + Ritter, Columbus, OH, for \n Amici Curiae Professors of Conflict of Laws, in support of Plaintiff‐\n Appellant. \n\nAndrea Dobin (Henry M. Karwowski, on the brief), Trenk, DiPasquale, \n Della Fera & Sodono, P.C., West Orange, NJ, for Amici Curiae \n Bankruptcy Law Professors, in support of Appeal and Reversal. \n\nDavid Molton, Brown Rudnick LLP, New York, NY, for Amicus Curiae \n Kenneth Krys, as Liquidator and Foreign Representative of Fairfield \n Sentry Limited, Fairfield Sigma Limited, and Fairfield Lambda \n Limited, in support of Plaintiff‐Appellant and partial reversal. \n\nDaniel M. Sullivan (Matthew Gurgel, Benjamin F. Heidlage, on the \n brief), Holwell Shuster & Goldberg LLP, New York, NY, for \n Amici Curiae Brian Child, Christopher Hill, Nilani Perera, Martin \n Trott, and Andrew Willins, in support of Defendants‐Appellees. \n\nGeorge T. Conway III (Emil A. Kleinhaus, Joseph C. Celentino, on the \n brief), Wachtell, Lipton, Rosen & Katz, New York, NY, for \n Amicus Curiae Securities Industry and Financial Markets \n Association, in support of Defendants‐Appellees. \n\n\n\n \n \n \n 3\n\f Richard A. Kirby, FisherBroyles, LLP, Washington, D.C. (Carole \n Neville, Dentons, New York, NY; Richard Levy, Pryor \n Cashman LLP, New York, NY, on the brief), for Amici Curiae Lanx \n BM Investments, LLC, et al., in support of Defendants‐Appellees. \n\n _________________ \n\nWESLEY, Circuit Judge: \n\n These eighty‐eight consolidated appeals arise from the ongoing fallout of \n\nBernard Madoff’s Ponzi scheme. As alleged, Bernard L. Madoff Investment \n\nSecurities LLC (“Madoff Securities”) fraudulently transferred billions of dollars to \n\nforeign investors, including the feeder funds at issue here. These feeder funds, the \n\ninitial transferees of that property, subsequently transferred it to other foreign \n\ninvestors, a group that includes the hundreds of Appellees. Irving H. Picard, the \n\nAppellant and Trustee for the Liquidation of Madoff Securities, alleges these \n\ntransfers are fraudulent, and thus avoidable (meaning “voidable”), under \n\n§ 548(a)(1)(A) of the Bankruptcy Code. Invoking § 550(a)(2) of the Bankruptcy \n\nCode, the Trustee sued the Appellees to recover the property. The question before \n\nus is whether, where a trustee seeks to avoid an initial property transfer under \n\n§ 548(a)(1)(A), either the presumption against extraterritoriality or international \n\ncomity principles limit the reach of § 550(a)(2) such that the trustee cannot use it \n\n\n \n \n \n 4\n\fto recover property from a foreign subsequent transferee that received the \n\nproperty from a foreign initial transferee. \n\n Following an order of the United States District Court for the Southern \n\nDistrict of New York (Rakoff, J.),1 the United States Bankruptcy Court for the \n\nSouthern District of New York (Bernstein, J.)2 dismissed the Trustee’s actions, \n\nholding in each that either the presumption against extraterritoriality or \n\ninternational comity principles prevent the Trustee from using § 550(a)(2) to \n\nrecover this property. We disagree and hold that neither doctrine bars recovery in \n\nthese actions. Accordingly, we vacate the judgments below and remand to the \n\nbankruptcy court for further proceedings. \n\n BACKGROUND \n\n Bernard Madoff orchestrated the largest Ponzi scheme in history through \n\nMadoff Securities, his New York investment firm. He enticed investors to buy into \n\nalleged investment funds by promising returns that seemed, and were, too good \n\nto be true. Rather than invest the money, Madoff commingled it in a checking \n\n\n1 Sec. Inv’r Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC (SIPC I), 513 B.R. 222 (S.D.N.Y.), \nsupplemented by 12‐MC‐115, 2014 WL 3778155 (S.D.N.Y. July 28, 2014). \n Sec. Inv’r Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC (SIPC II), AP 08‐01789 (SMB), 2016 \n2\n\nWL 6900689 (Bankr. S.D.N.Y. Nov. 22, 2016). \n \n \n \n 5\n\faccount he held with JPMorgan Chase in New York. See, e.g., In re Bernard L. Madoff \n\nInv. Sec. LLC., 721 F.3d 54, 59–60 (2d Cir. 2013). When investors wanted to \n\nwithdraw their funds, Madoff sent them checks from this account. Id. at 73. In \n\neffect, Madoff paid his investors using money he received from other investors. In \n\n2008, his fraudulent enterprise collapsed. \n\n On December 15, 2008, the Securities Investment Protection Corporation, \n\nacting pursuant to the Securities Investor Protection Act of 1978 (“SIPA”), 15 \n\nU.S.C. §§ 78aaa et seq., petitioned the United States District Court for the Southern \n\nDistrict of New York for a protective order placing Madoff Securities into \n\nliquidation. See, e.g., In re Bernard L. Madoff Inv. Sec. LLC, 740 F.3d 81, 84 (2d Cir. \n\n2014). As we previously explained: \n\n SIPA establishes procedures for the expeditious and orderly \n liquidation of failed broker‐dealers, and provides special protections \n to their customers. A trustee’s primary duty under SIPA is to \n liquidate the broker‐dealer and, in so doing, satisfy claims made by \n or on behalf of the broker‐dealer’s customers for cash balances. In a \n SIPA liquidation, a fund of “customer property” is established—\n consisting of cash and securities held by the broker‐dealer for the \n account of a customer, or proceeds therefrom, 15 U.S.C. § 78lll(4)—for \n priority distribution exclusively among customers, id. § 78fff–2(c)(1). \n The Trustee allocates the customer property so that customers “share \n ratably in such customer property . . . to the extent of their respective \n net equities.” Id. § 78fff–2(c)(1)(B). \n \n \n \n \n 6\n\fId. at 85 (alteration in original) (citation omitted). The Southern District court \n\nissued the protective order, appointed Picard as Trustee, and referred the case to \n\nthe United States Bankruptcy Court for the Southern District of New York. Id. at \n\n84–85 (citing Order, SEC v. Bernard L. Madoff and Bernard L. Madoff Inv. Sec. LLC, \n\n08‐10791 (LLS) (S.D.N.Y. Dec. 15, 2008), ECF No. 4). \n\n Some debtors, such as Madoff Securities, complicate a SIPA trustee’s task \n\nby unlawfully transferring customer property prior to the formation of a \n\nliquidation estate. To ensure that these transfers do not prevent a trustee from \n\nratably distributing customer property, SIPA authorizes trustees to “recover any \n\nproperty transferred by the debtor which, except for such transfer, would have \n\nbeen customer property if and to the extent that such transfer is voidable or void \n\nunder the provisions of [the Bankruptcy Code].” 15 U.S.C. § 78fff–2(c)(3). \n\n The Bankruptcy Code, in turn, provides various means for trustees to avoid \n\na debtor’s transfers and, to the extent that a transfer is avoided, to recover the \n\ntransferred property. See 11 U.S.C. §§ 541 et seq. Section 550(a)(1) allows trustees to \n\nrecover property from the debtor’s initial transferee. And § 550(a)(2) permits a \n\ntrustee to recover property from any subsequent transferee. \n\n\n\n \n \n \n 7\n\f Many of Madoff Securities’ direct investors were “feeder funds.” A feeder \n\nfund is an entity that pools money from numerous investors and then places it into \n\na “master fund” on their behalf. A master fund—what Madoff Securities \n\nadvertised its funds to be—pools investments from multiple feeder funds and then \n\ninvests the money. \n\n Three foreign feeder fund networks that invested with Madoff Securities are \n\nrelevant to many of these appeals: \n\n Fairfield Greenwich Group is a network of funds operating in New York \n whose funds are organized in the British Virgin Islands (“BVI”), where \n Fairfield is in liquidation. In those proceedings, the bankruptcy court found, \n liquidators other than Picard have “brought substantially the same claims \n [that Picard brings here] against substantially the same group of defendants \n to recover substantially the same transfers [that Picard seeks to recover].” \n SIPC II, 2016 WL 6900689, at *13. \n \n The Kingate Funds is a network of funds organized in the BVI. Kingate is \n currently in liquidation proceedings in the BVI and Bermuda. Liquidators \n in those nations have brought substantially the same claims Picard brings \n here “against substantially the same defendants to recover substantially the \n same transfers” with “limited success.” Id. at *14. \n \n The Harley International (Cayman) Limited Funds network is located in the \n Cayman Islands, where it is currently in liquidation. Picard pursued some \n relief in those proceedings in 2010. \n\n\n\n\n \n \n \n 8\n\fMany of these feeder funds placed all or substantially all of their assets into Madoff \n\nSecurities’ investment vehicles. Fairfield, for example, invested 95% of its funds \n\nwith Madoff Securities. \n\n When a feeder fund investor wants to withdraw her money, she effectively \n\nneeds to recover it from the master fund. The investor initiates a withdrawal by \n\ninforming the feeder fund, which itself makes a withdrawal request from the \n\nmaster fund. The master fund then transfers the money to the feeder fund (the \n\ninitial transfer), which subsequently transfers the money to its investor (the \n\nsubsequent transfer). \n\n Because Madoff Securities did not invest the money it received from the \n\nfeeder funds, the invested funds accrued no actual gains, despite representations \n\nto the contrary by Madoff Securities personnel. When a feeder fund’s investor \n\ninitiated a withdrawal, Madoff Securities transferred commingled investor money \n\nfrom its JPMorgan Chase account in New York to the feeder fund, which \n\nsubsequently transferred the money to its investor. \n\n\n Initial Subsequent \n Master Fund\n transfer transfer Investor\n (Madoff Feeder Fund\n (Appellees)\n Securities)\n \n \n \n \n 9\n\f The hundreds of Appellees are foreign subsequent transferees that invested \n\nin foreign feeder funds. In the bankruptcy court below, the Trustee sued the \n\nAppellees under § 550(a)(2) of the Bankruptcy Code to recover property the \n\nAppellees allegedly received from Madoff Securities via foreign feeder funds.3 The \n\nTrustee contended that Madoff Securities’ initial transfers to the feeder funds were \n\navoidable as fraudulent under § 548(a)(1)(A) of the Bankruptcy Code. \n\n The United States District Court for the Southern District of New York, \n\nJudge Rakoff, withdrew the reference to the bankruptcy court to determine \n\nwhether § 550(a)(2) allows the Trustee to recover this property. In a July 2014 \n\ndecision, the court held on two grounds that the Trustee could not proceed with \n\nthese actions. First, it held that the presumption against extraterritoriality limits \n\nthe scope of § 550(a)(2), such that a trustee may not use it to recover property that \n\none foreign entity received from another foreign entity. Second, and alternatively, \n\nthe court held that international comity principles limit the scope of § 550(a)(2) on \n\nthese facts. The district court did not dismiss any of the Trustee’s complaints but \n\n\n\n3 The Appellees contest whether the money the feeder funds sent them came entirely from \nMadoff Securities. For the purpose of these appeals, however, the Appellees assume that \nthe Trustee could trace the money back to Madoff Securities. We make the same \nassumption. \n \n \n \n 10\n\finstead remanded to the bankruptcy court for further proceedings consistent with \n\nits opinion. \n\n On remand, and following further factual development, the United States \n\nBankruptcy Court for the Southern District of New York, Judge Bernstein, applied \n\nthe district court’s reasoning and dismissed the Trustee’s claims against the \n\nAppellees. \n\n First, the court dismissed the claims against the Appellees that invested with \n\nFairfield, Kingate, and Harley on international comity grounds. The court found \n\nthat the United States “has no interest in regulating the relationship between [these \n\nfunds] and their investors or the liquidation of [these funds] and the payment of \n\ntheir investors’ claims.” SIPC II, 2016 WL 6900689, at *14. It also found that the \n\nforeign nations where those entities are in liquidation “[have] a greater interest \n\n[than the United States] in regulating the activities that gave rise to the Trustee’s \n\nsubsequent transfer claims, particularly the validity or invalidity of payments by \n\n[the funds] to [their] investors and service providers.” Id. at *16; see also id. at *14. \n\n Second, the bankruptcy court dismissed the recovery claims against the \n\nremaining Appellees under the presumption against extraterritoriality. \n\nInterpreting our precedent and the district court’s opinion, the bankruptcy court \n \n \n \n 11\n\fconcluded that the factors relevant to determining whether the transactions were \n\nextraterritorial were the locations from which the transfers were made and sent \n\nand the location or residence of the initial and subsequent transferee. The court \n\ndismissed the Trustee’s claims because he had not alleged facts sufficient to \n\nsupport a domestic nexus under these criteria.4 \n\n The Trustee appealed the orders dismissing the recovery actions. We \n\nconsolidated those appeals and now resolve them under the following principles. \n\n DISCUSSION \n\n We begin by unpacking the statutory scheme relevant to these appeals. \n\n “SIPA serves dual purposes: to protect investors, and to protect the \n\nsecurities market as a whole.” In re Bernard L. Madoff Inv. Sec. LLC, 654 F.3d 229, \n\n235 (2d Cir. 2011). To achieve these purposes, SIPA allows courts to appoint \n\ntrustees, such as Picard, and endow them with certain authority over liquidation \n\nestates. This authority includes the power to “allocate customer property of the \n\n\n\n\n4 The court also found that some feeder funds had no connection to their country of \norganization, were managed and operated in the United States, and made their \nsubsequent transfers from New York. It denied the motions to dismiss the actions \ninvolving their subsequent transfers and granted the Trustee leave to amend so he could \nshow whether those transactions were domestic. \n \n \n \n 12\n\fdebtor,” 15 U.S.C. § 78fff–2(c)(1), which SIPA defines as “cash and securities . . . at \n\nany time received, acquired, or held by or for the account of a debtor from or for \n\nthe securities accounts of a customer, and the proceeds of any such property \n\ntransferred by the debtor, including property unlawfully converted,” id. § 78lll(4). \n\n “Whenever customer property is not sufficient to pay in full the claims \n\n[against the debtor], the trustee may recover any property transferred by the \n\ndebtor which, except for such transfer, would have been customer property if and \n\nto the extent that such transfer is voidable or void under the [Bankruptcy Code].” \n\nId. § 78fff–2(c)(3). \n\n The Trustee alleges Madoff Securities’ initial transfers to the feeder funds \n\nare avoidable as fraudulent under § 548(a)(1)(A) of the Bankruptcy Code. That \n\nsection provides: \n\n The trustee may avoid any transfer . . . of an interest of the debtor in \n property, or any obligation . . . incurred by the debtor, that was made \n or incurred on or within 2 years before the date of the filing of the \n petition, if the debtor voluntarily or involuntarily . . . made such \n transfer or incurred such obligation with actual intent to hinder, \n delay, or defraud any entity to which the debtor was or became, on or \n after the date that such transfer was made or such obligation was \n incurred, indebted . . . . \n \n11 U.S.C. § 548(a)(1)(A). \n\n\n \n \n \n 13\n\f Only once a transfer is avoided may a trustee recover the underlying \n\nproperty. Section 550(a), the recovery provision, states: \n\n Except as otherwise provided in this section, to the extent that a \n transfer is avoided under section 544, 545, 547, 548, 549, 553(b), or \n 724(a) of this title, the trustee may recover, for the benefit of the estate, \n the property transferred, or, if the court so orders, the value of such \n property, from . . . (1) the initial transferee of such transfer or the \n entity for whose benefit such transfer was made; or . . . (2) any \n immediate or mediate transferee of such initial transferee. \n \nId. § 550(a).5 Relevant here is § 550(a)(2), as the Trustee seeks to recover property \n\nfrom subsequent transferees. \n\n I. The Presumption Against Extraterritoriality \n\n The presumption against extraterritoriality is a canon of statutory \n\nconstruction. RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2100 (2016). It \n\nprovides that, “[a]bsent clearly expressed congressional intent to the contrary, \n\nfederal laws will be construed to have only domestic application.” Id. This canon \n\nhelps “avoid the international discord that can result when U.S. law is applied to \n\nconduct in foreign countries.” Id. It also reflects the “commonsense notion that \n\n\n\n\n5 Section 550(b) limits a trustee’s ability to recover under § 550(a)(2) from certain \nsubsequent transferees who received property in good faith. \n \n \n \n 14\n\fCongress generally legislates with domestic concerns in mind.” Id. (quoting Smith \n\nv. United States, 507 U.S. 197, 204 n.5 (1993)). \n\n An action may proceed if either the statute indicates its extraterritorial reach \n\nor the case involves a domestic application of the statute. The courts below found \n\nthat neither criterion was satisfied and accordingly dismissed these actions.6 \n\n Because the reach and applicability of a statute are questions of statutory \n\ninterpretation, we review a lower court’s application of the presumption against \n\nextraterritoriality de novo. See, e.g., Roach v. Morse, 440 F.3d 53, 56 (2d Cir. 2006). \n\n The Focus of § 550(a) in These Actions Is on the \n Debtor’s Fraudulent Transfer of Property to the \n Initial Transferee. \n \n The Supreme Court teaches that we must look to a statute’s “focus” to \n\ndetermine whether a case involves a domestic application of that statute. \n\n If the conduct relevant to the statute’s focus occurred in the United \n States, then the case involves a permissible domestic application even \n if other conduct occurred abroad; but if the conduct relevant to the \n\n6 Although the Supreme Court has referred to this extraterritoriality analysis as a “two‐\nstep framework,” these “steps” need not be sequential. See id. at 2101 & n.5. Courts \ngenerally begin by asking whether the statute indicates its extraterritorial reach, but they \nare free “in appropriate cases” to begin by asking whether the case involves an \nextraterritorial application of the statute. Id. at 2101 n.5. This is an appropriate case for \nbeginning with the latter question because we hold that the transactions here were \ndomestic, and the extraterritorial reach of a statute is of no moment when a case is truly \na domestic matter. \n \n \n \n 15\n\f focus occurred in a foreign country, then the case involves an \n impermissible extraterritorial application regardless of any other \n conduct that occurred in U.S. territory. \n \nRJR Nabisco, 136 S. Ct. at 2101. The Supreme Court recently explained how to \n\nidentify a statute’s focus in WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. \n\n2129 (2018). \n\n WesternGeco involved § 271(f) of the Patent Act, which prohibits the export \n\nof component parts of a patented product for assembly abroad. Id. at 2135 (citing \n\n35 U.S.C. § 271(f)(2)). Plaintiffs alleging infringement under § 271(f)(2) can recover \n\ndamages under 35 U.S.C. § 284. Id. The Federal Circuit held that § 271(f) does not \n\nallow plaintiffs to recover for lost foreign sales and vacated a jury award premised \n\non such damages. Id. (citing WesternGeco LLC v. ION Geophysical Corp., 791 F.3d \n\n1340, 1343 (Fed. Cir. 2015)). Reversing, the Supreme Court explained that “[t]he \n\nfocus of a statute is ‘the object of its solicitude,’ which can include the conduct it \n\n‘seeks to regulate,’ as well as the parties and interests it ‘seeks to protect’ or \n\nvindicate.” Id. at 2137 (brackets omitted) (quoting Morrison v. Nat’l Austl. Bank Ltd., \n\n561 U.S. 247, 267 (2010)). “When determining the focus of a statute, we do not \n\nanalyze the provision at issue in a vacuum.” Id. (citing Morrison, 561 U.S. at 267–\n\n69). Instead: \n \n \n \n 16\n\f If the statutory provision at issue works in tandem with other \n provisions, it must be assessed in concert with those other provisions. \n Otherwise, it would be impossible to accurately determine whether \n the application of the statute in the case is a “domestic application.” \n And determining how the statute has actually been applied is the \n whole point of the focus test. \n \nId. (citation omitted) (citing RJR Nabisco, 136 S. Ct. at 2101). \n\n Applying this principle, the Court identified the “overriding purpose” of \n\nthe damages provision, § 284, as a remedy for infringement, because it asks how \n\nmuch a plaintiff is due because of infringement. See id. (quoting General Motors \n\nCorp. v. Detox Corp., 461 U.S. 648, 655 (1983)). But because there is more than one \n\nway to infringe, the focus of § 284 depends on “the type of infringement that \n\noccurred.” See id. In WesternGeco, that meant turning to § 271(f)(2), which the Court \n\nfound focuses on domestic conduct because it regulates “the domestic act of \n\n‘suppl[ying] in or from the United States.’” Id. at 2137–38 (brackets in original) \n\n(quoting 35 U.S.C. § 271(f)(2)). \n\n Thus, the Court held that “the focus of § 284, in a case involving \n\ninfringement under § 271(f)(2), is on the act of exporting components from the \n\nUnited States,” which is “domestic infringement.” Id. at 2138. It rejected an \n\nargument that the statute focuses on damages, even though it authorizes them, \n\n\n \n \n \n 17\n\fbecause “what a statute authorizes is not necessarily its focus.” Id. Instead, the \n\nCourt found that damages are “merely the means by which the statute achieves its \n\nend of remedying infringements.” Id. \n\n WesternGeco helps resolve two issues relevant to these cases: (1) whether we \n\nshould look to the pertinent avoidance provision (here, § 548(a)(1)(A)) in \n\ndetermining the focus of § 550(a), and (2) the focus of § 550(a) in these actions. \n\n 1. We Must Look to § 548(a)(1)(A) to Determine the \n Focus of § 550(a) in These Cases Because the \n Provisions Work “In Tandem.” \n \n No one disputes that, in an action where a trustee seeks to recover property \n\nunder § 550(a), we must at a minimum look to that section. The dispute is whether \n\nwe must additionally look to the avoidance provision that enables a trustee’s \n\nrecovery. Section 550(a) applies only “to the extent that a transfer is avoided under \n\nsection 544, 545, 547, 548, 549, 553(b), or 724(a) of this title.” 11 U.S.C. § 550(a). In \n\nother words, a trustee cannot use § 550(a) to recover property unless the trustee \n\nhas first avoided a transfer under one of these provisions. \n\n Like the infringement and damages provisions of the Patent Act, the \n\nBankruptcy Code’s avoidance and recovery provisions work “in tandem.” See \n\nWesternGeco, 138 S. Ct. at 2137. In any given case, “it would be impossible to \n \n \n \n 18\n\faccurately determine” the focus of § 550(a) without asking why a trustee can use \n\nit—i.e., the purpose of the avoidance provision that enables the recovery action. \n\nSee id. (“[D]etermining how the statute has actually been applied is the whole point \n\nof the focus test.”). Just as the focus of § 284 of the Patent Act depends on the \n\ninfringement provision that enables a plaintiff to seek damages, the focus of \n\n§ 550(a) of the Bankruptcy Code depends on the avoidance provision that enables \n\na trustee to recover property. \n\n Thus, to determine § 550(a)’s focus in a given action, a court must also look \n\nto the relevant avoidance provision. \n\n 2. When Working In Tandem with § 548(a)(1)(A), \n § 550(a) Regulates a Debtor’s Fraudulent Transfer of \n Property, and It Therefore Focuses on the Debtor’s \n Initial Transfer. \n \n The focus of a statute is the conduct it seeks to regulate, as well as the parties \n\nwhose interests it seeks to protect. See id. The district court found that § 550(a) \n\nfocuses on “the property transferred” and “the fact of its transfer.” SIPC I, 513 B.R. \n\nat 227. On this theory, it concluded that a recovery action under § 550(a)(2) \n\nregulates the subsequent transfer of property: that from the initial transferee to the \n\nsubsequent transferee. \n\n\n \n \n \n 19\n\f But the harm to the estate as a result of its unlawful depletion began with \n\nthe initial transfer. Section 548(a)(1)(A) allows a trustee to “avoid any \n\ntransfer . . . of an interest of the debtor in property” that the debtor “made . . . with \n\nactual intent to hinder, delay, or defraud any entity to which the debtor was or \n\nbecame, on or after the date that such transfer was made or such obligation was \n\nincurred, indebted.” 11 U.S.C. § 548(a)(1)(A). A general purpose of “the \n\nBankruptcy Code’s avoidance provisions, including 11 U.S.C. § 548, [is] \n\nprotect[ing] a debtor’s estate from depletion to the prejudice of the unsecured \n\ncreditor.” In re Harris, 464 F.3d 263, 273 (2d Cir. 2006) (Sotomayor, J.) (agreeing \n\nwith In re French, 440 F.3d 145, 150 (4th Cir. 2006)). Thus, § 548(a)(1)(A)’s purpose \n\nis plain: it allows a trustee, for the protection of an estate and its creditors, to avoid \n\na debtor’s fraudulent, hindersome, or delay‐causing property transfer that \n\ndepletes the estate. See In re French, 440 F.3d at 150 (“[Section] 548 focuses not on \n\nthe property itself, but on the fraud of transferring it.”). \n\n Section 550(a) works in tandem with § 548(a)(1)(A) by enabling a trustee to \n\nrecover fraudulently transferred property. Recovery is the business end of \n\navoidance. In that sense, § 550(a) “is a utility provision, helping execute the policy \n\nof § 548[(a)(1)(A)]” by “tracing the fraudulent transfer to its ultimate resting place \n \n \n \n 20\n\f(the initial or subsequent transferee).” Edward R. Morrison, Extraterritorial \n\nAvoidance Actions: Lessons from Madoff, 9 Brook. J. Corp. Fin. & Com. L. 268, 273 \n\n(2014); see also In re Ampal‐Am. Israel Corp., 562 B.R. 601, 613 (Bankr. S.D.N.Y. 2017) \n\n(Bernstein, J.) (finding that when using § 550(a), “the trustee is essentially tracing \n\nproperty into the hands of the recipient—no different than a trustee under non‐\n\nbankruptcy law”). \n\n We hold that, in recovery actions where a trustee alleges a debtor’s transfers \n\nare avoidable as fraudulent under § 548(a)(1)(A), § 550(a) regulates the fraudulent \n\ntransfer of property depleting the estate.7 While § 550(a) authorizes recovery, \n\n“what a statute authorizes is not necessarily its focus.” WesternGeco, 138 S. Ct. at \n\n2138. When § 550(a) operates in tandem with § 548(a)(1)(A), recovery of property \n\n\n\n\n7 Section 548(a)(1)(A) allows a trustee to avoid a transfer on three grounds: that the debtor \nhad “actual intent to [1] hinder, [2] delay, or [3] defraud any entity to which the debtor \nwas or became . . . indebted.” While this opinion concerns the third ground, we would \napply the same logic in a case where a trustee sought to avoid transfers on the theory that \nthe debtor sought to “hinder” or “delay” an entity. For example, if a trustee alleged that \na debtor made a transfer intended to delay an entity, the focus of § 550(a) in that action \nwould be on the delay‐causing transfer of property that depletes the estate. \nSection 550(a) may serve different purposes depending on which of the Bankruptcy \nCode’s avoidance provisions enables recovery. We express no opinion on the focus of \n§ 550(a) in actions involving any avoidance provision other than § 548(a)(1)(A). \n \n \n \n 21\n\fis “merely the means by which the statute achieves its end of” regulating and \n\nremedying the fraudulent transfer of property. See id. \n\n Thus, in actions involving both provisions, § 550(a) regulates the debtor’s \n\ninitial transfer. While the subsequent transfer may indirectly harm creditors by \n\nmaking property more difficult to recover, it is the initial transfer that fraudulently \n\ndepletes the estate. Only the initial transfer involves fraudulent conduct, or any \n\nconduct, by the debtor. \n\n The language of § 548(a)(1)(A) reflects this focus. It allows a trustee to avoid \n\ncertain transfers “the debtor voluntarily or involuntarily . . . made.” 11 U.S.C. \n\n§ 548(a)(1)(A) (emphasis added). This can mean only the initial transfer, because \n\nthe debtor has not made the subsequent transfer. Consequently, when a trustee \n\nseeks to recover subsequently transferred property under § 550(a), the only \n\ntransfer that must be avoided is the debtor’s initial transfer. See Sec. Inv’r Prot. Corp. \n\nv. Bernard L. Madoff Inv. Sec. LLC, 480 B.R. 501, 524 (Bankr. S.D.N.Y. 2012) (“[A]s a \n\ncourt’s recovery power is generally coextensive with its avoidance power, it is \n\nlogical that the relevant transfer for purposes of the presumption against \n\nextraterritoriality is only the transfer that is to be avoided, namely the initial \n\n\n\n \n \n \n 22\n\ftransfer.” (quotation marks omitted)); see also Sec. Inv’r Prot. Corp. v. Bernard L. \n\nMadoff Inv. Sec. LLC, 501 B.R. 26, 30 (S.D.N.Y. 2013). \n\n Two Supreme Court decisions reinforce this conclusion. In WesternGeco, the \n\nCourt found that “the focus of § 284, in a case involving infringement under \n\n§ 271(f)(2), is on the act of exporting components from the United States.” 138 S. \n\nCt. at 2138. Here, the focus of § 550(a), in a case involving fraudulent transfers \n\navoidable under § 548(a)(1)(A), is on the debtor’s act of transferring property from \n\nthe United States. In Morrison, the Court held that § 10(b) of the Securities \n\nExchange Act of 1934 regulates “deceptive conduct in connection with the \n\npurchase or sale of [certain] securit[ies],” meaning the statute focuses on \n\n“purchase‐and‐sale transactions.” 561 U.S. at 266–67 (quotation marks omitted). \n\nBy analogy, § 550(a) regulates a debtor’s unlawful conduct—its fraudulent \n\ntransfer of property. The statute thus focuses on that initial transfer, rather than \n\nthe subsequent transfer made by the feeder fund. \n\n The lower courts held, and the Appellees now argue, that the relevant \n\nBankruptcy Code provisions regulate the subsequent transfer of property. Their \n\nreadings erroneously overlook how § 548(a)(1)(A) shapes the focus of § 550(a) \n\nhere. \n \n \n \n 23\n\f The district court, for example, correctly recognized that the \n\nextraterritoriality analysis must consider “the regulatory focus of the Bankruptcy \n\nCode’s avoidance and recovery provisions.” SIPC I, 513 B.R. at 227 (emphasis added). \n\nAnd while we agree with the court’s finding that § 548(a)(1)(A) “focuses on the \n\nnature of the transaction in which property is transferred,” id., we reject its \n\nconclusion that the appropriate “transaction” to determine the extraterritoriality \n\nquestion is the subsequent transfer. The only transfer § 548(a)(1)(A) is concerned \n\nwith is the initial transfer, as this is the only transfer “the debtor . . . made.” See 11 \n\nU.S.C. § 548(a)(1)(A). \n\n The Appellees would have us ignore § 548(a)(1)(A) entirely and look only \n\nto § 550(a)(2). For the reasons stated above, we refuse to “analyze the provision at \n\nissue in a vacuum.” See WesternGeco, 138 S. Ct. at 2137.8 \n\n\n\n\n8 The Trustee contends that certain provisions of SIPA provide additional reasons for us \nto find that § 550(a) focuses on domestic conduct in these actions. Because we reach that \nholding without looking to SIPA, we express no opinion on whether SIPA is relevant to \nthe focus of the Bankruptcy Code’s avoidance and recovery provisions in cases where \nSIPA trustees seek to use them. \n \n \n \n 24\n\f These Actions Involve Domestic Applications of the \n Bankruptcy Code Because § 550(a) Focuses on \n Regulating Domestic Conduct. \n \n Recognizing that, in these actions, § 550(a) focuses on the debtor’s initial \n\ntransfer of property, we must decide whether Madoff Securities’ transfers took \n\nplace in the United States such that regulating them involves a domestic \n\napplication of that statute. The lower courts, assuming the relevant transaction \n\nwas the subsequent transfer, weighed the location of the account from which and \n\nto which the subsequent transfer was made, and the location or residence of the \n\nsubsequent transferor and transferee. See SIPC II, 2016 WL 6900689, at *25. We \n\ndecline to adopt this balancing test. \n\n We hold that a domestic debtor’s allegedly fraudulent, hindersome, or \n\ndelay‐causing transfer of property from the United States is domestic activity for \n\nthe purposes of §§ 548(a)(1)(A) and 550(a).9 The presumption against \n\nextraterritoriality therefore does not prohibit that debtor’s trustee from recovering \n\n\n\n\n9 We recognize that our holding cites two nexuses to the United States: (1) the debtor is a \ndomestic entity, and (2) the alleged fraud occurred when the debtor transferred property \nfrom U.S. bank accounts. We express no opinion on whether either factor standing alone \nwould support a finding that a transfer was domestic. \n \n \n \n 25\n\fsuch property using § 550(a), regardless of where any initial or subsequent \n\ntransferee is located. \n\n Our rule follows the Supreme Court’s instruction that we look to “the \n\nconduct relevant to the statute’s focus.” See, e.g., RJR Nabisco, 136 S. Ct. at 2101. The \n\nrelevant conduct in these actions is the debtor’s fraudulent transfer of property, not \n\nthe transferee’s receipt of property. When a domestic debtor commits fraud by \n\ntransferring property from a U.S. bank account, the conduct that § 550(a) regulates \n\ntakes place in the United States. \n\n That resolves these cases. Madoff Securities is a domestic entity, and the \n\nTrustee alleges it fraudulently transferred property to the feeder funds from a U.S. \n\nbank account. These transfers are domestic activity. Because § 550(a) therefore \n\nregulates domestic conduct, these cases involve domestic applications of the \n\nstatute. \n\n Factoring the transferee’s receipt of property into our analysis would not \n\nonly misread the Bankruptcy Code’s avoidance and recovery provisions, but also \n\nopen a loophole. One can imagine a fraudster who, anticipating his downfall, gives \n\nhis entity’s property to friends and family members before a court freezes its \n\nassets. The Bankruptcy Code’s avoidance and recovery provisions ordinarily \n \n \n \n 26\n\fallow a trustee to claw back this property. But what would happen if the fraudster \n\ntransferred the property to a foreign entity that then transferred it to another \n\nforeign entity? Under the Appellees’ theory of § 550(a), that transfer would make \n\nthe property recovery‐proof, even if the subsequent foreign transferee then sent \n\nthe property to someone located in the United States. The presumption against \n\nextraterritoriality is not “a limit upon Congress’s power to legislate,” but a canon \n\nof construction meant to guide our understanding of a statute’s meaning. See \n\nMorrison, 561 U.S. at 255. We cannot imagine how it should guide us to read the \n\nBankruptcy Code’s creditor‐protection provisions in this self‐defeating way. \n\n * * * \n\n The lower courts erred by dismissing these actions under the presumption \n\nagainst extraterritoriality. Because we find that these cases involve a domestic \n\napplication of § 550(a), we express no opinion on whether § 550(a) clearly indicates \n\nits extraterritorial application. \n\n II. International Comity \n\n The second issue is whether the district court erroneously dismissed these \n\nactions on international comity grounds. We apply international comity principles \n\nin two ways: “[first,] as a canon of construction, [comity] might shorten the reach \n \n \n \n 27\n\fof a statute; [and] second, [comity] may be viewed as a discretionary act of \n\ndeference by a national court to decline to exercise jurisdiction in a case properly \n\nadjudicated in a foreign state, the so‐called comity among courts.” In re Maxwell \n\nCommc’n Corp. plc by Homan, 93 F.3d 1036, 1047 (2d Cir. 1996). The first application \n\nis “prescriptive comity” and asks a question of statutory interpretation: should a \n\ncourt presume that Congress, out of respect for foreign sovereigns, limited the \n\napplication of domestic law on a given set of facts? See Hartford Fire Ins. Co. v. \n\nCalifornia, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting). The second application is \n\n“adjudicative comity.” It asks whether, where a statute might otherwise apply, a \n\ncourt should nonetheless abstain from exercising jurisdiction in deference to a \n\nforeign nation’s courts that might be a more appropriate forum for adjudicating \n\nthe matter. See id.; see also Royal & Sun All. Ins. Co. of Canada v. Century Int’l Arms, \n\nInc., 466 F.3d 88, 93 (2d Cir. 2006). \n\n We have previously declined to decide whether prescriptive and \n\nadjudicative comity are “distinct doctrines.” See In re Maxwell, 93 F.3d at 1047. \n\nAlthough prescriptive and adjudicative comity sometimes demand similar \n\n\n\n\n \n \n \n 28\n\fanalysis,10 each asks a different question and is rooted in a different legal theory. \n\nWe therefore treat them as distinct doctrines, albeit related ones.11 \n\n This distinction reveals the appropriate standard of review for a lower \n\ncourt’s order dismissing a case on international comity grounds. Prescriptive \n\ncomity poses a question of statutory interpretation. We review those questions de \n\nnovo.12 See, e.g., Roach, 440 F.3d at 56. Adjudicative comity abstention, on the other \n\n\n\n In particular, the existence of parallel proceedings can factor into both doctrines. \n10\n\nCompare In re Maxwell, 93 F.3d at 1048, 1052 (holding, in the context of applying a \nprescriptive comity choice‐of‐law test, that the existence of parallel foreign proceedings \ncan factor into a foreign state’s interest in applying its law to a dispute), with Royal & Sun, \n466 F.3d at 92 (explaining, as a principle of adjudicative comity, that the existence of \nparallel foreign proceedings is sometimes a factor weighing in favor of abstention). Thus, \nwhile this opinion focuses on prescriptive comity, we occasionally look to our \nadjudicative comity precedent in assessing the weight of any foreign state’s interest in \napplying its law. \n11 Numerous courts and scholars have done the same. See, e.g., Hartford Fire Ins. Co., 509 \nU.S. at 817, 820 (Scalia, J., dissenting)); Mujica v. AirScan Inc., 771 F.3d 580, 598 (9th Cir. \n2014) (“There are essentially two distinct doctrines [that] are often conflated under the \nheading international comity.” (quotation marks omitted) (quoting In re S. African \nApartheid Litig., 617 F. Supp. 2d 228, 283 (S.D.N.Y. 2009)); Maggie Gardner, Retiring Forum \nNon Conveniens, 92 N.Y.U. L. Rev. 390, 392 (2017); see also Royal & Sun, 466 F.3d at 92 \n(describing these doctrines as different) (citing Joseph Story, Commentaries on the \nConflict of Laws § 38 (1834)); JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., \n412 F.3d 418, 424 (2d Cir. 2005) (“International comity, as it relates to this case, involves \nnot the choice of law but rather the discretion of a national court to decline to exercise \njurisdiction over a case before it when that case is pending in a foreign court with proper \njurisdiction.”). \n The question of whether we review prescriptive comity dismissals de novo or for abuse \n12\n\nof discretion arose in In re Maxwell, 93 F.3d at 1051. Although this Court hinted that de \n \n \n \n 29\n\fhand, concerns a matter of judicial discretion. We thus review adjudicative comity \n\ndismissals for abuse of discretion. See, e.g., Royal & Sun, 466 F.3d at 92. “However, \n\nbecause we are reviewing a court’s decision to abstain from exercising jurisdiction, \n\nour review is ‘more rigorous’ than that which is generally employed under the \n\nabuse‐of‐discretion standard.” Id. (quoting Hachamovitch v. DeBuono, 159 F.3d 687, \n\n693 (2d Cir. 1998)). Thus, “[i]n review of decisions to abstain, there is little practical \n\ndistinction between review for abuse of discretion and review de novo.” Id. \n\n(quoting Altos Hornos, 412 F.3d at 422–23).13 \n\n\n\nnovo review should apply, we declined to decide the issue because the parties did not \ndispute the appropriate standard of review. See id. (noting that “[b]ecause the doctrine in \ntheory is relevant to construing a statute’s reach, one might expect that [we should apply] \nde novo review”). The Appellees dispute the appropriate standard here, but their \nadvocacy for abuse‐of‐discretion review relies on inapposite adjudicative comity cases. \nSee Appellee Br. 27 (citing, e.g., In re Vitamin C Antitrust Litig., 837 F.3d 175, 182 (2d Cir. \n2016) (“We hold that the district court abused its discretion by not abstaining, on \ninternational comity grounds . . . .”), vacated on other grounds by Animal Sci. Prods., Inc. v. \nHebei Welcome Pharm. Co. Ltd., 138 S. Ct. 1865 (2018); Altos Hornos, 412 F.3d at 422 \n(“Declining to decide a question of law on the basis of international comity is a form of \nabstention, and we review a district court’s decision to abstain on international comity \ngrounds for abuse of discretion.”)). \n13 The Appellees argue that the higher standard of review announced in Royal & Sun does \nnot bind us, either because that case relied on a decision applying its rule to Burford \nabstention or because Royal & Sun “has been superseded” by later cases. Appellee Br. 28–\n29; see also Burford v. Sun Oil Co., 319 U.S. 315 (1943). Both points are wrong. Royal & Sun \nitself was not a Burford case; it involved adjudicative comity abstention. See 466 F.3d at \n92. And the argument that our subsequent cases not using Royal & Sun’s “more rigorous” \nlanguage silently “superseded” that case is a nonstarter. See, e.g., Veltri v. Bldg. Serv. 32B‐\n \n \n \n 30\n\f The lower courts held that comity principles require “choice‐of‐law analysis \n\nto determine whether the application of U.S. law would be reasonable under the \n\ncircumstances, comparing the interests of the United States and the relevant \n\nforeign state.” SIPC I, 513 B.R. at 231 (citing In re Maxwell, 93 F.3d at 1047–48). This \n\nis a question of prescriptive comity because it asks whether domestic law applies, \n\nrather than whether our courts should abstain from exercising jurisdiction. The \n\nbankruptcy court and both parties agree with this framing. We therefore analyze \n\nthe lower courts’ decisions through the lens of prescriptive comity.14 \n\n * * * \n\n At the threshold, “[i]nternational comity comes into play only when there is \n\na true conflict between American law and that of a foreign jurisdiction.” In re \n\nMaxwell, 93 F.3d at 1049. A true conflict exists if “compliance with the regulatory \n\n\n\n\nJ Pension Fund, 393 F.3d 318, 327 (2d Cir. 2004) (“One panel of this Court cannot overrule \na prior decision of another panel, unless there has been an intervening Supreme Court \ndecision that casts doubt on our controlling precedent.” (citation, brackets, and quotation \nmarks omitted)). \n14 In a footnote, the Appellees separately argue that we should decline to exercise \njurisdiction on adjudicative comity grounds. See Appellee Br. 68 n.33. “We do not \nconsider an argument mentioned only in a footnote to be adequately raised or preserved \nfor appellate review.” United States v. Restrepo, 986 F.2d 1462, 1463 (2d Cir. 1993) (per \ncuriam). \n \n \n \n 31\n\flaws of both countries would be impossible.” Id. at 1050 (citing Hartford Fire, 509 \n\nU.S. at 799). In re Maxwell held that “a conflict between two avoidance rules exists \n\nif it is impossible to distribute the debtor’s assets in a manner consistent with both \n\nrules.” Id.15 \n\n The record is unclear about whether issues litigated in the feeder funds’ \n\nliquidation proceedings abroad would yield outcomes irreconcilable with the \n\nrelief the Trustee demands in these cases.16 While the Appellees allege that there \n\nare conflicts, we merely assume without deciding that these conflicts exist.17 \n\n Prescriptive comity “guides our interpretation of statutes that might \n\notherwise be read to apply to [extraterritorial] conduct.” Id. at 1047. The doctrine \n\n\n\n\n15 In that decision, the panel found a true conflict between English and domestic law \nbecause “the parties . . . assumed that . . . English law would dictate a different \ndistributional outcome than would United States law.” Id. \n The district court found that BVI courts had “already determined that Fairfield Sentry \n16\n\ncould not reclaim transfers made to its customers under certain common law theories” \nand found this conclusion in conflict with the relief the Trustee now demands. SIPC I, 513 \nB.R. at 232. The Trustee disputes this finding. We decline to decide whether this allegation \nestablishes a true conflict between domestic and foreign law. \n These consolidated appeals involve hundreds of Appellees that invested with \n17\n\nnumerous feeder funds, each involved in its own dispute below. Whether domestic \nadjudication would conflict with foreign adjudication may turn on different facts in \ndifferent cases. The parties did not adequately brief us on how we should analyze these \ndistinctions under our comity precedent. We therefore decline to address the issue. \n \n \n \n 32\n\fdoes not require clear evidence that a statute does not reach extraterritorial \n\nconduct. Id. Rather, the doctrine is “simply a rule of construction” and “has no \n\napplication where Congress has indicated otherwise.” Id. \n\n Comity in bankruptcy proceedings is “especially important” for two \n\nreasons. Id. at 1048. “First, deference to foreign insolvency proceedings will, in \n\nmany cases, facilitate ‘equitable, orderly, and systematic’ distribution of the \n\ndebtor’s assets.” Id. (quoting Cunard S.S. Co. v. Salen Reefer Servs. AB, 773 F.2d 452, \n\n458 (2d Cir. 1985)). “Second, Congress explicitly recognized the importance of the \n\nprinciples of international comity in transnational insolvency situations when it \n\nrevised the bankruptcy laws.” Id. (citing 11 U.S.C. § 304 (repealed 2005)). In light \n\nof these considerations, “U.S. courts should ordinarily decline to adjudicate \n\ncreditor claims that are the subject of a foreign bankruptcy proceeding,” Altos \n\nHornos, 412 F.3d at 424, because “[t]he equitable and orderly distribution of a \n\ndebtor’s property requires assembling all claims against the limited assets in a \n\nsingle proceeding,” id. (brackets in original) (quoting Finanz AG Zurich v. Banco \n\nEconomico S.A., 192 F.3d 240, 246 (2d Cir. 1999)). \n\n To enforce these principles, In re Maxwell announced a choice‐of‐law test. \n\nThis test “takes into account the interests of the United States, the interests of the \n \n \n \n 33\n\fforeign state, and those mutual interests the family of nations have in just and \n\nefficiently functioning rules of international law.” In re Maxwell, 93 F.3d at 1048. \n\n The United States has a compelling interest in allowing domestic estates to \n\nrecover fraudulently transferred property. The prospect of recovery assures \n\ncreditors and investors that they will receive their fair share of property in the \n\nevent an American entity enters into bankruptcy or liquidation. Providing this \n\nsafeguard is an important goal of the Bankruptcy Code’s avoidance and recovery \n\nprovisions. See, e.g., Universal Church v. Geltzer, 463 F.3d 218, 224 (2d Cir. 2006) \n\n(noting that a result that would undermine § 548(a)(2)’s avoidance provision \n\n“would be absurd because it would defeat the entire purpose of allowing trustees \n\nto protect and enhance the estate by avoiding [unlawful] transfers”). These \n\nfeatures consequently benefit the American economy by making domestic entities \n\nmore attractive to creditors and investors. Protecting these individuals, and \n\ntherefore protecting our securities market, are the key purposes of SIPA. See In re \n\nMadoff Securities, 654 F.3d at 235. \n\n When a debtor in American courts is also in liquidation proceedings in a \n\nforeign court, the foreign state has at least some interest in adjudicating property \n\ndisputes. In appropriate cases, that interest will trump our own. See In re Maxwell, \n \n \n \n 34\n\f93 F.3d at 1052. But no such parallel proceedings exist here—the feeder funds, not \n\nMadoff Securities, are the debtors in the foreign courts.18 And the absence of such \n\nproceedings seriously diminishes the interest of any foreign state in our resolution \n\nof the Trustee’s claims.19 \n\n The only foreign jurisdictions potentially interested in these disputes are \n\nthose where a feeder fund that served as an initial transferee is in liquidation. But \n\nthese interests are not compelling. Although “U.S. courts should ordinarily decline \n\n\n\n We agree with Judge Batts, who employed similar reasoning in declining to dismiss \n18\n\nclass actions brought by Kingate investors against managers, consultants, administrators, \nand auditors associated with Kingate on adjudicative comity grounds: \n Although Defendants are correct that under Second Circuit law, foreign \n bankruptcy proceedings are generally given extra deference, . . . it is the \n [Kingate] Funds, rather than the Defendants, who are in liquidation in BVI \n and Bermuda. Thus, it is not clear that the normal justification for deferring \n to foreign bankruptcy proceedings, to allow “equitable and orderly \n distribution of a debtor’s property,” would apply under these \n circumstances. \nIn re Kingate Mgmt. Ltd. Litig., 09‐5386 (DAB), 2016 WL 5339538, at *35 (S.D.N.Y. Sept. 21, \n2016) (citations and footnote omitted), affirmed, No. 16‐3450, 2018 WL 3954217 (2d Cir. \nAug. 17, 2018). \n19 In re Maxwell itself emphasized the importance of parallel foreign proceedings to its \nholding. See 93 F.3d at 1052 (“In the present case, in which there is a parallel insolvency \nproceeding taking place in another country, failure to apply § 547 and § 502(d) does not \nfree creditors from the constraints of avoidance law, nor does it severely undercut the \npolicy of equal distribution. . . . [But] a different result might be warranted were there no \nparallel proceeding [abroad]—and, hence, no alternative mechanism for voiding preferences . . . .” \n(emphasis added)). \n \n \n \n 35\n\fto adjudicate creditor claims that are the subject of a foreign bankruptcy \n\nproceeding,” Altos Hornos, 412 F.3d at 424, the Trustee is not a creditor and his \n\nclaims are not the subject of a foreign bankruptcy or liquidation proceeding, see \n\nSIPC II, 2016 WL 6900689, at *12 (“[T]here are no parallel foreign avoidance actions \n\nin which the Trustee seeks to recover from the Subsequent Transferees.”). \n\n Nor is the Trustee duplicating the liquidations of the feeder funds. The \n\nproceedings have different means and goals. The Trustee’s task is tracing property \n\nof the estate to net winners among the feeder funds’ investors. But the feeder \n\nfunds’ liquidations proceed under those funds’ organizing documents, which are \n\nunlikely to discriminate between net winners and net losers. \n\n Further, we defer to foreign liquidation proceedings because “[t]he \n\nequitable and orderly distribution of a debtor’s property requires assembling all \n\nclaims against the limited assets in a single proceeding.” Altos Hornos, 412 F.3d at \n\n424 (quoting Finanz AG, 192 F.3d at 246). This rationale makes sense where a \n\ncreditor, unable to recover against a debtor in foreign court, attempts to do so in \n\nour courts. But in these cases, domestic law is also concerned with “equitable and \n\norderly distribution”—of the Madoff Securities estate. Consolidating the Trustee’s \n\nclaims in federal court is more “equitable and orderly” than forcing him to litigate \n \n \n \n 36\n\fdifferent claims in different countries. SIPA and the Bankruptcy Code envision a \n\nunified proceeding, and we would frustrate this goal if we limited the reach of \n\n§ 550(a) in these actions. \n\n This is not to say the nations adjudicating the feeder funds’ liquidations \n\nhave no interest in these disputes. Those nations may wish to ensure that the \n\nfeeder funds’ creditors can recover as much property as possible. If the Trustee \n\nsucceeds in these recovery actions, his success might frustrate the efforts of those \n\nentities’ trustees to recover the same property in foreign court. \n\n But those are not the comity concerns our precedent discusses in explaining \n\nwhen and why the Bankruptcy Code should give way to foreign law. Nor do we \n\nfind them compelling enough to limit the reach of a federal statute that would \n\notherwise apply here. The Bankruptcy Code gives us no reason to think Congress \n\nwould have decided that trustees looking to recover property in domestic \n\nproceedings are out of luck when trustees in foreign proceedings may be \n\ninterested in recovering the same property. In fact, § 550(a)(2) suggests the \n\nopposite: that by allowing trustees to recover property from even remote \n\nsubsequent transferees, Congress wanted these claims resolved in the United \n\nStates, rather than through piecemeal proceedings around the world. \n \n \n \n 37\n\f We therefore hold that the United States’ interest in applying its law to these \n\ndisputes outweighs the interest of any foreign state. Prescriptive comity poses no \n\nbar to recovery when the trustee of a domestic debtor uses § 550(a) to recover \n\nproperty from a foreign subsequent transferee on the theory that the debtor’s \n\ninitial transfer of that property from within the United States is avoidable under \n\n§ 548(a)(1)(A), even if the initial transferee is in liquidation in a foreign nation. \n\n The lower courts, erroneously focusing on the subsequent transfer, found \n\nthat the jurisdictions adjudicating the feeder funds’ liquidations had a greater \n\ninterest in resolving these disputes than the United States. The bankruptcy court, \n\nfor example, concluded that “[t]he United States has no interest in regulating the \n\nrelationship between the [feeder funds] and their investors or the liquidation of \n\nthe [feeder funds] and the payment of their investors’ claims.” SIPC II, 2016 WL \n\n6900689, at *14. It did so by assuming “[t]he United States’ interest is purely \n\nremedial; the Bankruptcy Code allows the Trustee to follow the initial fraudulent \n\ntransfer into the hands of a subsequent transferee.” Id. \n\n This conclusion rests on incorrect premises: that we should look only to \n\n§ 550(a), assume the United States has purely remedial interests, and focus on the \n\nsubsequent transfer of property. As we have explained, § 548(a)(1)(A) informs \n \n \n \n 38\n\f§ 550(a)’s focus in these actions. That focus is on regulating and remedying a \n\ndebtor’s fraudulent transfer of property, and this means the relevant transfer is the \n\ndebtor’s initial transfer. The domestic nature of those transfers, and our nation’s \n\ncompelling interest in regulating them, tips the scales of In re Maxwell’s choice‐of‐\n\nlaw test in favor of domestic adjudication. \n\n The district court found that “investors in these foreign funds had no reason \n\nto expect that U.S. law would apply to their relationships with the feeder funds.” \n\nSIPC I, 513 B.R. at 232. But the court’s premise is inaccurate. U.S. law is not \n\nregulating the investors’ relationships with the feeder funds. It is regulating the \n\ndebtor’s property transfers to the feeder funds. Although regulating these \n\ntransfers with recovery actions will affect the subsequent transferees, that \n\nconsequence should not unfairly surprise them. When these investors chose to buy \n\ninto feeder funds that placed all or substantially all of their assets with Madoff \n\nSecurities, they knew where their money was going. \n\n Finally, the district court observed that “the defendants here have no direct \n\nrelationship” with Madoff Securities. Id. But the reason § 550(a)(2)’s tracing \n\nprovision applies to subsequent transferees is ensuring that a trustee can recover \n\nfrom entities with no direct relationship to the debtor. If the directness of a transfer \n \n \n \n 39\n\fwere relevant to a trustee’s ability to recover property under § 550(a)(2), we cannot \n\nsee how a trustee could ever recover property from any subsequent transferee, \n\nforeign or domestic. \n\n In sum, we find that prescriptive comity considerations do not limit the \n\nreach of the Bankruptcy Code provisions in these actions. \n\n CONCLUSION \n\n We VACATE the bankruptcy court’s judgments dismissing these actions \n\nand REMAND for further proceedings consistent with this opinion. \n\n\n\n\n \n \n \n 40", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370687/", "author_raw": "WESLEY, Circuit Judge:"}]} | JACOBS | POOLER | WESLEY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593434/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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8,443,888 | United States v. Calvin Stephon MOORE | United States v. Moore | 2019-02-25 | No. 16-1604 (L); No. 16-1624 (con); August Term, 2017 | U.S. Court of Appeals for the Second Circuit | {"judges": "Katzmann, Pooler, Walker", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415318/", "author_raw": ""}]} | KATZMANN | POOLER | WALKER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443888/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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4,594,889 | Levy v. BASF Metals, Ltd. | 2019-02-28 | 17-3823-cv | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: WINTER and POOLER, Circuit Judges, and ABRAMS, District Judge.", "parties": "", "opinions": [{"author": "Judge Ronnie Abrams, United States District Court for the Southern District of", "type": "010combined", "text": "17‐3823‐cv \n Levy v. BASF Metals, Ltd. \n\n\n 17‐3823‐cv \n Levy v. BASF Metals, Ltd. \n \n 1 UNITED STATES COURT OF APPEALS \n 2 FOR THE SECOND CIRCUIT \n 3 ____________________ \n 4 \n 5 August Term, 2018 \n 6 \n 7 (Argued: October 18, 2018 Decided: February 28, 2019) \n 8 \n 9 Docket No. 17‐3823 \n10 \n11 ____________________ \n12 \n13 SUSAN LEVY, \n14 \n15 Plaintiff‐Appellant, \n16 \n17 v. \n18 \n19 BASF METALS LIMITED, BASF CORPORATION, \n20 GOLDMAN SACHS INTERNATIONAL, GOLDMAN \n21 SACHS GROUP, INC., GOLDMAN SACHS & CO., \n22 GOLDMAN SACHS EXECUTION & CLEARING, L.P., \n23 ICBC STANDARD BANK PLC, UBS AG, \n24 UBS SECURITIES LLC, HSBC BANK USA, N.A., \n25 LONDON PLATINUM AND PALLADIUM FIXING \n26 COMPANY LIMITED, \n27 \n28 Defendants‐Appellees. 1 \n29 \n30 ____________________ \n\n 1 The Clerk of the Court is directed to amend the caption as above. \n\f 1 \n 2 Before: WINTER and POOLER, Circuit Judges, and ABRAMS, District Judge.2 \n 3 \n 4 Appeal from United States District Court for the Southern District of New \n\n 5 York (Gregory H. Woods, J.) dismissing appellant Susan Levy’s second amended \n\n 6 complaint in which she alleges claims under the Commodities Exchange Act, the \n\n 7 Racketeer Influenced and Corrupt Organizations Act, the Sherman Act, and New \n\n 8 York law related to alleged manipulation of the platinum futures market. We \n\n 9 affirm the bulk of the district court’s decision in a summary order published \n\n10 simultaneously with this opinion. We write separately to address Levy’s \n\n11 Commodities Exchange Act claims and hold that they accrued when she \n\n12 discovered her injury in 2008, not when she discovered the manipulation scheme \n\n13 she alleges or the identity of the defendants. Therefore, the limitations period on \n\n14 those claims expired in 2010, well before she filed the present lawsuit. \n\n15 Affirmed. \n\n16 ____________________ \n\n17 SUSAN LEVY, pro se, New York, N.Y., Plaintiff‐\n18 Appellant. \n19 \n\n\n Judge Ronnie Abrams, United States District Court for the Southern District of \n 2\n\n New York, sitting by designation. \n 2\n\f 1 MICHAEL F. WILLIAMS, Kirkland & Ellis LLP (Peter \n 2 A. Farrell, on the brief), Washington, D.C., for Defendants‐\n 3 Appellees BASF Metals Limited and BASF Corporation. \n 4 \n 5 DAMIEN J. MARSHALL, Boies Schiller Flexner LLP \n 6 (Leigh M. Nathanson, Laura C. Harris, on the brief), New \n 7 York, N.Y., for Defendant‐Appellee HSBC Bank USA, N.A. \n 8 \n 9 STEPHEN EHRENBERG, Sullivan & Cromwell LLP, \n10 New York, N.Y., for Defendants‐Appellees Goldman Sachs \n11 International, The Goldman Sachs Group, Inc., and Goldman \n12 Sachs & Co. LLC f/k/a Goldman, Sachs & Co. \n13 \n14 ROBERT G. HOUCK, Clifford Chance US LLP, New \n15 York, N.Y., for Defendant‐Appellee ICBC Standard Bank \n16 PLC. \n17 \n18 ERIC J. STOCK, Gibson, Dunn & Crutcher LLP (Mark \n19 A. Kirsch, D. Jarrett Arp, Melanie L. Katsur, Indraneel \n20 Sur, on the brief), New York, N.Y., for Defendants‐\n21 Appellees UBS AG and UBS Securities LLC. \n22 \n23 ETHAN E. LITWIN, Dechert LLP (Morgan J. Feder, on \n24 the brief), New York, N.Y., for Defendant‐Appellee The \n25 London Platinum and Palladium Fixing Company Ltd. \n26 \n27 PER CURIAM: \n\n28 Appellant Susan Levy, an attorney proceeding pro se, brought this lawsuit \n\n29 in an effort to be made whole for her 2008 losses in the platinum futures market. \n\n30 She alleges, in sum, that BASF Metals Limited, BASF Corporation, Goldman \n\n31 Sachs International, Goldman Sachs Group, Inc., Goldman Sachs & Co., Goldman \n 3\n\f 1 Sachs Execution & Clearing, LP, HSBC Bank USA, NA, ICBC Standard Bank \n\n 2 PLC, UBS AG, UBS Securities LLC, London Platinum and Palladium Fixing \n\n 3 Company Ltd., and twenty unnamed “John Does” conspired to manipulate the \n\n 4 New York Mercantile Exchange platinum futures contract market in violation of \n\n 5 the Commodities Exchange Act (“CEA”), 7 U.S.C. § 1 et seq., the Racketeer \n\n 6 Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., the \n\n 7 Sherman Act, 15 U.S.C. §§ 1, 2, and New York law. The district court (Gregory H. \n\n 8 Woods, J.) dismissed her federal claims as time barred and declined to exercise \n\n 9 supplemental jurisdiction over Levy’s state law claims. Levy v. BASF Metals Ltd., \n\n10 1:15‐cv‐7317‐GHW, 2017 WL 2533501, at *9 (S.D.N.Y. June 9, 2017). We affirm the \n\n11 bulk of that decision in a summary order we publish simultaneously with this \n\n12 opinion. We write separately to address Levy’s CEA claims and hold that they \n\n13 accrued when she discovered her CEA injury in 2008, not when she discovered \n\n14 the alleged manipulation scheme or the identity of the defendants. \n\n15 BACKGROUND \n\n16 Levy began trading in the platinum futures market in 2008 at what she \n\n17 alleges were artificially inflated prices. Based on her review of the platinum \n\n18 market, she took a long position with the expectation that platinum prices would \n 4\n\f 1 soar even higher than market predictions. However, on August 15, 2008, the \n\n 2 platinum market crashed, causing Levy to lose her entire investment. \n\n 3 Levy filed suit in April of 2012 against a different set of defendants that she \n\n 4 alleged manipulated the platinum market (and, by extension, the platinum \n\n 5 futures market) by engaging in so‐called “banging the close” transactions. She \n\n 6 claimed that the defendants in that case manipulated the value of platinum \n\n 7 futures contracts by placing large platinum orders at the end of, or immediately \n\n 8 after, the trading day, resulting in increased settlement prices of platinum futures \n\n 9 contracts. In other words, Levy alleged that the defendants in her first lawsuit \n\n10 engaged in a “pump‐and‐dump” scheme that manipulated the value of platinum \n\n11 futures in violation of the CEA, RICO, the Sherman Act, and New York law. That \n\n12 case was transferred from the Eastern District of New York to the Southern \n\n13 District of New York in 2013 so it could be before the same district court judge \n\n14 presiding over a related class action lawsuit. See generally Levy v. Welsh, No. 12‐\n\n15 CV‐2056 (DLI)(VMS), 2013 WL 1149152 (E.D.N.Y. Mar. 19, 2013). Levy settled the \n\n16 Welsh lawsuit in 2014, but the settlement did not provide Levy with a complete \n\n17 recovery. \n\n\n\n 5\n\f 1 Levy filed the present action on September 16, 2015, after she received in \n\n 2 the fall of 2014 a copy of a class action complaint containing similar allegations to \n\n 3 the ones she now asserts. See generally In re Platinum and Palladium Antitrust Litig., \n\n 4 1:14‐cv‐9391‐GHW, 2017 WL 1169626 (S.D.N.Y. Mar. 28, 2017). In this suit, Levy \n\n 5 claims, in sum, that Defendants‐Appellees conspired to fix the price of \n\n 6 platinum—and thus manipulate the platinum futures market—in a four‐step \n\n 7 manipulation process that involved exchanging confidential information during \n\n 8 private conference calls, in violation of the CEA, RICO, the Sherman Act, and \n\n 9 New York law. She alleges that the 2014 class action complaint first apprised her \n\n10 of this conduct, as well as the identities of some of the parties involved. \n\n11 Levy filed an amended complaint on January 14, 2016, and a second \n\n12 amended complaint on April 4, 2016. On August 31, 2016, Defendants‐Appellees \n\n13 moved to dismiss Levy’s second amended complaint. The district court granted \n\n14 the motion, finding that Levy ‘s federal claims were time barred, and declined to \n\n15 exercise supplemental jurisdiction over her remaining state law claims. Levy v. \n\n16 BASF Metals Ltd., 2017 WL 2533501, at *9. \n\n\n\n\n 6\n\f 1 DISCUSSION \n\n 2 We review de novo “[a] district court’s interpretation and application of a \n\n 3 statute of limitations.” Muto v. CBS Corp., 668 F.3d 53, 56 (2d Cir. 2012). \n\n 4 “Federal courts . . . generally apply a discovery accrual rule when a statute \n\n 5 is silent on the issue . . . .” Rotella v. Wood, 528 U.S. 549, 555 (2000); see also Koch v. \n\n 6 Christie’s Int’l PLC, 699 F.3d 141, 148 (2d Cir. 2012). In applying this rule, it is \n\n 7 “discovery of the injury, not discovery of the other elements of a claim,” that \n\n 8 “starts the clock.” Rotella, 528 U.S. at 555. We have not yet applied this general \n\n 9 rule to CEA claims. We do so now and hold that Levy’s CEA claims accrued \n\n10 when she discovered her CEA injury. This happened when she suffered her \n\n11 losses in 2008. Thus, the CEA’s two‐year limitations period expired before she \n\n12 initiated the present suit in September 2015. 7 U.S.C. § 25(c). \n\n13 Levy contends that the district court mistakenly conflated the date she \n\n14 suffered her losses with the date her CEA claims accrued. The relevant inquiry, \n\n15 however, is not whether Levy had discovered the identity of the defendants or \n\n16 whether she had discovered the manipulation scheme she alleges in her \n\n17 complaint. Rather, the question is when Levy discovered her CEA injury—that \n\n18 is, a loss that was the result of a CEA violation. See 7 U.S.C. § 25(a)(1) (providing \n 7\n\f 1 a cause of action for someone who suffers “actual damages” “caused by” a CEA \n\n 2 violation); Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671, 674 (7th \n\n 3 Cir. 2009) (“A plaintiff does not need to know that his injury is actionable to \n\n 4 trigger the statute of limitations—the focus is on the discovery of the harm itself, \n\n 5 not the discovery of the elements that make up a claim.”); cf. Kronisch v. United \n\n 6 States, 150 F.3d 112, 121 (2d Cir. 1998) (“[A] claim will accrue when the plaintiff \n\n 7 knows, or should know, enough of the critical facts of injury and causation to \n\n 8 protect himself by seeking legal advice.” (internal quotation marks omitted)). \n\n 9 Here, Levy alleges that, by August of 2008, “prices started to fall for no \n\n10 apparent reason and without any fundamental reason.” App’x at 260‐61 ¶ 417. \n\n11 And, by the end of 2008 “the market price had dropped by over 50%,” which \n\n12 Levy describes as “an extraordinary, unprecedented and unjustified sudden \n\n13 collapse.” App’x at 262 ¶ 423. Levy further alleges that there was “no explanation \n\n14 for this sudden drop in price, other than market distortion due to manipulation.” \n\n15 App’x 261 ¶ 419. In light of these allegations, we have little difficulty concluding \n\n16 that Levy discovered her CEA injury in 2008. Once Levy was aware of this \n\n17 injury, the CEA gave her two years to ascertain the facts necessary to bring her \n\n18 suit. 7 U.S.C. § 25(c). \n 8\n\f 1 Levy primarily argues that she was not on inquiry notice of her present \n\n 2 CEA claims until 2014 when a group of investors filed a class action lawsuit \n\n 3 against Appellees. See generally In re Platinum and Palladium Antitrust Litig., 2017 \n\n 4 WL 1169626. It is true that we have held that where “the circumstances known \n\n 5 to” a plaintiff, “as alleged in the complaint, were such as to suggest to a person of \n\n 6 ordinary intelligence” that she has been defrauded, “a duty of inquiry” may arise \n\n 7 that commences the CEA’s two‐year limitations period. Benfield v. Mocatta Metals \n\n 8 Corp., 26 F.3d 19, 22 (2d Cir. 1994); see also id. at 23 (finding constructive \n\n 9 knowledge where the loss of an entire investment within a four‐month period \n\n10 “should have caused eyebrows to raise” and imposed a “duty of inquiry that \n\n11 would . . . have disclosed the nature and extent of” the fraud). However, this is \n\n12 not an inquiry notice case. The district court held, and we now hold, that Levy \n\n13 had actual knowledge of her CEA injury in 2008. Levy v. BASF Metals Ltd., 2017 \n\n14 WL 2533501, at *5. That knowledge of her CEA injury “start[ed] the clock,” \n\n15 irrespective of when she discovered the additional information necessary for her \n\n16 to bring her suit. See Rotella, 528 U.S. at 555. \n\n\n\n\n 9\n\f1 CONCLUSION \n\n2 For the foregoing reasons, and the reasons stated in the summary order we \n\n3 publish simultaneously with this opinion, we AFFIRM the district court’s \n\n4 dismissal of this action. \n\n\n\n\n 10", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372142/", "author_raw": "Judge Ronnie Abrams, United States District Court for the Southern District of"}]} | WINTER | POOLER | ABRAMS | 1 | {"WINTER": ", Circuit", "POOLER": ", Circuit", "ABRAMS": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4594889/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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8,443,904 | Susan LEVY v. BASF METALS LIMITED, BASF Corporation, Goldman Sachs International, Goldman Sachs Group, Inc., Goldman Sachs & Co., Goldman Sachs Execution & Clearing, L.P., ICBC Standard Bank PLC, UBS AG, UBS Securities LLC, HSBC Bank USA, N.A., London Platinum and Palladium Fixing Company Limited | Levy v. BASF Metals Ltd. | 2019-02-28 | Docket No. 17-3823 | U.S. Court of Appeals for the Second Circuit | {"judges": "Abrams, Pooler, Winter", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415335/", "author_raw": "PER CURIAM"}]} | ABRAMS | POOLER | WINTER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443904/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,587,515 | James R. ADAMS v. GOVERNOR OF DELAWARE, Appellant. | James Adams v. Governor of Delaware | 2019-02-05 | 18-1045 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: MCKEE, RESTREPO, and FUENTES, Circuit Judges.", "parties": "", "opinions": [{"author": "FUENTES, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _________________\n\n No. 18-1045\n _________________\n\n\n JAMES R. ADAMS\n\n v.\n\n GOVERNOR OF DELAWARE,\n\n\n Appellant.\n _________________\n\n On Appeal from the United States District Court\n for the District of Delaware\n (D.C. No. 17-cv-00181)\n Honorable Mary Pat Thynge, U.S. Magistrate Judge\n\n _________________\n\n Argued September 25, 2018\n\nBefore: MCKEE, RESTREPO, and FUENTES, Circuit\n Judges.\n\n (Filed February 5, 2019 )\n\nDavid C. McBride, Esq. [Argued]\nPilar G. Kraman, Esq.\nMartin S. Lessner, Esq.\nYoung Conaway Stargatt & Taylor\n1000 North King Street\nRodney Square\nWilmington, DE 19801\n\n Counsel for Appellant\n\nDavid L. Finger, Esq. [Argued]\nFinger & Slanina\n1201 Orange Street\nOne Commerce Center, Suite 725\nWilmington, DE 19801\n\n Counsel for Appellee\n\n _________________\n\n OPINION OF THE COURT\n _________________\n\n\nFUENTES, Circuit Judge.\n\n James R. Adams is a resident and member of the State\nBar of Delaware. For some time, he has expressed a desire to\nbe considered for a judicial position in that state. Following\nthe announcement of several judicial vacancies, Adams\nconsidered applying but ultimately chose not to because the\nannouncement required that the candidate be a Republican.\n\n\n\n\n 2\n\nBecause Adams was neither a Republican nor a Democrat, he\nconcluded that any application he submitted would be futile.\n\n Adams brings this suit against the Governor of the State\nof Delaware to challenge the provision of the Delaware\nConstitution that effectively limits service on state courts to\nmembers of the Democratic and Republican parties. Adams\nclaims that under the Supreme Court’s precedent in Elrod v.\nBurns1 and Branti v. Finkel,2 a provision that limits a judicial\ncandidate’s freedom to associate (or not to associate) with the\npolitical party of his or her choice is unconstitutional. The\nGovernor argues that because judges are policymakers, there\nare no constitutional restraints on his hiring decisions and he\nshould be free to choose candidates based on whether they\nbelong to one of the two major political parties in Delaware—\nthat is, whether they are Democrats or Republicans. We\ndisagree and conclude that judges are not policymakers\nbecause whatever decisions judges make in any given case\nrelates to the case under review and not to partisan political\ninterests. We therefore conclude that the portions of\nDelaware’s constitution that limit Adams’s ability to apply for\na judicial position while associating with the political party of\nhis choice violate his First Amendment rights, and we will\naccordingly affirm in part and reverse in part the District\nCourt’s grant of summary judgment in favor of Adams.\n\n\n\n\n1\n 427 U.S. 347 (1976).\n2\n 445 U.S. 507 (1980).\n\n\n\n\n 3\n\n Background\n\n A. Article IV, Section 3 of the Delaware\n Constitution\n\n In 1897, Delaware was unique in its method of judicial\nselection—it was the only state in the country in which the\ngovernor appointed judges without legislative involvement.3\nJudicial selection became an important and contentious topic\nduring Delaware’s constitutional convention that year.\nDebating whether or not to move to a system of judicial\nelection, delegates to the convention expressed their deep\nconcern over the politicization of the judiciary. John Biggs,\nSr., the president of the convention, explained his position that\nthe appointment of judges would enable judges to remain free\nfrom political cronyism and partisanship:\n\n I think it would be very unwise that\n our Judges should be mixed up, I\n will say, in politics. We can obtain\n good men in this way, by the\n confirmation by the Senate,\n without those men being under\n political obligations, such as are\n engendered at primaries and at\n general elections.\n\n And there are reasons, it occurs to\n me, why the Judges should not be\n elected that perhaps do not apply to\n\n3\n Randy J. Holland, The Delaware State Constitution: A\nReference Guide 128 (2002).\n\n\n\n\n 4\n\n any other officers. For after all,\n Judges are but human. Whoever\n sits upon the Bench to pass upon\n the rights of yours as to your\n liberty and your property ought\n certainly to be as free from all\n influence and bias, political and\n otherwise, as it is possible to throw\n around that man.4\n\n The delegates ultimately recommended amending the\nDelaware Constitution to provide for gubernatorial nomination\nof judges, with confirmation by the Senate. They did not stop\nthere, however, and debated a novel approach designed to\nmake the judiciary “non-partisan, or if it be a better word, bi-\npartisan”—a limitation on the number of judges from one party\nthat could sit on the bench at any given time.5\n\n Some delegates voiced their support for the provision,\nstating that minority representation on the judicial bench would\n“bring about a fuller and freer discussion of these matters that\ncome before them and that they may make fair and impartial\ndecisions on those questions.”6 Some, however, expressed\nconcern that the provision would bring about the opposite\nresult. As delegate Andrew Johnson explained:\n\n It is well known that [judges\n serving on Delaware’s] Judiciary\n at the present time have been\n\n4\n J.A. 117–18.\n5\n J.A. 130.\n6\n J.A. 133.\n\n\n\n\n 5\n\n appointed from one political party.\n That probably is not the best\n course to pursue, and I would be\n very glad to see the Governor of\n this State appoint well equipped\n men from another party. I would\n hail the day when it was done and\n would be glad to have it; but to\n vote to compel a Governor to\n appoint a man on account of his\n political affiliation, you are simply\n saying, “You are put upon the\n Bench to look out for our party\n interests whenever they come up.”\n There is no other construction that\n you can put upon it. There can be\n no other, in my own mind,\n established, and that man is\n expected, whenever a political\n question arises, before that Court\n to take care of his own party rights\n or privileges.7\n\n Ultimately, the provision prevailed, and Delaware’s\nconstitution has included some form of a political balance\nrequirement ever since. In 1951, as part of a wider series of\nstructural changes to the Delaware judiciary, the provision was\nmodified to exclude third party and unaffiliated voters from\napplying to serve as judges on the Supreme Court, Superior\nCourt, and Chancery Court in Delaware. The system thus\ncreated is binary, excluding all candidates from consideration\n\n7\n J.A. 134.\n\n\n\n\n 6\n\nexcept those of the Republican or Democratic parties. The\nprovision has been reaffirmed during the amendment process\nseveral times, including in 2005. Article IV, Section 3 of the\nDelaware Constitution now reads in relevant part:\n\n Appointments to the office of the\n State Judiciary shall at all times be\n subject to all of the following\n limitations:\n\n First, three of the five Justices of\n the Supreme Court in office at the\n same time, shall be of one major\n political party, and two of said\n Justices shall be of the other major\n political party.\n\n Second, at any time when the total\n number of Judges of the Superior\n Court shall be an even number not\n more than one-half of the members\n of all such offices shall be of the\n same political party; and at any\n time when the number of such\n offices shall be an odd number,\n then not more than a bare majority\n of the members of all such offices\n shall be of the same major political\n party, the remaining members of\n such offices shall be of the other\n major political party.\n\n\n\n\n 7\n\nThird, at any time when the total\nnumber of the offices of the\nJustices of the Supreme Court, the\nJudges of the Superior Court, the\nChancellor and all the Vice-\nChancellors shall be an even\nnumber, not more than one-half of\nthe members of all such offices\nshall be of the same major political\nparty; and at any time when the\ntotal number of such offices shall\nbe an odd number, then not more\nthan a bare majority of the\nmembers of all such offices shall\nbe of the same major political\nparty; the remaining members of\nthe Courts above enumerated shall\nbe of the other major political\nparty.\n\nFourth, at any time when the total\nnumber of Judges of the Family\nCourt shall be an even number, not\nmore than one-half of the Judges\nshall be of the same political party;\nand at any time when the total\nnumber of Judges shall be an odd\nnumber, then not more than a\nmajority of one Judge shall be of\nthe same political party.\n\nFifth, at any time when the total\nnumber of Judges of the Court of\n\n\n\n\n 8\n\n Common Pleas shall be an even\n number, not more than one-half of\n the Judges shall be of the same\n political party; and at any time\n when the total number of Judges\n shall be an odd number, then not\n more than a majority of one Judge\n shall be of the same political\n party.8\n\n Thus, the provision is made up of five sections—one\naddressing the Supreme Court, one addressing the Superior\nCourt, one addressing combined membership of those courts\nand the Chancery Court, one addressing the Family Court, and,\nfinally, one addressing the Court of Common Pleas.\nSignificantly, there are also two separate, but connected,\nsubstantive components: the bare majority component (which\nlimits the number of judicial positions that can be occupied by\nmembers of a single political party) 9 and the major political\nparty component (which mandates that the other judicial\npositions must be filled with members of the other major\npolitical party in Delaware). In practice, then, most courts\nmust be filled with Democrats and Republicans exclusively.\n\n\n\n\n8\n Del. Const. art. IV, § 3.\n9\n When there are an even number of judges on a given court,\nno more than half of the judicial seats may be held by members\nof a single political party. When there is an odd number of\njudicial positions, no more than a bare majority (that is, one\nseat above half) may be held by members of a party. Id.\n\n\n\n\n 9\n\n B. Judicial Nominations in Delaware\n\n Since 1978, Delaware governors have relied on judicial\nnominating commissions to identify qualified candidates for\njudicial appointments.10 Eleven of the twelve commission\nmembers are appointment by the Governor, and the twelfth is\nappointed by the president of the Delaware State Bar\nAssociation with the consent of the Governor.11 The\ncommission provides a list of three recommended candidates\nto the Governor. The Governor is not free to ignore the\ncommission’s recommendations; if he is not satisfied with the\nlist, the commission generates another list of candidates.12 The\nnominating commission is politically balanced and comprised\nof both lawyers and non-lawyers.13\n\n When a judicial position becomes available, the\nnominating commission gives public notice of the positions\navailable, the salary, and the job requirements, including the\nparty membership required for nomination. For example, in\nAugust 2012, the commission gave notice of five open judicial\npositions, of which three were open only to candidates who\nwere members of the Democratic Party and two were open to\nmembers of either political party.\n\n\n\n\n10\n Holland, supra note 3, at 129.\n11\n See Executive Order 16, available at:\nhttps://governor.delaware.gov/executive-orders/ eo16/.\n12\n Holland, supra note 3, at 129.\n13\n Id.\n\n\n\n\n 10\n\n C. James Adams’s Search for a Judicial\n Position\n\n James Adams, a member of the Delaware State Bar, is\nan Independent who desires a judicial position but has not\napplied for one due to his current political affiliation.\n\n Throughout his career, Adams was a registered\nDemocrat and participated with the Democratic Party. In early\n2017, that changed, as Adams became an Independent voter for\nthe first time.14 Adams explained that he changed his\naffiliation because he is progressive and grew frustrated with\nthe centrism of the Democratic Party in Delaware. He now\ndescribes himself as “more of a [Vermont Senator] Bernie\n[Sanders] independent.”15\n\n Around the same time, Adams read an essay\nquestioning the constitutionality of Article IV, Section 3. The\nessay focused in large part on the portion of the provision that\nrequires judicial applicants to be members of one of\nDelaware’s two major political parties, and posed the question:\n“May Delaware enforce a state law providing that no\nIndependent or member of a minor party shall be appointed to\na judgeship?”16 After reading the article, Adams decided to\nchallenge the provision. He filed the instant lawsuit against\nJohn Carney, the Governor of the State of Delaware, in\n\n14\n Adams’s new voter registration card, indicating that he is\nunaffiliated with a political party, is dated February 13, 2017\nand was mailed to him on February 14, 2017. Adams cannot\nremember the exact day that he switched his party affiliation.\n15\n J.A. 74.\n16\n Id. at 1154.\n\n\n\n\n 11\n\nFebruary 2017. At the time he filed the lawsuit, he pointed to\ntwo judicial vacancies that both required Republican\ncandidates.\n\n Although Adams did not apply for either of those\njudicial positions, he has applied to similar positions in the\npast. In 2009, Adams applied to be a Family Court\nCommissioner, but was not selected. In 2014, Adams\nconsidered applying for judicial positions on the Supreme\nCourt and the Superior Court; however, at the time he was\nregistered as a Democrat and the positions were open only to\nRepublican candidates. Shortly thereafter, in 2015, Adams\nretired and assumed emeritus status with the Delaware State\nBar. By 2017 he felt ready to resume searching for a judicial\nposition, and believed he was a qualified applicant. He\ntherefore returned to active status in 2017. Notwithstanding\nhis interest, Adams has refrained from submitting an\napplication based on his belief that he would not be considered\nfor a judicial position because of Article IV, Section 3 and his\nnew affiliation as an Independent voter.\n\n D. The District Court Proceedings17\n\n Both parties filed cross-motions for summary judgment.\nThe Governor argued primarily that Adams lacks both Article\nIII and prudential standing to bring his claims, and Adams\nargued that the political balance requirement violates the First\n\n\n\n\n17\n Both parties consented to the entry of final judgment by a\nMagistrate Judge. See Adams v. Hon. John Carney, Dkt. 2,\nNo. 17 Civ. 181 (MPT) (D. Del. 2017).\n\n\n\n\n 12\n\nAmendment because it conditions appointment on a judicial\ncandidate’s political affiliation.\n\n The District Court determined that Adams had Article\nIII standing to challenge some, but not all, of the sections of\nthe provision. Chief Magistrate Judge Thynge considered the\nfirst three sections because they contain both a bare majority\ncomponent and a major political party component. She\nconcluded that although Adams did not apply for an open\njudicial position on one of those courts, his application would\nhave been futile because the openings available around the\ntime he filed his complaint were not available to Independents\nlike himself.\n\n Sections four and five, however, contain only the bare\nmajority component, and Magistrate Judge Thynge concluded\nthat Adams did not have standing to challenge those sections\nbecause his status as an Independent would not have prevented\nhis application from being considered. She nevertheless\nconcluded that he had prudential standing to challenge those\nsections and found that sufficient to confer jurisdiction.\n\n Turning to the merits, Magistrate Judge Thynge\ndetermined that Article IV, Section 3 restricted access to a\ngovernment position (here, a judgeship) based on political\naffiliation. She found that the narrow policymaking exception\nlaid out in Elrod and Branti, which allows a government\nemployer to make employment decisions based on political\nallegiance for policymakers, did not apply. In reaching that\nconclusion, the District Court drew on Third Circuit and\nSupreme Court cases emphasizing that a judge’s job is to\napply, rather than create, the law. The District Court also cited\nthe Delaware Judges’ Code of Judicial Conduct, which\n\n\n\n\n 13\n\nmandates that judges refrain from political activity and\ninstructs judges not to be swayed by personal opinion. Because\npolitical affiliation could not be seen as a necessary trait for\neffective judicial decisionmaking, and because the District\nCourt concluded that judges do not meet the policymaking\nexception established in Elrod and Branti, she found the\nprovision unconstitutional in its entirety. This appeal\n 18\nfollowed.\n\n Discussion\n\n A. Standing\n\n 1. Article III Standing\n\n We begin by addressing Adams’s constitutional\nstanding. Constitutional standing, also referred to as Article III\nstanding, is “a threshold issue that must be addressed before\nconsidering issues of prudential standing.”19 Because it is an\nessential component of subject matter jurisdiction, if Article III\n\n\n\n\n18\n The District Court had jurisdiction under 28 U.S.C. § 1331.\nWe have jurisdiction under 28 U.S.C. § 1291. We exercise\nplenary review over the District Court’s grant of summary\njudgment. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002).\n19\n Hartig Drug Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 269\n(3d Cir. 2016) (quoting Miller v. Nissan Motor Acceptance\nCorp., 362 F.3d 209, 221 n.16 (3d Cir. 2004)).\n\n\n\n\n 14\n\nstanding is lacking, our inquiry must end and Adams’s claim\nmust be dismissed.20\n\n To satisfy the “irreducible conditional minimum” of\nstanding, a plaintiff must show that he has: “(1) suffered an\ninjury in fact, (2) that is fairly traceable to the challenged\nconduct of the defendant, and (3) that is likely to be redressed\nby a favorable judicial decision.”21 Of standing’s three\nelements, “injury in fact, [is] the ‘first and foremost.’”22 “To\nestablish injury in fact, a plaintiff must show that he or she\nsuffered ‘an invasion of a legally protected interest’ that is\n‘concrete and particularized’ and ‘actual or imminent, not\nconjectural or hypothetical.’”23 However, a plaintiff need not\nmake futile gestures to establish that injury is actual and not\nconjectural.24\n\n It is black letter that standing may not be “dispensed in\ngross.”25 Our cases demonstrate that we must ask not only\nwhether Adams has standing to sue at all, but whether he has\n\n\n\n\n20\n See Lance v. Coffman, 549 U.S. 437, 439 (2007).\n21\n Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing\nLujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).\n22\n Id. (quoting Steel Co. v. Citizens for Better Environment, 523\nU.S. 83, 103 (1998)).\n23\n Id. (quoting Lujan, 504 U.S. at 560).\n24\n Sammon v. New Jersey Bd. of Medical Examiners, 66 F.3d\n639, 643 (3d Cir. 1995).\n25\n Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645,\n1650 (2017) (quoting Davis v. Fed. Election Comm’n, 554 U.S.\n724, 734 (2008)).\n\n\n\n\n 15\n\nstanding to challenge part or all of Article IV, Section 3.26\nAccordingly, we do not ask only whether Adams has been\ninjured by Article IV, Section 3 of the Delaware Constitution.\nWe must identify how, if at all, he has been injured, and\nwhether that injury stems from all or part of the provision.\n\n Adams desires a judgeship, and he has applied for, or\nconsidered applying for, judicial positions since at least 2009.\nIf he felt his application would be reviewed, he would consider\napplying for a judicial seat on any of Delaware’s five\nconstitutional courts. But because Adams is an Independent,\nhe has refrained from submitting an application in light of the\nrestrictions of Article IV, Section 3.\n\n The District Court agreed with Adams that it would\nhave been futile to apply for a judicial position on the Supreme\nCourt, Superior Court, or Chancery Court, because under\nDelaware’s constitution, judges on those courts must be\nmembers of one of Delaware’s two major political parties, and\nAdams is not. The Governor does not contest that Adams has\nconstitutional standing to challenge these provisions, and we\nagree that Adams has clearly been injured by the major\n\n\n26\n See Contractors Ass’n of E. Pennsylvania, Inc. v. City of\nPhiladelphia, 6 F.3d 990, 995 (3d Cir. 1993) (“Our standing\ninquiry has two parts: whether the Contractors have standing\nto challenge the Ordinance at all, and if so, whether they have\nstanding to challenge all or just part of the Ordinance.”); see\nalso Service Employee’s Int’l Union, Local 3 v. Municipality\nof Mt. Lebanon, 446 F.3d 419, 422 (3d Cir. 2006) (separately\nconsidering a union’s standing to challenge each section of an\nallegedly unconstitutional municipality ordinance).\n\n\n\n\n 16\n\npolitical party component and therefore has standing to\nchallenge it.\n\n But the District Court also concluded that Adams’s\napplication to either the Family Court or the Court of Common\nPleas “would not have been futile, because there is no party\nrequirement constitutionally attached to either Court.”27\nAdams argues that the bare majority component injures him\nindependently of the major political party component because\nit “limit[s] the right to a bare majority to members of a\n‘political party.’”28 In his view, the bare majority component\nmandates that one of the two major political parties control a\nbare majority of judicial seats on the relevant court, thereby\nlimiting an Independent’s ability to successfully apply for a\nposition. The component, however, creates a ceiling for\nmembers of the same political party; it does not create a floor\nentitling them to a certain number of judicial seats.29\n\n Therefore, we agree with the District Court’s reading of\nArticle IV, Section 3 and conclude that Adams does not have\nstanding to challenge the sections of the provision that contain\nonly the bare majority component. Nevertheless, the District\nCourt went on to conclude that Adams did not need to establish\n\n27\n J.A. 13. The last two sections of the provision, which cover\nthe Family Court and the Court of Common Pleas, contain only\nthe bare majority component.\n28\n Appellee’s Br. at 13–14.\n29\n As the District Court explained, the bare majority component\n“places no limitations on unaffiliated voters and only affects\njudicial candidates of a major political party when the bare\nmajority of judicial offices on those courts is filled with\nindividuals affiliated with that major political party.” J.A. 29.\n\n\n\n\n 17\n\nconstitutional standing because he established prudential\nstanding. The District Court’s conclusion that prudential\nstanding can serve as “substitute” standing for a plaintiff who\ncannot demonstrate constitutional standing is incorrect. While\nArticle III standing is a threshold issue that implicates subject\nmatter jurisdiction, prudential standing is not. Instead, it is a\n“judicially self-imposed limit[] on the exercise of federal\njurisdiction.”30 Prudential standing cannot vest a court with\nsubject matter jurisdiction; therefore, it cannot replace or\nsubstitute for constitutional standing, as without the latter, the\ncase must be dismissed.31 Therefore, because Adams does not\nhave Article III standing with respect to the Family Court and\nthe Court of Common Pleas, we may not consider the merits of\nhis argument with respect to those courts.\n\n 2. Prudential Standing\n\n We next address whether the doctrine of prudential\nstanding should give us pause before reaching the merits of the\ndispute over the first three sections of the political balance\nrequirement. Even when Article III standing is present, we\nlook to prudential considerations “to avoid deciding questions\nof broad social import where no individual rights would be\nvindicated and to limit access to the federal courts to those\nlitigants best suited to assert a particular claim.”32 Prudential\n\n30\n Davis v. City of Philadelphia, 821 F.3d 484, 487 (3d Cir.\n2016) (quoting United States v. Windsor, 570 U.S. 744, 757\n(2013)).\n31\n See Lance, 549 U.S. at 439.\n32\n Joint Stock Society v. UDV N. Am., Inc., 266 F.3d 164, 179\n(3d Cir. 2001) (quoting Conte Bros. Auto., Inc. v. Quaker\nState-Slick 50, Inc., 165 F.3d 221, 225 (3d Cir. 1998)).\n\n\n\n\n 18\n\nstanding requires “(1) that a litigant assert his or her own legal\ninterests rather than those of a third party; (2) that the grievance\nnot be so abstract as to amount to a generalized grievance; (3)\nand that the [plaintiff’s] interests are arguably within the ‘zone\nof interests’ protected by the statute, rule, or constitutional\nprovision on which the claim is based.”33\n\n We see no reason to ignore Adams’s challenge to\nArticle IV, Section 3 on prudential grounds. Although the\nquestion is surely one of broad social import in Delaware,\nAdams has established that aside from his political affiliation,\nhe feels qualified for a judicial position and intends to apply\nfor a judicial position if he is able. The provision may be of\ninterest to many residents of Delaware, but Adams has shown\nthat he has a particular legal interest in the constitutionality of\nArticle IV, Section 3 because of his desire to apply for a\njudicial position while refraining from associating with either\nthe Democratic or Republican parties.\n\n The Governor’s arguments to the contrary are\nunavailing. He states that Adams’s interest in this case is\n“merely an academic exercise” because Adams switched his\npolitical affiliation in the days before filing this Complaint, and\nhad not applied for a judicial position since 2009 although, as\na registered Democrat until 2017, he could have.34 Essentially,\nthe Governor’s argument asks us to discredit the portions of\nAdams’s deposition in which he explained why he decided to\nleave the Democratic Party (he was frustrated by the lack of\nprogressive Democrats in Delaware) and why he did not apply\nfor a judicial position after 2009 (he found working for the late\n\n33\n Lewis v. Alexander, 685 F.3d 325, 340 (3d Cir. 2012).\n34\n Appellant’s Br. at 24–25.\n\n\n\n\n 19\n\nBeau Biden rewarding and therefore did not consider other\ncareer opportunities until after Biden’s death in 2015). But in\nopposing a motion for summary judgment, the Governor was\nrequired to do more than speculate that Adams has deceived\nthe Court about his genuine interest in applying for a judicial\nposition.35 The short time period in which Adams changed his\nparty affiliation, read the law review article, and filed suit,\nwithout more, is insufficient to raise a genuine issue of material\nfact about Adams’s prudential standing.\n\n B. The Elrod/Branti Inquiry\n\n We now turn to the heart of this appeal: whether the\nsections of Article IV, Section 3 of the Delaware Constitution\nthat govern the Supreme Court, the Superior Court, and the\nChancery Court run afoul of the First Amendment’s guarantee\nof freedom of association. A trio of seminal United States\nSupreme Court cases explain the limits on a government\nemployer’s ability to consider a job candidate’s political\nallegiance and govern our analysis here: Elrod,36 Branti,37 and\nRutan.38 We discuss each case in turn.\n\n In Elrod v. Burns, Justice Brennan, writing for the\nplurality, recognized that the practice of patronage\ndismissals—dismissing a civil servant because his political\naffiliation differed from the political party in power—is\n\n35\n Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 666 (3d\nCir. 2016) (a movant may not rely on “speculation and\nconjecture in opposing a motion for summary judgment”).\n36\n 427 U.S. 347 (1976).\n37\n 445 U.S. 507 (1980).\n38\n Rutan v. Republican Party of Ill., 497 U.S. 62 (1990).\n\n\n\n\n 20\n\n“inimical to the process which undergirds our system of\ngovernment and is at war with the deeper traditions of\ndemocracy embodied in the First Amendment.”39 He\nexplained that to justify terminating a public employee based\non political allegiance, the government must show that the\npractice “further[s] some vital government end by a means that\nis least restrictive of freedom of belief and association in\nachieving that end, and the benefit gained must outweigh the\nloss of constitutionally protected rights.”40 The plurality\nsuggested that the government’s interest in employee loyalty\nwould allow it to discharge employees in policymaking\npositions based on political allegiance.41 Although “no clear\nline can be drawn between policymaking and nonpolicymaking\npositions,” the plurality instructed factfinders to consider the\nnature of the employee’s responsibilities to determine whether\nor not he or she is in a policymaking position.42\n\n The Court next examined the First Amendment\nimplications of politically-motivated employment decisions in\nBranti v. Finkel. Summarizing Elrod, the Court stated that “if\nan employee’s private political beliefs would interfere with the\ndischarge of his public duties, his First Amendment rights may\n\n39\n 427 U.S. at 357 (internal quotations marks omitted (quoting\nIllinois State Employees Union v. Lewis, 473 F.2d 561, 576\n(1972))). In a concise concurrence, Justice Stewart, joined by\nJustice Blackmun, stated that a “nonpolicymaking,\nnonconfidential government employee” may not be discharged\nor threatened with discharge on the sole ground of his or her\npolitical beliefs. Id. at 375 (Stewart, J., concurring).\n40\n Id. at 363.\n41\n Id. at 367.\n42\n Id. at 367–68.\n\n\n\n\n 21\n\nbe required to yield to the State’s vital interest in maintaining\ngovernmental effectiveness and efficiency.”43 The Court,\nhowever, moved away from Elrod’s policymaking distinction\nand held that “the ultimate inquiry is not whether the label\n‘policymaker’ or ‘confidential’ fits a particular position; rather,\nthe question is whether the hiring authority can demonstrate\nthat party affiliation is an appropriate requirement for the\neffective performance of the public office involved.”44 The\nCourt explained that some positions, like that of an election\njudge, might be political without being a policymaking role,\nand some, like that of a state university football coach, might\ninvolve setting policy without being political.45\n\n In Rutan, the Court confirmed that the general\nprohibition on politically-motivated discharge also applies to\ndecisions to promote, transfer, or hire an employee.46 “Unless\nthese patronage practices are narrowly tailored to further vital\ngovernment interests, we must conclude that they\nimpermissibly encroach on First Amendment freedoms.”47\n\n The Governor of Delaware sets forth two arguments to\njustify his practice of requiring applicants for judicial positions\nto be Democrats or Republicans: first, the Governor argues\nthat because judges are policymakers, they can be hired or fired\nbased on their political affiliation without restraint, and second,\nthe Governor argues that even if they are not policymakers,\n\n\n43\n Branti, 445 U.S. at 517.\n44\n Id. at 518.\n45\n Id.\n46\n Rutan, 497 U.S. at 74.\n47\n Id. at 74.\n\n\n\n\n 22\n\nDelaware has an interest in political balance that justifies the\nrestrictions set forth in Article IV, Section 3.\n\n 1. The Policymaking Exception48\n\n In our cases applying Branti, Elrod, and Rutan, we have\nset forth criteria to aid us in determining whether an\nemployee’s job responsibilities would make political party\nallegiance an appropriate condition of employment. We\nconsider “whether the employee has duties that are non-\ndiscretionary or non-technical, participates in discussions or\nother meetings, prepares budgets, possesses the authority to\nhire or fire other employees, has a high salary, retains power\nover others, and can speak in the name of policymakers.”49\nThe “key factor” is whether an employee in that position “has\nmeaningful input into decisionmaking concerning the nature\nand scope of a major program.”50 Using this analysis, we have\nconcluded that political affiliation is an appropriate\n\n48\n Adams argues that after Branti, the question of whether a\ngovernment position involves policymaking is irrelevant. We\ndisagree. As we have explained before, after Branti, “the fact\nthat an employee is in a policymaking or confidential position\nis relevant to the question of whether political affiliation is a\nnecessary job requirement but this fact is no longer dispositive\n. . . .” Brown v. Trench, 787 F.2d 167, 168–69 (3d Cir. 1986);\nsee also Galli v. New Jersey Meadowlands Comm’n, 490 F.3d\n265, 270 (3d Cir. 2007) (“The exception for ‘policymaking’\njobs exists because political loyalty is essential to the position\nitself.”).\n49\n Galli, 490 F.3d at 271 (citing Brown, 787 F.2d at 169).\n50\n Id. (quoting Armour v. County of Beaver, PA, 271 F.3d 417,\n429 (3d Cir. 2001)).\n\n\n\n\n 23\n\nrequirement for a director of a veterans’ administrative\nservices department,51 an assistant director of public\ninformation,52 assistant district attorneys,53 city solicitors and\nassistant city solicitors,54 a solicitor for the Northeast\nPennsylvania Hospital and Education Authority,55 and a city\nmanager,56 among others. We have never before considered\nthe role of a state judge. We now conclude that a judicial\nofficer, whether appointed or elected, is not a policymaker.\n\n This outcome is clear from the principles animating\nElrod and Branti. The purpose of the policymaking exception\nis to ensure that elected officials may put in place loyal\nemployees who will not undercut or obstruct the new\nadministration.57 If a job “cannot properly be conditioned upon\n\n51\n Waskovich v. Morgano, 2 F.3d 1292, 1298–1303 (3d Cir.\n1993).\n52\n Brown, 787 F.2d at 169–70.\n53\n Mummau v. Ranck, 687 F.2d 9, 10 (3d Cir. 1982).\n54\n Ness v. Marshall, 660 F.2d 517, 520–22 (3d Cir. 1981).\n55\n Wetzel v. Tucker, 139 F.3d 380, 384–86 (3d Cir. 1998).\n56\n Curinga v. City of Clairton, 357 F.3d 305, 313 (3d Cir.\n2004).\n57\n Elrod, 427 U.S. at 367 (“A second interest advanced in\nsupport of patronage is the need for political loyalty of\nemployees, not to the end that effectiveness and efficiency be\ninsured, but to the end that representative government not be\nundercut by tactics obstructing the implementation of policies\nof the new administration, policies presumably sanctioned by\nthe electorate. The justification is not without force, but is\nnevertheless inadequate to validate patronage wholesale.\nLimiting patronage dismissals to policymaking positions is\nsufficient to achieve this governmental end.”).\n\n\n\n\n 24\n\nallegiance to the political party in control,” the policymaking\nexception is inappropriate.58 Judges simply do not fit this\ndescription. The American Bar Association’s Model Code of\nJudicial Conduct instructs judges to promote “independence”\nand “impartiality,” not loyalty.59 It also asks judges to refrain\nfrom political or campaign activity.60 The Delaware Code of\nJudicial Conduct similarly makes clear that judges must be\n“unswayed by partisan interests” and avoid partisan political\nactivity.61 The Delaware Supreme Court has stated that\nDelaware judges “must take the law as they find it, and their\npersonal predilections as to what the law should be have no\nplace in efforts to override properly stated legislative will.”62\nIndependence, not political allegiance, is required of Delaware\njudges.\n\n Article IV, Section 3 itself illustrates that political\nloyalty is not an appropriate job requirement for Delaware\njudges. Delaware has chosen to considerably limit the\nGovernor’s ability to nominate judges on the basis of political\nexpediency. Instead, the Governor must ensure that there are\nsufficient Democratic and Republican judges on the bench.\nFar from nominating only judges who will be loyal to his party,\nthe Governor may be required by Delaware’s constitution to\nnominate judges who belong to a different political party. The\nGovernor, therefore, cannot credibly argue that he must be free\nto follow a rule excluding those who do not belong to the two\n\n58\n Branti, 445 U.S. at 519.\n59\n Am. Bar Ass’n Model Code of Judicial Conduct Canon 1.\n60\n Id. Canon 4.\n61\n Del. Judges’ Code Judicial Conduct Rules 2.4(A), 4.1.\n62\n Leatherbury v. Greenspun, 939 A.2d 1284, 1292 (Del. 2007)\n(quoting Ewing v. Beck, 520 A. 2d 653, 660 (1987)).\n\n\n\n\n 25\n\nmajor parties in Delaware because allegiance to his party is an\nappropriate condition for judicial employment.\n\n Nor are we swayed by his argument that the important\nrole judges play in Delaware transforms them into political\nactors. The Governor argues that by interpreting statutes,\nsentencing criminal defendants, and crafting the common law,\njudges in Delaware make policy and exercise significant\ndiscretion. But the question before us is not whether judges\nmake policy,63 it is whether they make policies that necessarily\nreflect the political will and partisan goals of the party in\npower. That is why, as the Court explained in Branti, a football\ncoach for a state university cannot be discharged because of\nher political affiliation even though she may formulate policy\nfor the athletic department.64 And why public defenders, who\nmade some policy decisions in fulfilling their public office,\nstill could not be fired on the basis of their political\nallegiance—because their policymaking activity did not relate\nto “any partisan political interest.”65\n\n\n63\n Compare Matthews v. Lucas, 427 U.S. 495, 515 (1976)\n(“Nor, in ratifying these statutory classifications, is our role to\nhypothesize independently . . . . These matters of practical\njudgment and empirical calculation are for Congress.”), with\nWetzel, 139 F.3d at 386 (“Tough legal questions are not\nanswered mechanically, but rather by the exercise of seasoned\njudgment. Judgment is informed by experience and\nperspective . . . .”); see generally Gregory v. Ashcroft, 501 U.S.\n452, 465–67 (1991) (explaining, without resolving, the debate\nover whether judges make policy).\n64\n Branti, 445 U.S. at 518.\n65\n Id. at 519.\n\n\n\n\n 26\n\n To the extent that Delaware judges create policy, they\ndo so by deciding individual cases and controversies before\nthem, not by creating partisan agendas that reflect the interests\nof the parties to which they belong.66 Similarly, although the\nGovernor contends that Delaware judges have meaningful\ninput into a major government program because they set the\njudiciary’s budget and create rules of civil and criminal\nprocedure, the operation of the judicial branch is not “so\nintimately related to [Delaware] policy” that the Governor\nwould have “the right to receive the complete cooperation and\nloyalty of a trusted advisor [in that position].”67\n\n The policymaking inquiry is designed to test whether\nthe position in question “is one which cannot be performed\neffectively except by someone who shares the political beliefs\n\n66\n See Branti, 445 U.S. at 519–20 (“[W]hatever policymaking\noccurs in the public defender’s officer must relate to the needs\nof individual clients and not to any partisan political interests.\n. . . Under these circumstances, it would undermine, rather than\npromote, the effective performance of an assistant public\ndefender’s office to make his tenure dependent on his\nallegiance to the dominant political party.”).\n67\n Ness, 660 F.2d at 522 (“[W]e agree with the district court\nthat, as a matter of law, the duties imposed on city solicitors by\nthe York Administrative Code and the undisputed functions\nentailed by these duties e.g., rendering legal opinions, drafting\nordinances, [and] negotiating contracts define a position for\nwhich party affiliation is an appropriate requirement. In\nrelying on an attorney to perform these functions so intimately\nrelated to city policy, the mayor has the right to receive the\ncomplete cooperation and loyalty of a trusted adviser, and\nshould not be expected to settle for less.”).\n\n\n\n\n 27\n\nof [the appointing authority].”68 Put simply, while judges\nclearly play a significant role in Delaware, that does not make\nthe judicial position a political role tied to the will of the\nGovernor and his political preferences. As such, the\npolicymaking exception does not apply to members of the\njudicial branch.\n\n We are aware that two of our sister Circuits have\nconcluded otherwise. In Kurowski v. Krajewski, the Seventh\nCircuit determined that the guiding question in political\naffiliation cases was “whether there may be genuine debate\nabout how best to carry out the duties of the office in question,\nand a corresponding need for an employee committed to the\nobjectives of the reigning faction,” and answered that question\nin the affirmative with respect to judges and judges pro\ntempore.69 In Newman v. Voinovich, the Sixth Circuit similarly\nconcluded that judges were policymakers who could be\n\n\n\n\n68\n Brown, 787 F.2d at 170. See also Branti, 445 U.S. at 517\n(“[I]f an employee’s private political beliefs would interfere\nwith the discharge of his public duties, his First Amendment\nrights may be required to yield to the State’s vital interest in\nmaintaining governmental effectiveness and efficiency.”).\n69\n Kurowksi, 848 F.2d 767, 770 (7th Cir. 1988) (“A judge both\nmakes and implements governmental policy. A judge may be\nsuspicious of the police or sympathetic to them, stern or lenient\nin sentencing, and political debates rage about such questions.\nIn most states judges are elected, implying that the office has a\npolitical component. Holders of the appointing authority may\nseek to ensure that judges agree with them on important\njurisprudential questions.”).\n\n\n\n\n 28\n\nappointed on the basis of their partisan affiliation.70 We find\nthese cases unpersuasive for two reasons.\n\n First, we do not believe, as the Seventh Circuit does,\nthat the policymaking exception described in Elrod and Branti\nis merely “shorthand for a broad category of public employees\nwhose work is politically sensitive and who exercise\nsignificant discretion in the performance of their duties.”71\nUnder the Seventh Circuit’s view, so long as employees make\ndecisions involving issues about which “political debates\nrage,” they may be hired or fired for their party affiliation.72\nWe have always more narrowly applied the policymaking\nexception to only the class of employees whose jobs “cannot\nbe performed effectively except by someone who shares the\npolitical beliefs of [the appointing authority].”73 There can be\nno serious question that judicial candidates of different\npolitical parties can effectively serve as state judges. Thus,\nwhile “political debates rage” about issues that judges must\ndecide in the course of their state employment, we do not\nbelieve that this leaves judges entirely at the whim of state\n\n70\n Newman, 986 F.2d 159, 163 (6th Cir. 1993) (“We agree with\nthe holding in Kurowski that judges are policymakers because\ntheir political beliefs influence and dictate their decisions on\nimportant jurisprudential matters. . . . Therefore, we believe\nthat Governor Voinovich’s appointment of judges based on\npolitical considerations is consistent with Elrod, Branti, and\nRutan.”).\n71\n Hagan v. Quinn, 867 F.3d 816, 824 (7th Cir. 2017) (finding\nthat arbitrators on the Illinois Workers’ Compensation\nCommission are policymakers).\n72\n Kurowski, 848 F.2d at 770.\n73\n Brown, 787 F.2d at 170.\n\n\n\n\n 29\n\ngovernors and the patronage of the ruling party. While states\nhave nearly unfettered discretion to select state judges, states\ncannot condition judicial positions on partisan political\naffiliation alone.\n\n Second, the opinions in Kurowski and Newman conflate\nan appointing authority’s ability to consider the political\nbeliefs and ideologies of state employees with that authority’s\nability to condition employment on party loyalty. Under our\ncase law, discrimination based on political patronage is only\nactionable where the employee’s political affiliation was a\n“substantial or motivating factor in the government’s\nemployment decision.”74 Elrod and Branti protect\naffiliation—and decisions not to affiliate—with a political\nparty. We have never read them to prohibit an appointing\nofficial from considering a job candidate’s views on questions\nand issues related to the job itself. There is a wide gulf between\na governor asking a judicial candidate about his philosophy on\nsentencing, for example, and a governor posting a sign that\nsays “Communists need not apply.”75 The former does not run\nafoul of the First Amendment; but in our view, the latter does.\nBecause the approach of the Sixth and Seventh Circuits would\nallow governors both to weigh an individual candidate’s\npolitical beliefs and to condition judicial positions on party\nallegiance, we must disagree.\n\n We therefore conclude that state judges do not fall\nwithin the policymaking exception because affiliation with a\n\n\n74\n Galli, 490 F.3d at 271.\n75\n See Keyishian v. Bd. Of Regents of Univ. of State of N.Y., 385\nU.S. 589, 605–10 (1967).\n\n\n\n\n 30\n\nparticular political party is not a requirement for the effective\nperformance of the judicial role.\n\n 2. Delaware’s Interest in Political Balance\n\n We next consider the Governor’s second argument,\nthat even if state judges are not policymakers, their political\naffiliation is still an appropriate condition of state employment.\nThe Court in Rutan emphasized that politically motivated\nemployment practices could be constitutional if they are\n“narrowly tailored to further vital government interests.”76\nWhile most cases following Branti have focused on the\npolicymaking exception, which relates to a state’s interest in\nthe loyalty and efficiency of key state employees, the Governor\nargues that Article IV, Section 3 can be justified by a different\ninterest—the interest in political balance. We need not dwell\nlong on whether Delaware possesses a “vital state interest” in\na politically balanced judiciary, because Delaware’s practice of\nexcluding Independents and third party voters from judicial\nemployment is not narrowly tailored to that interest.\n\n The Governor posits that the Supreme Court has\nalways recognized the permissibility of conditioning\nappointments on political affiliation when the goal is to ensure\npolitical balance. In Branti, the Court stated that “if a State’s\nelection laws require that precincts be supervised by two\nelection judges of different parties, a Republican judge could\nbe legitimately discharged solely for changing his party\nregistration.”77 Similarly, in LoFrisco v. Schaffer and\n\n76\n Rutan, 497 U.S. at 74.\n77\n Branti, 445 U.S. at 518. The Sixth Circuit, following Branti,\nhas categorically held that employment decisions conditioned\n\n\n\n\n 31\n\nHechinger v. Martin, the Supreme Court affirmed two district\ncourt decisions approving political balance statutes governing\nelections for a state’s boards of education and the District of\nColumbia’s city council, respectively. 78 The Governor also\npoints to several federal administrative agencies that use some\nform of political balance requirement for decisionmaking\nbodies, including the Federal Deposit Insurance Corporation,\nthe Federal Trade Commission, the Securities and Exchange\nCommission, the Federal Communications Commission, the\nCommission on Civil Rights, the Federal Energy Regulatory\nCommission, and the Federal Election Commission. These\nexamples show some support for the Governor’s argument, but\nunlike elected officials and agency representatives who\nexplicitly make policy, judges perform purely judicial\nfunctions. Further, it is difficult to see how the logic of\npolitical balance and minority representation extends from\nmultimember deliberative bodies, like a school board, to\nDelaware’s judiciary, most of whom sit alone.79\n\n\non political party affiliation are permissible where the position\nis one of several “filled by balancing out political party\nrepresentation, or that are filled by balancing out selections\nmade by different government agents or bodies.” McCloud v.\nTesta, 97 F.3d 1536, 1557 (6th Cir. 1996).\n78\n See LoFrisco v. Schaffer, 341 F. Supp. 743, 744–45, 750 (D.\nConn. 1972), aff’d 409 U.S. 972 (1972); Hechinger v. Martin,\n411 F. Supp. 650, 653 (D.D.C. 1976), aff’d 429 U.S. 1030\n(1977).\n79\n The Delaware Supreme Court is the only judicial body in\nwhich a panel of judges regularly hears cases as a collective.\nEven then, panels are usually comprised of three of the five\njudges on the court. The political balance on a panel, therefore,\ndoes not necessarily mirror the political balance of the\n\n\n\n\n 32\n\n The Seventh Circuit has also addressed the political\nbalance interest in the judicial context. In Common Cause\nIndiana v. Individual Members of the Indiana Election\nCommission, the court considered a municipal ordinance\nprohibiting political parties from nominating candidates for\nmore than half of the eligible seats on its superior court.80 The\nSeventh Circuit found that partisan balance concerns are less\ncompelling with respect to judges, who are “not elected [or\nappointed] to represent a particular viewpoint” and instead are\nrequired to “exercise [their] own independent authority to\nmake decisions that uphold and apply the law fairly and\nimpartially.”81 The court also emphasized that “partisan\nbalance amongst the judges who comprise the court, alone, has\nlittle bearing on impartiality” because while it can “serve as a\ncheck against contrary partisan interests,” it does not affect\n“the impartiality of individual members.”82\n\n While we share many of the Seventh Circuit’s\nconcerns about conflating party balance with judicial\nimpartiality, we need not resolve the issue today. To justify a\nrule that impinges an employee’s First Amendment association\nrights, the state must show both that the rule promotes “a vital\nstate interest” and that the rule is “narrowly tailored” to that\ninterest. Even assuming judicial political balance is a vital\nDelaware interest, the Governor must also show that the goals\n\n\nSupreme Court as a whole. See Randy J. Holland and David\nA. Skeel, Jr., Deciding Cases Without Controversy, 5 DEL. L.\nREV. 115, 121 (2002).\n80\n Common Cause, 800 F.3d 913, 915 (7th Cir. 2015).\n81\n Id. at 922–23.\n82\n Id.\n\n\n\n\n 33\n\nof political balance could not be realized without the restrictive\nnature of Article IV, Section 3, and this he has failed to do.\n\n The Governor describes the benefits of balance and\ndetails the popularity Article IV, Section 3 has among\nDelaware judges and former judges. But this cannot suffice as\na justification to bar candidates who do not belong to either the\nDemocratic or Republican parties from seeking judicial\nappointment, because the Governor fails to explain why this is\nthe least restrictive means of achieving political balance.\nBecause the Governor has not shown that Article IV, Section 3\nis narrowly tailored to further a vital state interest, the\ninfringement on judicial candidates’ association rights is\nunconstitutional.\n\n Conclusion\n\n For the foregoing reasons, we find that Adams has\nshown that his freedom of association rights were violated by\nthe political balance requirement that prevented his application\nto the Supreme Court, Superior Court, and Chancery Court.\nTherefore, we conclude that the first three sections of Article\nIV, Section 3 violate the First Amendment. We affirm the\nDistrict of Delaware’s order granting summary judgment to\nAdams on those sections. Because Adams had no standing to\nchallenge the sections of Article IV, Section 3 dealing with the\nFamily Court and the Court of Common Pleas, however, we\nreverse the District of Delaware’s order as it pertained to those\nsections.\n\n\n\n\n 34", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364768/", "author_raw": "FUENTES, Circuit Judge."}, {"author": "McKEE, Circuit Judge, concurring", "type": "concurrence", "text": "McKEE, Circuit Judge, concurring. Judges Restrepo and\nFuentes join.\n\n I join my colleagues’ thoughtful opinion in its entirety.\nI write separately merely to add the perspective of someone\nwho has served as a state court judge in a jurisdiction that\nselects judges in general elections preceded by partisan\npolitical campaigning and the fundraising that is endemic to\npolitical campaigns. In doing so, I certainly do not mean to in\nanyway cast aspersions upon the many dedicated, intelligent\nand hardworking men and women whom the electorate in such\njurisdictions ultimately select to serve as judges. I only wish to\nnote the potential damage to the image of the judiciary in such\njurisdictions and the extent to which it can undermine the\npublic’s faith in the judges who are elected.1\n\n All of us have a keen understanding of, and appreciation\nfor, the fact that the provisions we strike down today were\nenacted to ensure selection of a judiciary whose political\nbalance would serve notice that judicial decisions were devoid\nof politics and political motivations. Paradoxically, by\nelevating one’s political affiliation to a condition precedent to\neligibility for appointment to the bench by the Governor,\nDelaware has institutionalized the role of political affiliation\n\n1\n The criticism of systems where judges are elected has stressed\nthe importance of such irrelevant factors as campaign\ncontributions and the importance of ballot position. See The\nInquirer Editorial Board, Editorial, Close Down the Circus:\nReplace Judicial Elections with Merit Selection, PHILA.\nINQUIRER, (July 13, 2018)\n(http://www.philly.com/philly/opinion/editorials/judicial-\nelection-merit-selection-pennsylvania-election-reform-\n20180713.html) (“In Pennsylvania we elect judges in partisan\nelections . . . The corrosive effects of money work over time\nuntil it is impossible for people to trust the court system.”);\nRyan Briggs, Does Ballot Position Matter? Science Says ‘Yes,’\nCITY AND STATE PENNSYLVANIA (Dec. 20, 2016),\nhttps://www.cityandstatepa.com/content/does-ballot-position-\nmatter-science-says-%E2%80%98yes%E2%80%99 (last\nvisited Jan. 17, 2019) (“Sheer luck has more to do with\nbecoming [a] judge in the city [of Philadelphia] than\nexperience or endorsements.”).\n 1\n\nrather than negated it. As we explain, the resulting system of\njudicial selection is in conflict with the First Amendment right\nof association even though it has historically produced an\nexcellent judiciary; accordingly, it cannot survive this First\nAmendment challenge. Although this is as paradoxical as it is\nironic, it is really not surprising that the judicial system that has\nresulted from Delaware’s political balance requirements is as\nexemplary as the judges who comprise it.\n\n In 2011, then-Delaware Supreme Court Justice Randy\nJ. Holland presciently observed that the “political balance\nprovisions appear to prevent the appointment of persons\nbelonging to a third political party or having no party\naffiliation. To date, however, there has been no court challenge\nto this requirement under the United States Constitution.”2\nJustice Holland’s observation about the absence of challenges\nto the 122 year-old constitutional framework that plainly\nimplicates the First Amendment is understandable given the\nwell-earned excellent reputation of the state courts it has\nproduced.\n\n Praise for the Delaware judiciary is nearly universal,\nand it is well deserved. Scholars and academics routinely refer\nto Delaware’s courts as the preeminent forum for litigation,\nparticularly for cases involving business disputes.3 On the\nbicentennial anniversary of the establishment of the Court of\nChancery, then-Chief Justice Rehnquist observed that the\n“Delaware state court system has established its national\npreeminence in the field of corporation law” and identified\nsuch hallmarks of the Court of Chancery as its “[j]udicial\nefficiency and expertise, a well-paid and well-respected\njudiciary, innovative judicial administration [and] courageous\n\n\n2\n Randy J. Holland, THE DELAWARE STATE CONSTITUTION\n149 (2011).\n3\n See, e.g., Omari Scott Simmons, Delaware’s Global Threat,\n41 J. OF CORP. L. 217, 224 (2016) (referring to the\n“preeminence of Delaware’s courts in resolving corporate\ndisputes”); Ehud Kamar, A Regulatory Competition Theory of\nIndeterminacy in Corporate Law, 98 COLUMBIA L. REV. 1908,\n1926 (1998) (“Delaware courts have earned a unique\nreputation for quality adjudication”).\n 2\n\nleadership.”4 Members of the Delaware bench credit the\npolitical balancing requirement for at least part of this success.5\nWith that national reputation so firmly established, it is perhaps\nnot surprising that attorneys contemplating judicial candidacy\nhave not previously challenged this constitutional framework.6\n\n4\n William H. Rehnquist, Chief Justice of the United States,\nAddress at the Bicentennial of the Delaware Court of Chancery\n(Sep. 18, 1992) in The Prominence of the Delaware Court of\nChancery in the State-Federal Joint Venture of Providing\nJustice, 48 THE BUSINESS LAWYER 1 (1992).\n5\n See, e.g., Devera B. Scott, et al., The Assault on Judicial\nIndependence and the Uniquely Delaware Response, 114\nPENN ST. L. REV. 217, 243 (2009) (quoting President Judge Jan\nR. Jurden as saying the “Delaware judicial nominating process\ngoes to great pains to ensure a balanced and independent\njudiciary, and, therefore, it is no surprise that the public\nperceives Delaware courts as fair arbiters of justice.”); E.\nNorman Veasey & Christine T. Di Guglielmo, What Happened\nin Delaware Corporate Law and Governance from 1992-\n2004? A Retrospective on Some Key Developments, 153 U. PA.\nL. REV. 1399, 1401 (2005) (former Chief Justice of the\nDelaware Supreme Court stating that Delaware’s judicial\n“system has served well to provide Delaware with an\nindependent and depoliticized judiciary and has led . . . to\nDelaware’s international attractiveness as the incorporation\ndomicile of choice.”); Leo E. Strine, Jr., The Delaware Way:\nHow We Do Corporate Law and Some of the New Challenges\nWe (and Europe) Face, 30 DEL. J. CORP. L. 673, 683 (2005)\n(Chief Justice of the Delaware Supreme Court noting that its\njudicial selection process has resulted “in a centrist group of\njurists committed to the sound and faithful application of the\nlaw.”).\n6\n Indeed, one of this court’s two courtrooms is named for\nCollins J. Seitz; a legendary judge of national prominence who\nserved with great distinction as a judge on the Delaware Court\nof Chancery before being appointed to this court by President\nJohnson in 1966.\n While sitting on the Delaware Court of Chancery, Judge\nSeitz decided Belton v. Gebhart, 87 A.2d 862 (1952) in which\nhe courageously ordered the desegregation of the Delaware\npublic schools two years before the United States Supreme\nCourt struck down the doctrine of “separate but equal” in\n 3\n\n But that excellence cannot justify the constitutional\ntransgression that is baked into the selection process. As we\nexplain,7 despite the state’s interest in achieving a judicial\nsystem that is as fair in fact as it is in appearance, the provisions\nof the Delaware Constitution restricting who can apply for\njudicial appointment are not narrowly tailored to achieve their\nlaudatory objectives. Accordingly, we need not decide whether\nDelaware has a “vital state interest” that justifies the limitations\non political affiliation. That question may be decided in a\nfuture case. Moreover, Delaware may choose to amend its\nConstitution in a manner that achieves the goals of the\nproblematic political affiliation requirements without their\nattendant constitutional infirmities.\n\n No matter what ensues, I have little doubt that the\nconstitutional provisions which we today invalidate have\nresulted in a political and legal culture that will ensure the\n\nBrown v. Bd. Of Educ. 347 U.S. 483 (1954). The appeal from\nhis decision there was one of the four consolidated cases before\nthe Court in Brown where the Supreme Court affirmed the\nview Judge Seitz had expressed in ordering the desegregation\nof the Delaware’s schools rather than ordering Delaware to\nmake its “Negro” schools equal to those serving White\nstudents. In Belton, Judge Seitz based his ruling on his factual\nconclusion that the Negro schools were inferior to White\nschools and therefore not equal; the approach that was then\nrequired under Plessy v. Ferguson, 163 U.S. 537 (1896).\n Nevertheless, in reaching his decision, Judge Seitz clearly\nstated that the doctrine of Plessy was itself an anathema to the\nUnited States Constitution because segregated schools were,\nby definition, unequal. Foreshadowing Brown, he wrote: “I\nbelieve that the ‘separate but equal’ doctrine in education\nshould be rejected, but I also believe its rejection must come\nfrom [the Supreme Court.].” Belton, 87 A.2d at 865. His\ndecision was later aptly described as a demonstration of Judge\nSeitz’s “courage and moral clarity.” William T. Allen, The\nHonorable Collins J. Seitz: Greatness in a Corporate Law\nJudge, 16 FALL DEL. LAW 5, 3. (1998).\n It is particularly appropriate to mention Judge Collins Seitz\nhere because he is such a dramatic example of the judicial\nexcellence I am referring to in extolling Delaware’s judiciary.\n7\n Maj. Op, at 24–25.\n 4\n\ncontinuation of the bipartisan excellence of Delaware’s\njudiciary. That culture appears to be so firmly woven into the\nfabric of Delaware’s legal tradition that it will almost certainly\nendure in the absence of the political affiliation requirements\nthat run afoul of the First Amendment.\n\n\n\n\n 5", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364768/", "author_raw": "McKEE, Circuit Judge, concurring"}]} | MCKEE | RESTREPO | FUENTES | 1 | {"MCKEE": ", Circuit", "RESTREPO": ", Circuit", "FUENTES": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587515/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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8,443,872 | Jeffrey WORKMAN v. SUPERINTENDENT ALBION SCI District Attorney Philadelphia Attorney General Pennsylvania | Workman v. Superintendent Albion SCI | 2019-02-06 | No. 16-1969 | U.S. Court of Appeals for the Third Circuit | {"judges": "Fuentes", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415301/", "author_raw": ""}]} | FUENTES | FUENTES | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443872/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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4,588,420 | UNITED STATES of America v. Maliki Hassan CHAPMAN, A/K/A Terrence Wallace, Appellant | United States v. Maliki Chapman | 2019-02-07 | 17-1656 | U.S. Court of Appeals for the Third Circuit | {"judges": "McKee, Vanaskie, Restrepo", "parties": "", "opinions": [{"author": "without limitations. “The sentencing judge has always", "type": "010combined", "text": "PRECEDENTIAL\n\nUNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ____________\n\n No. 17-1656\n ____________\n\n UNITED STATES OF AMERICA\n\n v.\n\n MALIKI HASSAN CHAPMAN,\n a/k/a Terrence Wallace,\n\n Appellant\n ____________\n\nOn Appeal from the United States District Court\n for the Middle District of Pennsylvania\n (M.D. Pa. No. 4:13-cr-00258-011)\n District Judge: Honorable Matthew W. Brann\n ____________\n\n Argued\n July 19, 2018\n\f Before: McKEE, VANASKIE* and RESTREPO, Circuit\n Judges.\n\n (Opinion filed: February 7, 2019)\n ____________\n\n\nLisa B. Freeland\nCandace Cain [ARGUED]\nOffice of Federal Public Defender\n1001 Liberty Avenue\n1500 Liberty Center\nPittsburgh, PA 15222\n\n Counsel for Appellant\n\nDavid J. Freed\nGeorge J. Rocktashel [ARGUED]\nOffice of United States Attorney\n240 West Third Street\nSuite 316\nWilliamsport, PA 17701\n\n Counsel for Appellee\n\n*\n The Honorable Thomas I. Vanaskie retired from the Court\non January 1, 2019 after the argument and conference in this\ncase, but before the filing of the opinion. This opinion is filed\nby a quorum of the panel pursuant to 28 U.S.C. § 46(d) and\nThird Circuit I.O.P. Chapter 12.\n\n\n\n\n 2\n\f ___________\n\n OPINION OF THE COURT\n ____________\n\nRESTREPO, Circuit Judge\n\n In June of 2016, Maliki Hassan Chapman pled guilty\nto conspiracy to possess with the intent to distribute cocaine.\nAfter several continuances, the District Court set a date for\nChapman’s sentencing hearing in March of 2017. On the\nscheduled date, Chapman immediately informed the Court\nthat he was never told of the hearing due to his counsel’s error\nand therefore had been unable to notify his family of his\nsentencing. He requested a continuance so that his family\ncould be present and provide the Court with letters of support.\nThe District Court acknowledged that defense counsel’s error\ncaused Chapman’s lack of notice but denied the request,\nstating that proceeding with the sentencing as scheduled\nwould not impact his substantive rights. We disagree. The\nCourt’s ruling constituted an abuse of discretion because it\ninterfered with Chapman’s right to allocution as codified in\nthe Federal Rules of Criminal Procedure, which allows a\ndefendant to present any information that could persuade a\ncourt to impose a lesser sentence. Fed. R. Crim. P.\n32(i)(4)(A). Because the District Court’s ruling\nimpermissibly contravened the principles underlying Rule 32,\nwe vacate Chapman’s sentence and remand the case for a re-\nsentencing.\n\n\n\n\n 3\n\f I.\n\n For several years, Chapman engaged in the selling of\nnarcotics in Williamsport and Harrisburg, Pennsylvania. He\nwould supply sellers with cocaine purchased from a source in\nNew Jersey. Chapman had hidden compartments installed in\nhis cars to facilitate the transportation of cocaine. His\nbusiness generated significant amounts of cash; on December\n12, 2012, police officers recovered over $75,000 from his\nhotel room in a township near Harrisburg.\n\n As the business progressed, Chapman supplied cocaine\nto sellers working for a coconspirator, Chris Batten. In April\nof 2013, Pennsylvania State Police recovered approximately\n22 ounces of cocaine powder from the trunk of Chapman’s\ncar during a traffic stop in Lancaster County. In May of the\nfollowing year, police found $32,060 in cash in Chapman’s\ncar pursuant to a traffic stop in Montgomery County.\n\n On June 2, 2016, Chapman pled guilty to conspiracy to\npossess with the intent to distribute at least three and a half,\nbut less than five, kilograms of cocaine. Chapman had two\nprior felony convictions and qualified as a career offender.\nWith a three level adjustment for acceptance of responsibility,\nthe applicable guideline imprisonment range was 188 to 235\nmonths. In exchange for the plea, the government agreed to\nrecommend a sentence of 188 months’ imprisonment. The\ngovernment also agreed that Chapman could request a\nsentence lower than the guideline range, but not lower than\n144 months imprisonment.\n\n\n\n\n 4\n\f On November 1, 2016, the District Court ordered that\nChapman’s sentencing be held November 30, 2016. On\nNovember 29, 2016, Chapman’s counsel filed an unopposed\nmotion to continue sentencing until February 2017, which the\nDistrict Court granted. The parties had a status conference on\nDecember 2, 2016 and agreed to defer sentencing for\napproximately six weeks. On February 2, 2017, the day after\nconferring with the parties, the District Court issued an order\nsetting March 10, 2017 as the date for Chapman’s sentencing.\n\n On that date, Chapman immediately told the District\nCourt that he did not know he was to be sentenced that day\nand, had he known, his family would have been present in the\ncourtroom. He asked for a continuance of “at least a week,”\nso that he “could send [the Court] letters” from both himself\nand his family members. Chapman\nacknowledged that the letters might not “help” him, but he\nbelieved they would “just show [the Court] a little bit of\nthings about [him].” Appendix 60.1\n\n1\n Chapman testified as follows:\n\n\n Good afternoon, Your Honor. Yes. My concern\n is that is that I didn’t know nothing about this,\n about my sentencing. . . . My family wasn’t\n notified that I had court. They support me and\n they would be here. And I have letters that\n support. And just a lot of things that I didn’t\n know about that I think maybe – I can’t say it\n would help me, but it would just show you a little\n bit of things about me.\n\n\n\n\n 5\n\f The District Court acknowledged that Chapman’s\ncounsel “misread a prior scheduling order,” but denied the\nrequest for a continuance. Appendix 60. The Court stated: “I\nknow what I think I need to know about your case,” adding\nthat it would grant the continuance “despite [its] irritation”\nwith counsel if Chapman’s substantive rights were impacted\nby sentencing him as scheduled. Appendix 63. The District\nCourt assured Chapman that its “pique” at his counsel would\nnot “in any way affect” the sentence Chapman was about to\nreceive. Appendix 63.\n\n The District Court asked Chapman if he had the\nopportunity to review his presentence report with his counsel,\nto which Chapman responded he had not. After conferencing\nwith his counsel at the direction of the Court, Chapman\namended his answer and stated that he and his counsel “had a\nbrief discussion by telephone. Nothing in person.” Appendix\n\n\n\n This is just – this is, like, um – I just didn’t know\n nothing about this, Your Honor. I would ask if\n maybe I could get like a reschedule maybe for at\n least a week or something so I can send you\n letters, because I have letters that I wanted to\n send you and my family wanted to send you.\n\nAppendix 59-60. Chapman also requested the continuance so\nthat he and his counsel could review the presentence memo,\nwhich he stated they “never went over.” Appendix 60. This\ngrounds for a continuance was not raised as an issue on\nappeal.\n\n\n\n\n 6\n\f66. Chapman’s counsel presented two objections to the\nreport, both of which were overruled by the Court.\n\n Chapman’s counsel spoke on his behalf, referencing a\nletter Chapman had sent to the District Court prior to the\nsentencing. The District Court stated that it had read the\nletter, twice, and then asked Chapman if he would like to\naddress the Court regarding what he believed it “should\nconsider in imposing sentence[.]” Appendix 76. Chapman\naccepted the invitation and told the District Court that he had\nrecently finished a second letter but did not have it with him,\nagain stating that he was “kind of caught off guard” by the\nsentencing hearing. Appendix 76.\n\n The District Court sentenced Chapman to a 192 month\nterm of imprisonment.2 Chapman appealed to this Court,\nclaiming the District Court’s decision to impose sentence\nwithout allowing him to present mitigating information he\nwould have provided had he had notice of his sentencing\nviolated his right to allocution.\n\n\n2\n We note that the government’s recommendation of a\nsentence of 188 to 235 months’ imprisonment violated the\nterms of the plea agreement, which stated that the government\nwould recommend a flat term of 188 months’ imprisonment.\nThe government acknowledges this error, but states that a\nviolation of the plea agreement is not an issue on appeal.\nThis is correct. However, given that the fairness of\nChapman’s sentencing is at issue, the government’s decision\nto ask for a term of imprisonment longer than the one agreed\nupon by the parties further compromises the perceived equity\nof the sentencing process.\n\n\n\n\n 7\n\f II.\n\n Initially, we find Chapman’s contemporaneous\ncomments to the District Court requesting a continuance\nsufficient to preserve this issue on appeal. While Chapman’s\ncounsel did not object, Chapman himself immediately\nprotested once it became clear the Court intended to proceed\nwith sentencing. After acknowledging that Chapman’s\nignorance as to his sentencing date was his own counsel’s\nfault, the Court denied Chapman’s request for a continuance,\nstating that the denial did not result in a violation of his\nsubstantive rights. In this statement, the District Court\nenunciated the precise issue raised on appeal: whether\nimposing sentence despite Chapman’s justified inability to\nprovide mitigating information he had anticipated presenting\nto the Court improperly limited his right to allocution.\nAccordingly, the issue is preserved. See United States v.\nFeng Li, 115 F.3d 125, 132 (5th Cir. 1997) (citing 3A Charles\nAlan Wright, Federal Practice & Procedure: Criminal 2d §\n851, at 294 (2d ed. 1982)).\n\n We review the District Court’s denial of Chapman’s\nrequest for a continuance for abuse of discretion. United\nStates v. Olfano, 503 F.3d 240, 245-246 (3d Cir. 2007)\n(citations omitted). Because there is no “mechanical test [ ]”\nto determine if an abuse has occurred, we examine the\nparticular circumstances of each case. Id. (quoting Unger v.\nSarafite, 376 U.S. 575, 589 (1964)). When deciding a motion\nfor a continuance, a court should consider the efficient\nadministration of criminal justice, the accused's rights, and the\nrights of other defendants who may be prejudiced by a\ncontinuance. United States v. Kikumura, 947 F.3d 72, 73 (3d\n\n\n\n\n 8\n\fCir. 1991) (citing United States v. Fischbach & Moore, Inc.,\n750 F.2d 1183, 1195 (3d Cir. 1984)).\n\n Upon examining the particular circumstances of this\nsentencing, it is plain the District Court erred by denying\nChapman’s request to postpone his sentencing. In so doing,\nthe Court unfairly deprived Chapman of his right to a full and\nmeaningful allocution. Because preserving Chapman’s right\nto allocution outweighs the other relevant considerations, the\nCourt’s ruling constituted an abuse of discretion.\n\n Having found that Chapman’s preserved claim has\nmerit, we review the District Court’s abuse of discretion\nunder the harmless error doctrine to determine whether a\nsubstantial right was impacted. See Fed. R. Crim P. 52(a);\nUnited States v. Adams, 252 F.3d 276, 284 n.5 (3d Cir. 2001).\nWhile not constitutionally protected, the right to allocution is\ndeemed a substantial right because it could influence a court’s\nsentencing decision. United States v. Paladino, 769 F.3d 197,\n202 (3d Cir. 2014); United States v. Plotts, 359 F.3d 247, 250\n(3d Cir. 2004). Allocution is “ancient in origin, and it is the\ntype of important safeguard that helps assure the fairness, and\nhence, legitimacy, of the sentencing process.” Id. (quoting\nUnited States v. Adams, 252 F.3d at 288). While defendants\nhave been granted additional rights and procedural safeguards\nover time, “[n]one of these modern innovations lessens the\nneed for the defendant, personally, to have the opportunity to\npresent to the court his plea in mitigation.” Paladino, 769\nF.3d at 200 (quoting Green v. United States, 365 U.S. 301,\n304 (1961) (plurality opinion)). The Supreme Court in Green\nrecognized that “[t]he most persuasive counsel may not be\nable to speak for a defendant as the defendant might, with\n\n\n\n\n 9\n\fhalting eloquence, speak for himself.” Green, 365 U.S. at\n304.\n\n Congress codified the right to allocution in 1944 by\npromulgating Federal Rule of Criminal Procedure 32, which\ninstructs that “before imposing sentence, the court must . . .\naddress defendant personally in order to permit the\ndefendant to speak or present any information to mitigate the\nsentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii); United States v.\nWard, 732 F.3d 175, 181 (3d Cir. 2013) (citing Adams, 252\nF.3d at 280, and Green, 365 U.S. at 304). This Court has\ndetermined that the “critical purpose” of allocution is\nthreefold: “1) to allow the defendant to present mitigating\ncircumstances, 2) to permit the defendant to present personal\ncharacteristics to enable the sentencing court to craft an\nindividualized sentence, and (3) to preserve the appearance\nof fairness in the criminal justice system.” Ward, 732 F.3d\nat 181. When the purpose served by allocution is\ncompromised, prejudice against the defendant is presumed\nand a re-sentencing is warranted. Adams, 252 F.3d at 281.\n\n Information that could potentially mitigate a sentence\ndraws from a wide range of sources. Accordingly, Rule 32\ngrants a defendant the broad right to present “any” material he\nbelieves might appeal to the court’s compassion. When a\ncourt unjustifiably limits a defendant’s ability to introduce\ninformation he reasonably believes is “the best case for\nmitigating the sentence,” the purpose underlying allocution is\nthwarted. United States v. Jarvi, 537 F.3d 1256, 1262 (10th\nCir. 2008). Moreover, unduly limiting allocution\ncompromises a court’s own ability to sentence the individual\nstanding before it and to “temper punishment with mercy in\nappropriate cases.” United States v. Ward,\n\n\n\n\n 10\n\f732 F.3d 175, 181 (3d Cir. 2013) (quoting United States v. De\nAlba Pagan, 33 F.3d 125, 129 (1st Cir. 1994)). Given that an\ninclusive allocution better informs the sentencing decision, a\ncourt should encourage a defendant to present all available\nrelevant and illuminating information.\n\n Of course, a defendant’s right to allocution is not\nwithout limitations. “The sentencing judge has always\nretained the discretion to place certain restrictions on what\nmay be presented during an allocution.” Ward, 732 F.3d at\n182. A district court is entitled to require that a defendant’s\ncomments remain germane to determining what sentence\nshould be imposed. United States v. Mack, 200 F.3d 653, 658\n(9th Cir. 2000).\n\n But a court’s limitation as to duration and scope must\nnot subvert the policy goals underlying Rule 32, which are to\ngrant a defendant the opportunity to explain why he is worthy\nof mercy. United States v. Moreno, 809 F.3d 766 (3d Cir.\n2016) (quoting Ward, 732 F.3d at 182). See also Bustamante-\nConchas, 850 F.3d 1130, 1136 (10th Cir. 2017) (quoting\nUnited States v. Barnes, 948 F.2d 325, 329 (7th Cir. 1991))\n(“The right to allocution is the right to have your request for\nmercy factored into the sentencing decision.”)\n\n Here, Chapman was deprived of the opportunity to\nfully plead his case for mercy through no fault of his own.\nHe testified that his family intended to provide the Court with\nsupportive letters, the contents of which Chapman clearly\nbelieved had the potential to persuade the Court to temper its\nsentence. Given that family members are often the best\nsource of information regarding a defendant’s personal\n\n\n\n\n 11\n\fcharacteristics, this belief was manifestly reasonable. At a\nminimum the letters could have provided further insight into\nChapman’s individualized circumstances, thereby enhancing\nthe Court’s ability to craft an appropriate punishment.\nBecause the letters could have impacted the sentence\nimposed, the Court’s decision to deny their admission\ninfringed on Chapman’s right to allocution.\n\n In addition to violating Chapman’s right to present\nmitigating evidence, the District Court improperly\ncompromised the appearance of fairness attributed to the\nsentencing hearing. Ward, 732 F.3d at 181. Allocution\nprovides a court with insight into a defendant’s individualized\ncircumstances, but also “has value in terms of maximizing the\nperceived equity of the process, because the defendant is\ngiven the right to speak on any subject of his choosing prior\nto the imposition of sentence.” Moreno, 809 F.3d at 778\n(quoting De Alba Pagan, 33 F.3d at 129) (emphasis added)\n(internal citations and quotation marks omitted). Beyond\nmere symbolic significance, granting a defendant the right to\nspeak instills inherent fairness into the proceeding and “lends\nlegitimacy to the sentencing process.” Adams, 252 F.3d at\n288 (quoting United States v. Myers, 150 F.3d 459, 463-64\n(5th Cir. 1998)).\n\n Instantly the appearance of unfairness is especially\nstark because Chapman’s own counsel thwarted his\nopportunity to present information he believed might best\nspeak to the Court’s mercy. Chapman was instead sentenced\nto a substantial term of imprisonment without the benefit of\nthe letters his family had hoped to submit or even their\npresence in the courtroom. The Court acknowledged\nChapman’s intention to produce additional mitigating\n\n\n\n\n 12\n\fevidence but opined that his sentencing hearing had been\ndelayed for long enough. While it is unquestionably true that\nChapman’s sentencing had been delayed, it is also true that\njudicial expediency is not served where the imposed sentence\nis the result of a presumably unfair proceeding and must be\nvacated. Despite the sentencing court’s mention of its\nmassive docket, we maintain that even “in an age of . . . an\noverburdened justice system, courts must continue to be\ncautious to avoid the appearance of dispensing assembly-line\njustice.” United States v. Barnes, 948 F.2d 325, 329 (7th Cir.\n1991). The denial of the right to allocution, which enables the\nsentencing court to craft appropriate sentences, “is not the sort\nof ‘isolated’ or ‘abstract’ error that we might determine does\nnot impact the ‘fairness, integrity or public reputation of\njudicial proceedings.’” Plotts, 359 F.3d at 251 (citing Adams,\n252 F.3d at 288 (citation omitted)). Accordingly, we grant\nrelief in this case.\n\n Finally, the government argues that Chapman is not\nentitled to relief because he did not identify any “palpable\nprejudice” resulting from the Court’s refusal to allow for the\nsubmission of additional mitigating information. Under this\nCourt’s jurisprudence, however, prejudice will ordinarily be\npresumed where a defendant’s right to allocution has been\nviolated. Paladino, 769 F.3d at 202-203; Plotts, 359 F.3d at\n249-250. Prejudice resulting from a violation need not be\n“palpable”; it is sufficient for a defendant to establish there\nwas “opportunity for such a violation to have played a role in\nthe district court’s sentencing decision.” Adams, 252 F.3d at\n287. The Court sentenced Chapman to a sentence of 192\nmonths’ imprisonment, more than the minimum guideline\nsentence of 188 months. Chapman’s plea agreement reserved\nthe right to advocate for a sentence of 144 months’\n\n\n\n\n 13\n\fimprisonment, which his counsel did at his sentencing\nhearing. The Court plainly had the discretion to grant\nChapman a lower sentence than the one imposed. United\nStates v. Beckett, 208 F.3d 140 (3d Cir. 2000). Chapman\nintended to include the letters by his family members in his\nplea for mitigation, and this intention was frustrated due to\nfactors beyond his control. The letters might have provided\nadditional persuasive mitigating circumstances not otherwise\nknown to the Court. Regardless of whether the letters would\nhave in fact brought about a lesser sentence, the law – as well\nas a sense of basic fairness – dictates that Chapman not be\nprevented from presenting mitigating information because of\nhis own counsel’s oversight and the Court’s congested docket.\nAccordingly, we reverse and remand the case for\nresentencing.\n\n III.\n\n A resentencing necessitated by a judge’s failure to\ngrant a defendant a full and meaningful allocution raises the\nquestion as to whether the same judge should address the\nresentencing upon remand. United States v. Navarro-Flores,\n628 F.3d 1178, 1184 (9th Cir. 1980). Although we recognize\nthat, in most cases in which there may be a need for\nresentencing, it is our practice to remand the matter to the\noriginally presiding judge, we can exercise our supervisory\npower to reassign the case if we deem that to be the better\ncourse. Gov’t of the V.I. v. Walker, 261 F.3d 370, 376 (3d\nCir. 2001). We do not doubt that, in this case, the able judge\nwho has handled the matter would accept whatever additional\nsubmissions the defense might proffer in connection with a\nresentencing and would endeavor in all good conscience to be\nfair and impartial. But we are mindful too of the imperative\n\n\n\n\n 14\n\fto “preserve not only the reality but also the appearance of the\nproper functioning of the judiciary as a neutral, impartial\nadministrator of justice.” Id. (quoting Alexander v. Primerica\nHoldings, 10 F.3d 155, 167 (3d Cir. 1993)).\n\n Here, the District Court must not only meaningfully\nconsider on remand the Chapman family’s letters, it must be\nseen by the defendant, his family, and the public at large as\nnot being influenced by the prior decision that such letters\nwere not substantively significant. The judge is on record as\nsaying he already knew what he needed to know, and that\nstatement, unfortunately, could be understood as saying it did\nnot matter what Chapman or his family might say in\nmitigation. Appendix 63. In this particular circumstance, we\nthink it best to remand to a different judge, so that the fairness\nof the sentencing process cannot reasonably be questioned at\nall.\n\n\n\n\n 15", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365673/", "author_raw": "without limitations. “The sentencing judge has always"}]} | MCKEE | VANASKIE | RESTREPO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588420/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,588,421 | UNITED STATES of America v. Kenneth DANIELS, Appellant | United States v. Kenneth Daniels | 2019-02-07 | 17-3503 | U.S. Court of Appeals for the Third Circuit | {"judges": "Krause, Cowen, Fuentes", "parties": "", "opinions": [{"author": "COWEN, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ______________\n\n No. 17-3503\n ______________\n\n UNITED STATES OF AMERICA\n\n v.\n\n KENNETH DANIELS,\n\n Appellant\n ______________\n\nOn Appeal from the United States District Court\n For the Eastern District of Pennsylvania\n (D.C. Crim. No. 2-15-cr-00127-001)\n Honorable Berle M. Schiller, District Judge\n ______________\n\n Submitted under Third Circuit L.A.R. 34.1(a)\n October 23, 2018\n\nBEFORE: KRAUSE, COWEN, and FUENTES,\n Circuit Judges\n\n (Opinion Filed: February 7, 2019)\n ______________\n\fEmily McKillip\nWilliam M. McSwain\nTimothy M. Stengel\nRobert A. Zauzmer\nOffice of United States Attorney\n615 Chestnut Street\nSuite 1250\nPhiladelphia, PA 19106\n\n Attorneys for Appellee\n\n\nKarl D. Schwartz\nP.O. Box 8846\nElkins Park, PA 19027\n\n Attorney for Appellant\n ______________\n\n OPINION OF THE COURT\n ______________\n\nCOWEN, Circuit Judge.\n\n Kenneth Daniels appeals from the criminal sentence\nentered by the United States District Court for the Eastern\nDistrict of Pennsylvania. He argues that a violation of the\nPennsylvania Controlled Substance, Drug, Device and Cosmetic\nAct, 35 Pa. Stat. Ann. § 780-113(a)(30), does not qualify as a\n“serious drug offense” under the Armed Career Criminal Act\n(“ACCA”), 18 U.S.C. § 924(e)(2)(A)(ii). We must first decide\nwhether § 924(e)(2)(A)(ii)’s definition of a “serious drug\noffense” encompasses attempts (as defined under federal law) to\n\n\n\n\n 2\n\fmanufacture, distribute, or possess with intent to manufacture or\ndistribute a controlled substance. If it does, we must then\nconsider whether the scope of attempt and accomplice liability\nunder Pennsylvania law is coextensive with the meaning of\nthose terms under federal law. Based in large part on our recent\nrulings in United States v. Glass, 904 F.3d 319 (3d Cir. 2018),\npetition for cert. filed (U.S. No. 18-6748) (Nov. 14, 2018), and\nMartinez v. Attorney General, 906 F.3d 281 (3d Cir. 2018), as\nwell as our older yet still precedential opinion in United States\nv. Gibbs, 656 F.3d 180 (3d Cir. 2011), we answer both questions\nin the affirmative. Accordingly, Daniels’s sentence will be\naffirmed.\n\n I.\n\n Pursuant to a plea agreement, Daniels entered a guilty\nplea to one count of being a convicted felon in possession of a\nfirearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He\nhad at least three previous convictions under the Pennsylvania\ndrug statute, 35 Pa. Stat. Ann. § 780-113(a)(30), for possession\nwith intent to deliver cocaine.\n\n Daniels reserved his right to challenge the government’s\nallegation that he was an armed career criminal under 18 U.S.C.\n§ 924(e).1 If applied, § 924(e) triggers a fifteen-year mandatory\nminimum. According to Daniels, his convictions cannot count\nas ACCA predicates because the elements of the state drug\nstatute sweep more broadly than the generic definition of a drug\n\n 1\n Pursuant to United States v, Zudick, 523 F.2d 848 (3d\nCir. 1975), Daniels also preserved his right to appeal the District\nCourt’s denial of his suppression motion. He does not, however,\nraise that issue in this appeal.\n\n\n\n\n 3\n\fdistribution crime. He argued that, “[b]y virtue of\nPennsylvania’s treatment of solicitation and mere offers to sell,\nit is far from clear that a violation of 35 Pa.C.S. § 780-\n113(a)(30), is, as a categorical matter, a ‘serious drug offense’\nwithin the meaning of ACCA.” (JA25.) At sentencing, Daniels\nalso argued that, without his armed career criminal designation,\nhis Guidelines range would have been 92 to 115 months.\nHowever, application of this designation would result in a\nGuideline range of 180 months (the statutory minimum) to 210\nmonths. The District Court rejected Daniels’s challenge and\nsentenced him to 180 months’ imprisonment.\n\n II.\n\n The District Court had subject matter jurisdiction under\n18 U.S.C. § 3231. We possess appellate jurisdiction pursuant to\n18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.\n\n Because this appeal raises questions of law, we exercise\nde novo review. See, e.g., Gibbs, 656 F.3d at 184.\n\n III.\n\n Under 18 U.S.C. § 922(g)(1), it is unlawful for a felon to\npossess a firearm. The ACCA mandates a minimum sentence of\nfifteen years’ imprisonment if the felon in possession of a\nfirearm has three previous convictions for either “a violent\nfelony” or “a serious drug offense” (or both):\n\n (e)(1) In the case of a person who violates section\n 922(g) of this title and has three previous\n convictions by any court referred to in section\n 922(g)(1) of this title for a violent felony or a\n\n\n\n\n 4\n\fserious drug offense, or both, committed on\noccasions different from one another, such person\nshall be fined under this title and imprisoned not\nless than fifteen years, and, notwithstanding any\nother provision of law, the court shall not suspend\nthe sentence of, or grant a probationary sentence\nto, such person with respect to the conviction\nunder section 922(g).\n\n(2) As used in this subsection—\n\n (A) the term “serious drug offense” means—\n\n (i) an offense under the Controlled\n Substances Act (21 U.S.C. 801 et\n seq.), the Controlled Substances\n Import and Export Act (21 U.S.C.\n 951 et seq.), or chapter 705 of title\n 46, for which a maximum term of\n imprisonment of ten years or more\n is prescribed by law; or\n\n (ii) an offense under State law,\n involving manufacturing,\n distributing, or possessing with\n intent to manufacture or distribute,\n a controlled substance (as defined\n in section 102 of the Controlled\n Substances Act (21 U.S.C. 802)),\n for which a maximum term of\n imprisonment of ten years or more\n is prescribed by law;\n\n\n\n\n 5\n\f (B) The term “violent felony” means any\n crime punishable by imprisonment for a term\n exceeding one year, or any act of juvenile\n delinquency involving the use or carrying of a\n firearm, knife, or destructive device that would\n be punishable by imprisonment for such term if\n committed by an adult, that—\n\n (i) has as an element the use,\n attempted use, or threatened use of\n physical force against the person of\n another; or\n\n (ii) is burglary, arson, or extortion,\n involves use of explosives, or\n otherwise involves conduct that\n presents a serious potential risk of\n physical injury to another; and\n\n (C) The term “conviction” includes a finding that a\n person has committed an act of juvenile delinquency\n involving a violent felony.\n\n18 U.S.C. § 924(e).\n\n It is undisputed that we must apply the “categorical”\napproach in order to decide whether Daniels had at least three\nprevious convictions for “a serious drug offense.” Id. “When\ndeciding whether a previous conviction counts as a ‘violent\nfelony or a serious drug offense’ under the ACCA, a sentencing\ncourt may look only to the elements of a defendant’s prior\nconviction, not ‘to the particular facts underlying those\nconvictions.’” United States v. Abbott, 748 F.3d 154, 157 (3d\n\n\n\n\n 6\n\fCir. 2014) (quoting Descamps v. United States, 570 U.S. 254,\n260-61 (2013)). As the government states in its appellate brief,\n“the issue is whether the elements of the prior crime encompass\nand are no broader than the elements described in the federal\ndefinition.” (Appellee’s Brief at 14 (citing Abbott, 748 F.3d at\n157)). If the elements of the prior conviction are identical to (or\nnarrower than) the elements of the generic ACCA crime, the\nprior conviction can serve as an ACCA predicate. See, e.g.,\nDescamps, 570 U.S. at 261. “But if the statute sweeps more\nbroadly than the generic crime, a conviction under that law\ncannot count as an ACCA predicate, even if the defendant\nactually committed the offense in its generic form.” Id. The\ncategorical approach “requires a realistic probability, not a\ntheoretical possibility, that the State would apply its statute to\nconduct that falls outside the generic definition of a crime.”\nGonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). A\ndefendant may establish such a probability by showing that the\nstate statute was so applied in his or her own case or by pointing\nto other cases in which the state courts applied the statute in a\nnon-generic fashion. See, e.g., id. Furthermore, a “modified”\ncategorical approach may apply to divisible statutes, i.e., a\nstatute of conviction that lists alternative elements (as opposed\nto alternative means for committing the same offense). See,\ne.g., Mathis v. United States, 136 S. Ct. 2243, 2248-50 (2016).\nDocuments like the indictment, jury instructions, a plea\nagreement, or a colloquy may then be employed to determine\nthe specific crime of conviction. See, e.g., id. at 2249. “The\ncourt can then compare that crime, as the categorical approach\ncommands, with the relevant generic offense.” Id.\n\n Section 780-113(a)(30) prohibits (except as authorized by\nthe Pennsylvania drug statute) “the manufacture, delivery, or\npossession with intent to manufacture or deliver, a controlled\n\n\n\n\n 7\n\fsubstance by a person not registered under this act, or a\npractitioner not registered or licensed by the appropriate State\nboard, or knowingly creating, delivering or possessing with\nintent to deliver, a counterfeit controlled substance.” As we\nrecognized in Glass, “Pennsylvania law goes on to define\n‘deliver’ as ‘the actual, constructive, or attempted transfer from\none person to another of a controlled substance.’” Glass, 904\nF.3d at 322 (quoting 35 Pa. Stat. Ann. § 780-102(b)). “[T]he\nfederal counterpart to this statute, the Controlled Substances Act\n(CSA), also defines the ‘delivery’ of a controlled substance to\nmean ‘the actual, constructive, or attempted transfer of a\ncontrolled substance,’ 21 U.S.C. § 802(8).”2 Glass, 904 F.3d at\n322. In turn, 21 U.S.C. § 802(11) states that “[t]he term\n‘distribute’ means to deliver (other than by administering or\ndispensing) a controlled substance or a listed chemical.”\nPennsylvania’s drug law also defines “distribute” to mean “to\ndeliver other than by administering or dispensing a controlled\nsubstance, other drug, device or cosmetic.” § 780-102(b). Both\nfederal and Pennsylvania law include statutory provisions\naddressing attempt and accomplice liability. See 18 U.S.C. § 2\n(“Principals”); 21 U.S.C. § 846 (“Attempt and conspiracy”); 18\nPa. Cons. Stat. Ann. §§ 306 (“Liability for conduct of another;\n\n 2\n The full federal and state definitions of “deliver” or\n“delivery” are nearly identical. According to federal law, “[t]he\nterms ‘deliver’ or delivery’ means the actual, constructive, or\nattempted transfer of a controlled substance or a listed chemical,\nwhether or not there exists an agency relationship.” 21 U.S.C. §\n802(8). Pennsylvania law states that these two terms mean “the\nactual, constructive, or attempted transfer from one person to\nanother of a controlled substance, other drug, device or cosmetic\nwhether or not there is an agency relationship.” 35 Pa. Stat.\nAnn. § 780-102(b).\n\n\n\n\n 8\n\fcomplicity”), 901 (“Criminal attempt”).\n\n According to Daniels, Section 780-113(a)(30) sweeps\nmore broadly than the generic federal definition of “a serious\ndrug crime.” Daniels vigorously argues that, unlike the\nPennsylvania drug statute, a “serious drug crime” under the\nACCA does not include attempts. He further argues that,\n“[e]ven assuming that attempted drug offenses are properly\nincluded as serious drug offense predicates,” Pennsylvania’s\ndrug act includes conduct that is too inchoate and incipient to\nsatisfy federal drug law—specifically “mere offers, mere\npreparation, and mere solicitation (from the buyer).”\n(Appellant’s Brief at 20.) Given our ruling in Gibbs, we\nconclude that the ACCA’s definition of a “serious drug offense”\nencompasses attempts, as defined under federal law, to\nmanufacture, distribute, or possess with intent to manufacture or\ndistribute a controlled substance. We likewise determine that,\nbased on this Court’s recent Glass and Martinez decisions, the\nscope of attempt and accomplice liability under Pennsylvania\nlaw is coextensive with the meaning of those terms under\nfederal law.\n\n A. A “Serious Drug Offense” and Attempts\n\n Glass and Martinez were not ACCA cases. On the\ncontrary, the Glass court considered whether the District Court\nappropriately applied a career offender enhancement under the\nGuidelines. See Glass, 904 F.3d at 321-24. The Guidelines\napplication note “states that the term ‘controlled substance\noffense’ applies not only to a statute that bars distribution of\ncontrolled substances, but also to ‘the offenses of aiding and\nabetting, conspiring, and attempting to commit such offenses.’”\nId. at 322 (quoting U.S.S.G. § 4B1.2 cmt. n.1). Martinez was an\n\n\n\n\n 9\n\fimmigration case, see Martinez, 906 F.3d at 284-87, and the\nimmigration provisions at issue explicitly refer to attempts or\nrequire a match with the CSA’s ban on drug trafficking,3 see 8\n\n 3\n In United States v. Abbott, 748 F.3d 154 (3d Cir. 2014),\nwe considered whether “[Section 780-113(a)(30)] is a ‘divisible’\nstatute under [Descamps],” id. at 156. In that ACCA case, we\nconcluded that Section 780-113(a)(30) is divisible by drug type,\nthereby permitting the application of the modified categorical\napproach. Id. at 157-60; see also United States v. Henderson,\n841 F.3d 623, 626-63 (3d Cir. 2016) (reaching same conclusion\nas to 35 Pa. Stat. Ann. § 780-113(f)(1)). Daniels is correct that\nAbbott did not specifically address either the question of\nwhether a “serious drug offense” under § 924(e)(2)(A)(ii)\nencompasses attempt crimes or the scope of the Pennsylvania\ndrug statute as to attempt offenses or accomplice liability.\nHowever, we did state that “Abbott’s previous conviction under\n35 Pa. Stat. Ann. § 780-113(a)(30) for possession with intent to\ndistribute cocaine is a ‘serious drug offense’ and properly served\nas a predicate offense for the imposition of the fifteen-year\nminimum sentence under the ACCA.” Abbott, 748 F.3d at 160.\n According to our recent opinion in Glass, “[w]e have already\nheld that conviction under § 780-113(a)(30) for cocaine-based\noffenses is not overbroad in the context of the ACCA’s\ndefinition of ‘serious drug offense.’” Glass, 904 F.3d at 323\n(citing Abbott, 748 F.3d at 160).\n\n In this case, it is undisputed that Daniels’s prior\nconvictions involved cocaine. The government also does not\ntake issue with Daniels’s characterization of Section 780-\n113(a)(30) as indivisible with respect to the manner of\ncommitting the offense (i.e., whether by manufacture, delivery,\nor possession with intent to manufacture or deliver, attempted\n\n\n\n\n 10\n\fU.S.C. §§ 1101(a)(43)(B) (stating that “aggravated felony”\nmeans “illicit trafficking in a controlled substance (as defined in\nsection 802 of title 21), including a drug trafficking crime (as\ndefined in section 924(c) of title 18)”), 1227(a)(2)(B)(i) (“Any\nalien who at any time after admission has been convicted of a\nviolation of (or a conspiracy or attempt to violate) any law or\nregulation of a State, the United States, or a foreign country\nrelating to a controlled substance (as defined in section 802 of\ntitle 21), other than a single offense involving possession for\none’s own use of 30 grams or less of marijuana, is deportable.”).\n\n But Gibbs did consider the meaning of a “serious drug\noffense” under the ACCA. The government appealed from the\ndistrict court’s ruling that a prior conviction under Delaware law\nfor wearing body armor while committing a felony is not a\npredicate offense under the ACCA. Gibbs, 656 F.3d at 182.\nThe defendant had been charged in state court under this body\narmor statute and for possession with intent to deliver. Id. at\n183. He pled guilty to the first count but not the second one. Id.\n On appeal, we agreed with the government and held “that the\nbody armor conviction is an ACCA predicate offense because it\ninvolved the possession of cocaine with intent to distribute. Id.\nat 182. In short, “[i]t is ‘a serious drug offense.’” Id. (quoting §\n924(e)(1)).\n\n In reaching our decision, we began with the text of the\nACCA:\n\n The issue is whether the body armor conviction\n “involv[ed] manufacturing, distributing, or\n\nmanufacture, delivery, or possession with intent to manufacture\nor deliver, or acting as an accomplice).\n\n\n\n\n 11\n\fpossessing, with intent to manufacture or\ndistribute, a controlled substance.”\n\n Congress’s use of the term “involving”\nexpands the meaning of a serious drug offense\nbeyond the simple offenses of manufacturing,\ndistributing, and possessing a controlled\nsubstance. See, e.g., United States v. James, 834\nF.2d 92, 93 (4th Cir. 1987) (stating that\n“violations ‘involving’ the distribution,\nmanufacture, or importation of controlled\nsubstances must be read as including more than\nmerely crimes of distribution, manufacturing, and\nimportation themselves”). The plain meaning of\n“involve” is “to relate closely” or to “connect\nclosely.” United States v. McKenney, 450 F.3d\n39, 43 (1st Cir. 2006) (citing Webster’s Third\nNew International Dictionary 1191 (1993) and\nThe American Heritage Dictionary 921 (4th ed.\n2000), respectively). The definition of a serious\ndrug offense should be construed to extend “§\n924(e) beyond the precise offenses of distributing,\nmanufacturing, or possessing, and as\nencompassing as well offenses that are related to\nor connected with such conduct.” United States\nv. King, 325 F.3d 110, 113 (2d Cir. 2003). In\nadopting this position, we conform with all courts\nof appeals that have addressed the scope of the\ndefinition of a serious drug offense. See United\nStates v. Vickers, 540 F.3d 356, 365 (5th Cir.\n2008); McKenney, 450 F.3d at 42; United States\nv. Alexander, 331 F.3d 116, 131 (D.C. Cir. 2003);\nKing, 325 F.3d at 113; United States v. Brandon,\n\n\n\n\n 12\n\f 247 F.3d 186, 191 (4th Cir. 2001).\n\nId. at 184-85.\n\n The Gibbs Court then considered and rejected the\ndefendant’s theory that the definition of state serious drug\noffenses set forth in Section 924(e)(2)(A)(ii) should be limited\nto the types of crimes identified by the three federal statutes\n(including the CSA) referenced in Section 924(e)(2)(A)(i). Id.\nat 185. “While both subsections relate to the same subject, there\nis no reason to think that subsection (i) should limit our\nconstruction of subsection (ii). If Congress wished to do this, it\ncould have done so [as it did in the “three strikes” law, 18\nU.S.C. § 3559(c)].” Gibbs, 656 F.3d at 185. “Instead, Congress\nused broad terminology—‘involving’—to define the category of\nserious drug offenses without limiting its scope to federal\nstatutes.” Id. “Congress adopted a broad interpretation of ‘a\nserious drug offense’ because it intended to define ‘an entire\nclass of state offenses “involving” certain activities, namely,\n“manufacturing, distributing, or possessing with intent to\nmanufacture or distribute” a controlled substance.’ Alexander,\n331 F.3d at 131 (quoting 18 U.S.C. § 924(e)(2)(A)(ii)).” Gibbs,\n656 F.3d at 185 (“Each state has different serious drug crimes\nand different definitions for similar crimes. Thus, Congress\nrelied upon general language referencing the entire class of\nserious state drug offenses.”).\n\n Although the statutory language broadly carves out a\nclass of serious state drug crimes, Gibbs observed that there are\nlimits to how widely we could construe this class. Id. “As the\nFirst Circuit noted, ‘(n)ot all offenses bearing any sort of\nrelationship with drug manufacturing, distribution, or possession\nwith intent to manufacture or distribute will qualify as predicate\n\n\n\n\n 13\n\foffenses under ACCA. The relationship must not be too remote\nor tangential.’” Id. (quoting McKenney, 450 F.3d at 45).\n\n “We must therefore determine whether Gibbs’ body\narmor conviction is related to or connected with manufacturing,\ndistributing, or possessing, with intent to manufacture or\ndistribute, a controlled substance or if it is too remote or\ntangential.” Id. at 185-86. Initially, this Court went beyond the\nterms of the statute of conviction (which simply proscribes the\nwearing of body armor during the commission of a felony) to\nconsider the indictment (alleging in Count I that Gibbs\nknowingly wore body armor during the commission of felony\npossession with intent to deliver cocaine as set forth in Count II,\nwhich was incorporated by reference) pursuant to the modified\ncategorical approach. Id. at 186-88. We then examined\n“whether manufacturing, distributing, or possessing, with intent\nto manufacture or [distribute], a controlled substance, is ‘an\ninherent part or result of the generic crime’ of wearing body\narmor while committing a felony, where that felony is\npossession with intent to distribute cocaine.” Id. at 188 (quoting\nBrandon, 247 F.3d at 188). We found that the underlying felony\nis an inherent part of the offense because “it must be proven in\norder to be guilty of the body armor offense.” Id. While the\ndefendant need not be convicted of a drug offense, the\nprosecution must still prove the elements of the drug offense in\norder to establish that the defendant is guilty of some underlying\nfelony. Id. “In pleading guilty to the body armor offense, Gibbs\npled guilty to the elements of possession with intent to distribute\ncocaine.” Id. Wearing body armor also serves to promote and\nadvance the underlying drug crime (in other words, it makes it\nmore likely that a felony will occur).4 Id.\n\n 4\n We also rejected Gibbs’s argument that “this\n\n\n\n\n 14\n\f We have no trouble concluding that a conviction under\nstate law for attempted manufacturing, distributing, or\npossessing with intent to manufacture or distribute a controlled\nsubstance that also meets the requirements for an attempted drug\ncrime under federal law would satisfy the approach we adopted\nin Gibbs.\n\n Daniels asserts that Gibbs does not extend the definition\nof a “serious drug offense” beyond the generic categories of\nmanufacturing, distributing, and possession with intent. Citing\nour ruling in United States v. Tucker, 703 F.3d 205, 213 (3d Cir.\n2012), he contends that “the Gibbs Court held only that a\npossession-with-intent offense does not cease to be a serious\ndrug offense on the ground that it was the factual predicate for\nthe felony establishing the crime of possession of body armor in\ncourse of a felony.” (Appellant’s Reply Brief at 5 (citing Gibbs,\n656 F.3d at 188).) However, the Tucker Court merely rejected\nthe government’s argument that the state court charge of\nconspiracy to sell drugs (which resulted in a conviction)\nincorporated a separate possession with intent to deliver\n(“PWID”) cocaine charge (which resulted in an acquittal) as the\novert act. Tucker, 703 F.3d at 212-13. We distinguished Gibbs\nbecause, unlike the body armor count (which expressly\nincorporated the drug charge), “neither the conspiracy Bill nor\nthe conspiracy incorporated the separate PWID charge.” Id. at\n213. “The jury could legally have found the overt act to be\npossession of marijuana with the intent to deliver. Nothing\n‘actually required’ the jury to treat the separate PWID cocaine\ncharge as the overt act.” Id.\n\ninterpretation of ‘a serious drug offense’ raises a constitutional\nproblem of fair notice.” Gibbs, 656 F.3d at 188-89.\n\n\n\n\n 15\n\f Simply put, if a body-armor conviction is sufficiently\n“related to or connected with” manufacturing, distributing, or\npossessing with the intent to manufacture or distribute a\ncontrolled substance to pass muster under Gibbs, the federal\ninchoate versions of these enumerated offenses clearly satisfy\nthe test. As the government aptly explains, “[t]o say that an\nattempt to manufacture methamphetamine does not involve\nmanufacturing methamphetamine, or that an attempt to\ndistribute cocaine does not involve the distribution of cocaine, is\nuntenable.” (Appellee’s Brief at 21.) The criminal attempt to\ncommit an offense “involves” the completed offense.\n\n In McKenney, the First Circuit explained why “[t]he\nplain meaning of ‘involve’ is ‘to relate closely’ or to ‘connect\nclosely.’” Gibbs, 656 F.3d at 184 (quoting McKenney, 450 F.3d\nat 43). Rejecting the defendant’s narrow definition of “involve”\nas meaning “has as an element,” to “include,” or to “contain as a\npart,” the First Circuit observed that his argument would require\n“an awkward and unusual construction of the text to mean that a\nconspiracy to possess with intent to distribute does not ‘involve’\npossession with intent to distribute.” McKenney, 450 F.3d at 43\n(emphasis in original) (footnote omitted). “Conspiracies\n“involve’ their objects, as that term is used in common\nparlance.” Id. The First Circuit explained: “[w]e need not\ndecide today where the line is: we hold only that the\nrelationship between the inchoate offense of conspiracy and its\nobject—its entire purpose—is plainly close enough that a\nconspiracy to possess with intent to distribute is, under the\nACCA, an offense ‘involving . . . possessing with intent to . . .\ndistribute.’” Id. at 45 (citing United States v. Fiore, 983 F.2d 1,\n3-4 & n.4 (1st Cir. 1992), abrogated on other grounds by United\nStates v. Giggey, 551 F.3d 27 (1st Cir. 2008) (en banc); United\n\n\n\n\n 16\n\fStates v. Hawkins, 139 F.3d 29, 34 (1st Cir. 1998)); see also id.\nat 44 (“By contrast, in McKenney’s case, there is no question\nthat the possession at the heart of the conspiracy was possession\nwith intent to distribute. That is the charge to which McKenney\npled.”). Likewise, the relationship between the inchoate offense\nof attempt and the completed offense the defendant attempted to\ncommit is plainly close enough that an attempt to manufacture,\ndistribute, or possess with intent to manufacture or distribute a\ncontrolled substance is, under the ACCA, an offense involving\nmanufacturing, distributing, or possessing with intent to\nmanufacture or distribute a controlled substance.\n\n In Gibbs, we indicated that “all courts of appeals that\nhave addressed the scope of the definition of a serious drug\noffense” have adopted an expansive understanding of this\nconcept. Gibbs, 656 F.3d at 185 (citing Vickers, 540 F.3d at\n365; McKenney, 450 F.3d at 42; Alexander, 331 F.3d at 131;\nKing, 325 F.3d at 113; Brandon, 247 F.3d at 191). Since our\n2011 ruling, the circuit courts have continued to apply an\nexpansive reading of § 924(e)(2)(A)(ii) (and Daniels has not\ncited any contrary case law). See United States v. Herrold, 813\nF.3d 595, 599-600 (5th Cir. 2016), cert. granted & vacated on\nother grounds, 137 S. Ct. 310 (2016); United States v.\nWhindleton, 797 F.3d 105, 108-11 (1st Cir. 2015); United States\nv. Bynum, 669 F.3d 880, 884-88 (8th Cir. 2012). It is also\nuncontested that every court of appeals to have considered the\nspecific question of whether a “serious drug offense” under §\n924(e)(2)(A)(ii) includes attempts has answered this question in\nthe affirmative.5 See United States v. Coleman, 700 F.3d 329,\n\n 5\n The government cites to a number of non-precedential\ndispositions that have reached the same conclusion regarding the\ninclusion of attempt crimes. See United States v. White, 288 F.\n\n\n\n\n 17\n\f339 (8th Cir. 2012); United States v. Williams, 488 F.3d 1004,\n1008-09 (D.C. Cir. 2007); United States v. Winbush, 407 F.3d\n703, 705-08 (5th Cir. 2005); Alexander, 331 F.3d at 130-31;\nKing, 325 F.3d at 112-15.\n\n Defending the narrower definition expressly considered\nand rejected by the First Circuit in McKenney, Daniels invokes\nthe canon of “expressio unius est exclusio alterius—when a\nstatute specifically enumerates some categories, it impliedly\nexcludes others.” Ray v. Kertes, 285 F.3d 287, 296 (3d Cir.\n2002) (citing Leatherman v. Tarrant County Narcotics\nIntelligence & Coordination Unit, 507 U.S. 163, 168 (1993)).\nAccording to Daniels, “the offenses listed under Section\n924(e)(2)(A)(ii) involve a comprehensive set of ways of\ncommitting narcotics offenses (except for attempts), leading to\nthe conclusion that the exclusion was ‘not inadvertence.’”\n(Appellant’s Reply Brief at 11 (quoting Barnhart v. Peabody\nCoal Co., 537 U.S. 149, 168 (2003)).) “Indeed, the other ACCA\npredicate ‘violent felony,’ does provide an attempt alternative.\nSee 18 U.S.C. § 924(e)(2)(B) (including ‘attempted use’ of\nphysical force as violent felony).” (Appellant’s Brief at 17.)\nThe CSA criminalizes attempted federal drug offenses, see 21\nU.S.C. §§ 802(8), 846, and, in turn, 18 U.S.C. § 924(e)(2)(A)(i)\nprovides that a “serious drug offense” includes “an offense\nunder the Controlled Substances Act.” Daniels therefore argues\nthat Congress, if it had really “intended to include inchoate\nconduct as a drug predicate” under § 924(e)(2)(A)(ii),\npurportedly could have done what it did with respect to the other\nACCA predicate offenses. (Appellant’s Brief at 18.) The\n\nApp’x 89, 90 (4th Cir. 2008) (per curiam); United States v. Holt,\n246 F. App’x 602, 609-10 (11th Cir. 2007); United States v.\nThomas, 13 F. App’x 233, 240-43 (6th Cir. 2001).\n\n\n\n\n 18\n\fGuidelines’ application note addressed in Glass (as well as an\nimmigration provision considered in Martinez) also explicitly\nrefers to attempts. See 8 U.S.C. § 1227(a)(2)(B)(i); U.S.S.G. §\n4B1.2 cmt. n.1.\n\n Nevertheless, the expressio unius canon has its limits,\ne.g., it “does not apply to every statutory listing or grouping; it\nhas force only when the items expressed are members of an\n‘associated group or series,’ justifying the inference that items\nnot mentioned were excluded by deliberate choice, not\ninadvertence.” Barnhart, 537 U.S. at 168 (citing United States\nv. Vonn, 535 U.S. 55, 65 (2002)). There was no reason for\nCongress to add specific language regarding attempt crimes\nbecause it had already included the term “involving”—a term\nthat both this Court and every other circuit court to have\naddressed the issue has concluded must be interpreted broadly\n(and that, under this existing case law, clearly encompasses\nattempts). Neither § 924(e)(2)(A)(i) nor § 924(e)(2)(B)(i)\nincludes such expansive language. See, e.g., Alexander, 331\nF.3d at 131 (“As the government correctly observes, the\nCongress defined the terms ‘violent felony’ and ‘serious drug\noffense’ in decidedly different manners. Unlike the definition of\n‘violent felony,’ the definition of ‘serious drug offense’ does not\nspeak in specifics; instead, it defines the term to include an\nentire class of state offenses ‘involving’ certain activities,\nnamely ‘manufacturing, distributing, or possessing with intent to\nmanufacture or distribute’ a controlled substance.” (quoting §\n924(e)(2)(A)(ii))). The career offender Guideline similarly\ndefines a “controlled substance offense” as, inter alia, an offense\nthat “prohibits the manufacture, import, export, distribution, or\ndispensing of a controlled substance (or a counterfeit substance)\nor the possession of a controlled substance (or a counterfeit\nsubstance) with intent to manufacture, import, export, distribute,\n\n\n\n\n 19\n\for dispense.” U.S.S.G. § 4B1.2(b) (emphasis added).\n\n In his reply brief, Daniels recognizes that “the character\nof federal drug offenses can inform the question of whether a\nprior drug offense sweeps more broadly than the elements of the\ngeneric offense.” (Appellant’s Reply Brief at 4 (citing United\nStates v. Mitchell, 218 F. Supp. 3d 360, 368 (M.D. Pa. 2016)).)\nA “serious drug offense” includes an offense under state law\ninvolving “distributing” or “possessing with intent to . . .\ndistribute” a controlled substance. 18 U.S.C. § 924(e)(2)(A)(ii).\n The federal CSA defines this term “distribute” to mean “to\ndeliver (other than by administering or dispensing) a controlled\nsubstance or a listed chemical.” 21 U.S.C. § 802(11). The\nfederal drug statute then defines the “terms ‘deliver’ or\n‘delivery’ as including an “attempted transfer of a controlled\nsubstance.” Id. § 802(8). Section 924(e)(2)(A)(ii) expressly\nreferences the CSA in the parenthetical “(as defined in section\n102 of the Controlled Substances Act (21 U.S.C. 802)).” This\nCourt stated in Rojas v. Attorney General, 728 F.3d 203 (3d Cir.\n2013) (en banc), that “the parenthetical ‘(as defined in section\n802 of Title 21)’ [used in §§ 1227(a)(2)(A)(i)(II) and\n1227(a)(2)(B)(i)] is a restrictive modifier that affects only its\nimmediate antecedent, a ‘controlled substance,’” id. at 209.\nHowever, the en banc Court was simply explaining that “the\ncontrolled substance [must be] as such by federal law.” Id.\n\n Moreover, this analysis does not translate to the ACCA\ncontext because § 924(e)(2)(A)(ii) includes the terms\n“manufacturing, distributing, or possessing with intent to\nmanufacture or distribute” immediately before the phrase “a\ncontrolled substance” and the parenthetical itself. By referring\nto the ways of committing a controlled substance offense—\nwhich are defined in “section 802 of the Controlled Substance\n\n\n\n\n 20\n\fAct”—the ACCA provision makes it clear that the parenthetical\nmodifies more than just “a controlled substance.” “Congress\nhas [also] demonstrated that it does not view attempted drug\ntrafficking offenses as any less serious than completed acts”\nbecause it subjected any person who attempts or conspires to\ncommit a drug offense to the same penalties applicable to the\ncompleted offenses. Coleman, 700 F.3d at 339 (quoting 21\nU.S.C. § 846).\n\n The D.C. Circuit relied on another well-established canon\nof statutory construction to reject the defendant’s expressio\nunius argument:\n\n Moreover, as the district court recognized, the use\n of “attempted” in section 924(e)(2)(B)(i) does\n not—by itself—indicate that the Congress\n intended to exclude attempt convictions from the\n definition of “serious drug offense[s]” in section\n 924(e)(2)(A)(ii). Indeed, well-established\n principles of statutory construction counsel\n otherwise; if we were to adopt Alexander’s\n reading of section 924(e)(2)(A)(ii), the term\n “involving” would be rendered meaningless—\n “distribution alone would qualify as a crime\n ‘involving’ distribution” and possession with\n intent to distribute alone would qualify as a crime\n “involving” possession with intent to distribute.\n United States v. Contreras, 895 F.2d 1241, 1244\n (9th Cir. 1990) (rejecting argument that\n possession with intent to distribute is not crime\n “involving” distribution). . . . .\n\nAlexander, 331 F.3d at 131.\n\n\n\n\n 21\n\f Daniels challenges this line of reasoning, claiming that\nthe “term ‘involving’ is necessary to avoid the problem of\nnomenclature that necessarily arises when a federal statute\nincorporates fifty state statutes.” (Appellant’s Reply Brief at\n13.) Section 780-113(a)(3) of the Pennsylvania drug statute\nprohibits the unauthorized “delivery” of a controlled substance,\nbut, unlike § 924(e)(2)(A)(ii), it does not use the term\n“distributing.” Daniels appears to suggest that, if the ACCA\nprovision were to include only crimes that “prohibit” (as\nopposed to “involve”) distribution, a violation of the\nPennsylvania drug statute would not constitute a “serious drug\noffense.” (See id. (“In fact, a person can commit drug offenses\nin Pennsylvania through ‘distribution’ just not under 35 Pa. Stat.\n§ 780-113(a)(30). The terms have different definitions (see §\n780-102(b)), notwithstanding that ‘delivery’ is the equivalent of\nthe generic “distribution” in Section 924(e)(2)(A)(ii).”).)\n\n Daniels offers no case law or any other support for his\nrather complicated reading. Both Pennsylvania and federal drug\nlaws provide essentially identical definitions of distribution and\ndelivery, defining “delivery” or “deliver” as the actual,\nconstructive, or attempted transfer of a controlled substance and\n“distribute” as “to deliver” (other than by administering or\ndispensing the substance). Compare 21 U.S.C. § 802(8), (11)\nwith 35 Pa. Stat. Ann. § 780-102(b). Although this issue was\nnot specifically addressed in our opinion, we still concluded in\nGlass that Section 780-113(a)(30) constitutes a “controlled\nsubstance offense” under the career offender Guidelines. The\nGuidelines nevertheless define a “controlled substance offense”\nas an offense that, inter alia, “prohibits” the distribution of a\ncontrolled substance or the possession of controlled substance\nwith intent to distribute (thereby omitting any “involving”\n\n\n\n\n 22\n\flanguage). Glass, 904 F.3d at 321-24.\n\n Given our precedential opinion in Gibbs, it is not too\nsurprising that Daniels asks us to reconsider this ruling in light\nof subsequent Supreme Court case law. See, e.g., 3d Cir. I.O.P.\n9.1 (“it is the tradition of this court that the holding of a panel in\na precedential opinion is binding on subsequent panels. Thus,\nno subsequent panel overrules the holding in a precedential\nopinion of a previous panel. Court en banc consideration is\nrequired to do so.”). It is also not unexpected that he challenges\nthe various rulings from other circuits adopting an expansive\ninterpretation of § 924(e)(2)(A)(ii) and holding that this ACCA\nprovision encompasses attempts. Daniels contends that the\nSupreme Court’s reasoning in Mathis v. United States, 136 S.\nCt. 2243 (2016), calls into question our interpretation of the\nimprecise term “involving” as well as our application of the\nmodified categorical approach. According to Daniels, the focus\nupon state statutory elements under the categorical approach\n“cuts against the argument that the presence of the term\n‘involving’ in Section 924(e)(2)(A)(ii) should encourage a more\nelastic approach to inclusion of drug offenses that do not\napproximate those listed in Section 924(e)(2)(A)(ii).”\n(Appellant’s Reply Brief at 8.) Additionally, Daniels argues\n“[i]t would violate due process to impose such liability in the\nabsence of any such reference [to attempts]. See United States\nv. Lanier, 520 U.S. 259, 266 (1977) (‘[T]he canon of strict\nconstruction of criminal statutes, or rule of lenity, ensures fair\nwarning by resolving ambiguity in a criminal statute as to apply\nit only to conduct clearly covered’) (citations omitted).”\n(Appellant’s October 1, 2018 Letter at 2.) Daniels finally\nattempts to compare § 924(e)(2)(A)(ii) with the ACCA’s\n“residual” clause (i.e., “violent felony” means any crime that,\ninter alia, “otherwise involves conduct that presents a serious\n\n\n\n\n 23\n\fpotential risk of physical injury to another,” 18 U.S.C. §\n924(e)(2)(B)(ii)). This clause was invalidated as\nunconstitutionally vague by the Supreme Court in Johnson v.\nUnited States, 135 S. Ct. 2551 (2015).\n\n Given the narrow scope of our holding in this case, we\nreject Daniels’s assertion that Gibbs and the existing case law\ninterpreting § 924(e)(2)(A)(ii) undermine the categorical\napproach. We hold that the definition of a “serious drug\noffense” under § 924(e)(2)(A)(ii) encompasses attempts, as\ndefined by federal law, to manufacture, distribute, or possess\nwith intent to manufacture or distribute a controlled substance.\nOur holding thereby implicates a categorical comparison\nbetween the elements of an inchoate drug crime under the\napplicable state law with the elements of such an inchoate\noffense under federal drug law (an analysis we conduct in the\nnext section of this opinion). We accordingly need not—and do\nnot—decide if “Section 924(e) does not require the state statute\nunder which a defendant was convicted to be co-extensive with\na federal drug statute.” (Appellee’s Brief at 8.) Given our\nanalysis of Pennsylvania and federal law governing attempts and\naccomplice liability, we leave for another day the government’s\nalternative arguments that, “even if the Pennsylvania statute\nextended to offers to sell: any statute that bars an ‘offer to sell\ndrugs’ is one ‘involving’ the distribution of drugs under ACCA,\nas many courts have held” (id. at 26 (citations omitted)), and\nthat, even if Pennsylvania’s solicitation law sweeps more\nbroadly than its federal counterpart, “[s]uch criminal conduct is\nnot so remote or tangential to its aim, that is, the actual or\nconstructive transfer of a controlled substance, to justify\ndisqualification as a ‘serious drug offense’ under ACCA” (id. at\n29). See Glass, 904 F.3d at 322 (observing that we have yet to\ndetermine whether or in what circumstances state statutes\n\n\n\n\n 24\n\fcriminalizing offers to sell constitute “controlled substance\noffenses,” noting that other circuits have held state statutes\nexpressly criminalizing mere offers do not qualify, and,\nassuming that such statute sweeps beyond career offender\nGuideline, concluding that Section 780-113(a)(30) does not do\nso).\n\n We also do not agree with the other assertions raised by\nDaniels. Daniels (yet again) cites to no case law rejecting Gibbs\nor the numerous “serious drug offense” rulings from other\ncircuits based on Mathis, the rule of lenity, or vagueness\nconcerns. On the contrary, he draws more attention to this lack\nof case law by observing that the Supreme Court in James\n(which was overruled by Johnson) “pointed out, as the\nGovernment has here, that ‘every Court of Appeals that ha[d]\nconstrued the’ [attempted burglary] issue in James, ‘ha[d] held\nthe offense qualifies as [an ACCA predicate.]’” (Appellant’s\nReply Brief at 14 (quoting James v. United States, 550 U.S. 192,\n204 (2007)).) Furthermore, the limits of the modified\ncategorical approach recently addressed by the Supreme Court\nin Mathis have no bearing on the current appeal. Daniels was\nnot convicted under a statute criminalizing “wear[ing] body\narmor during the commission of a felony,’” Gibbs, 656 F.3d at\n184 (quoting 11 Del. C. § 1449), or stating that if two or more\npersons conspire “‘[t]o commit any crime[,] . . . they are guilty\nof a conspiracy,’” United States v. Trent, 767 F.3d 1046, 1052\n(10th Cir. 2014) (quoting Okla. Stat. Ann. tit. 21, § 421(A)),\nabrogated by Mathis, 136 S. Ct. at 2251 & n.1. Instead, he was\nconvicted of “violations of the Pennsylvania drug act, which\nprohibits ‘the manufacture, delivery, or possession with intent to\nmanufacture or deliver, a controlled substance.’” (Appellant’s\nBrief at 10 (quoting § 780-113(a)(30)).) It is Daniels who then\ngoes beyond the bare terms of Section 780-113(a)(30) to point\n\n\n\n\n 25\n\fout that this specific provision includes attempts as well as\ncompleted drug crimes. The Johnson Court also focused on the\n“grave uncertainty about how to estimate the risk posed by a\ncrime,” Johnson, 135 S. Ct. at 2557, as well as “how much risk\nit takes for a crime to qualify as a violent felony,” id. at at 2558.\n Unlike the residual clause, § 924(e)(2)(A)(ii) does not include\nany reference to a potential risk of injury.6\n\n B. Attempts and Accomplice Liability under Federal\n and Pennsylvania Law\n\n Because § 924(e)(2)(A)(ii)’s definition of “a serious drug\noffense” encompasses attempts (as defined under federal law) to\nmanufacture, distribute, or possess with intent to manufacture or\ndistribute a controlled substance, we must decide whether\nPennsylvania criminalizes conduct under the attempt or\naccomplice framework that are not crimes under federal law.\nAccording to Daniels, Pennsylvania law sweeps more broadly\nthan federal law because it criminalizes offers to sell, mere\npreparation, and solicitation by the buyer. We do not agree.\nGiven our recent precedential opinions in Glass and Martinez,\nwe conclude that Pennsylvania’s approach to attempts as well as\nthe state’s doctrine of accomplice liability are coextensive with\nits federal counterparts.\n\n The federal and Pennsylvania approaches to attempt\nliability in the drug offense context are essentially identical. As\nwe have already explained, Pennsylvania law defines “deliver”\nor “delivery” as “the actual, constructive, or attempted transfer\n\n 6\n We also note that Gibbs expressly considered and\nrejected a vagueness challenge to our interpretation of a “serious\ndrug offense.” Gibbs, 656 F.3d at 188-89.\n\n\n\n\n 26\n\ffrom one person to another of a controlled substance.” 35 Pa.\nStat. Ann. § 780-102(b). The federal CSA “also defines the\n‘delivery’ of a controlled substance to mean ‘the actual,\nconstructive, or attempted transfer of a controlled substance.’”\nGlass, 904 F.3d at 322 (quoting 21 U.S.C. § 802(8)). Section\n846 of the CSA provides that “[a]ny person who attempts . . . to\ncommit any offense defined in this subchapter shall be subject to\nthe same penalties as those prescribed for the offense, the\ncommission of which was the object of the attempt.” Most\nfederal courts (including this Circuit) have followed the Model\nPenal Code’s framework for attempt liability. See, e.g.,\nMartinez, 906 F.3d at 284. “Consistent with the Model Penal\nCode, federal ‘attempt’ requires intent and a substantial step\ntowards to the commission of the crime. See United States v.\nCruz-Jiminez, 977 F.2d 95, 101-03 (3d Cir. 1992); Model Penal\nCode § 5.01.” Glass, 904 F.3d at 323 n.3; see also, e.g.,\nMartinez, 906 F.3d at 284 (“So we too require a ‘substantial step\ntoward commission of the crime’ that ‘strongly corroborat[es]\nthe firmness of a defendant’s criminal purpose.’ United States\nv. Cicco, 10 F.3d 980, 985 (3d Cir. 1993).”). 18 Pa. Cons. Stat.\nAnn. § 901(a) states that “[a] person commits an attempt when,\nwith intent to commit a specific crime, he does any act which\nconstitutes a substantial step toward the commission of that\ncrime.” While it was undisputed in Glass that “‘attempt’ under\nPennsylvania law has the same meaning as ‘attempt’ in the CSA\nand the Guidelines,” Glass, 904 F.3d at 322, Martinez concluded\nthat both New Jersey and federal attempt law follow the same\nModel Penal Code approach, Martinez, 906 F.3d at 284-85 (“It\ndefines attempt as a purposeful ‘act or omission constituting\nsubstantial step in a course of conduct planned to culminate in\n[the] commission of the crime.” N.J. Stat. Ann. § 2C:5-1(a)(3).\nAnd a ‘substantial step’ must be ‘strongly corroborative’ of the\nactor’s criminal purpose.’ Id. § 2C:5-1(b).”). The Pennsylvania\n\n\n\n\n 27\n\fattempt provision is also based on the Model Penal Code. See,\ne.g., 18 Pa. Cons. Stat. Ann. § 901 Jt. State Gov’t Comm’n cmt.\n(“This section is derived from Section 5.01 of the Model Penal\nCode.”); Commonwealth v. Wojdak, 466 A.2d 991, 1008 n.3\n(Pa. 1983) (Hutchinson, J., concurring and dissenting) (stating\nthat Pennsylvania attempt statute and Model Penal Code\n“similarly define” criminal attempt). Accordingly, “[t]here is no\ndaylight between the federal and [Pennsylvania] formulations\n[of attempt].” Martinez, 906 F.3d at 285.\n\n Similarly, both states, as well as the federal government\nand the Model Penal Code, treat some solicitations as attempts.\nUnder New Jersey law, solicitation constitutes an attempt only if\nit is strongly corroborative of the actor’s criminal purpose. Id.\nAs we explained in Martinez:\n\n New Jersey’s approach, like that of federal law,\n follows the Model Penal Code. Both federal law\n and the Model Penal Code recognize that\n “solicitation accompanied by the requisite intent\n may constitute an attempt.” United States v. Am.\n Airlines, Inc., 743 F.2d 1114, 1121 (5th Cir.\n 1984); see, e.g., United States v. Cornelio-Pena,\n 435 F.3d 1279, 1286-87 (10th Cir. 2006); Model\n Penal Code § 5.01(2)(g). Our Court agrees.\n Glass, [904 F.3d at 323 n.3]. So New Jersey law\n tracks federal law: Solicitation may amount to an\n attempt when it strongly corroborates the actor’s\n criminal purpose. Not all solicitations make the\n cut, but some do.\n\nId. at 285-86; see also Glass, 904 F.3d at 323 n.3 (“In pointing\nout this flaw in the logic of Glass’s argument, we are not\n\n\n\n\n 28\n\fsuggesting that ‘attempted transfer’ in 21 U.S.C. § 802(8)\nincludes offers or solicitations other than those that meet the\nrequirements for ‘attempt’ under the CSA. Consistent with the\nModel Penal Code, federal ‘attempt’ requires intent and a\nsubstantial step towards the commission of the crime.” (citing\nCruz-Jimenez, 977 F.2d at 101-03; Model Penal Code § 501)).\nIn reaching this conclusion, we expressly disagreed with a Ninth\nCircuit solicitation case cited by Daniels. In Sandoval v.\nSessions, 866 F.3d 986 (9th Cir. 2017), the Ninth Circuit\naddressed an Oregon delivery statute that resembles New\nJersey’s trafficking law (i.e., they both require a substantial step\nthat is strongly corroborative of the actor’s criminal purpose and\nallow solicitation to amount to attempt). Martinez, 906 F.3d at\n286 (citing Sandoval, 866 F.3d at 991). “Yet the Ninth Circuit\nheld that the Oregon law was broader than federal law.\n‘Although [it may be] strongly corroborative of intent to commit\na crime,’ the court reasoned, ‘offering to deliver a controlled\nsubstance does not cross the line between preparation and\nattempt for the purposes of the [federal] Controlled Substances\nAct.’” Id. (quoting Sandoval, 866 F.3d at 990). However, we\nemphasized the shared origins of federal and state attempt law:\n\n As explained above, federal attempt law is\n explicitly based on the Model Penal Code. Both\n provide that any substantial step that strongly\n corroborates the actor’s criminal purpose amounts\n to an attempt. Model Penal Code § 5.01(2). The\n Model Penal Code specifies that solicitation\n “shall not be held insufficient as a matter of law”\n if it is strongly corroborative, as we and other\n circuits recognize. Id. § 5.01(2)(g); see, e.g.,\n Glass, [904 F.3d at 323 n.3]; Am. Airlines, 743\n F.2d at 1121.\n\n\n\n\n 29\n\f We see no reason to reject the Model Penal\n Code. Our precedent embraces it. Solicitation,\n like any number of other acts, can amount to a\n federal attempt. So New Jersey attempt law is no\n broader than federal law. Martinez’s conviction\n is thus an aggravated felony, making him\n removable.\n\nId. at 286-87.\n\n Likewise, Pennsylvania and federal law base their\nrespective approaches to accomplice liability on the Model\nPenal Code. 18 Pa. Cons. Stat. Ann. § 306(c)(1) states that a\nperson is an accomplice of another person in the commission of\nthe offense “if (1) with the intent of promoting or facilitating the\ncommission of the offense, he: (i) solicits such other person to\ncommit it or (ii) aids or agrees or attempts to aid such other\nperson in planning or committing it.” This definition is almost\nidentical to the Model Penal Code’s definition of accomplice\nliability, e.g. “a person is an accomplice if: (a) with the purpose\nof promoting or facilitating the commission of an offense, he (i)\nsolicits such other person to commit it, or (ii) aids or agrees or\nattempts to aid such person in planning or committing it.”\nModel Penal Code § 2.06(3). In turn, “[w]hoever commits an\noffense against the United States or aids, abets, counsels,\ncommands, induces or procures its commission, is punishable as\na principal.” Id. at § 2(a). Both Pennsylvania law and the\nModel Penal Code essentially require what we have stated is\nrequired to prove aiding and abetting under federal law, i.e.,\nproof that the defendant had the specific intent to facilitate the\ncrime and acted to facilitate it. See, e.g., United States v.\nMercado, 610 F.3d 841, 846 (3d Cir. 2010).\n\n\n\n\n 30\n\f “We have yet to determine whether or in what\ncircumstances state statutes that criminalize offers to sell\nconstitute ‘controlled substance offenses’ under the Guidelines.\nIncreasingly, however, our sister Circuits have held state statutes\nexpressly criminalizing a mere ‘offer’ do not.” Glass, 904 F.3d\nat 322 (citing United States v, Madkins, 866 F.3d 1136, 1147\n(10th Cir. 2017); United States v. Hinkle, 832 F.3d 569, 572\n(5th Cir. 2016); United States v. Savage, 542 F.3d 959, 965-66\n(2d Cir. 2008); United States v. Redden, 875 F.3d 374, 375 (7th\nCir. 2017), cert. denied, 138 S. Ct. 1343 (2018); United States v.\nBryant, 571 F.3d 147, 158 (1st Cir. 2009)). Glass refrained\nfrom answering this question because Section 780-113(a)(30)\ndoes not criminalize mere offers to sell. Id. As we have already\nobserved in our discussion of § 924(e)(2)(A)(ii) and attempts,\nwe likewise need not—and do not—decide at this time whether\nthe government is correct that “any statute that bars an ‘offer to\nsell drugs is one ‘involving’ the distribution under ACCA”\n(Appellee’s Brief at 26 (citations omitted)) because the\nPennsylvania drug statute does not “cross[] that line,” id.\n\n In his supplemental submission addressing Glass, Daniels\n“recognizes that Circuit precedent now holds that Pennsylvania\ndoes not impose liability for an offer to sell.” (Appellant’s\nOctober 1, 2018 Letter at 3.) We reasoned that Section 780-\n113(a)(10) does not mention offers to sell (even though at least\none other provision contained in Section 780-113 does expressly\nprohibit offers, see 35 Pa. Stat. Ann. § 780-113(a)(1)). Glass,\n904 F.3d at 322-23. Glass argued that a mere offer to sell drugs\nis implied by Pennsylvania’s definition of “deliver,” which, like\nboth the CSA and the Guidelines, includes attempted transfers.\nId. at 322. We rejected that argument, stating that, “[a]s Glass\ndoes not dispute that ‘attempt’ under Pennsylvania has the same\n\n\n\n\n 31\n\fmeaning as ‘attempt’ in the CSA and the Guidelines, his\nargument, if accepted, would prove self-defeating, for if § 780-\n102(b) sweeps in mere offers to sell, then by his logic, so does\n21 U.S.C. § 802(8) and U.S.S.G. § 4B1.2, making the state\noffense broad, but no broader than the federal one.” Id. at 322-\n23 (footnote omitted). Furthermore, “the parties have failed to\nuncover any authority, such as state judicial decisions or pattern\njury instructions, suggesting that Pennsylvania would prosecute\na mere offer to sell under § 780-113(a)(30).” Id. at 323 (citing\nDuenas-Alvarez, 549 U.S. at 193). The Glass Court then\ndistinguished Pennsylvania’s statutory definition of “deliver”\nfrom the more expansive Texas definition at issue in Hinkle and\nConley (which expressly states that “deliver” includes offering\nto sell) and compared it with the narrower Illinois understanding\nof “deliver” addressed in Redden. Id. Finally, we noted that our\nconclusion “is consistent with our prior holdings regarding §\n730-113(a)(30) outside of the U.S.S.G. § 4B1.1 context,”\nincluding our holding in Abbott that a conviction for cocaine-\nbased offenses “is not overbroad in the context of the ACCA’s\ndefinition of ‘serious drug offense.’” Id. (citing Abbott, 748\nF.3d at 160); see also, e.g., Martinez, 906 F.3d at 286\n(distinguishing Texas law encompassing mere offer to sell\nwithout evidence of possession or transfer as “far cry” from\nconviction under New Jersey possession with intent statute).\n\n In addition to seeking to preserve the “offer to sell” issue\nfor later review, Daniels purportedly cites to an authority\nsuggesting that Pennsylvania does in fact prosecute offers to\nsell. See, e.g., Duenas-Alvarez, 549 U.S. at 193 (“[T]o find that\na state statute creates a crime outside the generic definition . . .\nrequires a realistic probability, not a theoretical possibility, that\nthe State would apply its statute to conduct that falls outside the\ngeneric definition of a crime.”). We do not agree.\n\n\n\n\n 32\n\f In Commonwealth v. Donahue, 630 A.2d 1238 (Pa.\nSuper. Ct. 1993), the defendant argued that the Berks County\ntrial court lacked jurisdiction over the drug possession crimes\nbecause the prosecution failed to adduce evidence that he\nactually or constructively possessed marijuana in Berks County\n(where his supplier, Bieber, lived) as opposed to Bucks County\n(where the defendant resided and received the shipment of\nmarijuana), id. at 1242-43. The Pennsylvania Superior Court,\nhowever, determined that Donahue was properly convicted as an\naccessory to Bieber’s possession in Berks County. Id. at 1244.\nIn the process, it looked to Pennsylvania’s crime of solicitation,\n18 Pa. Cons. Stat. Ann. § 902, as well as the state statutory\nprovision governing accomplice liability, see § 306. Donahue,\n630 A.2d at 1243-44.\n\n The Donahue court accordingly applied Pennsylvania’s\nlaw of accomplice liability—which is essentially identical to the\nfederal approach to liability for aiding and abetting. The facts\nindicated that Bieber and Donahue were business associates\ninvolved in the distribution of marijuana. Id. at 1244. Donahue\ntold Bieber by telephone that, if Bieber received a shipment, he\nwould be interested in acquiring it. Id. The supplier then\nreceived a shipment at his home in Berks County and\ntransported it to the defendant’s home in Bucks County. Id.\n“Bieber also testified that he had conducted business with\nappellant five to ten times in the past.” Id. Based on their prior\nrelationship, the Pennsylvania Superior Court believed it could\nbe reasonably inferred that the statement to Bieber implied that\nDonahue “both encouraged and requested Bieber to obtain\nmarijuana to sell to him.” Id. Accordingly, the evidence\nestablished that he solicited Bieber to purchase and possess the\nmarijuana with the intent to deliver. Id. The evidence also\n\n\n\n\n 33\n\festablished that he intended to promote or facilitate the\ncommission of the offense under the accomplice liability\nprovision: “Taken one step further, it is also reasonably clear\nthat appellant intended to promote Bieber to commit the offense\nso that he, in turn could obtain marijuana to sell.” Id. In fact,\nDonahue’s conviction was vacated on other grounds, and the\nPennsylvania Superior Court specifically directed the trial judge\nto “instruct the jury that appellant may only be found guilty for\nthose actions which occurred in Berks County if it finds that he\nwas an accomplice to Bieber.” Id. at 1244 n.8.\n\n We also reject Daniels’s assertion that Commonwealth v.\nParker, 957 A.2d 311 (Pa. Super. Ct. 2008), indicated that\nPennsylvania effectively criminalizes mere preparation. In that\ncase, a police officer conducting a traffic stop found that Parker\nhad a substance that was made to look like cocaine but was\nactually candle wax. Id. at 317-18. The Pennsylvania Superior\nCourt affirmed Parker’s conviction for attempted delivery of a\ncounterfeit controlled substance under 18 Pa. Cons. Stat. Ann. §\n901(a) and 35 Pa. Stat. Ann. § 780-113(a)(35)(ii). Id. Daniels\nacknowledges that the Pennsylvania Superior Court employed\nthe substantial step standard (the well-established standard\napplicable under the Model Penal Code as well as both New\nJersey and federal law) and found that the defendant had taken\nsuch a step. He argues that, even under the interpretation most\nfavorable to the government, Parker did nothing more than\nprepare the items for a later sale. But the Parker court never\nsuggested that it was applying some unique approach to the\nwell-established “substantial step” requirement. On the\ncontrary, it explained that the actions that Parker undertook\nconstituted a substantial step:\n\n He was carrying the cocaine-like substance\n\n\n\n\n 34\n\f with him, packaged in plastic baggies “consistent\n with the way drug dealers handle or package\n crack cocaine,” and he admitted that he would sell\n it “if the opportunity presented itself.” In\n Commonwealth v. Irby, 700 A.2d 463 (Pa. Super.\n 1997), we found that a defendant who packaged\n candle wax in plastic baggies as cocaine and tried\n to sell it to an undercover officer, even though the\n sale never actually occurred, was sufficient to\n constitute delivery of a noncontrolled substance.\n Here, Parker took similar substantial steps toward\n the commission of the same crime, except that he\n was waiting for the opportunity of a possible\n buyer to present itself. Therefore, the evidence\n was sufficient to convict Parker of attempted\n delivery of a noncontrolled substance.\n\nId. at 318 (citation omitted). The state court thereby mirrors the\nModel Penal Code itself, which identifies both “possession of\nmaterials to be employed in the commission of the crime, that\nare specially designed for such unlawful use or that can serve no\nlawful purpose of the actor under the circumstances” and\n“possession, collection or fabrication of materials to be\nemployed in the commission of the crime, at or near the place\ncontemplated for its commission, if such possession, collection\nor fabrication serves no lawful purpose of the actor under the\ncircumstances” as conduct that could be held to be a substantial\nstep. Model Penal Code § 501(2)(e), (f).\n\n Like Daniels, Martinez argued that “New Jersey law\ntreats more forms of inchoate preparation for a crime as attempt\nthan federal law does.” Martinez, 906 F.3d at 281. We rejected\nhis argument, pointing out that the most recent explanation of\n\n\n\n\n 35\n\fattempt by the New Jersey Supreme Court distinguishes\nbetween mere preparation and a substantial step and thereby\ntracks both the Model Penal Code and federal law. Id. at 285\n(quoting State v. Farrad, 753 A.2d 648, 653 (N.J. 2000)). “In\ndicta, Fornino stated: ‘It is only ‘very remote preparatory acts’\nwhich are excluded from the ambit of attempt liability.’” Id.\n(quoting State v. Fornino, 539 A.2d 301, 306 (N.J. App. Div.\n1988)). Despite this statement (which goes farther than the\nlanguage in Parker), we explained that Fornino was a plain error\ncase and the state court thereby did not have an occasion to\ndefine attempt liability. Id. The New Jersey Appellate Division\n“simply noted that ‘some preparation may amount to an attempt.\n It is a question of degree.’” Id. (quoting Fornino, 539 A.2d at\n306). “So New Jersey courts wrestle with drawing that line, just\nas federal courts and the Model Penal Code do.” Id. The same\nis true with respect to the Pennsylvania courts.\n\n Finally, Daniels insists that Pennsylvania criminalizes a\nbuyer’s solicitation. In other words, he argues that, while a drug\npurchaser cannot be held liable as an accomplice of the seller\nunder federal law, he or she could be held liable under\nPennsylvania law. In support, Daniels relies on the\nPennsylvania Superior Court’s ruling in Commonwealth v.\nMoss, 852 A.2d 374 (Pa. Super. Ct. 2004), “which conferred\nliability under Section 7512 for a delivery, upon a buyer who\nhad, only by virtue of being a buyer, facilitated the delivery.”\n(Appellant’s Reply Brief at 20.) 18 Pa. Cons. Stat. Ann. §\n7512(a) provides that a person commits a felony of the third\ndegree if that person “uses a communication facility to commit,\ncause or facilitate the commission or the attempt thereof of any\ncrime which constitutes a felony under this title or under the act\nof April 14, 1972 (P.L. 233, No. 64), known as the Controlled\nSubstance, Drug, Device and Cosmetic Act.” In contrast, the\n\n\n\n\n 36\n\fUnited States Supreme Court rejected the theory that an\nanalogous federal provision (prohibiting the use of a\ncommunication facility in committing, causing, or facilitating\nthe commission of any act or acts constituting a felony under the\nCSA) applies to someone “making a misdemeanor drug\npurchase because his phone call to the dealer can be said to\nfacilitate the felony of drug distribution.” Abuelhawa v. United\nStates, 556 U.S. 816, 818 (2009) (addressing 21 U.S.C. §\n843(b)). “To the contrary, Congress used no language spelling\nout a purpose so improbable, but legislated against a background\nusage of terms such as ‘aid,’ ‘abet,’ and ‘assist’ that points in the\nopposite direction and accords with the CSA’s choice to classify\nsmall purchases as misdemeanors.” Id. at 824 (footnote\nomitted); see also, e.g., id. at 820 (“To begin with, the\nGovernment’s literal sweep of ‘facilitate’ sits uncomfortably\nwith common usage. Where a transaction like a sale necessarily\npresupposes two parties with specific roles, it would be odd to\nspeak of one party as facilitating the conduct of the other.”).\n\n We nevertheless believe that Daniels takes both Moss\nand Abuelhawa too far. Daniels was not convicted under\nSection 7512. As we have already explained in some detail, the\nfederal and Pennsylvania principles governing accomplice as\nwell as attempt liability are essentially identical (after all, they\nare both based on the Model Penal Code). In turn, neither the\nPennsylvania Superior Court nor the United States Supreme\nCourt was making broad pronouncements about the scope of\naccomplice liability (or liability for attempt offenses). Although\nit stated that the focus of its inquiry would be whether there was\nsufficient evidence that the defendants’ telephone calls\nfacilitated the actual commission of an underlying felony, the\nMoss court addressed at some length whether the defendants\ntook a substantial step toward delivery of a controlled substance\n\n\n\n\n 37\n\funder the law of attempt. Moss, 852 A.2d at 382-84. It even\ndetermined that there was insufficient evidence to support some\nof the convictions.7 Id. at 383-84. Rejecting the district court’s\n\n 7\n According to the Pennsylvania Superior Court, the\nevidence was sufficient to sustain Sullivan’s conviction because\nhe placed a telephone call to Johnson inquiring about purchasing\ndrugs, Johnson agreed to make the sale, and Johnson was seen\nbriefly entering Sullivan’s home. Moss, 852 A.2d at 383.\n“Appellant [Sullivan] made the necessary preparations and\narranged a meeting point at which he and Johnson would\ncomplete the illicit transaction.” Id. “The record against Moss\nestablishes, as to Counts 1, 2, 6, 7, and 8, Moss engaged in\ntelephone conversations with a confidential informant and these\ntelephone conversations facilitated controlled buy transactions\nbetween Moss and the informant.” Id. at 384; see also, e.g., id.\nat 378 (“The only conclusion that can be reached from the\nstipulation is that the telephone was used to make the\narrangements for the controlled buys that subsequently did occur\nbetween the confidential informant and the Defendant.”).\nHowever, the court found that Moss’s convictions on Counts 12\nand 13 cannot stand because of the absence of any evidence that\nJohnson actually attempted to make the delivery he discussed\nwith Moss. Id. at 384. “The Commonwealth may not obtain a\nconviction under § 7512 based solely on evidence that the\nAppellant engaged in drug-related telephone conversations with\na known drug trafficker.” Id. Likewise, “the record is devoid of\nany evidence that the contemplated transaction between Austin\nand Johnson actually occurred or that either Austin or Johnson\ntook a substantial step toward completion of the transaction they\ndiscussed.” Id. at 383-84. “Viewed in the light most favorable\nto the Commonwealth, the evidence establishes merely that\nAustin engaged in drug-related telephone conversations with a\n\n\n\n\n 38\n\fknown drug trafficker.” Id. at 384.\n\n According to Daniels, the Pennsylvania Superior Court\ncites Moss as an example of the breadth of what constitutes a\nsubstantial step for attempted delivery in Pennsylvania. See\nCommonwealth v. Rivers, No. 1004 EDA 2013, 2014 WL\n10936727, at *2-*5, *16-*17 (Pa. Super. Ct. May 30, 2014)\n(non-precedential decision). In Rivers, the evidence clearly\nestablished that the defendant went beyond mere preparation\n(e.g., the defendant on his own initiative gave his telephone\nnumber to the undercover officer so that she could contact him\nto purchase illicit substances, they engaged in a telephone\ndiscussion to arrange a transaction, setting the price as well as\nthe time and location, the defendant was proceeding toward and\nwas near the site for the transaction when he was arrested, and\nhe had a bag containing counterfeit cocaine). See, e.g., id. at\n*17. Daniels also claims that “it now appears that a person who\nsolicits another to provide drugs – as by offering to pay a dealer\n– may be subject to conviction of delivery in violation of\nsubsection (a)(30) as an accomplice.” (Daniels’s October 1,\n2018 Letter at 3 (citing Commonwealth v. Murphy, 844 A.2d\n1228, 1234 (Pa. 2004)).) “In federal law, by contrast,\nsolicitation will not support a drug trafficking conviction under\n21 U.S.C. §§ 841(a) and 846. See United States v. Rivera-\nSanchez, 247 F.3d 905, 908-09 (9th Cir. 2001).” (Id.) The\nMurphy court determined that the jury could have found that the\ndefendant intended to aid in the transfer of drugs by the seller to\nthe undercover officer “based on the evidence that Murphy\ncalled out to Rivas after the trooper approached him, confirmed\nto Rivas that the trooper was not a police officer, stayed with the\ntrooper while Rivas got drugs, and requested compensation from\nthe trooper for his efforts.” Murphy, 844 A.2d at 1237. The\n\n\n\n\n 39\n\fsuggestion that Abuelhawa altered the pleading requirements for\noffenses invoking accomplice liability, we have explained that\n“[t]he Abuelhawa Court simply addressed a narrow question\nregarding the scope of the term ‘facilitate’ under § 843(b).”\nUnited States v. Huet, 665 F.3d 588, 599 (3d Cir. 2012) (citing\nAbuelhawa, 556 U.S. at 818); see also, e.g., id. (“Nor did the\ndecision modify the law of accomplice liability under 18 U.S.C.\n§ 2. The elements of aiding and abetting under § 2 remain the\nsame.”). Like Huet, “[w]e decline to extend its holding any\nfurther.”8 Id.\n\n IV.\n\n For the foregoing reasons, we will affirm the mandatory\nminimum sentence of fifteen years’ imprisonment entered by the\nDistrict Court.\n\n\n\n\nstate supreme court further found that the evidence showed that\nMurphy actually aided Rivas in transferring the drugs to the\ntrooper by screening the trooper for the seller. Id. Finally, we\nexpressly rejected the Ninth Circuit’s understanding of federal\nattempt law in Martinez. 906 F.3d at 286-87.\n 8\n Accordingly, we need not (and do not) consider\nwhether, even if Pennsylvania’s solicitation law sweeps more\nbroadly than its federal counterpart, “[s]uch criminal conduct is\nnot so remote or tangential to its aim, that is, the actual or\nconstructive transfer of a controlled substance, to justify\ndisqualification as a ‘serious drug offense’ under ACCA”\n(Appellee’s Brief at 29).\n\n\n\n\n 40", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365674/", "author_raw": "COWEN, Circuit Judge."}]} | KRAUSE | COWEN | FUENTES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588421/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,588,832 | UNITED STATES of America v. James GARNER, A/K/A ABD Al Rahman James Garner, Appellant | United States v. James Garner | 2019-02-08 | 17-1181 | U.S. Court of Appeals for the Third Circuit | {"judges": "Ambro, Shwartz, Fuentes", "parties": "", "opinions": [{"author": "AMBRO, Circuit Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ________________\n\n No. 17-1181\n ________________\n\n UNITED STATES OF AMERICA\n\n v.\n\n JAMES GARNER,\n a/k/a ABD AL RAHMAN\n\n JAMES GARNER,\n\n Appellant\n ________________\n Appeal from the United States District Court\n for the Eastern District of Pennsylvania\n(D.C. Criminal Action No. 2-15-cr-00088-001)\n District Judge: Honorable Robert F. Kelly\n ________________\n\nSubmitted Under Third Circuit L.A.R. 34.1(a)\n January 7, 2019\n\n Before: AMBRO, SHWARTZ,\n and FUENTES, Circuit Judges\n\f (Opinion filed: February 8, 2019)\n\nKenneth C. Edelin, Jr.\n1441 Sansom Street\nPhiladelphia, PA 19102\n\n Counsel for Appellant\n\nWilliam M. McSwain\n United States Attorney\nRobert A. Zauzmer\n Assistant United States Attorney, Chief of Appeals\nJoseph A. LaBar\nOffice of the United States Attorney\n615 Chestnut Street, Suite 1250\nPhiladelphia, PA 19106\n\n Counsel for Appellee\n ________________\n OPINION OF THE COURT\n ________________\n\nAMBRO, Circuit Judge\n\n A grand jury in the Eastern District of Pennsylvania\nindicted James Garner on charges of conspiracy to commit\narmed bank robbery in violation of 18 U.S.C. § 371, attempted\nbank robbery in violation of 18 U.S.C. § 2113(a), and\npossession of a firearm in furtherance of a crime of violence\nand aiding and abetting that crime in violation of 18 U.S.C.\n§§ 2 & 924(c)(1). A jury trial resulted in conviction on all\ncharges, and the District Court sentenced Garner to a total of\n101 months’ imprisonment. (His co-defendant Ruben\n\n\n\n\n 2\n\fMarshall, who had not been charged with attempted bank\nrobbery, was acquitted of all charges.) Garner now appeals his\nconviction, arguing the evidence at trial was insufficient to\nestablish either conspiracy or an attempt to commit armed bank\nrobbery, and therefore the firearm charge fails as well. His\nprincipal claim is that the chief witness against him was not\ncredible, and he offers an alternate interpretation of the\nevidence at trial. But we do not draw inferences in the\ndefendant’s favor when reviewing for sufficiency of the\nevidence, and thus affirm.\n We review sufficiency of the evidence “in the light most\nfavorable to the prosecution” to determine whether “any\nrational trier of fact could have found the essential elements of\nthe crime beyond a reasonable doubt.” United States v.\nCaraballo-Rodriguez, 726 F.3d 418, 424–25 (3d Cir. 2013) (en\nbanc) (quoting Jackson v. Virginia, 443 U.S. 307, 318–19\n(1979)). In so doing, we must uphold the jury’s verdict unless\nit “fall[s] below the threshold of bare rationality.” Caraballo-\nRodriguez, 726 F.3d at 431 (quoting Coleman v. Johnson, 566\nU.S. 650, 656 (2012)). “Reversing the jury’s conclusion\nsimply because another inference is possible—or even equally\nplausible—is inconsistent with the proper inquiry for review of\nsufficiency of the evidence challenges.” Id. at 432.\n\n Viewed in this light, the evidence at trial showed the\nfollowing. On February 6, 2015, Garner approached a man\ncalled Saber Saber after prayers concluded at their mosque\nwith a “business opportunity” to be his getaway driver for a\nrobbery of Apex Bank. Garner went back inside the mosque\nto give Saber time to consider the offer. The latter immediately\nwent to his car and called FBI Special Agent Joshua Reed, for\nwhom he acted as an informant. The call went to voicemail, so\nSaber placed his phone in the cupholder, hoping to capture his\nconversation with Garner on Agent Reed’s voicemail. Garner\n\n\n\n\n 3\n\fleft the mosque and entered Saber’s car to finish their\nconversation.\n\n Later that day Saber met with Agent Reed and agreed to\nparticipate in the latter’s investigation of Garner. They made\na recorded call to him to further discuss the robbery. On\nanother recorded call made February 9, Garner instructed\nSaber to surveil Apex Bank, and once that was completed, they\nwould meet with a third individual, Ruben Marshall, to draw\nup a plan. Saber did as Garner instructed and later met with\nGarner and Marshall to plan the robbery.\n Saber and Garner had several more recorded phone calls\nbetween February 10 and 12 outlining the robbery. On the\nmorning of February 12—the day before the planned\nrobbery—Saber arrived to pick Garner up in his car. Once\nGarner was inside the car, the FBI approached and arrested\nGarner and staged an arrest of Saber. The FBI found on\nGarner’s person 17 small packets of crack cocaine, and in\nSaber’s car a backpack not present before Garner entered. The\nbackpack contained ski masks, a loaded gun, gloves, two-way\nradios, and ammunition.\n\n To prevail on a conspiracy charge, the Government\nmust prove beyond a reasonable doubt that there was “(1) a\nunity of purpose between the alleged conspirators[,] (2) an\nintent to achieve a common goal[,] and (3) an agreement to\nwork together toward that goal.” United States v. Pressler, 256\nF.3d 144, 147 (3d Cir. 2001). Each of the elements may be\nproven “entirely by circumstantial evidence” so long as “the\ninferences drawn . . . have a logical and convincing connection\nto the facts established.” United States v. Applewhaite, 195\nF.3d 679, 684 (3d Cir. 1999) (quoting United States v. Casper,\n956 F.2d 416, 422 (3d Cir. 1992)).\n\n\n\n\n 4\n\f Garner argues that there was no “unity of purpose”\nbetween himself and Saber, as he was merely “conning” Saber\ninto believing he (Garner) intended to rob Apex Bank.\nAppellant’s Br. at 28. But this is irrelevant. The charged\nconspiracy was not between Garner and Saber, but between\nGarner and Marshall. See Indictment as to James Garner, Doc.\n#11 at 1, United States v. Garner, No. 2:15-cr-00088-001 (E.D.\nPa. Mar. 10, 2015). Indeed, merely conspiring with Saber, a\ngovernment informant, would not make Garner criminally\nliable. This is the rule in other Circuits, see, e.g., United States\nv. Corson, 579 F.3d 804, 811 (7th Cir. 2009); United States v.\nBarboa, 777 F.2d 1420, 1422, 1422 n.1 (10th Cir. 1985)\n(collecting cases), and we adopt it as well. Nor was the jury\nrequired to credit his alternate interpretation of the facts.\n Garner further contends there could not have been a\nconspiracy because details about the planned robbery—\nincluding both the date on which it would occur and potentially\nalso which bank would be robbed—were not final prior to\nGarner’s arrest. Appellant’s Br. at 26. But his discussions with\nMarshall, as well as with Saber, about that robbery all centered\non Apex Bank. Garner instructed Saber to surveil Apex, and,\nwhen Saber reported back, the three men discussed in detail\ntheir plan to rob it. J.A. at 163–177; Supp. App. at 8–17, 29–\n30. This was enough to support the conspiracy charge.\n To prevail on a charge of attempted bank robbery, the\nGovernment had to prove that (1) Garner had the requisite\nintent to commit armed bank robbery; and (2) he “performed\nan act amounting to a ‘substantial step’ toward the commission\nof that crime.” United States v. Hsu, 155 F.3d 189, 202 (3d\nCir. 1998); see also Model Penal Code § 5.01(1)(c). He\ncontends the evidence did not show any such substantial step,\nessentially because there were other necessary steps toward\npreparing the robbery he had not yet taken, such as acquiring a\ncar. But a defendant may commit an attempt even where he\n\n\n\n\n 5\n\fstops short of “the last act necessary” for the actual commission\nof the crime. United States v. Hayward, 359 F.3d 631, 644 (3d\nCir. 2004) (Fuentes, J., concurring in part and dissenting in\npart); see also United States v. Yousef, 327 F.3d 56, 134 (2d\nCir. 2003). Here Garner engaged in numerous, and substantial,\nsteps toward robbing Apex Bank, including sending Saber to\nsurveil the location and gathering tools for the robbery.\n(Garner disputes the credibility of the testimony suggesting\nthat he provided the bag of tools seized during his arrest, but\nthe jury was not required to agree.) Sufficient evidence thus\nbacked the attempt charge.\n Finally, Garner’s sole argument as to the charge under\n18 U.S.C. § 924(c) is that he cannot have possessed a firearm\nin furtherance of a crime of violence if he did not actually\ncommit the underlying crime. But because his challenges to\nthe conspiracy and attempt charges fail, his challenge to the\n§ 924(c) charge fails as well.\n Thus we affirm.\n\n\n\n\n 6", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366085/", "author_raw": "AMBRO, Circuit Judge"}]} | AMBRO | SHWARTZ | FUENTES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588832/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,589,785 | Jeffrey WORKMAN, Appellant v. SUPERINTENDENT ALBION SCI; District Attorney Philadelphia; Attorney General Pennsylvania | Jeffrey Workman v. Superintendent Albion SCI | 2019-02-12 | 16-1969 | U.S. Court of Appeals for the Third Circuit | {"judges": "Ambro, Restrepo, Fuentes", "parties": "", "opinions": [{"author": "District Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n\n\n No. 16-1969\n\n\n JEFFREY WORKMAN,\n Appellant\n\n v.\n\n SUPERINTENDENT ALBION SCI; DISTRICT\nATTORNEY PHILADELPHIA; ATTORNEY GENERAL\n PENNSYLVANIA\n\n\n On Appeal from the United States District Court\n for the Eastern District of Pennsylvania\n (E.D. Pa. No.: 2-14-cv-02957)\n District Judge: Honorable Paul S. Diamond\n\n\n Argued: February 21, 2018\n\n (Opinion filed: February 12, 2019)\n\n\nBefore: AMBRO, RESTREPO, and FUENTES, Circuit\n Judges\n\fMarshall L. Dayan [ARGUED]\nLisa B. Freeland\nOffice of the Federal Public Defender\n1001 Liberty Avenue\n1500 Liberty Center\nPittsburgh, PA 15222\n Counsel for Appellant\n\nCatherine B. Kiefer [ARGUED]\nMax Kaufman\n Acting Chief, Federal Litigation Unit\nRonald Eisenberg\n Deputy District Attorney, Law Division\nJohn Delaney\n First Assistant District Attorney\nKelley B. Hodge\n District Attorney\nSusan E. Affronti\nPhiladelphia County Office of District Attorney\n3 South Penn Square\nPhiladelphia, PA 19107\n Counsel for Appellee\n\n\n\n OPINION OF THE COURT\n\n\nFUENTES, Circuit Judge.\n\n This case arises from the shooting death of Lawson\nHunt in August 2006. Appellant Jeffrey Workman was one of\ntwo people to shoot Hunt, and was convicted of first-degree\n\n\n\n\n 2\n\fmurder in Pennsylvania on a theory of transferred intent. His\ntrial counsel, pursuing what might generously be called a\nunique theory of criminal liability, did not meaningfully test\nthe Commonwealth of Pennsylvania’s case. According to\nWorkman, his trial counsel told him that he could not be\nconvicted of murder because Hunt was already dead when he\nwas struck by Workman’s bullet. Based on this representation,\nWorkman declined a plea bargain for a 20-year term of\nimprisonment. In post-conviction proceedings, Workman’s\npost-conviction counsel failed to make a claim for ineffective\nassistance of trial counsel based on trial counsel’s failure to\npresent a cogent defense.\n\n Workman appeals the dismissal of his petition for writ\nof habeas corpus under 28 U.S.C. § 2254, arguing that his trial\ncounsel was constitutionally ineffective. Although his claim\nof ineffective assistance of trial counsel was procedurally\ndefaulted in state post-conviction relief proceedings, he argues\nthat his default should be excused because his state post-\nconviction counsel rendered ineffective assistance.\nRespondents argue that Workman cannot show his attorneys\nrendered ineffective assistance and therefore cannot excuse his\nprocedural default under Martinez v. Ryan.1\n\n Because Workman’s state post-conviction counsel’s\nassistance was ineffective and because his underlying\nineffective assistance of trial counsel claim has some merit, we\nexcuse his procedural default of his underlying claim under\nMartinez. Because, on the face of the record, trial counsel’s\nassistance was manifestly ineffective, we will vacate the Order\n\n\n1\n 566 U.S. 1 (2012).\n\n\n\n\n 3\n\fof the District Court and remand with instructions to grant a\nconditional writ of habeas corpus.\n\nI. Facts\n\n A. The Shooting of Lawson Hunt\n\n In August 2006, Gary Moses shot Lawson Hunt in\nPhiladelphia, Pennsylvania. Hearing the shots, Workman\nfound Hunt, saw Moses, and fired at Moses. Workman fired\neight times. One bullet ricocheted off a solid object and struck\nHunt in the chest. Hunt died as a result of his injuries.\nAccording to the assistant medical examiner, who testified at\ntrial, either of the two bullets that struck Hunt could have been\nfatal.\n\n B. Workman’s Trial\n\n Workman was charged with first-degree murder, with\nMoses as a co-defendant. The Commonwealth’s theory of\ntransferred intent argued that Workman, firing at Moses, had\nintended to kill Moses and therefore his intent to kill Moses\ntransferred when his bullet struck Hunt. At trial, Assistant\nMedical Examiner Edwin Lieberman testified that Hunt’s\ndeath was caused by two gunshot wounds. He testified that the\nwound to Hunt’s chest, caused by the ricocheted bullet fired by\nWorkman, was “much more immediately fatal,”2 but the other\nbullet (fired by Moses) “certainly [could have] cause[d] death,”\ndepending “upon the time between the shooting or the time\nhe’s shot and the time he gets to the hospital and how quickly\nthey can do something about it.”3 In other words, Lieberman\n\n2\n App. at 196.\n3\n Id.\n\n\n\n\n 4\n\fcould not definitively state that Moses’s bullet, and not\nWorkman’s, had killed Hunt. In fact, Lieberman testified that,\nbased on the blood evidence surrounding the ricocheted bullet\nwound, he believed Hunt had still been alive when he was\nstruck by the bullet fired by Workman. Workman’s trial\ncounsel cross-examined Lieberman, but this cross-examination\nfocused on eliciting testimony that Lieberman could not\nestablish that Workman’s bullet hit Hunt before Moses’s\nbullet.\n\n At the conclusion of the Commonwealth’s case-in-\nchief, Workman’s counsel moved for a judgment of acquittal.\nHe argued that because Moses fired first and because “to a\nreasonable medical certainty the first bullet killed” Hunt,\nWorkman could not be convicted because “he has fired into the\nbody of a man that is dead and you can’t kill a dead man.”4 He\nmade this argument despite Lieberman’s testimony, which\nincluded the opinion that Hunt was alive when struck by\nWorkman’s bullet. The Commonwealth pointed out that\ninconsistency. The trial court denied the motion.\n\n Having reserved his opening statement for the\nbeginning of Workman’s case-in-chief, Workman’s trial\ncounsel simply stated:\n\n Ladies and gentlemen of the jury,\n you’ve been very patient for six or\n seven days. I will inform you now\n as the judge will later charge you,\n Jeffrey Workman will not present\n any evidence. So I’m opening to\n\n4\n App. at 231.\n\n\n\n\n 5\n\f you and not saying that we’re\n presenting anything. You’ll get\n the full impact of that when the\n judge charges you later in the case.\n Thank you very much.5\n\n Workman’s counsel called no witnesses and presented\nno evidence, resting immediately. Workman’s counsel also\nrequested that the jury be instructed on voluntary and\ninvoluntary manslaughter and defense of others. In closing,\nWorkman’s trial counsel reiterated his theory: that because\ncodefendant Moses shot Hunt first, the Commonwealth could\nnot establish that Workman killed Hunt beyond a reasonable\ndoubt. Despite Lieberman’s testimony regarding the blood\nevidence suggesting that Hunt survived the immediate\naftermath of Moses’s gunshot, Workman’s trial counsel stated:\n\n But the point of the matter is [Hunt\n is] fired on by the first bullet. He\n goes down. The blood spots are\n near or at that spot. No showing\n that he moved around or did\n anything. He’s dead. He’s dead\n from the first bullet. And when the\n doctor has – and this is the last\n thing I’m going to say about that –\n the unmitigated gall in his position\n as a Philadelphia medical\n examiner to come into this\n courtroom and tell you the man\n was alive when the ricochet hit him\n\n\n5\n App. at 265.\n\n\n\n\n 6\n\f and he doesn’t know where the\n ricochet shot comes from . . . at\n that given point you must conclude\n that they have not proved their case\n beyond a reasonable doubt\n because the doctor’s testimony is\n absolutely incredulous.6\n\nIn his closing remarks, counsel did not mention Workman’s\nintent to kill or to defend Hunt, despite requesting instructions\non involuntary and voluntary manslaughter as well as defense\nof others.\n\n The jury convicted Workman of first-degree murder. It\nacquitted Moses. Workman received a mandatory sentence of\nlife imprisonment without parole.\n\n C. Workman’s State Post-Conviction\n Proceedings\n\n Workman’s first opportunity to raise a claim regarding\nthe performance of his trial counsel was during Pennsylvania\npost-conviction proceedings under the Post Conviction Relief\nAct.7 After being appointed counsel and filing an amended\npetition, Workman’s petition raised a single claim: “ineffective\nassistance of trial counsel for failing to request a jury\ninstruction that indicated that the transferred intent doctrine\nalso applied to the petitioner’s claim of defense of use of force\nto protect a third person.”8\n\n\n6\n App. at 275.\n7\n 42 Pa. Cons. Stat. § 9541, et seq.\n8\n App. at 329.\n\n\n\n\n 7\n\f Workman’s state post-conviction counsel did not raise\nany argument concerning Workman’s trial counsel’s failure to\npresent evidence or argue consistently with the evidence\npresented to the jury.\n\n The Superior Court of Pennsylvania, addressing the\nclaim, found that “review of the certified record reveals that\nthe trial court gave a thorough jury instruction regarding the\ndefense of force to protect a third person.”9 It concluded that\nthe “nonsensical claim of ineffective assistance of counsel\nlack[ed] merit,” and noted that “even if we could make sense\nof [Workman’s] argument, he fails to establish how inclusion\nof the requested jury instructions would have been so\ninfluential that it would have likely changed the outcome of\n[Workman’s] trial.”10\n\n D. Workman’s Habeas Proceedings\n\n Workman petitioned for a writ of habeas corpus under\n28 U.S.C. § 2254 in the District Court. One ground upon which\nhe petitioned was that he was denied the effective assistance of\ncounsel at trial and on direct appeal.11 Proceeding pro se, he\nstated that “[t]rail [sic] counsel told me that given the\n[C]ommonwealth’s case and evidence as a whole there was no\nway under the law I could be convicted, which impacted my\n\n\n9\n App. at 344.\n10\n Id.\n11\n Workman’s trial counsel continued to represent Workman\non direct appeal. Nevertheless, procedural default of\nineffective assistance of direct appeal counsel is not eligible to\nbe excused under Martinez. See Davila v. Davis, 137 S. Ct.\n2058, 2063 (2017).\n\n\n\n\n 8\n\fdecisions through out [sic] the proceedings.”12 He alleged in\nhis petition that he included this in his initial post-conviction\nmotion, but his appointed post-conviction counsel “did not\nbrief it to the courts.”13 He did not specifically allege that he\ntold post-conviction counsel of this claim in his petition. He\ndid, however, specifically allege that, with regard to this claim,\nthe Commonwealth failed to prove he killed Hunt. Further, in\nhis reply to Respondents’ Answer to Workman’s habeas\npetition, Workman stated:\n\n Also again to clarify what is meant\n by this claim of ineffectiveness\n [sic] assistance of counsel was not\n to limit the claim to the advice of\n counsel, but to counsel’s overall\n performance. . . . Counsel did not\n only tell me this [deficient advice],\n he used it as his sole defense at\n trial.14\n\n In his reply, Workman also stated that counsel’s\nineffective assistance “ultimately lead [sic] me to deny a plea\noffer, [and to] not testify.”15\n\n The petition was referred to a Magistrate Judge, who\nissued a Report and Recommendation that the petition be\ndismissed. The Magistrate Judge concluded that Workman’s\nclaims were without merit. In his objections to the Report and\n\n\n12\n App. at 355.\n13\n Id.\n14\n App. at 442 (emphasis added).\n15\n Id.\n\n\n\n\n 9\n\fRecommendation, Workman stated that his trial counsel’s\nconduct led him to deny a plea agreement offered by the\nCommonwealth of between ten and twenty years’\nimprisonment. Moreover, Workman also stated that but for\ntrial counsel’s statement that he could not be convicted, he\nwould have testified in his own defense.\n\n The District Court adopted the Magistrate Judge’s\nReport and Recommendation. With respect to Workman’s\nineffective-assistance-of-counsel claims, which are before us\nnow, it held that Workman could not excuse procedural default\nunder Martinez. The District Court refused to consider\nWorkman’s allegations regarding his failure to accept the plea\noffer and his failure to testify, because it mistakenly believed\nthese allegations were first raised in his objections to the report\nand recommendation. It concluded that Workman had not\nshown prejudice from trial counsel’s allegedly deficient\nperformance, though it did not conclude that trial counsel’s\nperformance was deficient, because Workman did not specify\n“the alternate actions he would have taken but for trial\ncounsel’s purportedly defective advice.”16 It concluded that\nWorkman’s post-conviction counsel was not deficient. Noting\nthat it presumed the reasonableness of post-conviction\ncounsel’s strategic choices, the Court stated that Workman’s\nability to rebut that presumption was undermined by\nWorkman’s failure to allege either of two events. First,\nWorkman failed to allege that he informed his post-conviction\ncounsel that his trial counsel told him that he could not be\nconvicted. Second, Workman failed to allege that his post-\nconviction counsel was aware of this allegation. The District\n\n\n16\n App. at 23.\n\n\n\n\n 10\n\fCourt dismissed the petition, and Workman applied for a\ncertificate of appealability.\n\n E. Proceedings Before This Court\n\n We granted a certificate of appealability in October\n2016. In January 2018, we amended the certificate of\nappealability sua sponte. The amended certificate states, in\nfull:\n The foregoing request for a\n certificate of appealability is\n granted as to Workman’s claim\n that trial counsel rendered\n ineffective assistance of counsel\n when he gave erroneous advice\n that Workman could not be\n convicted and thus failed to\n present a cogent defense strategy\n at trial. Jurists of reason might\n well agree that this claim is\n procedurally defaulted, as it was\n not presented to the Superior Court\n and Pennsylvania courts would\n now refuse to consider the claim in\n a new Post Conviction Relief Act\n (“PCRA”) petition. See 42 Pa.\n C.S. § 9545(b); Slack v. McDaniel,\n 529 U.S. 473, 484 (2000).\n However, “[w]here, under state\n law, claims of ineffective\n assistance of trial counsel must be\n raised in an initial-review\n collateral proceeding, a procedural\n\n\n\n\n 11\n\fdefault will not bar a federal\nhabeas court from hearing a\nsubstantial claim of ineffective\nassistance at trial if, in the initial-\nreview collateral proceeding, there\nwas no counsel or counsel in that\nproceeding was ineffective.”\nMartinez v. Ryan, 132 S. Ct. 1309,\n1320 (2012). Jurists of reason\ncould debate whether Workman’s\nclaim that trial counsel was\nineffective for providing erroneous\nadvice that he could not be\nconvicted and thus failed to\npresent any cogent defense at trial,\ncausing him to reject a plea offer,\nwas substantial. Strickland v.\nWashington, 466 U.S. 668, 687-\n88, 694 (1984). Jurists of reason\ncould also debate whether PCRA\ncounsel was ineffective for failing\nto raise the claim on initial-\ncollateral review. On this ground\nonly, we find that the District\nCourt’s procedural ruling is\ndebatable and that Workman has\nmet his burden of making a\nsubstantial showing of the denial\nof a constitutional right. Slack v.\nMcDaniel, 529 U.S. 473, 484\n(2000). The application for a\ncertificate of appealability is\ndenied as to all other issues.\n\n\n\n\n 12\n\f Notably, jurists of reason would\n agree that evidence was sufficient\n to support Workman’s\n convictions. Jackson v. Virginia,\n 443 U.S. 307, 319 (1979).\n\nII. Discussion17\n\n Workman’s claim of ineffective assistance of trial\ncounsel on the basis of trial counsel’s failure to present a\ncogent defense and trial counsel’s defective advice was never\npresented to the state courts in post-conviction relief\nproceedings. It is procedurally defaulted. Accordingly, he\nmust rely on the exception established by Martinez.\n\n A. Excusing Procedural Default Under Martinez\n v. Ryan\n\n Martinez recognizes a narrow exception to the doctrine\nof procedural default: “Inadequate assistance of counsel at\ninitial-review collateral proceedings may establish cause for a\nprisoner’s procedural default of a claim of ineffective\nassistance at trial.”18 This exception is available to a petitioner\nwho can show that: 1) his procedurally defaulted ineffective\nassistance of trial counsel claim has “some merit”19; and that\n2) his state-post conviction counsel was “ineffective under the\n\n\n17\n We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We\nreview the legal conclusions of the District Court de novo.\nJohnson v. Rosemeyer, 117 F.3d 104, 109 (3d Cir. 1997).\n18\n Martinez, 566 U.S. at 9.\n19\n Id. at 14 (citing Miller-El v. Cockrell, 537 U.S. 322\n(2003)).\n\n\n\n\n 13\n\fstandards of Strickland v. Washington.”20 We explain these\nrequirements in turn.\n\n The Underlying Claim Must Have\n “Some Merit”\n\n To excuse procedural default on an ineffective\nassistance of trial counsel claim under Martinez, that claim\nmust be substantial—it must have “some merit.”21 Miller-El v.\nCockrell, the case on which the Supreme Court based its\ndescription of what a “substantial claim” entails, concerns the\nstandards for issuing a certificate of appealability. To\ndemonstrate that his claim has some merit, a petitioner must\n“show that reasonable jurists could debate whether (or, for that\nmatter, agree that) the petition should have been resolved in a\ndifferent manner or that the issues presented were adequate to\ndeserve encouragement to proceed further.”22\n\n This is different from the standard applied on the merits\nunder Strickland v. Washington.23 That standard requires a\npetitioner to show counsel was “deficient,” meaning “that\ncounsel made errors so serious that counsel was not\nfunctioning as the ‘counsel’ guaranteed to the defendant by the\nSixth Amendment.”24 A petitioner must also show that “the\ndeficient performance prejudiced the defense,” which\n“requires showing that counsel’s errors were so serious as to\n\n\n20\n Id.\n21\n Id. (citing Miller-El, 537 U.S. 322).\n22\n Miller-El, 537 U.S. at 336 (internal citation, quotation\nmarks, and alteration omitted).\n23\n 466 U.S. 668 (1984).\n24\n Id. at 687.\n\n\n\n\n 14\n\fdeprive the defendant of a fair trial.”25 This is an exacting\nstandard,26 reflecting the reluctance of the courts to second-\nguess strategic decisions made by counsel.\n\n State Post-Conviction Counsel Must Be\n Ineffective\n\n A substantial claim alone is not sufficient to excuse a\npetitioner’s procedural default. Martinez holds that state post-\nconviction counsel must be “ineffective under the standards of\nStrickland v. Washington” to excuse the procedural default of\nthe underlying claim.27\n\n We have described Strickland as containing two prongs,\nboth of which must be met to sustain a claim of ineffective\nassistance of counsel: the “performance” and “prejudice”\nprongs.28 The “performance” prong refers to Strickland’s\n\n\n25\n Id.\n26\n See Kimmelman v. Morrison, 477 U.S. 365, 382 (1986)\n(noting that the Strickland standard is “highly demanding”).\n27\n Martinez, 566 U.S. at 14.\n28\n See Bey v. Superintendent Greene SCI, 856 F.3d 230, 238\n(3d Cir. 2017) (“To prove ineffective assistance of counsel\nunder Strickland v. Washington, a petitioner must prove ‘(1)\nthat his counsel’s performance was deficient, that is, it fell\nbelow an objective standard of reasonableness, and (2) that\ncounsel’s deficient performance prejudiced his client,’ i.e., that\n‘there is a reasonable probability that, but for counsel’s\nunprofessional errors, the result of the proceeding would have\nbeen different.’ We have previously referred to these as the\n‘performance’ and ‘prejudice’ prongs of the Strickland test.”\n(citation omitted)).\n\n\n\n\n 15\n\frequirement that “counsel’s representation fell below an\nobjective standard of reasonableness.”29 The “prejudice”\nprong refers to Strickland’s requirement that a petitioner show\n“a reasonable probability that, but for counsel’s unprofessional\nerrors, the result of the proceeding would have been\ndifferent.”30\n\n For Workman to show that his state post-conviction\ncounsel’s deficient performance caused prejudice under\nStrickland, he must show that his state post-conviction counsel\ncould have obtained a different result had he presented the\nnow-defaulted ineffective-assistance-of-trial-counsel claim.\nIn other words, he must prove the merits of his underlying\nineffective-assistance-of-trial-counsel claim in order to excuse\nthe procedural default of that claim and obtain consideration\non the merits. At this stage, what is important is that the\nunderlying ineffective-assistance-of-trial-counsel claim is\n“substantial,” not that a petitioner has, in fact, been\n“prejudiced” by trial counsel’s deficient performance under\nStrickland.\n\n If the use of the word “substantial” and the phrase\n“some merit” rather than “prejudicial” does not make it\nexplicit, the Supreme Court clearly implies, by relying on\nMiller-El v. Cockrell in its requirement that the claim be\nsubstantial, that the underlying ineffective-assistance-of-trial-\ncounsel claim must be evaluated under a standard less exacting\nthan Strickland prejudice.31 In Martinez, the Court\n\n29\n Strickland, 466 U.S. at 687–88.\n30\n Id. at 694.\n31\n See Martinez, 566 U.S. at 14; Bey, 856 F.3d at 238\n(interpreting Martinez as “suggesting that we apply the\n\n\n\n\n 16\n\facknowledged that an unrepresented or ineffectively\nrepresented prisoner likely cannot vindicate an ineffective-\nassistance-of-trial-counsel claim:\n\n Without the help of an adequate\n attorney, a prisoner will have\n similar difficulties vindicating a\n substantial ineffective-assistance-\n of-trial-counsel claim. Claims of\n ineffective assistance at trial often\n require investigative work and an\n understanding of trial strategy.\n When the issue cannot be raised on\n direct review, moreover, a prisoner\n asserting an ineffective-assistance-\n of-trial-counsel claim in an initial-\n review collateral proceeding\n cannot rely on a court opinion or\n the prior work of an attorney\n addressing that claim. . . . To\n present a claim of ineffective\n assistance at trial in accordance\n with the State’s procedures, then, a\n prisoner likely needs an effective\n attorney.\n\n The same would be true if the State\n did not appoint an attorney to assist\n in the initial-review collateral\n proceeding. The prisoner,\n\n\nstandard for issuing certificates of appealability in resolving\nthe inquiry into what constitutes a ‘substantial’ claim”).\n\n\n\n\n 17\n\f unlearned in the law, may not\n comply with the State’s procedural\n rules or may misapprehend the\n substantive details of federal\n constitutional law. . . . While\n confined to prison, the prisoner is\n in no position to develop the\n evidentiary basis for a claim of\n ineffective assistance, which often\n turns on evidence outside the trial\n record.32\n\n Martinez also recognizes that “[a] finding of cause and\nprejudice does not entitle the prisoner to habeas relief. It\nmerely allows a federal court to consider the merits of a claim\nthat otherwise would have been procedurally defaulted.”33\n\n Two other appellate courts have considered the role of\nMartinez’s “substantial” requirement and whether the\nunderlying ineffective-assistance-of-trial-counsel claim must\nalso be analyzed under the exacting bar of Strickland. In our\nview, and in accordance with the view shared by the Seventh\nand Ninth Circuits, when a petitioner shows that post-\nconviction relief counsel’s performance was unreasonably\ndeficient, the requirement that the deficient performance result\nin prejudice may be satisfied “with a substantial claim of\nineffective assistance of trial counsel that would otherwise\nhave been deemed defaulted.”34\n\n\n32\n Martinez, 566 U.S. at 11–12 (internal citations omitted).\n33\n Id. at 17.\n34\n Brown v. Brown, 847 F.3d 502, 513 (7th Cir. 2017) (citing\nDetrich v. Ryan, 740 F.3d 1237, 1245–46 (9th Cir. 2013)).\n\n\n\n\n 18\n\f In Detrich v. Ryan,35 the Ninth Circuit considered the\napplication of Martinez in light of Trevino v. Thaler.36 In\nTrevino, the Supreme Court set out the four requirements of\nMartinez:\n\n We consequently read Coleman as\n containing an exception, allowing\n a federal habeas court to find\n “cause,” thereby excusing a\n defendant’s procedural default,\n where (1) the claim of “ineffective\n assistance of trial counsel” was a\n “substantial” claim; (2) the\n “cause” consisted of there being\n “no counsel” or only “ineffective”\n counsel during the state collateral\n review proceeding; (3) the state\n collateral review proceeding was\n the “initial” review proceeding in\n respect to the “ineffective-\n assistance-of-trial-counsel claim”;\n and (4) state law requires that an\n “ineffective assistance of trial\n counsel [claim] . . . be raised in an\n initial-review collateral\n proceeding.” 37\n\n\nAddressing “prejudice,” the Ninth Circuit recognized that:\n\n\n35\n 740 F.3d 1237 (9th Cir. 2013).\n36\n 569 U.S. 413 (2013).\n37\n Id. at 423 (citing Martinez, 566 U.S. at 12–18).\n\n\n\n\n 19\n\f If a prisoner who had [post-\n conviction relief] counsel were\n required to show prejudice, in the\n ordinary Strickland sense,\n resulting from his [post-conviction\n relief] counsel’s deficient\n performance in order to satisfy the\n second Martinez requirement, the\n prisoner would have to show, as a\n condition for excusing his\n procedural default of a claim, that\n he would succeed on the merits of\n that same claim.38\n\n The Ninth Circuit rejected that notion. The Court\nconcluded that, “for the narrow purpose of satisfying the\nsecond Martinez requirement to establish ‘cause,’ a prisoner\nneed only show that his [post-conviction relief] counsel\nperformed in a deficient matter.”39 The Court explained that\n“[a] prisoner need not show actual prejudice resulting from his\n[post-conviction relief] counsel’s deficient performance, over\nand above his required showing that the [ineffective-\nassistance-of-trial-counsel] claim be ‘substantial’ under the\nfirst Martinez requirement.”40\n\n The Ninth Circuit also considered Justice Breyer’s\nstatement “respecting the denial of the petition for the writ of\n\n\n\n38\n Detrich, 740 F.3d at 1246.\n39\n Id. at 1245.\n40\n Id. at 1245–46.\n\n\n\n\n 20\n\fcertiorari” in Gallow v. Cooper,41 understanding him to\ndistinguish between “cause” under the second prong of\nMartinez and “cause and prejudice” under Strickland: “That is,\ncause and prejudice under Strickland are determined separately\nfrom, and after, a determination of ‘cause’ under Martinez.”42\nJustice Breyer, who wrote for the Court in Trevino, wrote in\nGallow that “[t]he ineffective assistance of state habeas\ncounsel might provide cause to excuse the default of the claim,\nthereby allowing the federal habeas court to consider the full\ncontours of Gallow’s ineffective-assistance claim.”43 We\nagree with the Ninth Circuit’s analysis. Whether the\nineffectiveness of post-conviction relief counsel provided\ncause to excuse procedural default is separate from the\nquestion of whether an ineffective-assistance-of-trial-counsel\nclaim would prevail on the merits.\n\n In Brown v. Brown,44 the Seventh Circuit adopted the\nNinth Circuit’s rule as follows: “To demonstrate cause under\nMartinez-Trevino, the petitioner must show deficient\nperformance by counsel on collateral review as required under\nthe first prong of the Strickland analysis. . . . Actual resulting\nprejudice can be established with a substantial claim of\nineffective assistance of trial counsel that would otherwise\nhave been deemed defaulted.”45\n\n This rule is sensible, workable, and a proper reading of\nMartinez. If Workman shows that his underlying ineffective-\n\n41\n 570 U.S. 933 (2013).\n42\n Detrich, 740 F.3d at 1246.\n43\n Gallow, 570 U.S. at 933.\n44\n 847 F.3d 502 (7th Cir. 2017)\n45\n Id. at 513 (internal citations omitted).\n\n\n\n\n 21\n\fassistance-of-trial-counsel claim has some merit and that his\nstate post-conviction counsel’s performance fell below an\nobjective standard of reasonableness, he has shown sufficient\nprejudice from counsel’s ineffective assistance that his\nprocedural default must be excused under Martinez.46\n\n B. Workman’s Underlying Claim Has “Some\n Merit”\n\n On the question presented by the amended certificate of\nappealability, Workman’s claim has “some merit” under the\nstandard contemplated by Martinez. Respondents argue that\nthe claim that Workman’s trial counsel was constitutionally\nineffective for failing to present a cogent defense was not\npresented to the District Court and, therefore, was waived by\nWorkman.\n\n We disagree that Workman waived this claim. “A\nhabeas corpus petition prepared by a prisoner without legal\nassistance may not be skillfully drawn and should thus be read\ngenerously. ‘It is the policy of the courts to give a liberal\nconstruction to pro se habeas petitions.’”47 Reviewing the\nevents at trial reflected by the record and the habeas petition\n\n46\n See Preston v. Superintendent of Graterford SCI & Att’y\nGen. of Pa., No. 16-3095, slip op. at 21-22 (3d Cir. Sept. 5,\n2018) (stating that “[a]ctual resulting prejudice” may be\nestablished “with a substantial claim of ineffective\nassistance of trial counsel” (quoting Brown, 846 F.3d at\n513)).\n47\n Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010) (quoting\nUnited States ex rel. Montgomery v. Brierley, 414 F.2d 552,\n555 (3d Cir. 1969)).\n\n\n\n\n 22\n\fprepared pro se by Workman, we construe his third ground for\nrelief in his petition to raise a claim of ineffective assistance of\ntrial counsel based on trial counsel’s defective defense, which\nincluded calling no witnesses, presenting no evidence, and\narguing inconsistently with the testimony in evidence.\n\n C. Workman’s Post-Conviction Counsel\n Rendered Ineffective Assistance\n\n Workman’s state post-conviction counsel failed to\nrecognize the merit of Workman’s claim that trial counsel was\nconstitutionally ineffective for failing to present a cogent\ndefense. In a case in which trial counsel presented no witnesses\nor evidence and appeared on the face of the record to be unable\nto adapt to the medical examiner’s testimony that Hunt was\nalive when the ricocheted bullet struck him in the chest,\nWorkman’s state post-conviction counsel presented one claim\nin PCRA proceedings: “ineffective assistance of trial counsel\nfor failing to request a jury instruction that indicated that the\ntransferred intent doctrine also applied to the petitioner’s claim\nof defense of use of force to protect a third person.”48 The\nSuperior Court found that claim “nonsensical,” to the extent\nthat it could not determine what exactly Workman, through\nstate post-conviction counsel, claimed.49\n\n There is a “strong presumption” that an attorney’s\ndecision to pursue some claims and decline to pursue others is\na tactical choice.50 However, this presumption is not\n\n\n48\n App. at 329.\n49\n Id.\n50\n Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (“When counsel\nfocuses on some issues to the exclusion of others, there is a\n\n\n\n\n 23\n\finvincible: “A petitioner may rebut the suggestion that the\nchallenged conduct reflected merely a [tactical] choice . . . by\nshowing that counsel omitted significant and obvious issues\nwhile pursuing issues that were clearly and significantly\nweaker.”51\n\n Here, a significant and obvious issue existed: trial\ncounsel’s utter and complete failure to test the\nCommonwealth’s case with appropriate cross-examination of\nLieberman, his failure to present witnesses (either fact or\nexpert) in support of his position, or to adapt his argument to\nthe testimony in evidence instead of simply asserting the\ncontrary statement that “[Hunt is] dead. He’s dead from the\nfirst bullet.” 52 State post-conviction counsel overlooked these\nerrors, as is apparent from his letter to Workman that said,\n“Contrary to your assessment, a review of the notes of\ntestimony does not reveal ‘numerous issues of ineffective\nassistance of counsel.’ Trial counsel’s argument to the jury\nwas an attempt to save you from a first[-]degree murder\nconviction.”53\n\n Moreover, the claim that state post-conviction counsel\nchose to pursue was clearly and significantly weaker. The\nSuperior Court held that the “nonsensical claim of ineffective\nassistance of counsel lack[ed] merit.”54 It further stated that\n\n\nstrong presumption that he did so for tactical reasons rather\nthan through sheer neglect.”).\n51\n McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999)\n(citation and quotation marks omitted).\n52\n App. at 275.\n53\n App. at 460.\n54\n App. at 344.\n\n\n\n\n 24\n\f“even if we could make sense of [Workman’s] argument, he\nfails to establish how inclusion of the requested jury\ninstructions would have been so influential that it would have\nlikely changed the outcome of [Workman’s] trial.”55\n\n The evident weakness of this claim is not merely\nilluminated with the benefit of hindsight, as a “review of the\ncertified record reveals that the trial court gave a thorough jury\ninstruction regarding the defense of force to protect a third\nperson.”56 In other words, it appears that state post-conviction\ncounsel’s claim was that trial counsel was ineffective for\nfailing to request a jury instruction that was actually given.\nThis is the epitome of a doomed claim.\n\n In our view, Workman has rebutted the presumption\nthat state post-conviction counsel made a strategic choice in\nomitting the issue of trial counsel’s failure to present a cogent\ndefense, and that state post-conviction counsel’s performance\nwas deficient under the “performance” prong of Strickland.\nWe therefore conclude that Workman has satisfied the\nrequirements of Martinez. The procedural default of his\nineffective-assistance-of-trial-counsel claim is excused.\n\n D. The Ineffective Assistance of Workman’s\n Trial Counsel Violated Workman’s Sixth\n Amendment Right to Counsel\n\n Once procedural default is excused, “our review of a\npetitioner’s claim is de novo because the state court did not\n\n\n\n55\n Id.\n56\n Id.\n\n\n\n\n 25\n\fconsider the claim on the merits.”57 Our review of Workman’s\nclaim for ineffective assistance of trial counsel proceeds under\nthe two prongs of Strickland v. Washington,58 which require\nWorkman to show both that “counsel’s performance was\ndeficient” and that he was prejudiced as a result.59\n\n Workman’s trial counsel’s performance was deficient\nunder Strickland even without considering allegations of\ndefective advice and purported plea agreements. To establish\ndeficient performance, a “defendant must show that counsel’s\nrepresentation fell below an objective standard of\nreasonableness.”60 However, “to eliminate the distorting\neffects of hindsight . . . . a court must indulge a strong\npresumption that counsel’s conduct falls within the wide range\nof reasonable professional assistance; that is, the defendant\nmust overcome the presumption that, under the circumstances,\nthe challenged action ‘might be considered sound trial\nstrategy.’”61 Nonetheless, “[w]here the deficiencies in\ncounsel’s performance are severe and cannot be characterized\nas the product of strategic judgment, ineffectiveness may be\nclear.”62 Ultimately, “[t]he relevant question is not whether\n\n57\n Bey, 856 F.3d at 236 (citing Bronshtein v. Horn, 404 F.3d\n700, 710 n.4, 715 (3d Cir. 2005)).\n58\n 466 U.S. 668 (1984).\n59\n Id. at 687. Although the Court here conducts its own\nanalysis under Strickland, the Commonwealth concedes in its\nSupplement to Petition for Rehearing and Rehearing En Banc\nthat relief under Strickland is proper.\n60\n Id. at 688.\n61\n Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101\n(1955)).\n62\n United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)\n\n\n\n\n 26\n\fcounsel’s choices were strategic, but whether they were\nreasonable.”63\n\n The record is clear that counsel’s performance was\ndeficient. In response to Lieberman’s testimony, which\nindicated that the blood evidence revealed that Hunt was alive\nwhen he was shot in the chest by the ricocheted bullet fired by\nWorkman, trial counsel argued that Lieberman possessed\n“unmitigated gall.”64 Trial counsel did not call an expert\nwitness to rebut Lieberman’s testimony, or call any fact\nwitnesses. Trial counsel’s cross-examination of Lieberman\nfocused solely on establishing that Workman’s bullet did not\nhit Hunt first. At best, trial counsel established that Lieberman\ncould not conclusively state that Workman’s bullet hit Hunt\nbefore Moses’s. He utterly failed to contend with Lieberman’s\ntestimony that Moses’s bullet hit Hunt first, but Hunt remained\nalive when Workman’s bullet struck Hunt.\n\n “[T]he adversarial process protected by the Sixth\nAmendment requires that the accused have ‘counsel acting in\nthe role of an advocate.’”65 Workman’s trial counsel acted as\nan advocate not of his client but of his theory—that one cannot\nkill a dead man, and therefore the jury could not convict\nWorkman of homicide—all contrary to the facts and testimony\nbefore the jury. Any objective standard of reasonableness\nrequires counsel to understand facts and testimony and adapt\nto them, even at the expense of purportedly clever theories.\nWorkman’s trial counsel appears to have misunderstood or\n\n63\n Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000).\n64\n App. at 275.\n65\n United States v. Cronic, 466 U.S. 648, 656 (1984) (quoting\nAnders v. California, 386 U.S. 738, 743 (1967)).\n\n\n\n\n 27\n\fwillfully neglected this when faced with Lieberman’s\ntestimony. No sound strategy would support counsel’s\nchoices,66 and counsel’s performance falls below an objective\nstandard of reasonable performance.67\n\n Under Strickland, this deficient performance must be\npaired with specific prejudice—a “reasonable probability that,\nbut for counsel’s unprofessional errors, the result of the\nproceeding would have been different.”68 A “reasonable\nprobability is a probability sufficient to undermine confidence\nin the outcome.”69 Counsel’s failure in this case prejudiced\nWorkman. Counsel failed to present a case on behalf of his\nclient and, when cross-examining the Commonwealth’s\nwitnesses, failed to modify his theory of the case to account for\nthe evidence presented by the Commonwealth. Workman’s\ncounsel wholly failed to rebut the Commonwealth’s evidence,\n\n66\n Cf. Lewis v. Horn, 581 F.3d 92, 114 (3d Cir. 2009); Thomas\nv. Varner, 428 F.3d 491, 500 (3d Cir. 2005) (“In cases in which\nthe record does not explicitly disclose trial counsel’s actual\nstrategy or lack thereof (either due to lack of diligence on the\npart of the petitioner or due to the unavailability of counsel),\nthe presumption may only be rebutted through a showing that\nno sound strategy posited by the Commonwealth could have\nsupported the conduct.”).\n67\n Even as early as the preliminary hearing, Lieberman testified\nthat either gunshot wound would have been fatal to Hunt.\nThus, before trial began, counsel had notice that the\nCommonwealth had some evidence that cut against Workman.\nCounsel chose to ignore it and press his own theory to\nWorkman’s detriment.\n68\n Strickland v. Washington, 466 U.S. 668, 694 (1984).\n69\n Id.\n\n\n\n\n 28\n\finstead stating in his closing statement that Lieberman’s\ntestimony was supported only by “unmitigated gall.” Counsel\nalso requested jury instructions on involuntary and voluntary\nmanslaughter and defense of others, in an effort to establish\nthat Workman acted in defense of Hunt. Counsel, however,\ndid nothing to support a conviction for those lesser offenses.\nAlthough the Commonwealth mounted a strong case against\nWorkman, he is required here only to show that but for\ncounsel’s unprofessional errors there is a reasonable\nprobability that the outcome of the proceeding would have\nbeen different. He has met that burden.\n\n As a result, we hold that Workman’s trial counsel was\nconstitutionally ineffective. Workman is entitled to habeas\nrelief under 28 U.S.C. § 2254.\n\nIII. Conclusion\n\n For the foregoing reasons, we will vacate the order of\nthe District Court and remand with instructions to grant a\nconditional writ of habeas corpus.\n\n\n\n\n 29", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367038/", "author_raw": "District Judge"}]} | AMBRO | RESTREPO | FUENTES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4589785/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,589,786 | Earl PATTERSON, Appellant v. PENNSYLVANIA LIQUOR CONTROL BOARD | Earl Patterson v. Pennsylvania Liquor Control Bo | 2019-02-12 | 17-2742 | U.S. Court of Appeals for the Third Circuit | {"judges": "Greenaway, Restrepo, Bibas", "parties": "", "opinions": [{"author": "RESTREPO, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n\n _____________\n\n No. 17-2742\n _____________\n\n EARL PATTERSON\n Appellant\n\n v.\n\n PENNSYLVANIA LIQUOR CONTROL BOARD\n ______________\n\n On Appeal from the United States District Court\n for the Eastern District of Pennsylvania\n (D.C. Civ. Action No. 2-16-cv-05687)\n District Judge: Honorable J. Curtis Joyner\n ______________\n\n Argued: June 19, 2018\n ______________\n\n Before: GREENAWAY, JR., RESTREPO, BIBAS, Circuit\n Judges.\n\n (Opinion Filed: February 12, 2019)\n __\nWayne A. Ely,\nTimothy M. Kolman,\nW. Charles Sipio, [ARGUED]\nKolman Ely\n414 Hulmeville Avenue\nPenndel, PA 19047\n\n Counsel for Appellant\n\fJ. Bart DeLone\nJosh Shapiro\nClaudia M. Tesoro [ARGUED]\nOffice of Attorney General of Pennsylvania\n1600 Arch Street\nSuite 300\nPhiladelphia, PA 19103\n\n Counsel for Appellee\n ______________\n\n OPINION OF THE COURT\n ______________\n\n\nRESTREPO, Circuit Judge.\n\n Earl Patterson was employed as a maintenance person\nfor the Pennsylvania Liquor Control Board (“PLCB”) when he\nreported for duty at a PLCB-operated liquor store in\nEddystone, Pennsylvania. Shortly after his arrival, the\nlocation’s assistant manager accused him of attempting to rob\nthe store. Patterson was detained by the police as a result of the\nPLCB employee’s accusation. Patterson filed a Complaint\npursuant to 42 U.S.C. §§ 1981 and 1983 against the PLCB\nalleging race discrimination and violations of Fourteenth\nAmendment Equal Protection in connection with these events.\nPatterson now appeals the District Court’s Order granting the\nPLCB’s motion to dismiss his Complaint on Eleventh\nAmendment sovereign immunity grounds.1 For the reasons\nthat follow, we will affirm.\n\n I.\n\n On the morning of November 17, 2014, Patterson—an\nAfrican-American male and a longtime PLCB employee\nperforming maintenance—arrived at a PLCB-run store in\nEddystone, Pennsylvania to inquire about the store’s operating\n\n1\n Patterson has withdrawn his claim under 42 U.S.C. § 1981,\nand now bases his appeal on the District Court’s\ndetermination that his claim under 42 U.S.C. § 1983 is barred\non Eleventh Amendment sovereign immunity grounds.\n 2\n\fcondition. Upon his arrival, Patterson asked for a manager and\nwas directed by a store clerk to the assistant manager. Patterson\nthen identified himself to the assistant manager as a\nmaintenance worker for the PLCB and asked whether the\nstore’s electricity and plumbing were in working order or if the\nstore might otherwise be in need of repairs. The assistant\nmanager became “very rude” to Patterson, so he exited the\nliquor store, entered his “state-owned van, and reported the\nassistant manager to his foreman over the phone.” App. 11. Per\nhis foreman’s instruction, Patterson left the Eddystone store\nand drove towards another PLCB store in Newtown Square,\nPennsylvania.\n\n En route to the Newtown Square store, Patterson was\nstopped by the police and questioned about “robbing” the\nEddystone store. Id. During the stop, an officer informed\nPatterson that the Eddystone assistant manager had called to\nreport a “black guy” in a “state van” who was trying to “rob\nher store.” App. 11-12.\n\n Patterson filed a Complaint against the PLCB alleging\nrace discrimination and violations of the Fourteenth\nAmendment’s Equal Protection Clause, pursuant to 42 U.S.C.\n§§ 1981 and 1983. The PLCB filed a motion to dismiss for\nfailure to state a claim pursuant to Federal Rule of Civil\nProcedure 12(b)(6), which the District Court granted upon a\nfinding that the PLCB was entitled to Eleventh Amendment\nsovereign immunity from suit. Patterson appeals, arguing that\nthe District Court erred in finding that the PLCB was an “arm”\nof the Commonwealth of Pennsylvania. Patterson contends\nthat, in reaching its conclusion that the PLCB is immunized\nfrom suit under the Eleventh Amendment, the District Court\nimproperly weighed this Court’s three-factor test, established\nin Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655,\n659 (3d Cir. 1989) (en banc).\n\n II.\n\n The District Court had jurisdiction pursuant to 28\nU.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. §\n1291. We exercise plenary review over a District Court’s\ndismissal of an action pursuant to Rule 12(b)(6). Estate of\nLagano v. Bergen Cty. Prosecutor’s Office, 769 F.3d 850, 853\n(3d Cir. 2014). We review de novo whether an entity is entitled\n 3\n\fto sovereign immunity. Karns v. Shanahan, 879 F.3d 504, 512\n(3d Cir. 2018).\n\n III.\n\n Though, by its terms, the Eleventh Amendment\nimmunizes only “States” against private actions brought by\ncitizens of other states, see U.S. Const. amend. XI, it is “well\nestablished” that suits brought by in-state litigants against\n“arms” of a state “may nonetheless be barred by the Eleventh\nAmendment.” Karns, 879 F.3d at 512–13 (quoting Edelman v.\nJordan, 415 U.S. 651, 663 (1974), and Bowers v. Nat’l\nCollegiate Athletic Ass’n, 475 F.3d 524, 545 (3d Cir. 2007));\nsee also Hans v. Louisiana, 134 U.S. 1, 20 (1890).\n\n A party is an “arm of the state” for sovereign immunity\npurposes when “the state is the real, substantial party in\ninterest.” Ford Motor Co. v. Dep’t of Treasury of Ind., 323 U.S.\n459, 464 (1945), overruled on other grounds by Lapides v. Bd.\nof Regents of Univ. Sys. of Ga., 535 U.S. 613, 623 (2002).\n“[T]he relationship between the State and the entity in\nquestion” is critical to this inquiry. Regents of the Univ. of Cal.\nv. Doe, 519 U.S. 425, 429 (1997). We employ a three-factor\ntest to determine an entity’s sovereign immunity status: “(1)\nwhether the payment of the judgment would come from the\nstate; (2) what status the entity has under state law; and (3)\nwhat degree of autonomy the entity has.” Karns, 879 F.3d at\n513 (quoting Bowers, 475 F.3d at 546). We regard the three\nfactors as “co-equal.” Benn v. First Judicial Dist. of Pa., 426\nF.3d 233, 239–40 (3d Cir. 2005). Thus after assessing in which\ndirection each factor points, “we balance them to determine\nwhether an entity amounts to an arm of the State.” Maliandi,\n845 F.3d at 84.\n\n Below, we will assess the factors and their relevant\nsubfactors. Part III.A. considers whether the state or the PLCB\nfunds payment of an adverse judgment; Part III.B. reviews\nwhether state law treats the PLCB as an arm of the state; and\nPart III.C. examines the PLCB’s autonomy relative to the state.\n\n A.\n\n When analyzing the funding factor, we first ask\n“[w]hether the money that would pay the judgment would\n\n 4\n\fcome from the state.” Fitchik, 873 F.2d at 659. To evaluate this\nquestion, we consider three subfactors: (1) a state’s legal\nobligation to pay a money judgment entered against the entity;\n(2) whether the agency has money to satisfy the judgment; and\n(3) whether there are specific statutory provisions that\nimmunize the state from liability for money judgments. Id.; see\nalso Maliandi, 845 F.3d at 86. We evaluate each subfactor in\nturn, below.\n\n i.\n\n The first funding subfactor focuses on “whether the\nstate treasury is legally responsible for the payment of a\njudgment.” Febres v. Camden Bd. of Educ., 445 F.3d 227, 233\n(3d Cir. 2006) (emphasis added). Accordingly, if a state\nindemnifies an entity voluntarily, the funding factor will likely\ndisfavor granting sovereign immunity. See Maliandi, 845 F.3d\nat 87. Pennsylvania is not legally obligated to pay for\njudgments entered against the PLCB. After the PLCB pays a\njudgment, the Governor may choose to reimburse the PLCB—\nbut there is no legal obligation to do so. See 47 Pa. Cons. Stat.\n§ 744-910 (“The State Treasurer is hereby authorized and\ndirected to transfer such sums from the General Fund to the\nState Stores Fund as the Governor . . . shall direct.”).\nAccordingly, this subfactor weighs definitively against\ngranting the PLCB sovereign immunity.\n\n The PLCB instead argues that this subfactor only\nslightly disfavors a finding of sovereign immunity. Appellee’s\nBr. 19. Specifically, the PLCB contends that its funds\neffectively “morph into Commonwealth funds” because the\nfunds are subject to a high level of oversight from state\nofficials. Id. Therefore, an adverse judgment’s practical effect\nwould constitute a state legal obligation to keep the PLCB\nafloat. Id.\n\n We do not agree. Although practical effects arguments\nhave, on occasion, “enter[ed] [our] calculus,” Febres, 445 F.3d\nat 236, such instances have been limited to situations where\n“Congress has put a proverbial ‘gun to the head’ of the State to\nsustain the entity even without a legal obligation.” Maliandi,\n845 F.3d at 87 n.7 (citing Alaska Cargo Transp., Inc. v. Alaska\nR.R. Corp., 5 F.3d 378 (9th Cir. 1993) (holding that an adverse\njudgment against the state agency had the practical effect of\n 5\n\fimpacting the state’s treasury because federal law effectively\nrequired Alaska to keep the entity operational); Morris v.\nWash. Metro. Area Transit Auth., 781 F.2d 218 (D.C. Cir.\n1986) (finding that a judgment against the Washington\nMetropolitan Area Transit Authority would directly affect\nMaryland and Virginia’s treasuries because of their practical\nfinancial commitments to the entity)).\n\n Here, we find the PLCB’s argument unavailing, as the\nstate is not legally obligated to pay for an adverse judgment,\nand there is no legislative coercion for the state to do so.\nThough the practical effects argument is not convincing in\nterms of this subfactor, the state’s high level of control over the\nPLCB is relevant to the third subfactor—the PLCB’s\nautonomy—and, accordingly, we will discuss it below. Fitchik,\n873 F.2d at 660 (reasoning that New Jersey’s veto power over\nNew Jersey Transit’s operations indicated a lack of autonomy\nfrom the state, not financial dependency).\n\n In sum, as the PLCB is responsible for the payment of\njudgments, and the state has no legal obligation to indemnify\nit, this subfactor points definitively against affording the PLCB\nsovereign immunity.\n\n ii.\n\n The second subfactor requires us to determine whether\nthe entity has money to pay an adverse judgment, and whether\n“the entity has sources of funding aside from state\nappropriations” that could satisfy the judgment. Maliandi, 845\nF.3d at 88; accord Fitchik, 873 F.2d at 660–62. We also\nconsider the degree of control the state maintains over any\nfunds it appropriates to the entity. See Fitchik, 873 F.2d at 661.\n\n The PLCB obtains revenue from the sale of liquor,\nwhich is then deposited into the State Stores Fund, a “separate\nfund from the State Treasury.” Heppler v. Pa. Liquor Control\nBd., No. 10-3430, 2011 WL 2881221, at *5 (E.D. Pa. July 18,\n2011). Money in the State Stores Fund is appropriated by the\nPennsylvania General Assembly to the PLCB for its daily\noperations, and for “otherwise administering and enforcing the\nPennsylvania Liquor Control Act.” 47 Pa. Cons. Stat. § 744–\n907. This includes the payment of judgments entered against\nthe PLCB. Heppler, 2011 WL 2881221, at *5 (finding that a\n\n 6\n\f“payment of a judgment against the PLCB would be paid out\nof the State Stores Fund”). In the event that the PLCB did not\nhave sufficient funds to satisfy a judgment, it could “obtain\nsufficient funds by raising its revenues.” Id.; accord Christy v.\nPa. Turnpike Comm’n, 54 F.3d 1140, 1146–47 (3d Cir. 1995)\n(holding that the Pennsylvania Turnpike Commission could\npay for a judgment through its “power to raise revenue levels\nby increasing the toll rates”).\n\n Alternatively, if the PLCB was unable to satisfy a\njudgment, the state could transfer funds to it as directed by the\nGovernor; however, the PLCB would be required to reimburse\nthe state “no[] later than thirty days after the end of such fiscal\nyear or period.” 47 Pa. Cons. Stat. § 744–911. Funds\nappropriated to the PLCB effectively operate as a loan,\nindicating that the state exerts some financial control over it.\nThis control is, however, outweighed by the PLCB’s ability to\nsatisfy a judgment with its own source of revenue and to raise\nadditional funds without significant state involvement. This\ndemonstrates a level of financial independence not\ncharacteristic of an entity considered an arm of the state.\nAccordingly, this subfactor tilts away from a finding of\nsovereign immunity.\n\n iii.\n\n The third subfactor instructs us to determine whether\nthe state has immunized itself from the entity’s debts. Fitchik,\n873 F.2d at 659. If the state has absolved itself of\nresponsibility, this suggests that the entity is not considered an\narm of the state. Maliandi, 845 F.3d at 90.\n\n There is no specific provision in the Liquor Code that\nimmunizes the state from the PLCB’s liabilities. When\nassessing this subfactor, the Heppler Court found that the\nPLCB is likely expected to pay off its own debts because there\nis a provision in the Liquor Code, see 47 Pa. Cons. Stat. § 744-\n910, that instructs the PLCB to transfer any surplus revenue to\nthe state, “indicating solvency beyond its operating budget.”\nHeppler, 2011 WL 2881221, at *5. Moreover, any temporary\nloans to the PLCB must be repaid within the fiscal year. Id.;\nsee 47 Pa. Cons. Stat. § 744-911. Thus, this subfactor weighs\nslightly against affording immunity.\n\n 7\n\f In summary, because the state is not legally responsible\nfor adverse judgments, the PLCB can satisfy a judgment using\nrevenue obtained from liquor sales, and the PLCB is\nresponsible for its own debts, the funding factor weights\ndefinitively against granting the PLCB sovereign immunity.\n\n B.\n\n The second factor requires us to examine whether state\nlaw treats the PLCB as an arm of the state. Fitchik, 873 F.2d at\n659. We consider four subfactors: (1) how the law treats the\nagency generally; (2) whether the agency is separately\nincorporated; (3) whether the agency can sue and be sued in its\nown right; (4) and whether it is immune from state taxation. Id.\n\n i.\n\n Pennsylvania statutory and case law indicate that the\nPLCB is considered an arm of the state for sovereign immunity\npurposes. First, Pennsylvania’s state sovereign immunity\nstatute grants the PLCB state sovereign immunity except under\nspecific circumstances. See 42 Pa. Cons. Stat. § 8522(b)(7)\n(excepting sovereign immunity for the sale of liquor to “any\nminor, or to any person visibly intoxicated, or to any insane\nperson, or to any person known as an habitual drunkard, or of\nknown intemperate habit”); see also Heppler, 2011 WL\n2881221, at *6 (citing that the “PLCB is an agency which is\nentitled to sovereign immunity pursuant to the state sovereign\nimmunity statute, 42 Pa. Cons. Stat. § 8522(a)”).\n\n Furthermore, Pennsylvania state courts have\nconsistently found that the PLCB is an arm of the state entitled\nto state sovereign immunity. See Merchs.’ Warehouse Co. v.\nGelder, 36 A.2d 444, 448 (Pa. 1944) (“The [PLCB] is an\nagency of this Commonwealth created by it for the purpose of\ncarrying out a state function and for this reason is clothed with\nimmunity from suit.”); Biello v. Pa. Liquor Control Bd., 301\nA.2d 849, 852 (Pa. 1973) (reaffirming the holding in Gelder);\nBrey v. Commonwealth, 381 A.2d 228, 229 (Pa. Commw. Ct.\n1978).\n\n Finally, in Karns, we considered the extent to which\nNew Jersey Transit officers are vested with “general authority,\nwithout limitation, to exercise police powers.” Karns, 879 F.3d\n\n 8\n\fat 517. We concluded that “New Jersey law regards NJ Transit\nas exercising the official police powers of the state.” Id. Here,\nthe PLCB was created under the Liquor Code as “an exercise\nof the police power of the Commonwealth for the protection of\nthe public welfare, health, peace and morals of the people of\nthe Commonwealth.” 47 Pa. Cons. Stat. § 1-104(a). This too\nsupports the view that Pennsylvania law regards the PLCB as\nan arm of the state.\n\n Though general treatment under state law is\ninformative, it is not dispositive; this subfactor “does not\nnecessarily overshadow the other relevant subfactors.” Cooper\nv. Se. Pa. Transp. Auth., 548 F.3d 296, 308 (3d Cir. 2008).\nThus, we note that the PLCB is generally treated as an arm of\nthe state under state law, and continue our analysis of the\nsecond factor.\n\n ii.\n\n Next, we review the entity’s corporation status. When\nan entity is separately incorporated, this weighs against\naffording the entity sovereign immunity. Febres, 445 F.3d at\n230–31.\n\n The PLCB argues that it does not have a separate\ncorporate existence because the Liquor Code does not\nexplicitly state whether the PLCB is separately incorporated.\nAppellee’s Br. 20. Patterson argues, however, that the PLCB is\nseparately incorporated because the Liquor Code defines it as\nan “independent administrative board.” Appellant’s Br. 11\n(quoting 47 Pa. Cons. Stat. § 2-201).\n\n We have repeatedly held that an entity is separately\nincorporated when there is statutory language explicitly stating\nthe same. See Cooper, 548 F.3d at 307 (citing 74 Pa. Cons.\nStat. § 1711(a)) (finding an entity to be separately incorporated\nunder its enabling statute, which stated that it has “a separate\ncorporate existence”); Febres, 445 F.3d at 230 (citing N.J. Stat.\nAnn. § 18A:10-1) (considering a New Jersey entity separately\nincorporated based on a state statute’s language stating “under\nthe supervision of a board of education, which shall be a body\ncorporate”); Fitchik, 873 F.2d at 663 (citing N.J. Stat. Ann. §\n27:25-4(a) (creating NJ Transit as “a body corporate and politic\nwith corporate succession”)).\n 9\n\f Here, there is no explicit statutory provision stating that\nthe PLCB is separately incorporated, and Patterson does not\noffer any evidence as to why the PLCB being an “independent\nagency” is relevant to its incorporation status. Therefore, we\nfind Patterson’s argument unconvincing, and that this\nsubfactor favors a finding of sovereign immunity.\n\n iii.\n\n The Liquor Code does not give the PLCB power to sue\nor be sued as a separate entity from the Commonwealth, setting\nthe PLCB apart from many other entities created by\nPennsylvania law. Compare 47 Pa. Cons. Stat. § 2-207\n(demonstrating that enumerated powers of the PLCB do not\ninclude ability to sue or be sued); with 4 Pa. Cons. Stat. §\n1202(b)(3) (listing capacity to sue or be sued under general\npowers of Pennsylvania Gaming Control Board); and 36 Pa.\nCons. Stat. § 652d (powers of Pennsylvania Turnpike\nCommission include ability to sue and be sued); and 40 Pa.\nCons. Stat. § 4103 (stating that the Pennsylvania Interstate\nInsurance Product Regulation Compact can “bring and\nprosecute legal proceedings or actions in its name as the\nCommission”). Accordingly, the fact that the Liquor Code\ndoes not state that the PLCB can sue and be sued as its own\nagency indicates that PLCB does not have this power.\n\n Patterson argues that the PLCB has the ability to sue and\nbe sued as its own entity due to the Supreme Court of\nPennsylvania’s holding in Pennsylvania Liquor Control\nBoard. v. Rapistan, Inc., 371 A.2d 178 (Pa. 1976). Appellant’s\nBr. 10-11. This argument is misguided. In Rapistan, the court\nstated that the “PLCB could institute an action before [a\nCommonwealth Court]. However, [the court] stated that the\nsuit should be brought by the Commonwealth and not by the\nindividual agency.” Rapistan, 371 A.2d at 185 n.10. Thus, it is\nclear that Rapistan did not permit the PLCB to bring suit as an\nindividual agency; rather, Rapistan allowed the PLCB to sue\nunder the name of Commonwealth.\n\n Thus, we find that this subfactor also leans towards a\nfinding of sovereign immunity.\n\n\n\n\n 10\n\f iv.\n\n There is no statutory indication that the PLCB is\nimmune from state taxation. Compare 47 Pa. Cons. Stat. § 8-\n803 (failing to discuss taxation requirements under the general\nduties of the PLCB), with 36 Pa. Cons. Stat. § 653(m) (stating\nthat the Pennsylvania Turnpike Commission “shall not be\nrequired to pay any taxes or assessments on any property\nacquired or used by it.”). The PLCB does not, however, pay\ntaxes on its revenues, property, or bonds, “suggest[ing] that\nPennsylvania state law considers the PLCB an arm of the\nstate.” Heppler, 2011 WL 2881221, at *7. Thus, this subfactor\nfactor slightly favors sovereign immunity.\n\n v.\n\n In sum, three of the four subfactors only slightly tilt\ntoward granting immunity: separate incorporation, power to\nsue and be sued, and immunity from state taxes. The remaining\nsubfactor, consideration of the PLCB as an arm of the state\nunder Pennsylvania statutory and case law, tips the balance in\nfavor of granting the PLCB sovereign immunity under the\nsecond factor.\n\n C.\n\n The third factor instructs us to examine the degree to\nwhich an entity is autonomous from the state, while “focusing\non the entity’s governing structure and the oversight and\ncontrol exerted by a State’s governor and legislature.”\nMaliandi, 845 F.3d at 96 (citing Febres, 445 F.3d at 231–32;\naccord Fitchik, 873 F.2d at 663–64).\n\n There are numerous statutory provisions in the Liquor\nCode that indicate the PLCB is subject to substantial oversight\nfrom the state. First, the executive and legislative branches\nhave significant control over the PLCB in terms of the\ncomposition of the Board. See 47 Pa. Cons. Stat. §§ 2-201–\n204. For example, the Governor appoints the members of the\nBoard with consent of the Senate, id. § 2-201; appoints the\nchairman of the Board, id. § 2-203; and can appoint a secretary\nof the Board, id. § 2-204.\n\n\n\n 11\n\f Additionally, the state imposes several constraints on\nthe members of the Board: the Liquor Code proscribes how\nlong they may serve on the Board, id. § 2-201; denotes how old\nBoard members must be, id. § 2-202(a); prohibits members\nfrom holding any other office or position while serving on the\nBoard, id. § 2-202(b); and requires Board members to follow\nthe State Public Official and Employee Ethics Law, id. § 2-\n206.1.\n\n The state also prescribes the general powers of the\nBoard and specifies how it shall operate, including the general\npowers of the Board; id. § 2-207; the types of regulations the\nPLCB is permitted to create are predefined by state statute; id.\n§ 2-208; and the state directs the PLCB to transfer two percent\nof its annual profits from the sale of liquor to the Department\nof Health; id. § 8-802(c).\n\n The PLCB does have some autonomy, however, in that\nit has the power to grant and revoke liquor licenses, lease\nbuildings for liquor stores, and make certain regulations that it\ndeems necessary for the efficient administration of the Liquor\nCode. Heppler, 2011 WL 2881221, at *7. Nonetheless, these\npowers were ascribed by the state and are still subject to the\nAdministrative Code. 47 Pa. Cons. Stat. § 2-206.\n\n In sum, the PLCB is subject to substantial oversight\nfrom the state. Therefore, we find that this factor weighs\ndefinitively in favor of finding that the PLCB is an arm of the\nstate.\n\n D.\n\n We now balance the three factors to determine whether\nthe PLCB is an arm of the state. Maliandi, 845 F.3d at 84.\nAgain, it is important to note that “courts should not simply\nengage in a formulaic or mechanical counting up of the\nfactors.” Karns, 879 F.3d at 513–14. Rather, we must assess\n“the qualitative strength of each factor in the context of the\ncircumstances presented.” Id. at 519.\n The funding factor strongly weighs against affording\nsovereign immunity, as the PLCB has significant financial\nindependence from the state. The “status under the law” factor,\nthough less definitive, tips in favor of immunity because\nPennsylvania statutory and case law overwhelmingly views the\n\n 12\n\fPLCB as an arm of the state. The autonomy factor weighs\nstrongly in favor of immunity because the PLCB is subject to\nsubstantial oversight and control from the state’s executive and\nlegislative branches. On balance, the first and third factors\neffectively cancel each other out, as they point in opposite\ndirections. The PLCB’s status under Pennsylvania law tips the\nscale in favor of the PLCB being considered an arm of the state.\nWe therefore conclude the PLCB is an arm of the state that is\nentitled to Eleventh Amendment sovereign immunity.2\n\n ***\n\n For the foregoing reasons, we will affirm the order of\nthe District Court granting the PLCB’s motion to dismiss.\n\n\n\n\n2\n In so holding, Patterson's claim fails for a separate reason: a\nstate, including an entity that is an arm of the state, is not a\n\"person\" under 42 U.S.C. § 1983, and therefore cannot be sued\nfor damages under that statute. See Will v. Michigan Dept. of\nState Police, 491 U.S. 58, 64, 70-71 (1989).\n 13", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367039/", "author_raw": "RESTREPO, Circuit Judge."}]} | GREENAWAY | RESTREPO | BIBAS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4589786/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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4,590,193 | James Adams v. Governor of Delaware | 2019-02-13 | 18-1045 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: MCKEE, RESTREPO, and FUENTES, Circuit Judges.", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _________________\n\n No. 18-1045\n _________________\n\n JAMES R. ADAMS\n\n v.\n\n GOVERNOR OF DELAWARE,\n Appellant\n _________________\n\n On Appeal from the United States District Court\n for the District of Delaware\n (D.C. No. 17-cv-00181)\n Honorable Mary Pat Thynge, U.S. Magistrate Judge\n\n Before: MCKEE, RESTREPO, and FUENTES, Circuit Judges.\n _________________\n\n ORDER\n _________________\n\n IT IS NOW ORDERED that the opinion filed on February 5, 2019 in the above\ncaptioned case be amended as follows:\n\n On page 11, the text of footnote 16 shall be replaced by the following:\n\n See Joel Edan Friedlander, Is Delaware’s ‘Other Major Political Party’\n Really Entitled to Half of Delaware’s Judiciary?, 58 Ariz. L. Rev. 1139, 1154\n (2016).\n\n An amended precedential opinion is being filed concurrently with this Order. The\namendment does not substantively change the Opinion, therefore, the filing date of the\nOpinion will not be modified nor the judgment.\n\n By the Court:\n\n s/ Julio M. Fuentes\n Circuit Judge\n Dated: February 13, 2019", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367446/", "author_raw": ""}]} | MCKEE | RESTREPO | FUENTES | 1 | {"MCKEE": ", Circuit", "RESTREPO": ", Circuit", "FUENTES": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4590193/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,590,194 | James Adams v. Governor of Delaware | 2019-02-13 | 18-1045 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: MCKEE, RESTREPO, and FUENTES, Circuit Judges.", "parties": "", "opinions": [{"author": "FUENTES, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _________________\n\n No. 18-1045\n _________________\n\n\n JAMES R. ADAMS\n\n v.\n\n GOVERNOR OF DELAWARE,\n\n\n Appellant.\n _________________\n\n On Appeal from the United States District Court\n for the District of Delaware\n (D.C. No. 17-cv-00181)\n Honorable Mary Pat Thynge, U.S. Magistrate Judge\n\n _________________\n\n Argued September 25, 2018\n\nBefore: MCKEE, RESTREPO, and FUENTES, Circuit\n Judges.\n\n (Filed February 13, 2019)\n\nDavid C. McBride, Esq. [Argued]\nPilar G. Kraman, Esq.\nMartin S. Lessner, Esq.\nYoung Conaway Stargatt & Taylor\n1000 North King Street\nRodney Square\nWilmington, DE 19801\n\n Counsel for Appellant\n\nDavid L. Finger, Esq. [Argued]\nFinger & Slanina\n1201 Orange Street\nOne Commerce Center, Suite 725\nWilmington, DE 19801\n\n Counsel for Appellee\n\n _________________\n\n OPINION OF THE COURT\n _________________\n\n\nFUENTES, Circuit Judge.\n\n James R. Adams is a resident and member of the State\nBar of Delaware. For some time, he has expressed a desire to\nbe considered for a judicial position in that state. Following\nthe announcement of several judicial vacancies, Adams\nconsidered applying but ultimately chose not to because the\nannouncement required that the candidate be a Republican.\n\n\n\n\n 2\n\nBecause Adams was neither a Republican nor a Democrat, he\nconcluded that any application he submitted would be futile.\n\n Adams brings this suit against the Governor of the State\nof Delaware to challenge the provision of the Delaware\nConstitution that effectively limits service on state courts to\nmembers of the Democratic and Republican parties. Adams\nclaims that under the Supreme Court’s precedent in Elrod v.\nBurns1 and Branti v. Finkel,2 a provision that limits a judicial\ncandidate’s freedom to associate (or not to associate) with the\npolitical party of his or her choice is unconstitutional. The\nGovernor argues that because judges are policymakers, there\nare no constitutional restraints on his hiring decisions and he\nshould be free to choose candidates based on whether they\nbelong to one of the two major political parties in Delaware—\nthat is, whether they are Democrats or Republicans. We\ndisagree and conclude that judges are not policymakers\nbecause whatever decisions judges make in any given case\nrelates to the case under review and not to partisan political\ninterests. We therefore conclude that the portions of\nDelaware’s constitution that limit Adams’s ability to apply for\na judicial position while associating with the political party of\nhis choice violate his First Amendment rights, and we will\naccordingly affirm in part and reverse in part the District\nCourt’s grant of summary judgment in favor of Adams.\n\n\n\n\n1\n 427 U.S. 347 (1976).\n2\n 445 U.S. 507 (1980).\n\n\n\n\n 3\n\n Background\n\n A. Article IV, Section 3 of the Delaware\n Constitution\n\n In 1897, Delaware was unique in its method of judicial\nselection—it was the only state in the country in which the\ngovernor appointed judges without legislative involvement.3\nJudicial selection became an important and contentious topic\nduring Delaware’s constitutional convention that year.\nDebating whether or not to move to a system of judicial\nelection, delegates to the convention expressed their deep\nconcern over the politicization of the judiciary. John Biggs,\nSr., the president of the convention, explained his position that\nthe appointment of judges would enable judges to remain free\nfrom political cronyism and partisanship:\n\n I think it would be very unwise that\n our Judges should be mixed up, I\n will say, in politics. We can obtain\n good men in this way, by the\n confirmation by the Senate,\n without those men being under\n political obligations, such as are\n engendered at primaries and at\n general elections.\n\n And there are reasons, it occurs to\n me, why the Judges should not be\n elected that perhaps do not apply to\n\n3\n Randy J. Holland, The Delaware State Constitution: A\nReference Guide 128 (2002).\n\n\n\n\n 4\n\n any other officers. For after all,\n Judges are but human. Whoever\n sits upon the Bench to pass upon\n the rights of yours as to your\n liberty and your property ought\n certainly to be as free from all\n influence and bias, political and\n otherwise, as it is possible to throw\n around that man.4\n\n The delegates ultimately recommended amending the\nDelaware Constitution to provide for gubernatorial nomination\nof judges, with confirmation by the Senate. They did not stop\nthere, however, and debated a novel approach designed to\nmake the judiciary “non-partisan, or if it be a better word, bi-\npartisan”—a limitation on the number of judges from one party\nthat could sit on the bench at any given time.5\n\n Some delegates voiced their support for the provision,\nstating that minority representation on the judicial bench would\n“bring about a fuller and freer discussion of these matters that\ncome before them and that they may make fair and impartial\ndecisions on those questions.”6 Some, however, expressed\nconcern that the provision would bring about the opposite\nresult. As delegate Andrew Johnson explained:\n\n It is well known that [judges\n serving on Delaware’s] Judiciary\n at the present time have been\n\n4\n J.A. 117–18.\n5\n J.A. 130.\n6\n J.A. 133.\n\n\n\n\n 5\n\n appointed from one political party.\n That probably is not the best\n course to pursue, and I would be\n very glad to see the Governor of\n this State appoint well equipped\n men from another party. I would\n hail the day when it was done and\n would be glad to have it; but to\n vote to compel a Governor to\n appoint a man on account of his\n political affiliation, you are simply\n saying, “You are put upon the\n Bench to look out for our party\n interests whenever they come up.”\n There is no other construction that\n you can put upon it. There can be\n no other, in my own mind,\n established, and that man is\n expected, whenever a political\n question arises, before that Court\n to take care of his own party rights\n or privileges.7\n\n Ultimately, the provision prevailed, and Delaware’s\nconstitution has included some form of a political balance\nrequirement ever since. In 1951, as part of a wider series of\nstructural changes to the Delaware judiciary, the provision was\nmodified to exclude third party and unaffiliated voters from\napplying to serve as judges on the Supreme Court, Superior\nCourt, and Chancery Court in Delaware. The system thus\ncreated is binary, excluding all candidates from consideration\n\n7\n J.A. 134.\n\n\n\n\n 6\n\nexcept those of the Republican or Democratic parties. The\nprovision has been reaffirmed during the amendment process\nseveral times, including in 2005. Article IV, Section 3 of the\nDelaware Constitution now reads in relevant part:\n\n Appointments to the office of the\n State Judiciary shall at all times be\n subject to all of the following\n limitations:\n\n First, three of the five Justices of\n the Supreme Court in office at the\n same time, shall be of one major\n political party, and two of said\n Justices shall be of the other major\n political party.\n\n Second, at any time when the total\n number of Judges of the Superior\n Court shall be an even number not\n more than one-half of the members\n of all such offices shall be of the\n same political party; and at any\n time when the number of such\n offices shall be an odd number,\n then not more than a bare majority\n of the members of all such offices\n shall be of the same major political\n party, the remaining members of\n such offices shall be of the other\n major political party.\n\n\n\n\n 7\n\nThird, at any time when the total\nnumber of the offices of the\nJustices of the Supreme Court, the\nJudges of the Superior Court, the\nChancellor and all the Vice-\nChancellors shall be an even\nnumber, not more than one-half of\nthe members of all such offices\nshall be of the same major political\nparty; and at any time when the\ntotal number of such offices shall\nbe an odd number, then not more\nthan a bare majority of the\nmembers of all such offices shall\nbe of the same major political\nparty; the remaining members of\nthe Courts above enumerated shall\nbe of the other major political\nparty.\n\nFourth, at any time when the total\nnumber of Judges of the Family\nCourt shall be an even number, not\nmore than one-half of the Judges\nshall be of the same political party;\nand at any time when the total\nnumber of Judges shall be an odd\nnumber, then not more than a\nmajority of one Judge shall be of\nthe same political party.\n\nFifth, at any time when the total\nnumber of Judges of the Court of\n\n\n\n\n 8\n\n Common Pleas shall be an even\n number, not more than one-half of\n the Judges shall be of the same\n political party; and at any time\n when the total number of Judges\n shall be an odd number, then not\n more than a majority of one Judge\n shall be of the same political\n party.8\n\n Thus, the provision is made up of five sections—one\naddressing the Supreme Court, one addressing the Superior\nCourt, one addressing combined membership of those courts\nand the Chancery Court, one addressing the Family Court, and,\nfinally, one addressing the Court of Common Pleas.\nSignificantly, there are also two separate, but connected,\nsubstantive components: the bare majority component (which\nlimits the number of judicial positions that can be occupied by\nmembers of a single political party) 9 and the major political\nparty component (which mandates that the other judicial\npositions must be filled with members of the other major\npolitical party in Delaware). In practice, then, most courts\nmust be filled with Democrats and Republicans exclusively.\n\n\n\n\n8\n Del. Const. art. IV, § 3.\n9\n When there are an even number of judges on a given court,\nno more than half of the judicial seats may be held by members\nof a single political party. When there is an odd number of\njudicial positions, no more than a bare majority (that is, one\nseat above half) may be held by members of a party. Id.\n\n\n\n\n 9\n\n B. Judicial Nominations in Delaware\n\n Since 1978, Delaware governors have relied on judicial\nnominating commissions to identify qualified candidates for\njudicial appointments.10 Eleven of the twelve commission\nmembers are appointment by the Governor, and the twelfth is\nappointed by the president of the Delaware State Bar\nAssociation with the consent of the Governor.11 The\ncommission provides a list of three recommended candidates\nto the Governor. The Governor is not free to ignore the\ncommission’s recommendations; if he is not satisfied with the\nlist, the commission generates another list of candidates.12 The\nnominating commission is politically balanced and comprised\nof both lawyers and non-lawyers.13\n\n When a judicial position becomes available, the\nnominating commission gives public notice of the positions\navailable, the salary, and the job requirements, including the\nparty membership required for nomination. For example, in\nAugust 2012, the commission gave notice of five open judicial\npositions, of which three were open only to candidates who\nwere members of the Democratic Party and two were open to\nmembers of either political party.\n\n\n\n\n10\n Holland, supra note 3, at 129.\n11\n See Executive Order 16, available at:\nhttps://governor.delaware.gov/executive-orders/ eo16/.\n12\n Holland, supra note 3, at 129.\n13\n Id.\n\n\n\n\n 10\n\n C. James Adams’s Search for a Judicial\n Position\n\n James Adams, a member of the Delaware State Bar, is\nan Independent who desires a judicial position but has not\napplied for one due to his current political affiliation.\n\n Throughout his career, Adams was a registered\nDemocrat and participated with the Democratic Party. In early\n2017, that changed, as Adams became an Independent voter for\nthe first time.14 Adams explained that he changed his\naffiliation because he is progressive and grew frustrated with\nthe centrism of the Democratic Party in Delaware. He now\ndescribes himself as “more of a [Vermont Senator] Bernie\n[Sanders] independent.”15\n\n Around the same time, Adams read an essay\nquestioning the constitutionality of Article IV, Section 3. The\nessay focused in large part on the portion of the provision that\nrequires judicial applicants to be members of one of\nDelaware’s two major political parties, and posed the question:\n“May Delaware enforce a state law providing that no\nIndependent or member of a minor party shall be appointed to\na judgeship?”16 After reading the article, Adams decided to\n\n14\n Adams’s new voter registration card, indicating that he is\nunaffiliated with a political party, is dated February 13, 2017\nand was mailed to him on February 14, 2017. Adams cannot\nremember the exact day that he switched his party affiliation.\n15\n J.A. 74.\n16\n See Joel Edan Friedlander, Is Delaware’s ‘Other Major\nPolitical Party’ Really Entitled to Half of Delaware’s\nJudiciary?, 58 Ariz. L. Rev. 1139, 1154 (2016).\n\n\n\n\n 11\n\nchallenge the provision. He filed the instant lawsuit against\nJohn Carney, the Governor of the State of Delaware, in\nFebruary 2017. At the time he filed the lawsuit, he pointed to\ntwo judicial vacancies that both required Republican\ncandidates.\n\n Although Adams did not apply for either of those\njudicial positions, he has applied to similar positions in the\npast. In 2009, Adams applied to be a Family Court\nCommissioner, but was not selected. In 2014, Adams\nconsidered applying for judicial positions on the Supreme\nCourt and the Superior Court; however, at the time he was\nregistered as a Democrat and the positions were open only to\nRepublican candidates. Shortly thereafter, in 2015, Adams\nretired and assumed emeritus status with the Delaware State\nBar. By 2017 he felt ready to resume searching for a judicial\nposition, and believed he was a qualified applicant. He\ntherefore returned to active status in 2017. Notwithstanding\nhis interest, Adams has refrained from submitting an\napplication based on his belief that he would not be considered\nfor a judicial position because of Article IV, Section 3 and his\nnew affiliation as an Independent voter.\n\n D. The District Court Proceedings17\n\n Both parties filed cross-motions for summary judgment.\nThe Governor argued primarily that Adams lacks both Article\nIII and prudential standing to bring his claims, and Adams\nargued that the political balance requirement violates the First\n\n17\n Both parties consented to the entry of final judgment by a\nMagistrate Judge. See Adams v. Hon. John Carney, Dkt. 2,\nNo. 17 Civ. 181 (MPT) (D. Del. 2017).\n\n\n\n\n 12\n\nAmendment because it conditions appointment on a judicial\ncandidate’s political affiliation.\n\n The District Court determined that Adams had Article\nIII standing to challenge some, but not all, of the sections of\nthe provision. Chief Magistrate Judge Thynge considered the\nfirst three sections because they contain both a bare majority\ncomponent and a major political party component. She\nconcluded that although Adams did not apply for an open\njudicial position on one of those courts, his application would\nhave been futile because the openings available around the\ntime he filed his complaint were not available to Independents\nlike himself.\n\n Sections four and five, however, contain only the bare\nmajority component, and Magistrate Judge Thynge concluded\nthat Adams did not have standing to challenge those sections\nbecause his status as an Independent would not have prevented\nhis application from being considered. She nevertheless\nconcluded that he had prudential standing to challenge those\nsections and found that sufficient to confer jurisdiction.\n\n Turning to the merits, Magistrate Judge Thynge\ndetermined that Article IV, Section 3 restricted access to a\ngovernment position (here, a judgeship) based on political\naffiliation. She found that the narrow policymaking exception\nlaid out in Elrod and Branti, which allows a government\nemployer to make employment decisions based on political\nallegiance for policymakers, did not apply. In reaching that\nconclusion, the District Court drew on Third Circuit and\nSupreme Court cases emphasizing that a judge’s job is to\napply, rather than create, the law. The District Court also cited\nthe Delaware Judges’ Code of Judicial Conduct, which\n\n\n\n\n 13\n\nmandates that judges refrain from political activity and\ninstructs judges not to be swayed by personal opinion. Because\npolitical affiliation could not be seen as a necessary trait for\neffective judicial decisionmaking, and because the District\nCourt concluded that judges do not meet the policymaking\nexception established in Elrod and Branti, she found the\nprovision unconstitutional in its entirety. This appeal\n 18\nfollowed.\n\n Discussion\n\n A. Standing\n\n 1. Article III Standing\n\n We begin by addressing Adams’s constitutional\nstanding. Constitutional standing, also referred to as Article III\nstanding, is “a threshold issue that must be addressed before\nconsidering issues of prudential standing.”19 Because it is an\nessential component of subject matter jurisdiction, if Article III\n\n\n\n\n18\n The District Court had jurisdiction under 28 U.S.C. § 1331.\nWe have jurisdiction under 28 U.S.C. § 1291. We exercise\nplenary review over the District Court’s grant of summary\njudgment. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002).\n19\n Hartig Drug Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 269\n(3d Cir. 2016) (quoting Miller v. Nissan Motor Acceptance\nCorp., 362 F.3d 209, 221 n.16 (3d Cir. 2004)).\n\n\n\n\n 14\n\nstanding is lacking, our inquiry must end and Adams’s claim\nmust be dismissed.20\n\n To satisfy the “irreducible conditional minimum” of\nstanding, a plaintiff must show that he has: “(1) suffered an\ninjury in fact, (2) that is fairly traceable to the challenged\nconduct of the defendant, and (3) that is likely to be redressed\nby a favorable judicial decision.”21 Of standing’s three\nelements, “injury in fact, [is] the ‘first and foremost.’”22 “To\nestablish injury in fact, a plaintiff must show that he or she\nsuffered ‘an invasion of a legally protected interest’ that is\n‘concrete and particularized’ and ‘actual or imminent, not\nconjectural or hypothetical.’”23 However, a plaintiff need not\nmake futile gestures to establish that injury is actual and not\nconjectural.24\n\n It is black letter that standing may not be “dispensed in\ngross.”25 Our cases demonstrate that we must ask not only\nwhether Adams has standing to sue at all, but whether he has\n\n\n\n\n20\n See Lance v. Coffman, 549 U.S. 437, 439 (2007).\n21\n Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing\nLujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).\n22\n Id. (quoting Steel Co. v. Citizens for Better Environment, 523\nU.S. 83, 103 (1998)).\n23\n Id. (quoting Lujan, 504 U.S. at 560).\n24\n Sammon v. New Jersey Bd. of Medical Examiners, 66 F.3d\n639, 643 (3d Cir. 1995).\n25\n Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645,\n1650 (2017) (quoting Davis v. Fed. Election Comm’n, 554 U.S.\n724, 734 (2008)).\n\n\n\n\n 15\n\nstanding to challenge part or all of Article IV, Section 3.26\nAccordingly, we do not ask only whether Adams has been\ninjured by Article IV, Section 3 of the Delaware Constitution.\nWe must identify how, if at all, he has been injured, and\nwhether that injury stems from all or part of the provision.\n\n Adams desires a judgeship, and he has applied for, or\nconsidered applying for, judicial positions since at least 2009.\nIf he felt his application would be reviewed, he would consider\napplying for a judicial seat on any of Delaware’s five\nconstitutional courts. But because Adams is an Independent,\nhe has refrained from submitting an application in light of the\nrestrictions of Article IV, Section 3.\n\n The District Court agreed with Adams that it would\nhave been futile to apply for a judicial position on the Supreme\nCourt, Superior Court, or Chancery Court, because under\nDelaware’s constitution, judges on those courts must be\nmembers of one of Delaware’s two major political parties, and\nAdams is not. The Governor does not contest that Adams has\nconstitutional standing to challenge these provisions, and we\nagree that Adams has clearly been injured by the major\n\n\n26\n See Contractors Ass’n of E. Pennsylvania, Inc. v. City of\nPhiladelphia, 6 F.3d 990, 995 (3d Cir. 1993) (“Our standing\ninquiry has two parts: whether the Contractors have standing\nto challenge the Ordinance at all, and if so, whether they have\nstanding to challenge all or just part of the Ordinance.”); see\nalso Service Employee’s Int’l Union, Local 3 v. Municipality\nof Mt. Lebanon, 446 F.3d 419, 422 (3d Cir. 2006) (separately\nconsidering a union’s standing to challenge each section of an\nallegedly unconstitutional municipality ordinance).\n\n\n\n\n 16\n\npolitical party component and therefore has standing to\nchallenge it.\n\n But the District Court also concluded that Adams’s\napplication to either the Family Court or the Court of Common\nPleas “would not have been futile, because there is no party\nrequirement constitutionally attached to either Court.”27\nAdams argues that the bare majority component injures him\nindependently of the major political party component because\nit “limit[s] the right to a bare majority to members of a\n‘political party.’”28 In his view, the bare majority component\nmandates that one of the two major political parties control a\nbare majority of judicial seats on the relevant court, thereby\nlimiting an Independent’s ability to successfully apply for a\nposition. The component, however, creates a ceiling for\nmembers of the same political party; it does not create a floor\nentitling them to a certain number of judicial seats.29\n\n Therefore, we agree with the District Court’s reading of\nArticle IV, Section 3 and conclude that Adams does not have\nstanding to challenge the sections of the provision that contain\nonly the bare majority component. Nevertheless, the District\nCourt went on to conclude that Adams did not need to establish\n\n27\n J.A. 13. The last two sections of the provision, which cover\nthe Family Court and the Court of Common Pleas, contain only\nthe bare majority component.\n28\n Appellee’s Br. at 13–14.\n29\n As the District Court explained, the bare majority component\n“places no limitations on unaffiliated voters and only affects\njudicial candidates of a major political party when the bare\nmajority of judicial offices on those courts is filled with\nindividuals affiliated with that major political party.” J.A. 29.\n\n\n\n\n 17\n\nconstitutional standing because he established prudential\nstanding. The District Court’s conclusion that prudential\nstanding can serve as “substitute” standing for a plaintiff who\ncannot demonstrate constitutional standing is incorrect. While\nArticle III standing is a threshold issue that implicates subject\nmatter jurisdiction, prudential standing is not. Instead, it is a\n“judicially self-imposed limit[] on the exercise of federal\njurisdiction.”30 Prudential standing cannot vest a court with\nsubject matter jurisdiction; therefore, it cannot replace or\nsubstitute for constitutional standing, as without the latter, the\ncase must be dismissed.31 Therefore, because Adams does not\nhave Article III standing with respect to the Family Court and\nthe Court of Common Pleas, we may not consider the merits of\nhis argument with respect to those courts.\n\n 2. Prudential Standing\n\n We next address whether the doctrine of prudential\nstanding should give us pause before reaching the merits of the\ndispute over the first three sections of the political balance\nrequirement. Even when Article III standing is present, we\nlook to prudential considerations “to avoid deciding questions\nof broad social import where no individual rights would be\nvindicated and to limit access to the federal courts to those\nlitigants best suited to assert a particular claim.”32 Prudential\n\n30\n Davis v. City of Philadelphia, 821 F.3d 484, 487 (3d Cir.\n2016) (quoting United States v. Windsor, 570 U.S. 744, 757\n(2013)).\n31\n See Lance, 549 U.S. at 439.\n32\n Joint Stock Society v. UDV N. Am., Inc., 266 F.3d 164, 179\n(3d Cir. 2001) (quoting Conte Bros. Auto., Inc. v. Quaker\nState-Slick 50, Inc., 165 F.3d 221, 225 (3d Cir. 1998)).\n\n\n\n\n 18\n\nstanding requires “(1) that a litigant assert his or her own legal\ninterests rather than those of a third party; (2) that the grievance\nnot be so abstract as to amount to a generalized grievance; (3)\nand that the [plaintiff’s] interests are arguably within the ‘zone\nof interests’ protected by the statute, rule, or constitutional\nprovision on which the claim is based.”33\n\n We see no reason to ignore Adams’s challenge to\nArticle IV, Section 3 on prudential grounds. Although the\nquestion is surely one of broad social import in Delaware,\nAdams has established that aside from his political affiliation,\nhe feels qualified for a judicial position and intends to apply\nfor a judicial position if he is able. The provision may be of\ninterest to many residents of Delaware, but Adams has shown\nthat he has a particular legal interest in the constitutionality of\nArticle IV, Section 3 because of his desire to apply for a\njudicial position while refraining from associating with either\nthe Democratic or Republican parties.\n\n The Governor’s arguments to the contrary are\nunavailing. He states that Adams’s interest in this case is\n“merely an academic exercise” because Adams switched his\npolitical affiliation in the days before filing this Complaint, and\nhad not applied for a judicial position since 2009 although, as\na registered Democrat until 2017, he could have.34 Essentially,\nthe Governor’s argument asks us to discredit the portions of\nAdams’s deposition in which he explained why he decided to\nleave the Democratic Party (he was frustrated by the lack of\nprogressive Democrats in Delaware) and why he did not apply\nfor a judicial position after 2009 (he found working for the late\n\n33\n Lewis v. Alexander, 685 F.3d 325, 340 (3d Cir. 2012).\n34\n Appellant’s Br. at 24–25.\n\n\n\n\n 19\n\nBeau Biden rewarding and therefore did not consider other\ncareer opportunities until after Biden’s death in 2015). But in\nopposing a motion for summary judgment, the Governor was\nrequired to do more than speculate that Adams has deceived\nthe Court about his genuine interest in applying for a judicial\nposition.35 The short time period in which Adams changed his\nparty affiliation, read the law review article, and filed suit,\nwithout more, is insufficient to raise a genuine issue of material\nfact about Adams’s prudential standing.\n\n B. The Elrod/Branti Inquiry\n\n We now turn to the heart of this appeal: whether the\nsections of Article IV, Section 3 of the Delaware Constitution\nthat govern the Supreme Court, the Superior Court, and the\nChancery Court run afoul of the First Amendment’s guarantee\nof freedom of association. A trio of seminal United States\nSupreme Court cases explain the limits on a government\nemployer’s ability to consider a job candidate’s political\nallegiance and govern our analysis here: Elrod,36 Branti,37 and\nRutan.38 We discuss each case in turn.\n\n In Elrod v. Burns, Justice Brennan, writing for the\nplurality, recognized that the practice of patronage\ndismissals—dismissing a civil servant because his political\naffiliation differed from the political party in power—is\n\n35\n Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 666 (3d\nCir. 2016) (a movant may not rely on “speculation and\nconjecture in opposing a motion for summary judgment”).\n36\n 427 U.S. 347 (1976).\n37\n 445 U.S. 507 (1980).\n38\n Rutan v. Republican Party of Ill., 497 U.S. 62 (1990).\n\n\n\n\n 20\n\n“inimical to the process which undergirds our system of\ngovernment and is at war with the deeper traditions of\ndemocracy embodied in the First Amendment.”39 He\nexplained that to justify terminating a public employee based\non political allegiance, the government must show that the\npractice “further[s] some vital government end by a means that\nis least restrictive of freedom of belief and association in\nachieving that end, and the benefit gained must outweigh the\nloss of constitutionally protected rights.”40 The plurality\nsuggested that the government’s interest in employee loyalty\nwould allow it to discharge employees in policymaking\npositions based on political allegiance.41 Although “no clear\nline can be drawn between policymaking and nonpolicymaking\npositions,” the plurality instructed factfinders to consider the\nnature of the employee’s responsibilities to determine whether\nor not he or she is in a policymaking position.42\n\n The Court next examined the First Amendment\nimplications of politically-motivated employment decisions in\nBranti v. Finkel. Summarizing Elrod, the Court stated that “if\nan employee’s private political beliefs would interfere with the\ndischarge of his public duties, his First Amendment rights may\n\n39\n 427 U.S. at 357 (internal quotations marks omitted (quoting\nIllinois State Employees Union v. Lewis, 473 F.2d 561, 576\n(1972))). In a concise concurrence, Justice Stewart, joined by\nJustice Blackmun, stated that a “nonpolicymaking,\nnonconfidential government employee” may not be discharged\nor threatened with discharge on the sole ground of his or her\npolitical beliefs. Id. at 375 (Stewart, J., concurring).\n40\n Id. at 363.\n41\n Id. at 367.\n42\n Id. at 367–68.\n\n\n\n\n 21\n\nbe required to yield to the State’s vital interest in maintaining\ngovernmental effectiveness and efficiency.”43 The Court,\nhowever, moved away from Elrod’s policymaking distinction\nand held that “the ultimate inquiry is not whether the label\n‘policymaker’ or ‘confidential’ fits a particular position; rather,\nthe question is whether the hiring authority can demonstrate\nthat party affiliation is an appropriate requirement for the\neffective performance of the public office involved.”44 The\nCourt explained that some positions, like that of an election\njudge, might be political without being a policymaking role,\nand some, like that of a state university football coach, might\ninvolve setting policy without being political.45\n\n In Rutan, the Court confirmed that the general\nprohibition on politically-motivated discharge also applies to\ndecisions to promote, transfer, or hire an employee.46 “Unless\nthese patronage practices are narrowly tailored to further vital\ngovernment interests, we must conclude that they\nimpermissibly encroach on First Amendment freedoms.”47\n\n The Governor of Delaware sets forth two arguments to\njustify his practice of requiring applicants for judicial positions\nto be Democrats or Republicans: first, the Governor argues\nthat because judges are policymakers, they can be hired or fired\nbased on their political affiliation without restraint, and second,\nthe Governor argues that even if they are not policymakers,\n\n\n43\n Branti, 445 U.S. at 517.\n44\n Id. at 518.\n45\n Id.\n46\n Rutan, 497 U.S. at 74.\n47\n Id. at 74.\n\n\n\n\n 22\n\nDelaware has an interest in political balance that justifies the\nrestrictions set forth in Article IV, Section 3.\n\n 1. The Policymaking Exception48\n\n In our cases applying Branti, Elrod, and Rutan, we have\nset forth criteria to aid us in determining whether an\nemployee’s job responsibilities would make political party\nallegiance an appropriate condition of employment. We\nconsider “whether the employee has duties that are non-\ndiscretionary or non-technical, participates in discussions or\nother meetings, prepares budgets, possesses the authority to\nhire or fire other employees, has a high salary, retains power\nover others, and can speak in the name of policymakers.”49\nThe “key factor” is whether an employee in that position “has\nmeaningful input into decisionmaking concerning the nature\nand scope of a major program.”50 Using this analysis, we have\nconcluded that political affiliation is an appropriate\n\n48\n Adams argues that after Branti, the question of whether a\ngovernment position involves policymaking is irrelevant. We\ndisagree. As we have explained before, after Branti, “the fact\nthat an employee is in a policymaking or confidential position\nis relevant to the question of whether political affiliation is a\nnecessary job requirement but this fact is no longer dispositive\n. . . .” Brown v. Trench, 787 F.2d 167, 168–69 (3d Cir. 1986);\nsee also Galli v. New Jersey Meadowlands Comm’n, 490 F.3d\n265, 270 (3d Cir. 2007) (“The exception for ‘policymaking’\njobs exists because political loyalty is essential to the position\nitself.”).\n49\n Galli, 490 F.3d at 271 (citing Brown, 787 F.2d at 169).\n50\n Id. (quoting Armour v. County of Beaver, PA, 271 F.3d 417,\n429 (3d Cir. 2001)).\n\n\n\n\n 23\n\nrequirement for a director of a veterans’ administrative\nservices department,51 an assistant director of public\ninformation,52 assistant district attorneys,53 city solicitors and\nassistant city solicitors,54 a solicitor for the Northeast\nPennsylvania Hospital and Education Authority,55 and a city\nmanager,56 among others. We have never before considered\nthe role of a state judge. We now conclude that a judicial\nofficer, whether appointed or elected, is not a policymaker.\n\n This outcome is clear from the principles animating\nElrod and Branti. The purpose of the policymaking exception\nis to ensure that elected officials may put in place loyal\nemployees who will not undercut or obstruct the new\nadministration.57 If a job “cannot properly be conditioned upon\n\n51\n Waskovich v. Morgano, 2 F.3d 1292, 1298–1303 (3d Cir.\n1993).\n52\n Brown, 787 F.2d at 169–70.\n53\n Mummau v. Ranck, 687 F.2d 9, 10 (3d Cir. 1982).\n54\n Ness v. Marshall, 660 F.2d 517, 520–22 (3d Cir. 1981).\n55\n Wetzel v. Tucker, 139 F.3d 380, 384–86 (3d Cir. 1998).\n56\n Curinga v. City of Clairton, 357 F.3d 305, 313 (3d Cir.\n2004).\n57\n Elrod, 427 U.S. at 367 (“A second interest advanced in\nsupport of patronage is the need for political loyalty of\nemployees, not to the end that effectiveness and efficiency be\ninsured, but to the end that representative government not be\nundercut by tactics obstructing the implementation of policies\nof the new administration, policies presumably sanctioned by\nthe electorate. The justification is not without force, but is\nnevertheless inadequate to validate patronage wholesale.\nLimiting patronage dismissals to policymaking positions is\nsufficient to achieve this governmental end.”).\n\n\n\n\n 24\n\nallegiance to the political party in control,” the policymaking\nexception is inappropriate.58 Judges simply do not fit this\ndescription. The American Bar Association’s Model Code of\nJudicial Conduct instructs judges to promote “independence”\nand “impartiality,” not loyalty.59 It also asks judges to refrain\nfrom political or campaign activity.60 The Delaware Code of\nJudicial Conduct similarly makes clear that judges must be\n“unswayed by partisan interests” and avoid partisan political\nactivity.61 The Delaware Supreme Court has stated that\nDelaware judges “must take the law as they find it, and their\npersonal predilections as to what the law should be have no\nplace in efforts to override properly stated legislative will.”62\nIndependence, not political allegiance, is required of Delaware\njudges.\n\n Article IV, Section 3 itself illustrates that political\nloyalty is not an appropriate job requirement for Delaware\njudges. Delaware has chosen to considerably limit the\nGovernor’s ability to nominate judges on the basis of political\nexpediency. Instead, the Governor must ensure that there are\nsufficient Democratic and Republican judges on the bench.\nFar from nominating only judges who will be loyal to his party,\nthe Governor may be required by Delaware’s constitution to\nnominate judges who belong to a different political party. The\nGovernor, therefore, cannot credibly argue that he must be free\nto follow a rule excluding those who do not belong to the two\n\n58\n Branti, 445 U.S. at 519.\n59\n Am. Bar Ass’n Model Code of Judicial Conduct Canon 1.\n60\n Id. Canon 4.\n61\n Del. Judges’ Code Judicial Conduct Rules 2.4(A), 4.1.\n62\n Leatherbury v. Greenspun, 939 A.2d 1284, 1292 (Del. 2007)\n(quoting Ewing v. Beck, 520 A. 2d 653, 660 (1987)).\n\n\n\n\n 25\n\nmajor parties in Delaware because allegiance to his party is an\nappropriate condition for judicial employment.\n\n Nor are we swayed by his argument that the important\nrole judges play in Delaware transforms them into political\nactors. The Governor argues that by interpreting statutes,\nsentencing criminal defendants, and crafting the common law,\njudges in Delaware make policy and exercise significant\ndiscretion. But the question before us is not whether judges\nmake policy,63 it is whether they make policies that necessarily\nreflect the political will and partisan goals of the party in\npower. That is why, as the Court explained in Branti, a football\ncoach for a state university cannot be discharged because of\nher political affiliation even though she may formulate policy\nfor the athletic department.64 And why public defenders, who\nmade some policy decisions in fulfilling their public office,\nstill could not be fired on the basis of their political\nallegiance—because their policymaking activity did not relate\nto “any partisan political interest.”65\n\n\n63\n Compare Matthews v. Lucas, 427 U.S. 495, 515 (1976)\n(“Nor, in ratifying these statutory classifications, is our role to\nhypothesize independently . . . . These matters of practical\njudgment and empirical calculation are for Congress.”), with\nWetzel, 139 F.3d at 386 (“Tough legal questions are not\nanswered mechanically, but rather by the exercise of seasoned\njudgment. Judgment is informed by experience and\nperspective . . . .”); see generally Gregory v. Ashcroft, 501 U.S.\n452, 465–67 (1991) (explaining, without resolving, the debate\nover whether judges make policy).\n64\n Branti, 445 U.S. at 518.\n65\n Id. at 519.\n\n\n\n\n 26\n\n To the extent that Delaware judges create policy, they\ndo so by deciding individual cases and controversies before\nthem, not by creating partisan agendas that reflect the interests\nof the parties to which they belong.66 Similarly, although the\nGovernor contends that Delaware judges have meaningful\ninput into a major government program because they set the\njudiciary’s budget and create rules of civil and criminal\nprocedure, the operation of the judicial branch is not “so\nintimately related to [Delaware] policy” that the Governor\nwould have “the right to receive the complete cooperation and\nloyalty of a trusted advisor [in that position].”67\n\n The policymaking inquiry is designed to test whether\nthe position in question “is one which cannot be performed\neffectively except by someone who shares the political beliefs\n\n66\n See Branti, 445 U.S. at 519–20 (“[W]hatever policymaking\noccurs in the public defender’s officer must relate to the needs\nof individual clients and not to any partisan political interests.\n. . . Under these circumstances, it would undermine, rather than\npromote, the effective performance of an assistant public\ndefender’s office to make his tenure dependent on his\nallegiance to the dominant political party.”).\n67\n Ness, 660 F.2d at 522 (“[W]e agree with the district court\nthat, as a matter of law, the duties imposed on city solicitors by\nthe York Administrative Code and the undisputed functions\nentailed by these duties e.g., rendering legal opinions, drafting\nordinances, [and] negotiating contracts define a position for\nwhich party affiliation is an appropriate requirement. In\nrelying on an attorney to perform these functions so intimately\nrelated to city policy, the mayor has the right to receive the\ncomplete cooperation and loyalty of a trusted adviser, and\nshould not be expected to settle for less.”).\n\n\n\n\n 27\n\nof [the appointing authority].”68 Put simply, while judges\nclearly play a significant role in Delaware, that does not make\nthe judicial position a political role tied to the will of the\nGovernor and his political preferences. As such, the\npolicymaking exception does not apply to members of the\njudicial branch.\n\n We are aware that two of our sister Circuits have\nconcluded otherwise. In Kurowski v. Krajewski, the Seventh\nCircuit determined that the guiding question in political\naffiliation cases was “whether there may be genuine debate\nabout how best to carry out the duties of the office in question,\nand a corresponding need for an employee committed to the\nobjectives of the reigning faction,” and answered that question\nin the affirmative with respect to judges and judges pro\ntempore.69 In Newman v. Voinovich, the Sixth Circuit similarly\nconcluded that judges were policymakers who could be\n\n\n\n\n68\n Brown, 787 F.2d at 170. See also Branti, 445 U.S. at 517\n(“[I]f an employee’s private political beliefs would interfere\nwith the discharge of his public duties, his First Amendment\nrights may be required to yield to the State’s vital interest in\nmaintaining governmental effectiveness and efficiency.”).\n69\n Kurowksi, 848 F.2d 767, 770 (7th Cir. 1988) (“A judge both\nmakes and implements governmental policy. A judge may be\nsuspicious of the police or sympathetic to them, stern or lenient\nin sentencing, and political debates rage about such questions.\nIn most states judges are elected, implying that the office has a\npolitical component. Holders of the appointing authority may\nseek to ensure that judges agree with them on important\njurisprudential questions.”).\n\n\n\n\n 28\n\nappointed on the basis of their partisan affiliation.70 We find\nthese cases unpersuasive for two reasons.\n\n First, we do not believe, as the Seventh Circuit does,\nthat the policymaking exception described in Elrod and Branti\nis merely “shorthand for a broad category of public employees\nwhose work is politically sensitive and who exercise\nsignificant discretion in the performance of their duties.”71\nUnder the Seventh Circuit’s view, so long as employees make\ndecisions involving issues about which “political debates\nrage,” they may be hired or fired for their party affiliation.72\nWe have always more narrowly applied the policymaking\nexception to only the class of employees whose jobs “cannot\nbe performed effectively except by someone who shares the\npolitical beliefs of [the appointing authority].”73 There can be\nno serious question that judicial candidates of different\npolitical parties can effectively serve as state judges. Thus,\nwhile “political debates rage” about issues that judges must\ndecide in the course of their state employment, we do not\nbelieve that this leaves judges entirely at the whim of state\n\n70\n Newman, 986 F.2d 159, 163 (6th Cir. 1993) (“We agree with\nthe holding in Kurowski that judges are policymakers because\ntheir political beliefs influence and dictate their decisions on\nimportant jurisprudential matters. . . . Therefore, we believe\nthat Governor Voinovich’s appointment of judges based on\npolitical considerations is consistent with Elrod, Branti, and\nRutan.”).\n71\n Hagan v. Quinn, 867 F.3d 816, 824 (7th Cir. 2017) (finding\nthat arbitrators on the Illinois Workers’ Compensation\nCommission are policymakers).\n72\n Kurowski, 848 F.2d at 770.\n73\n Brown, 787 F.2d at 170.\n\n\n\n\n 29\n\ngovernors and the patronage of the ruling party. While states\nhave nearly unfettered discretion to select state judges, states\ncannot condition judicial positions on partisan political\naffiliation alone.\n\n Second, the opinions in Kurowski and Newman conflate\nan appointing authority’s ability to consider the political\nbeliefs and ideologies of state employees with that authority’s\nability to condition employment on party loyalty. Under our\ncase law, discrimination based on political patronage is only\nactionable where the employee’s political affiliation was a\n“substantial or motivating factor in the government’s\nemployment decision.”74 Elrod and Branti protect\naffiliation—and decisions not to affiliate—with a political\nparty. We have never read them to prohibit an appointing\nofficial from considering a job candidate’s views on questions\nand issues related to the job itself. There is a wide gulf between\na governor asking a judicial candidate about his philosophy on\nsentencing, for example, and a governor posting a sign that\nsays “Communists need not apply.”75 The former does not run\nafoul of the First Amendment; but in our view, the latter does.\nBecause the approach of the Sixth and Seventh Circuits would\nallow governors both to weigh an individual candidate’s\npolitical beliefs and to condition judicial positions on party\nallegiance, we must disagree.\n\n We therefore conclude that state judges do not fall\nwithin the policymaking exception because affiliation with a\n\n\n74\n Galli, 490 F.3d at 271.\n75\n See Keyishian v. Bd. Of Regents of Univ. of State of N.Y., 385\nU.S. 589, 605–10 (1967).\n\n\n\n\n 30\n\nparticular political party is not a requirement for the effective\nperformance of the judicial role.\n\n 2. Delaware’s Interest in Political Balance\n\n We next consider the Governor’s second argument,\nthat even if state judges are not policymakers, their political\naffiliation is still an appropriate condition of state employment.\nThe Court in Rutan emphasized that politically motivated\nemployment practices could be constitutional if they are\n“narrowly tailored to further vital government interests.”76\nWhile most cases following Branti have focused on the\npolicymaking exception, which relates to a state’s interest in\nthe loyalty and efficiency of key state employees, the Governor\nargues that Article IV, Section 3 can be justified by a different\ninterest—the interest in political balance. We need not dwell\nlong on whether Delaware possesses a “vital state interest” in\na politically balanced judiciary, because Delaware’s practice of\nexcluding Independents and third party voters from judicial\nemployment is not narrowly tailored to that interest.\n\n The Governor posits that the Supreme Court has\nalways recognized the permissibility of conditioning\nappointments on political affiliation when the goal is to ensure\npolitical balance. In Branti, the Court stated that “if a State’s\nelection laws require that precincts be supervised by two\nelection judges of different parties, a Republican judge could\nbe legitimately discharged solely for changing his party\nregistration.”77 Similarly, in LoFrisco v. Schaffer and\n\n76\n Rutan, 497 U.S. at 74.\n77\n Branti, 445 U.S. at 518. The Sixth Circuit, following Branti,\nhas categorically held that employment decisions conditioned\n\n\n\n\n 31\n\nHechinger v. Martin, the Supreme Court affirmed two district\ncourt decisions approving political balance statutes governing\nelections for a state’s boards of education and the District of\nColumbia’s city council, respectively. 78 The Governor also\npoints to several federal administrative agencies that use some\nform of political balance requirement for decisionmaking\nbodies, including the Federal Deposit Insurance Corporation,\nthe Federal Trade Commission, the Securities and Exchange\nCommission, the Federal Communications Commission, the\nCommission on Civil Rights, the Federal Energy Regulatory\nCommission, and the Federal Election Commission. These\nexamples show some support for the Governor’s argument, but\nunlike elected officials and agency representatives who\nexplicitly make policy, judges perform purely judicial\nfunctions. Further, it is difficult to see how the logic of\npolitical balance and minority representation extends from\nmultimember deliberative bodies, like a school board, to\nDelaware’s judiciary, most of whom sit alone.79\n\n\non political party affiliation are permissible where the position\nis one of several “filled by balancing out political party\nrepresentation, or that are filled by balancing out selections\nmade by different government agents or bodies.” McCloud v.\nTesta, 97 F.3d 1536, 1557 (6th Cir. 1996).\n78\n See LoFrisco v. Schaffer, 341 F. Supp. 743, 744–45, 750 (D.\nConn. 1972), aff’d 409 U.S. 972 (1972); Hechinger v. Martin,\n411 F. Supp. 650, 653 (D.D.C. 1976), aff’d 429 U.S. 1030\n(1977).\n79\n The Delaware Supreme Court is the only judicial body in\nwhich a panel of judges regularly hears cases as a collective.\nEven then, panels are usually comprised of three of the five\njudges on the court. The political balance on a panel, therefore,\ndoes not necessarily mirror the political balance of the\n\n\n\n\n 32\n\n The Seventh Circuit has also addressed the political\nbalance interest in the judicial context. In Common Cause\nIndiana v. Individual Members of the Indiana Election\nCommission, the court considered a municipal ordinance\nprohibiting political parties from nominating candidates for\nmore than half of the eligible seats on its superior court.80 The\nSeventh Circuit found that partisan balance concerns are less\ncompelling with respect to judges, who are “not elected [or\nappointed] to represent a particular viewpoint” and instead are\nrequired to “exercise [their] own independent authority to\nmake decisions that uphold and apply the law fairly and\nimpartially.”81 The court also emphasized that “partisan\nbalance amongst the judges who comprise the court, alone, has\nlittle bearing on impartiality” because while it can “serve as a\ncheck against contrary partisan interests,” it does not affect\n“the impartiality of individual members.”82\n\n While we share many of the Seventh Circuit’s\nconcerns about conflating party balance with judicial\nimpartiality, we need not resolve the issue today. To justify a\nrule that impinges an employee’s First Amendment association\nrights, the state must show both that the rule promotes “a vital\nstate interest” and that the rule is “narrowly tailored” to that\ninterest. Even assuming judicial political balance is a vital\nDelaware interest, the Governor must also show that the goals\n\n\nSupreme Court as a whole. See Randy J. Holland and David\nA. Skeel, Jr., Deciding Cases Without Controversy, 5 DEL. L.\nREV. 115, 121 (2002).\n80\n Common Cause, 800 F.3d 913, 915 (7th Cir. 2015).\n81\n Id. at 922–23.\n82\n Id.\n\n\n\n\n 33\n\nof political balance could not be realized without the restrictive\nnature of Article IV, Section 3, and this he has failed to do.\n\n The Governor describes the benefits of balance and\ndetails the popularity Article IV, Section 3 has among\nDelaware judges and former judges. But this cannot suffice as\na justification to bar candidates who do not belong to either the\nDemocratic or Republican parties from seeking judicial\nappointment, because the Governor fails to explain why this is\nthe least restrictive means of achieving political balance.\nBecause the Governor has not shown that Article IV, Section 3\nis narrowly tailored to further a vital state interest, the\ninfringement on judicial candidates’ association rights is\nunconstitutional.\n\n Conclusion\n\n For the foregoing reasons, we find that Adams has\nshown that his freedom of association rights were violated by\nthe political balance requirement that prevented his application\nto the Supreme Court, Superior Court, and Chancery Court.\nTherefore, we conclude that the first three sections of Article\nIV, Section 3 violate the First Amendment. We affirm the\nDistrict of Delaware’s order granting summary judgment to\nAdams on those sections. Because Adams had no standing to\nchallenge the sections of Article IV, Section 3 dealing with the\nFamily Court and the Court of Common Pleas, however, we\nreverse the District of Delaware’s order as it pertained to those\nsections.\n\n\n\n\n 34", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367447/", "author_raw": "FUENTES, Circuit Judge."}, {"author": "McKEE, Circuit Judge, concurring", "type": "concurrence", "text": "McKEE, Circuit Judge, concurring. Judges Restrepo and\nFuentes join.\n\n I join my colleagues’ thoughtful opinion in its entirety.\nI write separately merely to add the perspective of someone\nwho has served as a state court judge in a jurisdiction that\nselects judges in general elections preceded by partisan\npolitical campaigning and the fundraising that is endemic to\npolitical campaigns. In doing so, I certainly do not mean to in\nanyway cast aspersions upon the many dedicated, intelligent\nand hardworking men and women whom the electorate in such\njurisdictions ultimately select to serve as judges. I only wish to\nnote the potential damage to the image of the judiciary in such\njurisdictions and the extent to which it can undermine the\npublic’s faith in the judges who are elected.1\n\n All of us have a keen understanding of, and appreciation\nfor, the fact that the provisions we strike down today were\nenacted to ensure selection of a judiciary whose political\nbalance would serve notice that judicial decisions were devoid\nof politics and political motivations. Paradoxically, by\nelevating one’s political affiliation to a condition precedent to\neligibility for appointment to the bench by the Governor,\nDelaware has institutionalized the role of political affiliation\n\n1\n The criticism of systems where judges are elected has stressed\nthe importance of such irrelevant factors as campaign\ncontributions and the importance of ballot position. See The\nInquirer Editorial Board, Editorial, Close Down the Circus:\nReplace Judicial Elections with Merit Selection, PHILA.\nINQUIRER, (July 13, 2018)\n(http://www.philly.com/philly/opinion/editorials/judicial-\nelection-merit-selection-pennsylvania-election-reform-\n20180713.html) (“In Pennsylvania we elect judges in partisan\nelections . . . The corrosive effects of money work over time\nuntil it is impossible for people to trust the court system.”);\nRyan Briggs, Does Ballot Position Matter? Science Says ‘Yes,’\nCITY AND STATE PENNSYLVANIA (Dec. 20, 2016),\nhttps://www.cityandstatepa.com/content/does-ballot-position-\nmatter-science-says-%E2%80%98yes%E2%80%99 (last\nvisited Jan. 17, 2019) (“Sheer luck has more to do with\nbecoming [a] judge in the city [of Philadelphia] than\nexperience or endorsements.”).\n 1\n\nrather than negated it. As we explain, the resulting system of\njudicial selection is in conflict with the First Amendment right\nof association even though it has historically produced an\nexcellent judiciary; accordingly, it cannot survive this First\nAmendment challenge. Although this is as paradoxical as it is\nironic, it is really not surprising that the judicial system that has\nresulted from Delaware’s political balance requirements is as\nexemplary as the judges who comprise it.\n\n In 2011, then-Delaware Supreme Court Justice Randy\nJ. Holland presciently observed that the “political balance\nprovisions appear to prevent the appointment of persons\nbelonging to a third political party or having no party\naffiliation. To date, however, there has been no court challenge\nto this requirement under the United States Constitution.”2\nJustice Holland’s observation about the absence of challenges\nto the 122 year-old constitutional framework that plainly\nimplicates the First Amendment is understandable given the\nwell-earned excellent reputation of the state courts it has\nproduced.\n\n Praise for the Delaware judiciary is nearly universal,\nand it is well deserved. Scholars and academics routinely refer\nto Delaware’s courts as the preeminent forum for litigation,\nparticularly for cases involving business disputes.3 On the\nbicentennial anniversary of the establishment of the Court of\nChancery, then-Chief Justice Rehnquist observed that the\n“Delaware state court system has established its national\npreeminence in the field of corporation law” and identified\nsuch hallmarks of the Court of Chancery as its “[j]udicial\nefficiency and expertise, a well-paid and well-respected\njudiciary, innovative judicial administration [and] courageous\n\n\n2\n Randy J. Holland, THE DELAWARE STATE CONSTITUTION\n149 (2011).\n3\n See, e.g., Omari Scott Simmons, Delaware’s Global Threat,\n41 J. OF CORP. L. 217, 224 (2016) (referring to the\n“preeminence of Delaware’s courts in resolving corporate\ndisputes”); Ehud Kamar, A Regulatory Competition Theory of\nIndeterminacy in Corporate Law, 98 COLUMBIA L. REV. 1908,\n1926 (1998) (“Delaware courts have earned a unique\nreputation for quality adjudication”).\n 2\n\nleadership.”4 Members of the Delaware bench credit the\npolitical balancing requirement for at least part of this success.5\nWith that national reputation so firmly established, it is perhaps\nnot surprising that attorneys contemplating judicial candidacy\nhave not previously challenged this constitutional framework.6\n\n4\n William H. Rehnquist, Chief Justice of the United States,\nAddress at the Bicentennial of the Delaware Court of Chancery\n(Sep. 18, 1992) in The Prominence of the Delaware Court of\nChancery in the State-Federal Joint Venture of Providing\nJustice, 48 THE BUSINESS LAWYER 1 (1992).\n5\n See, e.g., Devera B. Scott, et al., The Assault on Judicial\nIndependence and the Uniquely Delaware Response, 114\nPENN ST. L. REV. 217, 243 (2009) (quoting President Judge Jan\nR. Jurden as saying the “Delaware judicial nominating process\ngoes to great pains to ensure a balanced and independent\njudiciary, and, therefore, it is no surprise that the public\nperceives Delaware courts as fair arbiters of justice.”); E.\nNorman Veasey & Christine T. Di Guglielmo, What Happened\nin Delaware Corporate Law and Governance from 1992-\n2004? A Retrospective on Some Key Developments, 153 U. PA.\nL. REV. 1399, 1401 (2005) (former Chief Justice of the\nDelaware Supreme Court stating that Delaware’s judicial\n“system has served well to provide Delaware with an\nindependent and depoliticized judiciary and has led . . . to\nDelaware’s international attractiveness as the incorporation\ndomicile of choice.”); Leo E. Strine, Jr., The Delaware Way:\nHow We Do Corporate Law and Some of the New Challenges\nWe (and Europe) Face, 30 DEL. J. CORP. L. 673, 683 (2005)\n(Chief Justice of the Delaware Supreme Court noting that its\njudicial selection process has resulted “in a centrist group of\njurists committed to the sound and faithful application of the\nlaw.”).\n6\n Indeed, one of this court’s two courtrooms is named for\nCollins J. Seitz; a legendary judge of national prominence who\nserved with great distinction as a judge on the Delaware Court\nof Chancery before being appointed to this court by President\nJohnson in 1966.\n While sitting on the Delaware Court of Chancery, Judge\nSeitz decided Belton v. Gebhart, 87 A.2d 862 (1952) in which\nhe courageously ordered the desegregation of the Delaware\npublic schools two years before the United States Supreme\nCourt struck down the doctrine of “separate but equal” in\n 3\n\n But that excellence cannot justify the constitutional\ntransgression that is baked into the selection process. As we\nexplain,7 despite the state’s interest in achieving a judicial\nsystem that is as fair in fact as it is in appearance, the provisions\nof the Delaware Constitution restricting who can apply for\njudicial appointment are not narrowly tailored to achieve their\nlaudatory objectives. Accordingly, we need not decide whether\nDelaware has a “vital state interest” that justifies the limitations\non political affiliation. That question may be decided in a\nfuture case. Moreover, Delaware may choose to amend its\nConstitution in a manner that achieves the goals of the\nproblematic political affiliation requirements without their\nattendant constitutional infirmities.\n\n No matter what ensues, I have little doubt that the\nconstitutional provisions which we today invalidate have\nresulted in a political and legal culture that will ensure the\n\nBrown v. Bd. Of Educ. 347 U.S. 483 (1954). The appeal from\nhis decision there was one of the four consolidated cases before\nthe Court in Brown where the Supreme Court affirmed the\nview Judge Seitz had expressed in ordering the desegregation\nof the Delaware’s schools rather than ordering Delaware to\nmake its “Negro” schools equal to those serving White\nstudents. In Belton, Judge Seitz based his ruling on his factual\nconclusion that the Negro schools were inferior to White\nschools and therefore not equal; the approach that was then\nrequired under Plessy v. Ferguson, 163 U.S. 537 (1896).\n Nevertheless, in reaching his decision, Judge Seitz clearly\nstated that the doctrine of Plessy was itself an anathema to the\nUnited States Constitution because segregated schools were,\nby definition, unequal. Foreshadowing Brown, he wrote: “I\nbelieve that the ‘separate but equal’ doctrine in education\nshould be rejected, but I also believe its rejection must come\nfrom [the Supreme Court.].” Belton, 87 A.2d at 865. His\ndecision was later aptly described as a demonstration of Judge\nSeitz’s “courage and moral clarity.” William T. Allen, The\nHonorable Collins J. Seitz: Greatness in a Corporate Law\nJudge, 16 FALL DEL. LAW 5, 3. (1998).\n It is particularly appropriate to mention Judge Collins Seitz\nhere because he is such a dramatic example of the judicial\nexcellence I am referring to in extolling Delaware’s judiciary.\n7\n Maj. Op, at 24–25.\n 4\n\ncontinuation of the bipartisan excellence of Delaware’s\njudiciary. That culture appears to be so firmly woven into the\nfabric of Delaware’s legal tradition that it will almost certainly\nendure in the absence of the political affiliation requirements\nthat run afoul of the First Amendment.\n\n\n\n\n 5", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367447/", "author_raw": "McKEE, Circuit Judge, concurring"}]} | MCKEE | RESTREPO | FUENTES | 1 | {"MCKEE": ", Circuit", "RESTREPO": ", Circuit", "FUENTES": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4590194/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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4,590,724 | Jerome MCKINNEY v. UNIVERSITY OF PITTSBURGH, Appellant | Jerome McKinney v. University of Pittsburgh | 2019-02-14 | 17-3084 | U.S. Court of Appeals for the Third Circuit | {"judges": "Hardiman, Krause, Bibas", "parties": "", "opinions": [{"author": "KRAUSE, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _______________\n\n No. 17-3084\n _______________\n\n JEROME MCKINNEY\n\n v.\n\n UNIVERSITY OF PITTSBURGH,\n Appellant\n\n _______________\n\n On Appeal from the United States District Court\n for the Western District of Pennsylvania\n (W.D. Pa. Civil Action No. 2-15-cv-01538)\n District Judge: Honorable Nora B. Fischer\n _______________\n\n Argued: September 6, 2018\n\nBefore: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges\n\n (Opinion Filed: February 14, 2019 )\n\fShannon H. Paliotta\nUniversity of Pittsburgh\nOffice of General Counsel\n1710 Cathedral of Learning\n4200 Fifth Avenue\nPittsburgh, PA 15260\n\nKim M. Watterson [Argued]\nReed Smith\n225 Fifth Avenue\nSuite 1200\nPittsburgh, PA 15222\n\nM. Patrick Yingling\nReed Smith\n10 South Wacker Drive\n40th Floor\nChicago, IL 60606\n\n Counsel for Appellant University of Pittsburgh\n\nSean L. Ruppert [Argued]\nKraemer Manes & Associates\n600 Grant Street\nU.S. Steel Tower, Suite 4875\nPittsburgh, PA 15219\n\n Counsel for Appellee Jerome McKinney\n\n\n\n\n 2\n\fShannon D. Farmer\nBurt M. Rublin\nBallard Spahr\n1735 Market Street\n51st Floor\nPhiladelphia, PA 19103\n\n Counsel for Amicus Appellants Temple University, the\n Pennsylvania State University, Rowan University and\n Delaware State University\n\n\n ______________\n\n OPINION OF THE COURT\n _______________\n\nKRAUSE, Circuit Judge.\n\n Jerome McKinney, a longtime, tenured professor at the\nUniversity of Pittsburgh’s Graduate School of Public and\nInternational Affairs, challenges the University’s decision to\nreduce his salary as a violation of the Due Process Clause.\nBased largely on the negative implications that can be drawn\nfrom a University policy that discusses salary increases but\nnowhere mentions salary decreases, McKinney argues that he\nhas a property interest in the continued receipt of his base\nsalary and that he was deprived of that interest without due\nprocess. The District Court agreed, granting summary\njudgment for McKinney. Because we conclude McKinney\nlacks a property interest in the entirety of his base salary, we\nwill reverse and remand for entry of judgment in favor of the\nUniversity.\n\n\n\n\n 3\n\fI. Background\n\n When McKinney was hired in 1970 and granted tenure\nin 1974, the terms of his employment were not governed by a\ncollective bargaining agreement or employment contract per\nse, but by University policies promulgated by the University\nTrustees. Those policies provide that tenured faculty can be\nterminated only “for cause,” App. 795, and they explicitly\nprovide yearly salary raises for all faculty who perform\nsatisfactorily or meritoriously. According to University Policy\n07-09-01 (the “Policy”), “[e]ach faculty or staff member\nperforming satisfactorily will receive a percentage increase of\nthe size determined for that year for maintenance of real\nsalary,” i.e., a salary increase to account for inflation. App.\n1152–53. And for meritorious faculty, the Policy states that\n“every faculty . . . member whose performance is judged\nmeritorious receives a merit increase in salary.” App. 1153.\nAny salary increase for “maintenance” or merit “become[s]\npart of [the faculty member’s] base contract salary in\nsubsequent years.” Id.\n\n No explicit provisions govern salary decreases, but the\nPolicy provides procedures to address complaints from faculty\nmembers dissatisfied with their salary decisions and requires\nthat if a faculty member’s performance is “judged\nunsatisfactory,” the faculty member “must be informed of the\nspecific reasons for that judgment.” App. 1154.\n\n Whether a given professor’s performance is\nmeritorious, satisfactory or unsatisfactory depends on three\ncriteria: (1) teaching ability, (2) achievements in research and\nscholarship, and (3) service to the University and/or\ncommunity. For McKinney, these criteria were assessed in an\n\n\n\n\n 4\n\fannual review process overseen by the Dean of the Graduate\nSchool of Public and International Affairs (the “Grad School”).\nTo evaluate these criteria, the Dean invites input from the\nfaculty members themselves and from their peers and students.\nThat input is typically in the form of reports prepared by each\nfaculty member, which summarize their activities and\nachievements for the year; evaluations provided by an elected\ncommittee of Grad School faculty members, which scores each\nfaculty member on all three criteria; and student evaluations\nand enrollment data tracked by the University. Based on the\nsubmissions received, the Dean makes a final decision about\nfaculty performance, rating each faculty member as\nmeritorious, satisfactory, or unsatisfactory, and determines\nwhat salary a faculty member will receive the following year\nin accordance with the Policy.\n\n McKinney did not fare well in recent years in this\nreview process. In McKinney’s 2010 and 2011 reviews, John\nKeeler, the Dean of the Grad School for all relevant periods,\nexpressed concern about declining enrollment in McKinney’s\nclasses, poor student evaluations, and a stagnant research\nagenda, but nonetheless granted him the standard 2.0% and\n1.5% maintenance increases which were budgeted respectively\nin those years for faculty with “satisfactory” performance.\nDespite the admonition from Dean Keeler, these same\ndeficiencies persisted through the 2012 review, in which\nMcKinney ranked last among the Grad School faculty and was\ngiven a performance rating of “less than satisfactory.” App.\n231. At the conclusion of that review in August 2012,\nMcKinney was advised that his salary would be increased by\nonly 0.5%, and that if his “performance d[id] not improve next\nyear . . . [Dean Keeler] w[ould] have no recourse but to give\n\n\n\n\n 5\n\f[McKinney] a 0.0% raise or even consider a salary reduction.”\nApp. 233.\n\n Still, McKinney’s performance showed no\nimprovement. He was again ranked last in the 2013 review,\nprompting Dean Keeler to reduce his salary by 20%. In a face-\nto-face meeting with McKinney in September 2013, Dean\nKeeler advised McKinney of this decision and provided him a\nletter that laid out over the course of five pages the long-\nstanding problems with McKinney’s teaching and research that\njustified the decision.\n\n McKinney then lodged a complaint directly with the\nUniversity Provost. Although this was not consistent with the\nprescribed Grad School appeal process, the University\ninvestigated and ultimately concluded that McKinney’s salary\nreduction was not improper.\n\n At that point, McKinney filed a complaint in federal\ncourt alleging that the University unconstitutionally deprived\nhim of his property interest in the entirety of his base salary.\nAfter discovery, the parties cross-filed for summary judgment,\nwhich the District Court granted in favor of McKinney.1 In\nsupport of his motion, McKinney argued that the University’s\n“tenure system, policies, and bylaws” created a “property right\nto his salary.” McKinney v. Univ. of Pittsburgh, Civil Action\nNo. 15-1538, 2017 WL 2418689, at *11 (W.D. Pa. June 5,\n2017) (quoting ECF No. 25 at 5–6). The University countered\n\n 1\n McKinney’s complaint also included a count alleging\nracial discrimination, but McKinney did not oppose the\nUniversity’s motion for summary judgment on this claim.\n\n\n\n\n 6\n\fin its motion that though McKinney had a property interest in\ncontinued employment, he did “not have a constitutionally\nprotected interest in any set salary.” Id. at *10 (citing ECF No.\n21 at 16–17).\n\n After reviewing the relevant University policies and the\nprocess by which the University reduced McKinney’s salary,\nthe District Court sided with McKinney, concluding that he\nhad a property interest in his full salary and that the University\ndeprived him of that interest without due process. The\nUniversity moved to stay the proceeding and filed for\ninterlocutory appeal, which we granted.2\n\nII. Jurisdiction and Standard of Review3\n\n\n\n\n 2\n The District Court initially certified to us only the\nquestion of McKinney’s property interest in the entirety of his\nbase salary, and we granted review as to that question and the\nquestion of whether the process by which the University\nreduced McKinney’s salary comported with the Due Process\nClause. Because of the conclusion we reach below, however,\nwe do not reach the procedural due process issue.\n 3\n The District Court had jurisdiction under 28 U.S.C.\n§ 1331, and we have jurisdiction under 28 U.S.C. § 1292(b).\nFor purposes of the state action doctrine, the parties agree that\n“[a]ctions taken by [the University] are . . . actions taken under\ncolor of state law and are subject to scrutiny under section\n1983.” Krynicky v. Univ. of Pittsburgh, 742 F.2d 94, 103 (3d\nCir. 1984).\n\n\n\n\n 7\n\f We review the District Court’s grant of summary\njudgment de novo. Faush v. Tuesday Morning, Inc., 808 F.3d\n208, 215 (3d Cir. 2015) (citation omitted). To prevail at this\nstage, the moving party must establish that “there is no genuine\ndispute as to any material fact and the movant is entitled to\njudgment as a matter of law.” Fed. R. Civ. P. 56(a). We view\nall facts “in the light most favorable to the non-moving party,”\nwith “all reasonable inferences [drawn] in that party’s favor,”\nScheidemantle v. Slippery Rock Univ. State Sys. of Higher\nEduc., 470 F.3d 535, 538 (3d Cir. 2006).\n\nIII. Discussion\n\n On appeal, the University argues that McKinney does\nnot have a property interest in his full salary because the Policy\ndoes not protect his base salary against reduction. McKinney\nalso focuses exclusively on the Policy, arguing that the\nlanguage of the Policy gives him a constitutionally protected\nproperty interest in his base salary.4 We conclude that the\n\n 4\n On appeal, McKinney has abandoned any argument\nthat the mere fact of tenured status supports a property interest\nin his entire base salary. See Appellee Br. 15 (“Plaintiff does\nnot contend that his property right to the entirety of his salary\nis derived from his tenure status, nor to the mere lack of a\nspecific policy allowing for salary reductions. Rather, Plaintiff\ncontends that his property interest in a specific amount of\nsalary arises directly out of Defendant’s Policy 07-09-01.”).\nNor does he contend that the salary reduction he received was\nof sufficient magnitude to implicate the interest a tenured\nfaculty member at the University would have in continued\nemployment. See Ferraro v. City of Long Branch, 23 F.3d 803,\n806–07 (3d Cir. 1994) (recognizing that adverse employment\n\n\n\n\n 8\n\fPolicy is insufficient to support a constitutionally protected\nproperty interest. Below, we first address what is needed to\nestablish a property interest in this context and then explain\nwhy the Policy fails to meet that high bar.\n\n The Fourteenth Amendment protects against\n“depriv[ation] of an individual interest [in] . . . property”\nwithout the “due process of law.” Hill v. Borough of Kutztown,\n455 F.3d 225, 233–34 (3d Cir. 2006) (quoting Alvin v. Suzuki,\n227 F.3d 107, 116 (3d Cir. 2000)). Core to the existence of an\nindividual property interest is the requirement that the plaintiff\nhave “a legitimate claim of entitlement to” the interest at issue\nthat stems from “an independent source such as state law” or\n“rules or understandings that secure certain benefits.” Bd. of\nRegents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).\nThus, it is not sufficient that a plaintiff has an “abstract need or\ndesire” or a “unilateral expectation” of a particular benefit. Id.\nInstead, the property interest must arise from either the\n“circumstances of . . . service” or the “mutually explicit\nunderstandings that support [the] claim of entitlement to the\nbenefit.” Perry v. Sindermann, 408 U.S. 593, 601–02 (1972).\n\n The Supreme Court has set a high bar for how “explicit”\nan understanding must be in order to support a property\ninterest. In the context of state universities, for example, the\nCourt has recognized a property interest in “continued\n\n\nactions short of termination can “rise to [the] level\nof . . . constructive discharge” and thereby implicate an interest\nin continued employment); Appellant Br. 35, 37\n(acknowledging McKinney’s property interest in continued\nemployment).\n\n\n\n\n 9\n\femployment” where tenured faculty have been expressly\ninformed that they may be terminated only “for cause.” See\nGilbert v. Homar, 520 U.S. 924, 928–29 (1997) (“[P]ublic\nemployees who can be discharged only for cause have a\nconstitutionally protected property interest in their tenure and\ncannot be fired without due process.” (citation omitted)). In\nother contexts, the Court likewise has found property interests\nwhere it was clear that the expectation was mutual. See\nMemphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11–12\n(1978) (“Because petitioners may terminate [utility] service\nonly ‘for cause,’ respondents assert a ‘legitimate claim of\nentitlement’ within the protection of the Due Process Clause.”\n(footnote omitted)); Goldberg v. Kelly, 397 U.S. 254, 262\n(1970) (recognizing a property interest in welfare benefits that\nwere assured as “a matter of statutory entitlement”). And\nconversely, it has declined to recognize such an interest where\nthe claimants failed to “show[] the requisite mutual\nunderstanding,” even if those claimants could show\n“reasonable expectations of” receiving the benefit at issue.\nLeis v. Flynt, 439 U.S. 438, 441–43 (1979) (addressing an “out-\nof-state lawyer’s [alleged property] interest in appearing pro\nhac vice,” where “the prevalence of pro hac vice practice in\nAmerica[n] courts” and “not a right granted either by statute or\nthe Constitution” was the purported basis of the interest).\n\n Although the Supreme Court itself has not had occasion\nto address the contours of a property interest in base salary,\nsome of our sister circuits have done so, holding that a public\nemployee may claim such an interest only where there is\nexplicit assurance to that effect. See, e.g., Roybal v.\nToppenhish Sch. Dist., 871 F.3d 927, 930, 932 (9th Cir. 2017)\n(holding that a statute which “limit[ed] the grounds on which\nsalary may be reduced, create[d] a reasonable expectation that\n\n\n\n\n 10\n\f[public school] principals w[ould] continue to receive their\nsalary, and therefore, a protected property right” (citation\nomitted)); Atterberry v. Sherman, 453 F.3d 823, 827 (7th Cir.\n2006) (holding that a statute protecting against “demotion,”\nwhich was defined in terms of salary reduction, created a\n“certain legitimate expectation[]” that the employee “could not\nbe subjected to reduction in salary or rate”); Sonnleitner v.\nYork, 304 F.3d 704, 711 (7th Cir. 2002) (holding that a statute\nwhich provided that a state employee “may be removed,\nsuspended without pay, discharged, reduced in base pay or\ndemoted only for just cause” created a property interest).\n\n On the other hand, where there is ambiguity or it is\nexplicit that a public employee’s salary can be reduced, the\nCourts of Appeals do not recognize a property interest in a set\nsalary. See, e.g., Williams v. Texas Tech. Univ. Health Scis.\nCtr., 6 F.3d 290, 294 (5th Cir. 1993) (holding that tenure\nregulations which subjected salary to “possible annual\nadjustments” did not create a property interest in a particular\nsalary because the “‘mutually explicit\nunderstanding’ . . . rested on periodic . . . salary revisions”);\nAsh v. Bd. of Educ. of Woodhaven Sch. Dist., 699 F.2d 822,\n826 (6th Cir. 1983) (holding that a reduction in public school\nteacher pay following the shortening of a school calendar did\nnot violate a property interest because the teachers had only a\n“unilateral expectation of receiving their full salary”); Childers\nv. Indep. Sch. Dist. No. 1 of Bryan Cty., 676 F.2d 1338, 1341\n(10th Cir. 1982) (holding that a teacher’s reassignment, which\nresulted in a lower salary, did not “deprive[] him of a protected\nproperty interest” because the relevant statutes did not require\nthat each year’s contract “contain identical terms as those\nfound in the preceding year’s contract.”). In general, as the\nFifth Circuit has observed, “the more detailed and conditional\n\n\n\n\n 11\n\fthe understanding becomes between employer and employee,\nthe weaker the linkage becomes between those understandings\nand the Due Process Clause.” Williams, 6 F.3d at 293 (citation\nomitted).\n\n Here, we confront a policy that falls somewhere\nbetween the explicit assurances that salary cannot be reduced,\nas in the Roybal line of cases, and the explicit admonitions that\nit can be reduced, in cases like Williams. McKinney grounds\nhis claim in a single line in the Policy: “Each faculty or staff\nmember performing satisfactorily will receive a percentage\nincrease of the size determined for that year for maintenance\nof real salary.” App. 1153. But measured against the yardstick\nof Perry and Roth and the case law of our sister circuits, this\nlanguage is not sufficient to give McKinney a “legitimate\nexpectation” in the continuance of his base salary. We reach\nthis conclusion for three reasons.\n\n First, the Policy by its terms speaks to a potential\nproperty interest in “maintenance,” i.e., an incremental annual\nadjustment to account for inflation, not a property interest in\nbase salary. “Maintenance” is evaluated annually and thus\nrelates to a benefit that has not yet been received. McKinney\ndoes not challenge the University’s decision to not award him\na maintenance increase; instead, he elides this prospective\nbenefit with the continued receipt of an existing benefit: his last\nyear’s base salary.5 Yet the Policy refers not to base salaries\n\n\n\n\n 5\n In August 2013, McKinney had a possible property\ninterest in the continued receipt of his $117,350 base salary,\nwhich was set in August 2012, and a possible property interest\n\n\n\n\n 12\n\fbut to maintenance increases, and thus, to the extent it creates\nany “mutually explicit understanding,” it is not one that\nsupports the property interest that McKinney claims on appeal.\n\n Second, we can hardly derive a “mutually explicit\nunderstanding” from the Policy when McKinney’s entire\nargument is premised on a negative implication. His argument,\nafter all, is that the phrase “increase . . . for maintenance of real\nsalary,” App. 1153, assumes—and therefore implicitly\nguarantees—the baseline of the prior year’s salary. But while\nsuch an assumption about the meaning of “increase” may\nsupport a “unilateral expectation,” Roth, 408 U.S. at 577, about\nthe baseline salary, it does not protect against the reduction of\nsalary for purposes of the Due Process Clause. And even\nassuming this language is sufficiently ambiguous to render\nMcKinney’s interpretation a reasonable one, the burden is on\nMcKinney, as the plaintiff asserting a constitutionally\nprotected property interest, to establish the converse: that a\npolicy explicitly prohibits the reduction of base salary. See\nLeis, 439 U.S. at 443 (requiring the plaintiffs to “show[] the\nrequisite mutual understanding” (emphasis omitted)); Roth,\n408 U.S. at 579 (noting that the plaintiff had “not shown that\nhe was deprived of . . . property protected by the Fourteenth\nAmendment”). This, he fails to do.\n\n Third, any assurances the Policy gives, even as to\nincreases for “maintenance,” are too “detailed and\nconditional,” Williams, 6 F.3d at 293, to support a property\ninterest in the base salary. Indeed, the Policy expressly\n\n\nin the receipt of an additional $1,760.25 for maintenance of his\nsalary.\n\n\n\n\n 13\n\fanticipates negative consequences for unsatisfactory\nperformance in that it requires the Grad School to inform\nfaculty members whose performance is “judged\nunsatisfactory” of the “specific reasons for that judgment,”\nApp. 1154, and it specifies procedures a faculty member may\ninvoke to seek reconsideration of salary decisions—a\ncircumstance that can arise in the normal course not only with\nsalary increases that a faculty member may consider\ninadequate but also with salary decreases a faculty member\nmay wish to contest. And the Policy’s three-tiered rating\nstructure (meritorious, satisfactory, unsatisfactory) itself\nreinforces the understanding that salary may be reduced as well\nas increased. Given that the Policy provides for salary\nincreases beyond “maintenance” for those whose performance\nis deemed “meritorious” and an “increase . . . for maintenance\nof real salary,” App. 1153, for those whose performance is\ndeemed “satisfactory,” the logical implication is that those\nwhose performance is “less than satisfactory,” App. 231, may\nbe subject to salary reductions. In sum, both the appeal\nprovisions and the three-tiered rating structure indicate that\nsalaries are subject to “possible annual adjustments,” Williams,\n6 F.3d at 294, and that McKinney thus had no more than a\n“unilateral expectation of receiving [his] full salary,” Ash, 699\nF.2d at 826.\n\n The “circumstances of [McKinney’s] service,” Perry,\n408 U.S. at 602, bolster that conclusion. There is evidence in\nthe record that the University had reduced the salary of as many\nas twenty faculty members in the past, indicating that\nMcKinney’s salary reduction was not wholly unusual.\nFurthermore, McKinney was notified as early as August 2012\nthat if his “performance d[id] not improve next year . . . [Dean\nKeeler] w[ould] have no recourse but to give [McKinney] a\n\n\n\n\n 14\n\f0.0% raise or even consider a salary reduction.” App. 233. Yet\nMcKinney offered no response, and at no point before his\nsalary was actually reduced over a year later, in September\n2013, did he express surprise or object to this prospect. In\nshort, McKinney has failed to establish any explicit\nunderstanding—much less a “mutually explicit\nunderstanding”—that his salary was protected against\nreduction.\n\n Finally, we note that where, as here, a university policy\nis at best ambiguous in establishing a property interest, courts\nshould refrain from constructing one. “Judicial interposition\nin the operation of the public school system of the Nation raises\nproblems requiring care and restraint. . . . By and large, public\neducation in our Nation is committed to the control of state and\nlocal authorities.” Goss v. Lopez, 419 U.S. 565, 578 (1975)\n(ellipsis in original) (quoting Epperson v. Arkansas, 393 U.S.\n97, 104 (1968)). We have heeded this admonition before, see\nChung v. Park, 514 F.2d 382, 386 (3d Cir. 1975), and because\nwe are “particularly ill-equipped” to wade into the realm of\n“academic decisionmaking,” we will not do so without good\nreason. Bd. of Curators of Univ. of Missouri v. Horowitz, 435\nU.S. 78, 92 (1978).6 That reason is notably absent here, where\n\n\n\n\n 6\n We are recipients here of an insightful and well-\nresearched amicus brief by several public universities located\nwithin our Circuit. As that brief highlights, the prospect of\nfederal courts reviewing “a university’s academic judgment\nconcerning the performance of a member of its faculty,” Amici\nCuriae Br. 5, could inject constitutional rights into an array of\npublic university decisions about other benefits received by\n\n\n\n\n 15\n\fthe language of the Policy offers too slender a reed to support\nthe weight of a constitutional right.\n\nIV. Conclusion\n\n For the foregoing reasons, we will reverse the District\nCourt’s order granting summary judgment to McKinney and\nwill remand with instructions to enter judgment in favor of the\nUniversity.\n\n\n\n\ntheir employees, such as health insurance and paid leave. As a\nresult, federal courts should not start down this slippery slope.\n\n\n\n\n 16", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367977/", "author_raw": "KRAUSE, Circuit Judge."}]} | HARDIMAN | KRAUSE | BIBAS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4590724/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,590,725 | Adel DESSOUKI, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES of America, Respondent Adel Dessouki, Appellant v. Secretary, United States Department of Homeland Security; Attorney General United States of America; Acting Director United States Citizenship and Immigration Services; Acting District Director United States Citizenship and Immigration Services Philadelphia District Office | Adel Dessouki v. Attorney General United States | 2019-02-14 | 17-3131; 18-1510; 18-2110 | U.S. Court of Appeals for the Third Circuit | {"judges": "Greenaway, Bibas, Fuentes", "parties": "", "opinions": [{"author": "BIBAS, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _______________\n\n Nos. 17-3131 & 18-1510\n _______________\n\n ADEL DESSOUKI,\n Petitioner\n v.\n\nATTORNEY GENERAL OF THE UNITED STATES OF\n AMERICA,\n Respondent\n _______________\n\n On Petition for Review of Decisions of the\n United States Department of Justice\n Board of Immigration Appeals\n (A029-635-695)\n Immigration Judge: Rosalind K. Malloy\n\f _______________\n\n No. 18-2110\n _______________\n\n ADEL DESSOUKI,\n Appellant\n v.\n\n SECRETARY, UNITED STATES DEPARTMENT OF\n HOMELAND SECURITY; ATTORNEY GENERAL\n UNITED STATES OF AMERICA; ACTING DIRECTOR\n UNITED STATES CITIZENSHIP AND IMMIGRATION\n SERVICES; ACTING DISTRICT DIRECTOR UNITED\nSTATES CITIZENSHIP AND IMMIGRATION SERVICES\n PHILADELPHIA DISTRICT OFFICE\n _______________\n\n On Appeal from the United States District Court\n for the Eastern District of Pennsylvania\n (D.C. No. 2:17-cv-02389)\n District Judge: Honorable Timothy J. Savage\n _______________\n\n Argued November 15, 2018\n\nBefore: GREENAWAY, JR., BIBAS, and FUENTES, Circuit\n Judges.\n\n (Filed February 14, 2019)\n _______________\n\n\n\n\n 2\n\fDouglas A. Grannan [ARGUED]\n300 Walnut Street\nPhiladelphia, PA 19106\n Counsel for Petitioner-Appellant\n\nElizabeth Fitzgerald-Sambou [ARGUED]\nRodolfo D. Saenz\nUnited States Department of Justice\nOffice of Immigration Litigation\nP.O. Box 878\nBen Franklin Station\nWashington, DC 20044\n\nAnthony St. Joseph\nOffice of United States Attorney\n615 Chestnut Street\nSuite 1250\nPhiladelphia, PA 19106\n Counsel for Respondent-Appellee\n _______________\n\n OPINION OF THE COURT\n _______________\n\nBIBAS, Circuit Judge.\n People have several paths to press claims of U.S. citizen-\nship. They can raise citizenship as a defense to removal. They\ncan affirmatively petition the government. And they can bring\ntheir claims in federal court. In any case, the core inquiry re-\nmains the same: is this person a United States citizen? Adel\nDessouki is not. That one finding moots the rest of the issues\n\n\n\n\n 3\n\fhere. So we will deny his petitions for review and dismiss his\nDistrict Court appeal.\n I. BACKGROUND\n Adel Dessouki’s immigration saga spans decades. He was\nborn in France in 1982. His parents never married, and they\nseparately immigrated to the United States. Dessouki came\nwith his mother and went on to live with his father. Though\nthey entered on temporary visas, his mother became a lawful\npermanent resident and his father a U.S. citizen. But Dessouki\nhimself remained on parole status for many years.\n Things took a turn for the worse in 2003, when Dessouki\nwas convicted of several drug-related felonies. The govern-\nment soon tried to remove him. But the government failed to\nprove that Dessouki was an alien. So an immigration judge ter-\nminated his removal proceedings. Dessouki remained in the\nUnited States.\n But not for long. A few years later, the government reo-\npened the proceedings. After reconsidering the previous deci-\nsion, another immigration judge reversed course and rejected\nDessouki’s claim that he was a citizen. The government then\nremoved him to France.\n Ever-persistent, Dessouki snuck back into the United\nStates. But not without consequence—he was charged with\nreentry after deportation. He recently pleaded guilty and was\nsentenced to time served.\n Dessouki continued to claim citizenship. He first asked an\nimmigration judge to reopen his removal proceedings. The\n\n\n\n\n 4\n\fjudge denied that motion, and the Board of Immigration Ap-\npeals affirmed. Dessouki next brought a motion to reconsider,\nwhich the Board also denied. He then filed an action in U.S.\nDistrict Court seeking a declaration that he is a citizen under 8\nU.S.C. § 1503(a). The District Court dismissed the case for lack\nof subject-matter jurisdiction. In this consolidated appeal, Des-\nsouki seeks review of these adverse rulings.\nII. WE MUST DECIDE DESSOUKI’S CLAIM TO CITIZENSHIP\n For years, Dessouki has claimed that he derived citizenship\nfrom his father. He has presented this argument to immigration\njudges, the Board, and U.S. Citizenship and Immigration Ser-\nvices. With one exception, it has been rejected at every turn.\n He now advances the same argument here. We too will re-\nject it. But before getting there, we must ensure that we have\njurisdiction. And we do have it, because Congress obligates us\nto review claims of citizenship:\n If the petitioner claims to be a national of the\n United States and the court of appeals finds from\n the pleadings and affidavits that no genuine issue\n of material fact about the petitioner’s nationality\n is presented, the court shall decide the nationality\n claim.\n8 U.S.C. § 1252(b)(5)(A). We have assumed that this provision\ngrants jurisdiction. See, e.g., Morgan v. Att’y Gen., 432 F.3d\n226, 229 (3d Cir. 2005).\n Today, we affirm that interpretation. To begin, the word\n“shall” imposes a mandatory requirement. By obligating us to\n\n\n\n\n 5\n\freview nationality claims, § 1252(b)(5)(A) must grant jurisdic-\ntion. The obligation to decide entails the power to do so. Other\nparts of this provision confirm our reading; much of § 1252\nconcerns jurisdiction. See, e.g., § 1252(e)(2) (granting limited\nreview over habeas proceedings); § 1252(a)(2) (exempting\nother proceedings from judicial review); § 1252(b)(1)-(3) (list-\ning requirements for appellate jurisdiction). Given this statu-\ntory context, § 1252(b)(5)(A) is best read as granting jurisdic-\ntion.\n A contrary reading would raise serious constitutional con-\ncerns. The Executive cannot deport a citizen. A “claim of citi-\nzenship is thus a denial of an essential jurisdictional fact” in a\nremoval proceeding. Ng Fung Ho v. White, 259 U.S. 276, 284\n(1922). But unless we read § 1252(b)(5)(A) as jurisdictional,\nArticle III courts would lack the power to ensure that the Ex-\necutive does not overstep its bounds and deport citizens. We\nshould avoid this result. In sum, not only can we review Des-\nsouki’s claim to citizenship before the agency, but we must do\nso.\n III. DESSOUKI IS NOT A CITIZEN\n Dessouki bases his citizenship claim on his father’s natu-\nralization. But the relevant law requires his parents to have\nonce been married. They never were, so Dessouki is not a citi-\nzen.\n We exercise plenary review over Dessouki’s claim to citi-\nzenship. Jordon v. Att’y Gen., 424 F.3d 320, 328 (3d Cir.\n2005). The law “in effect at the time [of] the critical events\ngiving rise to” his claim governs our review. Morgan, 432 F.3d\n\n\n\n\n 6\n\fat 230. So we apply the law as it was in 1998, the year that his\nfather naturalized. At that time, a child born outside the United\nStates to alien parents could derive citizenship in three ways. 8\nU.S.C. § 1432(a) (repealed 2000); Jordon, 424 F.3d at 329.\n First, Dessouki could gain citizenship if both his parents\nwere naturalized. § 1432(a)(1). But his mother never was, so\nhis claim fails under that provision. Second, if one of his par-\nents died, the other’s naturalization sufficed. § 1432(a)(2). But\nthat too is inapt, because both his parents were alive in 1998.\n The third path requires him to satisfy three subsections.\n§ 1432(a)(3)-(5); Jordon, 424 F.3d at 329. Dessouki’s claim\nfails at (a)(3), so we need not reach whether (a)(4) and (a)(5)\nare met. He can satisfy (a)(3) in two ways. First, if “there has\nbeen a legal separation of the parents,” Dessouki must show\nthe “naturalization of the parent having legal custody of [him\nas a] child.” § 1432(a)(3). Or “if the child was born out of wed-\nlock and the paternity of the child has not been established by\nlegitimation,” he must show that his mother naturalized. Id.\nThe second half of this provision does not help Dessouki, be-\ncause his mother was never naturalized.\n So that leaves the first half of (a)(3). There too, Dessouki’s\nclaim hits a snag. His path to derivative citizenship turns on\ntwo words: “legal separation.” A legal separation “occurs only\nupon a formal governmental action . . . under the laws of a state\nor nation having jurisdiction over the marriage.” Morgan, 432\nF.3d at 234. There can be no legal separation here—because\nthere was never a marriage in the first place. Dessouki con-\ncedes that his parents never married. Pet’r Br. 3. Those who\nnever marry cannot legally separate. True enough, Dessouki’s\n\n\n\n\n 7\n\fparents have lived apart for decades. In that sense, they are sep-\narated. But finding this arrangement a “legal separation” would\nflout our decision in Morgan and read the word “legal” out of\nthe statute. So Dessouki’s claim under the first half of (a)(3)\nfails as well. Because Dessouki does not satisfy any of\n§ 1432(a)’s alternatives, he is not entitled to derivative citizen-\nship.\n * * * * *\n Dessouki raises many arguments on appeal. But in the end,\nhe is not a citizen. That is enough to deny his two petitions for\nreview and moot the lingering agency issues. Our finding that\nDessouki is not a citizen also moots his district-court suit. So\nwe will dismiss his appeal of the District Court’s dismissal.\n\n\n\n\n 8", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367978/", "author_raw": "BIBAS, Circuit Judge."}]} | GREENAWAY | BIBAS | FUENTES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4590725/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,591,284 | CITY OF PHILADELPHIA v. ATTORNEY GENERAL OF the UNITED STATES OF AMERICA, Appellant | City of Philadelphia v. Attorney General United States | 2019-02-15 | Case 18-2648 | U.S. Court of Appeals for the Third Circuit | {"judges": "Ambro, Scirica, Rendell", "parties": "", "opinions": [{"author": "District Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n\n\n Case No. 18-2648\n\n\n\n CITY OF PHILADELPHIA\n\n v.\n\n ATTORNEY GENERAL OF THE UNITED STATES OF\n AMERICA,\n\n Appellant\n\n\n On Appeal from the United States District Court\n for the Eastern District of Pennsylvania\n (District Court No.: 2-17-cv-03894)\n District Judge: Honorable Michael M. Baylson\n\n\n Argued on November 7, 2018\n\n\n (Opinion filed: February 15, 2019)\n\n\nBefore: AMBRO, SCIRICA and RENDELL, Circuit Judges\n\fJasmeet K. Ahuja\nAlexander B. Bowerman\nVirginia A. Gibson\nHogan Lovells US\n1735 Market Street\n23rd Floor\nPhiladelphia, PA 19103\n\nKirti Datla\nMatthew J. Higgins\nNeal K. Katyal (Argued)\nHogan Lovells US\n555 Thirteenth Street, N.W.\nColumbia Square\nWashington, DC 20004\n\nMarcel S. Pratt\nLewis Rosman\nKelly S. Diffily\nCity of Philadelphia\nLaw Department\n1515 Arch Street\nPhiladelphia, PA 19102\n Counsel for Appellee\n\nKatherine T. Allen (Argued)\nUnited States Department of Justice\nCivil Division, Appellate Staff\nRoom 7325\n950 Pennsylvania Avenue, N.W.\nWashington, DC 20530\n\n\n\n\n 2\n\fBradley Hinshelwood\nUnited States Department of Justice\nRoom 7256\n950 Pennsylvania Avenue, N.W.\nWashington, DC 20530\n\nLaura Myron\nUnited States Department of Justice\nRoom 7222\n950 Pennsylvania Avenue, N.W.\nWashington, DC 20530\n\nChad A. Readler\nUnited States Department of Justice\nAppellate Section, Criminal Division\n950 Pennsylvania Avenue, N.W.\nWashington, DC 20530\n\nDaniel Tenny\nUnited States Department of Justice\nCivil Division, Federal Programs Branch\n20 Massachusetts Avenue, N.W.\nRoom 7130\nWashington, DC 20530\n Counsel for Appellant\n\nLawrence J. Joseph\nSuite 700-1A\n1250 Connecticut Avenue, N.W.\nWashington, DC 20036\n Counsel for Amicus Appellant Im-\n migration Reform Law\n Institute\n\n\n\n\n 3\n\fAdam S. Lurie\nLinklaters\n601 Thirteenth Street, N.W.\nSuite 400 South\nWashington, DC 20006\n Counsel for Amicus American\n Jewish Committee\n\nBenna R. Solomon\nCity of Chicago\nCorporate Counsel's Office\n30 North LaSalle Street\nRoom 800\nChicago, IL 60602\n Counsel for Amicus Appellee City\n of Chicago\n\nSpencer E. W. Amdur\nAmerican Civil Liberties Union\nImmigrants' Rights Project\n125 Broad Street\n18th Floor\nNew York, NY 10004\n Counsel for Amicus Appellee\n American Civil Liberties Union\n Foundation\n\nIlana H. Eisenstein\nDLA Piper\n1650 Market Street\nOne Liberty Place, 49th Floor\nPhiladelphia, PA 19103\n\n\n\n\n 4\n\f Counsel for Amicus Appellee\n Philadelphia Social and Legal\n Services Organizations\n\nNicolas Y. Riley\nInstitute for Constitutional Advocacy and Protection\nGeorgetown University Law Center\n600 New Jersey Avenue, N.W.\nWashington, DC 20001\n Counsel for Amicus Appellee Cur-\n rent and Former Prosecutors and\n Law Enforcement Leaders\n\nLinda Fang\nOffice of Attorney General of New York\n28 Liberty Street\n23rd Floor\nNew York, NY 10005\n Counsel for Amicus Appellee\n State of New York\n\nRobert Perrin\nLatham & Watkins\n355 South Grand Avenue\nSuite 100\nLos Angeles, CA 90071\n Counsel for Amicus Appellee Anti\n Defamation League\n\n\n\n\n 5\n\f OPINION\n\n\nRENDELL, Circuit Judge.\n The City of Philadelphia has received funds under the fed-\neral Edward Byrne Memorial Justice Assistance Grant Pro-\ngram (“Byrne JAG”) every year since the program’s inception\nin 2006. Last year, however, the Justice Department notified\nthe City that it was withholding its FY2017 award because the\nCity was not in compliance with three newly implemented con-\nditions (“the Challenged Conditions”). These conditions re-\nquired greater coordination with federal officials on matters of\nimmigration enforcement. The City filed suit to enjoin the At-\ntorney General from withholding its award, and after discovery\nand extensive hearings, the District Court granted summary\njudgment in its favor.\n The City attacked the government’s ability to impose the\nChallenged Conditions on several statutory and constitutional\nfronts. But we need only reach the threshold statutory ques-\ntion. Where, as here, the Executive Branch claims authority\nnot granted to it in the Constitution, it “literally has no power\nto act … unless and until Congress confers power upon it.” La.\nPub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). There-\nfore, our inquiry is straightforward: did Congress empower the\nAttorney General to impose the Challenged Conditions?\n Underlying this question, and potentially complicating its\nresolution, is the stark contrast in the priorities of the City and\nthose of the Executive Branch regarding immigration policy.\nIn resolving the discrete legal question before us, however, we\n\n\n\n\n 6\n\fmake no judgment as to the merits of this policy dispute. Ra-\nther, our role is more confined, and our focus is only on the\nlegality of the particular action before us.\n Concluding that Congress did not grant the Attorney Gen-\neral this authority, we hold that the Challenged Conditions\nwere unlawfully imposed. Therefore, we will affirm the Dis-\ntrict Court’s order to the extent that it enjoins enforcement of\nthe Challenged Conditions against the City of Philadelphia.\nWe will vacate part of the order, however, to the extent that it\nexceeds the bounds of this controversy. See infra III. B.\n I. BACKGROUND\n A. Byrne JAG and the Challenged Conditions\n Federal grants to state and local governments play a large\nrole in facilitating national, state, and local policy. In FY2018\nalone, the federal government was expected to give approxi-\nmately $728 billion to state and local governments through\n1,319 federal grant programs. Robert Jay Dilger, Cong. Re-\nsearch Serv., R40638, Federal Grants to State and Local Gov-\nernments: A Historical Perspective on Contemporary Issues 1\n(2018). These programs encompass a wide range of policy ar-\neas, from health care to special education to infrastructure pro-\njects. Our immediate concern, however, is one particular grant\nprogram for state and local law enforcement: the Edward\nByrne Memorial Justice Assistance Grant Program.\n Byrne JAG, named for a fallen New York City police of-\nficer, was established in 2006 through the merger of two law\nenforcement grant programs. See Pub. L. No. 109-162, § 1111,\n119 Stat. 2960, 3094 (2006). The Department of Justice ad-\nministers the program through the Office of Justice Programs\n(“OJP”), which is headed by an Assistant Attorney General\n\n\n\n\n 7\n\f(“AAG”). Byrne JAG is the “primary provider of federal crim-\ninal justice funding to States and units of local government”\nand distributes over $80 million in awards each year. Edward\nByrne Memorial Justice Assistance Grant Program FY 2017\nLocal Solicitation, Dep’t of Justice (Aug. 3, 2017); App. 332.\nIt is a “formula grant,” meaning that funds are distributed\namong all grantees based on a statutorily fixed formula. In the\ncase of Byrne JAG, the formula considers two factors: popula-\ntion and violent crime statistics. See 34 U.S.C. § 10156. Once\napproved, grantees may spend those funds within any of the\neight statutorily enumerated areas. 1\n Any “State or unit of local government” may submit an ap-\nplication to the Attorney General for this grant. Id. § 10153(a).\nHistorically, the OJP has included a number of conditions on\nthe application (over 50 for FY2017), most of which relate to\nprogram integrity or impose requirements for the handling of\nfederal funds. Applicants must also certify that they “will com-\nply with all provisions of this part and all other applicable Fed-\neral laws.” Id. § 10153(a)(5)(D). Philadelphia has received an\naward under Byrne JAG every year since the program’s incep-\ntion in 2006. Its average annual award from the program is\n\n\n1\n Byrne JAG funds may be used for the following programs:\n“(A) Law enforcement programs. (B) Prosecution and court\nprograms. (C) Prevention and education programs. (D) Cor-\nrections and community corrections programs. (E) Drug treat-\nment and enforcement programs. (F) Planning, evaluation,\nand technology improvement programs. (G) Crime victim and\nwitness programs (other than compensation). (H) Mental\nhealth programs and related law enforcement and corrections\nprograms, including behavioral programs and crisis interven-\ntion teams.” 34 U.S.C. § 10152(a)(1).\n\n\n\n\n 8\n\f$2.5 million, which it has used to modernize courtroom tech-\nnology, fund reentry programs for persons on release from\nprison, and operate substance abuse programs, among other\nprograms.\n In the FY2017 applications that are the subject of this case,\nthe Department included three new conditions. These Chal-\nlenged Conditions are:\n • The Certification Condition. Grantees must “certify\n compliance with [8 U.S.C. § 1373 (“Section 1373”)].”\n Backgrounder on Grant Requirements, Dep’t of Justice\n (July 25, 2017); App. 246. Section 1373 prohibits state\n and local governments from restricting the sharing of\n information relating to an individual’s immigration sta-\n tus—lawful or unlawful—with federal immigration of-\n ficials.\n • The Access Condition. Grantees must “permit person-\n nel of the U.S. Department of Homeland Security\n (“DHS”) to access any detention facility in order to\n meet with an alien and inquire as to his or her right to\n be or remain in the United States.” Id.\n • The Notice Condition. Grantees must “provide at least\n 48 hours advance notice to DHS regarding the sched-\n uled release date and time of an alien in the jurisdic-\n tion’s custody when DHS requests such notice in order\n to take custody of the alien.” Id.\nThe Attorney General maintains that these conditions are “de-\nsigned to ensure that the activities of federal law-enforcement\ngrant recipients do not impair the federal government’s ability\nto ensure public safety and the rule of law by detaining and\nremoving aliens upon their release from local criminal cus-\ntody.” Att’y Gen. Br. 12.\n\n\n\n\n 9\n\f Although the Certification Condition did not apply to\nFY2016 applications, DOJ asked ten jurisdictions, including\nPhiladelphia, to submit legal opinions certifying their compli-\nance with Section 1373. Philadelphia submitted its letter in\nApril 2017. Upon receiving letters from all ten jurisdictions,\nDOJ issued a press release on July 6, 2017. It stated that the\nDepartment was “in the process of reviewing” the letters, but\nalso stated that “[i]t is not enough to assert compliance, the ju-\nrisdictions must actually be in compliance.” Press Release,\nDep’t of Justice (July 6, 2017); App. 248.\n B. Immigration Enforcement and Local Law Enforce-\n ment\n Under our federal system, “both the National and State\nGovernments have elements of sovereignty the other is bound\nto respect.” Arizona v. United States, 567 U.S. 387, 398\n(2012). While the federal government has “broad, undoubted\npower over the subject of immigration and the status of al-\niens,” 2 id. at 394, the “States possess primary authority for de-\nfining and enforcing the criminal law,” United States v. Lopez,\n514 U.S. 549, 561 n.3 (1995) (internal quotation omitted).\nThese powers intersect when a state or city arrests an individ-\nual whom ICE would also like to apprehend for removal pro-\nceedings. 3 This occurs frequently: 142,356 times in FY2017.\n\n2\n Within the Executive Branch, immigration enforcement falls\nprimarily to DHS. And within DHS, U.S. Immigration and\nCustoms Enforcement (“ICE”) is the law enforcement agency\ntasked with identifying, apprehending, and removing aliens\nfrom the United States.\n3\n “Removal” is synonymous with “deportation.” But as a mat-\nter of legal terminology, the Illegal Immigration Reform and\nImmigrant Responsibility Act of 1996, Pub. L. No. 104-208,\n\n\n\n\n 10\n\fU.S. Immigration and Customs Enf’t, Fiscal Year 2017 ICE\nEnforcement and Removal Operations Report 8 (2017).\n An important tool used by ICE in these situations is the im-\nmigration detainer. Once ICE identifies a removable alien who\nis in state or local custody, it cannot simply wrest that individ-\nual from custody. Instead, it may issue a detainer, which serves\nto “advise another law enforcement agency that [it] seeks cus-\ntody of an alien presently in the custody of that agency, for the\npurpose of arresting and removing the alien.” 8 C.F.R. § 287.\nDetainers may ask two things of the state or local agency: that\nit notify ICE at least 48 hours before a removable alien is re-\nleased from custody; and that it detain a removable alien for up\nto 48 hours past the time that the alien would have otherwise\nbeen released to allow ICE to apprehend the individual. ICE\nOperations Report, supra at 7. A detainer is a request, not a\ndemand. Galarza v. Szalczyk, 745 F.3d 634, 642 (3d Cir. 2014)\n(“[D]etainers are not mandatory.”). And DHS’s current policy\nauthorizes ICE officials to issue detainers only after obtaining\nan administrative warrant supported by a showing of probable\ncause that the alien is removable. ICE Operations Report, su-\npra at 7-8.\n Like the immigration detainer, Section 1373 seeks to facil-\nitate cooperation between the State and National Governments.\nSpecifically, it prohibits any restrictions on the sharing of im-\nmigration information. Section 1373 provides in relevant part:\n [A] Federal, State, or local government entity or\n official may not prohibit, or in any way restrict,\n any government entity or official from sending\n\n\nreplaced all references to “deportation” with “removal.” See\nI.N.S. v. St. Cyr, 533 U.S. 289, 315 (2001).\n\n\n\n\n 11\n\f to, or receiving from, the Immigration and Natu-\n ralization Service information regarding the citi-\n zenship or immigration status, lawful or unlaw-\n ful, of any individual.\n8 U.S.C. § 1373(a).\n C. Factual and Procedural History\n 1. Factual History\n Philadelphia filed its FY2017 Byrne JAG application on\nSeptember 5, 2017. 4 The Department issued a “preliminary\ndetermination” of the application on October 11, stating that\nthe City “appears to have laws, policies, or practices that vio-\nlate 8 U.S.C. § 1373.” No doubt, this referred to policies\nadopted by police or executive order that limit the circum-\nstances under which City officials will share immigration in-\nformation with the federal government, permit federal officials\nto access City prison facilities, and coordinate with federal of-\nficials regarding the release of aliens from local custody. 5 The\n\n\n4\n Philadelphia intended to use FY2017 funds to support the Po-\nlice Commissioner’s “Crime Fighting Strategy,” support the\nCity’s “Reality Based Training Unit,” purchase supplies for in-\nner-city youth initiatives, and purchase naxalone for officers\nresponding to opioid overdoses. See S.A. 23.\n5\n Specifically, the policies at issue are:\nThe Confidentiality Memo. Police Memorandum 01-06,\nadopted in May 2001, directs law enforcement officers to share\nimmigration information with the federal government under\nlimited circumstances: when required by law, when the immi-\ngrant consents, or when the “immigrant is suspected of engag-\ning in criminal activity.” App. 250-51.\n\n\n\n\n 12\n\fCity believes that these policies help foster trust between the\nimmigrant community and law enforcement. It argues that\nsuch policies are “critical to reassure law-abiding residents that\ncontact with the City government will not lead to deportation\nby ICE.” Philadelphia Br. 7.\n 2. Procedural History\n This case has unfolded in four main acts: Philadelphia filed\na complaint seeking to enjoin the Department from implement-\ning the Challenged Conditions; the District Court granted a\npreliminary injunction; the District Court granted summary\njudgement and a permanent injunction for the City; and, fi-\nnally, the Attorney General filed this appeal.\n On August 30, 2017, Philadelphia filed the complaint in\nthis action against the Department of Justice in the U.S. District\nCourt for the Eastern District of Pennsylvania. The City sought\n\nThe Confidentiality Order. Executive Order 8-09, enacted in\nNovember 2009, bars law enforcement officers from inquiring\nabout a person’s immigration status, “unless the status itself is\na necessary predicate of a crime the officer is investigating or\nunless the status is relevant to identification of a person who is\nsuspected of committing a crime.” App. 254.\nThe Detainer Order. Executive Order 5-16, enacted in January\n2016, bars City officials from detaining an immigrant pursuant\nto an ICE detainer or from providing notice of the immigrant’s\nrelease, unless the request is accompanied by a judicial war-\nrant. App. 258-59.\nThe Inmate Consent Form. These consent forms are distrib-\nuted to incarcerated individuals whom ICE requests to interro-\ngate. The forms require the inmate’s consent before ICE is\npermitted access to the facility to conduct an interview. App.\n263.\n\n\n\n\n 13\n\fto enjoin the Department from implementing the Challenged\nConditions and a writ of mandamus compelling the Depart-\nment to disburse its FY2017 Byrne JAG funds. The City ar-\ngued that this relief was warranted for five reasons: the Depart-\nment acted ultra vires in enacting the Challenged Conditions\nin violation of the Administrative Procedure Act (“APA”) and\nthe Constitution’s separation of powers; the Conditions were\nenacted arbitrarily and capriciously in violation of the APA;\nthey violated the Spending Clause of the Constitution; the Cer-\ntification Condition and Section 1373 violate the Tenth\nAmendment of the Constitution; and the City was, in fact, in\nsubstantial compliance with the Challenged Conditions. App.\n411-63.\n The District Court held extensive hearings and issued a pre-\nliminary injunction on November 15, 2017. In a thoughtful\nand well-reasoned opinion, the Court found that the City was\nlikely to succeed on all of its claims, and enjoined the Depart-\nment from denying its FY2017 application. See City of Phila-\ndelphia v. Sessions, 280 F. Supp. 3d 579 (E.D. Pa. 2017) (Phil-\nadelphia I). The Department appealed the preliminary injunc-\ntion to this Court on January 16, 2018. After filing its appeal,\nthe case continued in the District Court, where the Department\nalso filed a motion to dismiss the City’s complaint. The Dis-\ntrict Court denied this motion on March 13, 2018. See City of\nPhiladelphia v. Sessions, 309 F. Supp. 3d 271 (E.D. Pa. 2018).\n In two orders, the Court granted summary judgment for the\nCity on all of its claims. See App. 93; City of Philadelphia v.\nSessions, 309 F. Supp. 3d 289 (E.D. Pa. 2018) (Philadelphia\nII). It permanently enjoined the Department from enforcing\nthe Challenged Conditions, ordered the Department to disburse\nthe City’s FY2017 funds, and issued declaratory relief on all of\n\n\n\n\n 14\n\fthe City’s legal claims. Furthermore, the Court issued addi-\ntional relief, namely, ordering that “[t]o the extent an agency\nof the United States Government has probable cause to assert\nthat an individual in the custody of the City of Philadelphia is\na criminal alien … and seeks transfer to federal custody of such\nindividual within a city facility, it shall secure an order from a\njudicial officer of the United States for further detention, as al-\nlowed by law.” App. 191.\n After the District Court issued this order, we dismissed the\nAttorney General’s appeal of the preliminary injunction. The\nAttorney General filed this timely appeal of the Court’s grant\nof summary judgment and permanent injunction.\n D. Related Litigation\n Philadelphia is not alone in being advised that its Byrne\nJAG award depends upon compliance with the Challenged\nConditions. Indeed, several other jurisdictions have sued to\nenjoin enforcement of the Challenged Conditions, including\nthe City of Chicago, the City and County of San Francisco, and\nthe City of New York (which was joined by seven states—New\nYork, Connecticut, New Jersey, Rhode Island, Washington,\nMassachusetts, and Virginia). In all of these cases, the courts\nthat have ruled have enjoined enforcement of the Challenged\nConditions. See City of Chicago v. Sessions, 264 F. Supp. 3d\n933 (N.D. Ill. 2017) (Chicago I) (issuing a preliminary injunc-\ntion as to the Notice and Access Conditions); City of Chicago\nv. Sessions, 888 F.3d 272 (7th Cir. 2018) (Chicago II) (affirm-\ning the district court’s preliminary injunction); City of Chicago\nv. Sessions, 321 F. Supp. 3d 855 (N.D. Ill. 2018) (Chicago III)\n(issuing a permanent injunction); City & County of San Fran-\ncisco v. Sessions, 2018 WL 4859528 (N.D. Cal. Oct. 5, 2018)\n(San Francisco) (issuing a permanent injunction after declin-\ning to issue a preliminary injunction); States of New York, et\n\n\n\n\n 15\n\fal. v. Dep’t of Justice, 2018 WL 6257693 (S.D.N.Y. Nov. 30,\n2018) (New York, et al.) (issuing a permanent injunction).\n II. JURISDICTION AND STANDARD OF REVIEW\n The District Court had jurisdiction pursuant to 28 U.S.C.\n§§ 1331 and 1346. We have jurisdiction pursuant to 28 U.S.C.\n§ 1291. We review the District Court’s findings of fact for\nclear error, and we review its legal conclusions de novo. Black-\nledge v. Blackledge, 866 F.3d 169, 177 (3d Cir. 2017). We\nreview the scope of the District Court’s injunctive relief for\nabuse of discretion. Allstate Settlement Corp. v. Rapid Settle-\nments, Ltd., 559 F.3d 164, 172 (3d Cir. 2009).\n III. DISCUSSION\n The District Court addressed each of the City’s contentions\nand ruled that: the Attorney General did not have statutory au-\nthority to promulgate the Challenged Conditions; he did so ar-\nbitrarily and capriciously; the Challenged Conditions violate\nthe Spending Clause; the Certification Condition violates the\nTenth Amendment; and the City was in substantial compliance\nwith the Challenged Conditions. The Attorney General chal-\nlenges these rulings and also argues that the District Court\nabused its discretion in granting injunctive relief.\n We begin with the threshold issue: whether the Attorney\nGeneral possessed the statutory authority to enact the Chal-\nlenged Conditions. If the Attorney General did not have that\nauthority, then we needn’t reach the other claims.\n A. Statutory Authorization for the Challenged Condi-\n tions\n Where, as here, the Executive Branch is not acting pursuant\nto a constitutional power, it “literally has no power to act …\n\n\n\n\n 16\n\funless and until Congress confers power upon it.” La. Pub.\nServ. Comm’n, 476 U.S. at 374. An executive agency that acts\nwithout statutory authority violates the Administrative Proce-\ndure Act, see 5 U.S.C. § 706(2)(C), and may run afoul of the\nconstitutional separation of powers. Accordingly, we must de-\ntermine whether Congress empowered the Attorney General to\npromulgate the Challenged Conditions. We consider three\nsources of authority offered by the Attorney General: first, the\nByrne JAG statute, 34 U.S.C. §§ 10151–10158; second, the\nprovision defining the duties of the AAG for OJP, 34 U.S.C. §\n10102(a); and third, for the Certification Condition only, Sec-\ntion 10153(a)(5)(D) of the Byrne JAG statute.\n In interpreting the meaning of these statutory provisions,\nwe rely on the rules of statutory interpretation articulated by\nthe Supreme Court and this Court. Our point of departure is\nthe text of the statute. See Gov’t of Virgin Islands v. Knight,\n989 F.2d 619, 633 (3d Cir. 1993). But we are mindful not to\nread provisions in isolation. Rather, we look to the text and\nstructure of the statute as a whole. See K Mart Corp. v. Cartier,\nInc., 486 U.S. 281, 291 (1988). We are also guided by any\nrelevant, well-established canons of statutory interpretation.\nSee Schaar v. Lehigh Valley Health Servs., Inc., 598 F.3d 156,\n160 (3d Cir. 2010).\n 1. The Byrne JAG Statute\n The Attorney General argues that authorization for the No-\ntice Condition and the Access Condition is found in the Byrne\nJAG statute itself. 6 See Att’y Gen. Br. 23. He pursues this\n\n6\n The Attorney General asserts that one provision of the Byrne\nJAG statute, § 10153(a)(5)(D), authorizes the Certification\nCondition but not the Notice and Access Conditions. We will\ndiscuss that provision separately, infra III. A. 3.\n\n\n\n\n 17\n\fargument in the least depth, however, and for good reason.\nSuch authorization is nowhere to be found in the text of the\nstatute. As other courts have noted, the statute delegates some\nauthority to the Attorney General, but it is exceptionally lim-\nited in nature. 7 See, e.g., San Francisco, 2018 WL 4859528,\nat *10 (“[T]he Byrne JAG statute contains limited discretion-\nary authority for the Attorney General to carry out specific\nparts of the grant program.”). Two aspects of the statute, how-\never, deserve closer scrutiny. The first is cited by the Attorney\nGeneral as authorizing the Notice and Access Conditions, and\nthe second, although not relied on by the Attorney General,\nhighlights just how little discretionary authority the statute\nconfers on him.\n First, the Attorney General has limited authority to monitor\nand review grantees’ program and financial information. For\nexample, the statute directs him to require grantees to certify\nthat program funds “will not be used to supplant State or local\nfunds.” Id. § 10153(a)(1). He is directed to require “each pro-\ngram funded under this part [to] contain a program assessment\ncomponent,” id. § 10152(c)(1), but he may waive that require-\nment if he deems that a program is “not of sufficient size to\njustify a full program assessment,” id. § 10152(c)(2). He must\nalso direct applicants to report “data, records, and information\n(programmatic and financial)” that he may “reasonably re-\nquire,” id. § 10153(a)(4), and require that grantees certify that\n\n\n7\n For example, the Attorney General may determine the “form”\nof the application, 34 U.S.C. § 10153(a); he may waive the pro-\nhibition on using funds on vehicles, luxury items, real estate,\nand construction projects, id. § 10152(d)(2); and he may pro-\nvide “technical assistance” to jurisdictions that request it, id. §\n10153(b)(1).\n\n\n\n\n 18\n\f“there has been appropriate coordination with affected agen-\ncies,” id. § 10153(a)(5).\n The Attorney General argues that these latter two provi-\nsions—regarding data reporting and coordination with affected\nagencies—authorize the Notice and Access Conditions. See\nAtt’y Gen. Br. 26. His theory is that notice of an alien’s release\nfrom custody constitutes “information” that the Attorney Gen-\neral may “reasonably require” and access to prison facilities\nconstitutes “appropriate coordination” with an affected agency.\nBut this interpretation stretches those provisions too far. The\ndata-reporting requirement is expressly limited to “program-\nmatic and financial” information—i.e., information regarding\nthe handling of federal funds and the programs to which those\nfunds are directed. It does not cover Department priorities un-\nrelated to the grant program. Furthermore, the coordination\nrequirement asks for a certification that there “has been” ap-\npropriate coordination. Given that “Congress’ use of a verb\ntense is significant in construing statutes,” United States v. Wil-\nson, 503 U.S. 329, 333 (1992), and this provision is housed in\na subsection containing several other certification require-\nments regarding a grantee’s application, we interpret it to re-\nquire certification that there was appropriate coordination in\nconnection with the grantee’s application. This does not serve\nas a basis to impose an ongoing requirement to coordinate on\nmatters unrelated to the use of grant funds.\n Second, certain provisions of the statute, and other provi-\nsions in the U.S. Code that expressly mention the Byrne JAG\nstatute, give the Attorney General narrow authority to withhold\n\n\n\n\n 19\n\for re-allocate funds under very limited circumstances. 8 For ex-\nample, he may re-allocate funds among grantees and withhold\na small percentage of funds from a particular grantee. The stat-\nute gives the Attorney General the authority to “reserve not\nmore than 5 percent” of total funds in order to “address … pre-\ncipitous or extraordinary increases in crime” or to “mitigate\nsignificant programmatic harm resulting from operation of the\nformula” in one or more jurisdictions. 34 U.S.C. § 10157. This\nprovision, however, authorizes the Attorney General to re-al-\nlocate funds only in those two, narrow circumstances. And it\nonly allows the Attorney General to set aside five percent of\nthe total Byrne JAG funds, leaving the formula in place for dis-\ntribution of the remainder of the funds. It does not authorize\nthe enactment of the Challenged Conditions or the withholding\nof the entirety of a particular jurisdiction’s award.\n There are also circumstances in which the Attorney General\nmay, or must, withhold Byrne JAG funds for a grantee’s failure\nto comply with certain federal laws. For example, he may\nwithhold up to four percent of a jurisdiction’s Byrne JAG funds\nif it fails to meet certain requirements of the National Instant\nCriminal Background Check System. See 34 U.S.C. §\n40914(b)(1). A mandatory reduction of five percent of Byrne\nJAG funds will occur if there are egregious violations. See id.\n§ 40914(b)(2). The Attorney General also has the discretion to\nwithhold “not more than [] 10-percent” of Byrne JAG funds if\na jurisdiction fails to comply with “death-in-custody” reporting\nrequirements. Id. § 60105(c)(2). All other delegations of this\n\n8\n The Attorney General does not rely on these provisions, but\nwe think that consideration of them is necessary to make our\nanalysis complete. The limited scope of authority granted by\nthese provisions stands in stark contrast to the broad authority\nthe Attorney General seeks.\n\n\n\n\n 20\n\fsort are similarly circumscribed. See id. § 20927(a) (manda-\ntory ten percent penalty for failure to comply with the Sex Of-\nfender Registration and Notification Act); id. § 30307(e)(2)\n(mandatory five percent penalty for failure to comply with the\nPrison Rape Elimination Act).\n We discuss these provisions primarily to highlight what\nthey do not authorize: the power to withhold all of a grantee’s\nfunds for any reason the Attorney General chooses. See Chi-\ncago II, 888 F.3d at 284 (“None of those provisions grant the\nAttorney General the authority to impose conditions that re-\nquire states or local governments to assist in immigration en-\nforcement, nor to deny funds to states or local governments for\nthe failure to comply with those conditions.”). Moreover, as\nthe District Court and the Seventh Circuit have observed, 9\nCongress knows how to grant this sort of broad discretionary\nauthority when it wants. See 34 U.S.C. § 10446(e)(3) (Grants\nto Combat Violent Crime Against Women) (“In disbursing\ngrants under this subchapter, the Attorney General may impose\nreasonable conditions on grant awards….”). But it has not\ndone so here.\n Such a grant of authority, if it existed, would also render\nthe aforementioned limited grants of authority superfluous. If\nCongress had already given the Attorney General this sweep-\ning authority to withhold all funds for any reason, it would have\nno need to delineate numerous, specific circumstances under\nwhich the Attorney General may withhold limited amounts of\n\n9\n See City of Philadelphia I, 280 F. Supp. 3d at 616 (“Congress\ndelegated authority to impose conditions on other grants in the\nsame chapter, and did so clearly.”); Chicago II, 888 F.3d at 286\n(“Congress knew how to grant such authority, and explicitly\ndid so in another statute within the same Act.”).\n\n\n\n\n 21\n\ffunds. Even if the statute were ambiguous—which it is not—\nwe generally would not interpret such a provision to render su-\nperfluous more specific delegations of power. See, e.g., Gon-\nzales v. Oregon, 546 U.S. 243, 262 (2006) (“It would be anom-\nalous for Congress to have so painstakingly described the At-\ntorney General’s limited authority to deregister a single physi-\ncian or schedule a single drug, but to have given him, just by\nimplication, authority to declare an entire class of activity out-\nside ‘the course of professional practice,’ and therefore a crim-\ninal violation of the CSA.”); see also Chicago II, 888 F.3d at\n286 (“Against that backdrop, it is inconceivable that Congress\nwould have anticipated that the Assistant Attorney General\ncould abrogate the entire distribution scheme and deny all\nfunds to states and localities that would qualify under the\nByrne JAG statutory provisions, based on the Assistant Attor-\nney General’s decision to impose his or her own conditions—\nthe putative authority for which is provided in a different stat-\nute.”).\n Finding no authority for the Challenged Conditions in the\nByrne JAG statute or other provisions that specifically mention\nit, we turn to the Attorney General’s next suggested source of\nauthority.\n 2. The Duties and Functions of Assistant Attorney\n General\n The Attorney General also argues that all three conditions\nare authorized by 34 U.S.C. § 10102, the provision establishing\nthe “Duties and Functions of Assistant Attorney General” for\nthe Office of Justice Programs. That provision provides, in rel-\nevant part, that “[t]he Assistant Attorney General shall”:\n\n\n\n\n 22\n\f exercise such other powers and functions as may\n be vested in the Assistant Attorney General pur-\n suant to this chapter or by delegation of the At-\n torney General, including placing special condi-\n tions on all grants, and determining priority pur-\n poses for formula grants.\n34 U.S.C. § 10102(a)(6) (emphasis added). The Attorney Gen-\neral argues that because this provision authorizes “placing spe-\ncial conditions on all grants,” it authorizes placing the Chal-\nlenged Conditions on the Byrne JAG grant.\n But the Attorney General’s argument runs headlong into an\nobstacle: the word “including.” 10 In the Attorney General’s\nview, the Special Conditions Clause confers upon the AAG\nnew authority, not found elsewhere in the Code, to establish\nconditions on grants. This clause, however, is preceded by the\nword “including,” which is used to denote something that is\nwithin a larger whole. See Webster’s Third New International\nDictionary of the English Language Unabridged, 1143 (3d ed.\n1993) (defining “include” as “to place, list, or rate as a part or\ncomponent of a whole or of a larger group class or aggregate”).\n\n\n10\n Several other federal courts have identified this flaw in the\nAttorney General’s reasoning. See, e.g., Chicago II, 888 F.3d\nat 285 (“Because that interpretation is so obviously belied by\nthe plain meaning of the word ‘including,’ the Attorney Gen-\neral’s position is untenable.”); New York, et al., 2018 WL\n6257693, at *7 (“The problem for Defendants is that the\n[Clause] begins with the word ‘including.’”); San Francisco,\n2018 WL 4859528, at *12 (“The clause begins with the word\n‘including,’ conveying a reference to part of a whole.”).\n\n\n\n\n 23\n\fIn the case of this provision, “including” signifies that the Spe-\ncial Conditions Clause is part of “such other powers and func-\ntions as may be vested in the Assistant Attorney General pur-\nsuant to this chapter or by delegation of the Attorney General.”\n34 U.S.C. § 10102(a)(6) (emphasis added). Therefore, under\nthe plain text of this provision, the AAG has the power to place\nspecial conditions on grants only to the extent that such power\nhas been vested in him or her “pursuant to this chapter or by\ndelegation of the Attorney General.” As we discussed in the\nprevious section, the broad authority he urges has not been\nvested in the Attorney General or the AAG in the Byrne JAG\nstatute or anywhere else in the United States Code. Therefore,\nthe Special Conditions Clause cannot authorize this power on\nits own.\n The structure of Section 10102 also casts serious doubt on\nthe Attorney General’s interpretation. The Special Conditions\nClause is housed in the sixth of six subsections delineating the\nAAG’s power. The preceding five subsections all deal with\nthe AAG’s power to disseminate criminal justice information\nand coordinate with various agencies and officials. See 34\nU.S.C. § 10102(a)(1)-(5). The principle of noscitur a sociis—\n“a word is known by the company it keeps”—is helpful here.\nYates v. United States, 135 S. Ct. 1074, 1085 (2015). Given\nthe ministerial nature of the powers in the preceding five sub-\nsections, we would be hesitant to find such a sweeping grant of\nauthority in the sixth subsection absent clear language to sup-\nport that interpretation. 11 Moreover, hiding such a broad\n\n11\n In stating this, we join the District Court and several other\nfederal courts. See Chicago II, 888 F.3d at 285 (“§ 10102(a)(6)\nwould be an unlikely place for Congress to place a power as\nbroad as the one the Attorney General asserts.”); Philadelphia\nI, 280 F. Supp. 3d at 617 (“Congress is unlikely to ground the\n\n\n\n\n 24\n\fpower—the power to place any special conditions on all\ngrants—in a statute outlining ministerial duties for an Assistant\nAttorney General would be akin to hiding an elephant in a\nmousehole. And Congress “does not, one might say, hide ele-\nphants in mouseholes.” Whitman v. Am. Trucking Ass’ns, 531\nU.S. 457, 468 (2001).\n Given its text and structure, 34 U.S.C. § 10102 does not\nauthorize the Attorney General’s imposition of the Challenged\nConditions. We turn, then, to the Attorney General’s final stat-\nutory argument.\n 3. All Other Applicable Federal Laws\n The Attorney General next argues that the Certification\nCondition is authorized by 34 U.S.C. § 10153(a)(5)(D). This\nsection of the Byrne JAG statute requires applicants to certify\nthat they “will comply with all provisions of this part and all\nother applicable Federal laws.” Id. § 10153(a)(5)(D) (empha-\nsis added). The Attorney General argues that Section 1373—\ndiscussed supra, I. B., prohibiting restrictions on the sharing of\ninformation regarding immigration status—is an applicable\nfederal law, as it applies to local government entities. Accord-\ningly, he argues that he is authorized to require applicants to\n\nAttorney General’s authority to impose substantive conditions\nin a subsection dedicated to conferring power on the AAG.”);\nNew York, et al., 2018 WL 6257693, at *8 (“[Section 10102]\nwould be an odd place indeed to put a sweeping power to im-\npose any conditions on any grants—a power much more sig-\nnificant than all of the duties and powers that precede it in the\nlisting, and a power granted to the Assistant Attorney General\nthat was not granted to the Attorney General.”) (quoting Chi-\ncago II, 888 F.3d at 285).\n\n\n\n\n 25\n\fcertify their compliance with that law. The City responds,\nhowever, that the Applicable Laws Clause only covers laws\nthat “expressly govern federal grants or grantees.” Philadel-\nphia Br. 20. At first blush, both parties’ interpretations have\nmerit—the text does not explicitly indicate to whom, or to\nwhat, the laws must be applicable. But closer scrutiny of the\ntext, structure, and history of the provision leads us to reject\nthe Attorney General’s expansive view.\n Starting with the text, we observe that 34 U.S.C. §\n10153(a)(5)(D) contains an initial specific phrase followed by\na general phrase: a grant applicant must certify that it “will\ncomply with [1] all provisions of this part and [2] all other ap-\nplicable Federal laws.” In these situations, the principle of\nejusdem generis teaches that “the general term should be un-\nderstood as a reference to subjects akin to the one with specific\nenumeration.” Norfolk & W. Ry. Co. v. Am. Train Dispatchers\nAss’n, 499 U.S. 117, 129 (1991). But “[t]he absence of a list\nof specific items undercuts the inference embodied in ejusdem\ngeneris.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 225\n(2008) (emphasis added). If the general phrase (“all other ap-\nplicable Federal laws”) were preceded by a list of specific fed-\neral laws, then our task would be much easier. But here we\nfind only “one specific and one general category.” Id. More-\nover, the specific phrase (“all provisions of this part”) tells us\nlittle about the meaning of the general phrase. In short,\nejusdem generis does not get us very far in interpreting “all\nother applicable Federal laws.”\n But several other considerations all suggest that Section\n1373 is not an “applicable” law. First, the canon against sur-\nplusage counsels us to read the term “applicable” in a way that\ngives it some independent heft. See Paek v. Att’y Gen., 793\nF.3d 330, 337 (3d Cir. 2015) (“The canon against surplusage\n\n\n\n\n 26\n\fcounsels us to give effect to every word of a statute.”). Here,\nthe term “applicable” avoids being redundant only by doing\nsome limiting work beyond delineating the set of all federal\nlaws that would “appl[y]” to an entity like Philadelphia. Oth-\nerwise, Congress could have simply written that a grant appli-\ncant must certify compliance with “all other Federal laws.” See\nSan Fransisco, 2018 WL 4859528 at *17 (“[I]t is superfluous\nto interpret ‘all other applicable Federal laws’ as ‘all Federal\nlaws.’”). Thus, the word “applicable” must have a narrower\nmeaning than one that sweeps in all possible laws that inde-\npendently apply to a grant applicant.\n Second, the noscitur a sociis canon—discussed supra, III.\nA. 2.—provides further guidance. The Applicable Laws\nClause is located in the fourth of four subsections, all of which\nrequire certifications that must be included in a Byrne JAG ap-\nplication. These four requirements provide that an “application\nshall include … [a] certification … that”:\n (A) the programs to be funded by the grant meet\n all the requirements of this part;\n (B) all the information contained in the applica-\n tion is correct;\n (C) there has been appropriate coordination with\n affected agencies; and\n (D) the applicant will comply with all provisions\n of this part and all other applicable Federal laws.\n34 U.S.C. § 10153(a)(5). These requirements all relate to the\nprograms that will be funded under the grant. See San Fran-\ncisco, 2018 WL 4859528, at *17 (“[A]ll the other conditions in\nSection 10153(a) apply to the grant itself.”); New York, et al.,\n2018 WL 6257693, at *9 (“The structure of § 10153, which\n\n\n\n\n 27\n\fconcerns requirements pertaining to the grant and the applica-\ntion, points toward the [more narrow] reading.”). This is evi-\ndent on the face of the first requirement. The second require-\nment necessarily deals with programs funded under the grant,\nas the bulk of information contained in the application is re-\ngarding the use of grant funds. And we can infer that the re-\nquirement that there “has been appropriate coordination with\naffected agencies” relates to coordination that had occurred in\ncompiling a grantee’s application. Although not dispositive,\nthese narrow neighboring provisions counsel against a broad\ninterpretation of the Applicable Laws Clause. Thus, it would\nbe reasonable to view “all other applicable Federal laws” to\nrefer specifically to laws that apply to operations relating to the\ngrant, not to require the City to certify compliance with every\nsingle law that might apply to it.\n Third, the historical practice of the Justice Department is\nalso an important interpretive tool. See N.L.R.B. v. Noel Can-\nning, 134 S. Ct. 2550, 2560 (2014) (“[T]he longstanding ‘prac-\ntice of the government’ can inform our determination of ‘what\nthe law is.’”) (quoting McCulloch v. Maryland, 4 Wheat. 316,\n401 (1819), and Marbury v. Madison, 1 Cranch 137, 177\n(1803)). Here, the Justice Department’s historical practice\ndoes not comport with the broad interpretation that it urges in\nthis case. Every condition that is authorized by the Applicable\nLaws Clause applies specifically to programs funded under the\ngrant, not more generally to the grantee. 12\n\n\n\n12\n While the Attorney General does not expressly state the\nstatutory authority for each condition, the City does. See\nApp. 391-400. The Attorney General does not take issue with\nthe City’s account.\n\n\n\n\n 28\n\f The Attorney General points to several conditions—such as\ncompliance with laws regarding human research, body armor\npurchases, and military equipment purchases—as establishing\na practice of conditioning Byrne JAG funds on certification of\ncompliance with broader categories of federal law. But these\nconditions are not blanket requirements with which the grantee\nmust comply under all circumstances; rather, their applicability\nis conditioned on whether federal funds are used in a particular\narea. See, e.g., App. 379 (requiring compliance with 28 C.F.R.\n§ 46, which sets out regulations for human research that is\n“conducted or supported by a federal department or agency”).\nFor example, if a grantee uses funds to purchase body armor or\nmilitary style equipment, then it must comply with the applica-\nble federal regulations regarding those purchases. And if a\ngrantee uses funds to conduct research on human subjects, then\nit must comply with the applicable federal regulations in that\narea. The Certification Condition is written differently: regard-\nless of how a grantee uses its funds, it must certify compliance\nwith this federal law. The Attorney General has not pointed to\nany historical precedent for the kind of unconditional require-\nment it now seeks to impose.\n Fourth, as we have noted, Congress structured the Byrne\nJAG program as a “formula grant,” under which a jurisdic-\ntion’s award is calculated through a formula that considers only\npopulation and violent crime statistics. The Attorney General\nasserts that the Applicable Laws Clause authorizes him to con-\ndition Byrne JAG funds on compliance with any law in the\nU.S. Code. But that reading of the Clause would destabilize\nthe formula nature of the grant. Allowing the Attorney General\nto withhold all funds because a jurisdiction does not certify\ncompliance with any federal law of the Attorney General’s\nchoosing undermines the predictability and consistency em-\nbedded in the program’s design, thus turning the formula grant\n\n\n\n\n 29\n\finto a discretionary one. Moreover, if Byrne JAG were in-\ntended to be a discretionary grant, one would think that Con-\ngress would house it in the section of the U.S. Code containing\ndiscretionary Justice Department grants, see 34 U.S.C. Subt. I,\nCh. 101, Subch. V, Part B (“Discretionary Grants”), not its\nown, neighboring section, see 34 U.S.C. Subt. I, Ch. 101,\nSubch. V., Part A (“Edward Byrne Memorial Justice Assis-\ntance Grant Program”).\n Finally, there is reason to doubt that even under a broad\nreading of the Applicable Laws Clause, Section 1373 would\napply. In the “Administrative Provisions” section of the same\nchapter of the code as the Applicable Laws Clause, Congress\nprovided:\n Nothing in this chapter or any other Act shall be\n construed to authorize any department, agency,\n officer, or employee of the United States to exer-\n cise any direction, supervision, or control over\n any police force or any other criminal justice\n agency of any State or any political subdivision\n thereof.\n34 U.S.C. § 10228. Under the plain terms of this provision, the\nApplicable Laws Clause “shall” not be “construed” to author-\nize the Department to “exercise any direction, supervision, or\ncontrol” over Philadelphia Police. But under the Attorney\nGeneral’s reading of the Applicable Laws Clause, Section\n1373 would authorize the Department to direct, supervise, or\ncontrol Philadelphia Police communications with ICE. Section\n10228 may therefore be a statutory limit to which laws are “ap-\nplicable” under the Applicable Laws Clause.\n Accordingly, we find that Section 1373 is not an applicable\nlaw for the purposes of Byrne JAG.\n\n\n\n\n 30\n\f * * *\n After reviewing the three sources of authority offered by\nthe Attorney General, we hold that Congress has not empow-\nered the Attorney General to enact the Challenged Conditions.\nBecause the Attorney General exceeded his statutory authority\nin promulgating the Challenged Conditions, we needn’t reach\nPhiladelphia’s other arguments. Therefore, all that remains for\nthe purposes of our review is the District Court’s injunctive or-\nder.\n B. The Judicial Warrant Injunction\n In its final judgment and decree, the District Court issued\ninjunctive relief establishing that a judicial warrant shall be\nnecessary to transfer a criminal alien to federal custody. The\norder provides, in relevant part:\n To the extent an agency of the United States\n Government has probable cause to assert that an\n individual in the custody of the City of Philadel-\n phia is a criminal alien (as previously defined by\n this Court in City of Philadelphia v. Sessions,\n 2018 WL 2725503, *19 n. 3 (E.D. Pa. June 6,\n 2018), and seeks transfer to federal custody of\n such individual within a city facility, it shall se-\n cure an order from a judicial officer of the United\n States for further detention, as allowed by law.\nApp. 191. The Attorney General asks that, even if we find for\nthe City on the merits—which we have done—we vacate this\nsection of the order. In a memorandum accompanying the Or-\nder, the District Court explained that the order was necessary\nto shield the City from legal liability that might arise if it de-\ntained an individual pursuant to an immigration detainer who\nshould have otherwise been released. App. 194. The Court\n\n\n\n\n 31\n\fstated that, with this order, “[t]his risk can be easily elimi-\nnated.” App. 194.\n We do not doubt, as the District Court rightly decided, that\nequitable relief was warranted in this case. See Philadelphia\nII, 309 F. Supp. 3d at 338-43. The question before us, however,\nis whether the Court’s order swept too broadly. 13 While there\nare tried and true standards for determining when equitable re-\nlief is warranted, see, e.g., Shields v. Zuccarini, 254 F.3d 476,\n482 (3d Cir. 2001) (discussing the four-part test for determine\nwhen a permanent injunction is warranted), there is less author-\nity regarding the scope of equitable relief. The Supreme Court\nhas instructed that the equity power of the federal courts is con-\nfined to “the system of judicial remedies which had been de-\nvised and was being administered by the English Court of\nChancery at the time of the separation of the two coun-\ntries.” Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund,\nInc., 527 U.S. 308, 318 (1999). We have stated, consistent with\nmany of our sister circuits, that “injunctive relief should be ‘no\nmore burdensome to the defendant than necessary to provide\ncomplete relief to plaintiffs.’” Novartis Consumer Health, Inc.\nv. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d\n578, 598 (3d Cir. 2002) (quoting Califano v. Yamasaki, 442\nU.S. 682, 702 (1979)); see also Waldman Publ’g Corp. v. Lan-\ndoll, Inc., 43 F.3d 775, 785 (2d. Cir. 1994) (“Injunctive relief\nshould be narrowly tailored to fit specific legal violations.”);\nHayes v. N. State Law Enf’t Officers Ass’n, 10 F.3d 207, 217\n(4th Cir. 1993) (“An injunction should be tailored to restrain\nno more than what is reasonably required to accomplish its\nends.”) (internal quotation omitted). In short, equitable relief\n\n13\n “We review the terms of an injunction for abuse of discre-\ntion.” Allstate Settlement Corp. v. Rapid Settlements, Ltd., 559\nF.3d 164, 172 (3d Cir. 2009).\n\n\n\n\n 32\n\fshould be “dictated by the extent of the violation established.”\nCalifano, 442 U.S. at 702.\n Our review of the scope of the District Court’s injunction,\nthen, has two aspects: first, we must determine “the extent of\nthe violation established,” id.; and second, we must determine\nwhether the injunction is “more burdensome to the defendant\nthan necessary to provide complete relief to plaintiffs.” No-\nvartis, 290 F.3d at 598. On the first point, we have already\naddressed the legal violation at length: the Attorney General\nacted ultra vires in imposing the three Challenged Conditions\non Byrne JAG grants. Several aspects of the District Court’s\norder are narrowly tailored to remedying this legal wrong, in-\ncluding enjoining the Attorney General from enforcing the\nChallenged Conditions on Philadelphia’s application and or-\ndering the Attorney General to issue Philadelphia’s FY2017\naward. Both of these orders speak directly to the dispute over\nthe Challenged Conditions.\n The judicial warrant requirement, however, goes beyond\nthe bounds of the complaint. While the District Court’s con-\ncerns regarding the legality of holding an alien pursuant to a\ndetainer may well be legitimate, they are not part of this case\nand controversy. Nor, as we noted above, is the broader policy\ndispute between the City and the Attorney General regarding\nimmigration enforcement. The order extends outside of this\nparticular case and controversy and into those disputes.\n Moreover, the other aspects of the order entered by the Dis-\ntrict Court afford the City full and complete relief. The City\nfiled its complaint to enjoin the Attorney General from denying\nits Byrne JAG award based on unlawfully imposed conditions.\nThe other aspects of the District Court’s order require that the\nAttorney General distribute the City’s FY2017 award and re-\n\n\n\n\n 33\n\ffrain from ever enforcing the Challenged Conditions. A dis-\ntrict court has discretion to fashion equitable remedies, but\nthese aspects of the order left the City wanting nothing by way\nof further remedies. The judicial warrant requirement was not\nrequested in the District Court and was not defended with any\nvigor at oral argument. See Oral Argument Transcript, 52 (stat-\ning that the District Court’s order is “the hardest thing to de-\nfend”).\n Accordingly, we hold that the District Court abused its dis-\ncretion as to the scope of the equitable relief and will vacate its\norder to the extent it imposed a requirement that the federal\ngovernment obtain a judicial warrant before seeking custody\nof aliens in City custody.\n IV. CONCLUSION\n For the aforementioned reasons, we hold that the Attorney\nGeneral did not have statutory authority to impose the Chal-\nlenged Conditions. We also determine that the District Court\nabused its discretion in granting broader injunctive relief than\nwas warranted. Accordingly, we will affirm the District\nCourt’s order to the extent it is supported by this opinion, and\nwe will vacate its order as it pertains to the judicial warrant\nrequirement.\n\n\n\n\n 34", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368537/", "author_raw": "District Judge"}]} | AMBRO | SCIRICA | RENDELL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4591284/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,591,731 | Marie BRYAN v. GOVERNMENT OF the VIRGIN ISLANDS Naomi Clarke Thomas v. Government of the Virgin Islands Marie Bryan; Naomi Clarke Thomas, Appellants | Marie Bryan v. Government of the VI | 2019-02-19 | 18-1941 | U.S. Court of Appeals for the Third Circuit | {"judges": "Chagares, Hardiman, Restrepo", "parties": "", "opinions": [{"author": "HARDIMAN, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ___________\n\n No. 18-1941\n ___________\n\n MARIE BRYAN\n\n v.\n\nGOVERNMENT OF THE VIRGIN ISLANDS\n ___________\n\n NAOMI CLARKE THOMAS\n\n v.\n\nGOVERNMENT OF THE VIRGIN ISLANDS\n\n\n Marie Bryan; Naomi Clarke Thomas,\n Appellants\n __________\n\n On Appeal from the District Court\n of the Virgin Islands\n(D.V.I. Nos. 3-14-cv-00097 & 3-14-cv-00098)\n District Judge: Honorable Curtis V. Gomez\n ___________\n\f Argued December 13, 2018\n Before: CHAGARES, HARDIMAN, and RESTREPO,\n Circuit Judges.\n\n (Filed: February 19, 2019)\n\nGlen M. Connor\nRichard P. Rouco [Argued]\nQuinn Conner Weaver Davies & Rouco\n2 20th Street North, Suite 930\nBirmingham, AL 35203\n Attorneys for Appellants\n\nClaude E. Walker\n Attorney General\nPamela R. Tepper\n Solicitor General\nSu-Layne U. Walker [Argued]\n Assistant Attorney General\nOffice of Attorney General of Virgin Islands\nDepartment of Justice\n34-38 Kronprindsens Gade\nGERS Complex, 2nd Floor\nSt. Thomas, V.I. 00802\n Attorneys for Appellee\n\n\n\n\n 2\n\f ____________\n\n OPINION OF THE COURT\n ____________\n\nHARDIMAN, Circuit Judge.\n\n In 2011, facing a severe budget crisis, the Virgin Islands\nenacted the Virgin Islands Economic Stability Act (VIESA or\nthe Act). See United Steel Paper & Forestry Rubber Mfg.\nAllied Indus. & Serv. Workers Int’l Union AFL-CIO-CLC v.\nGov’t of Virgin Islands, 842 F.3d 201, 204 (3d Cir. 2016)\n(citing 2011 V.I. Sess. Laws 84). VIESA sought to reduce\ngovernment spending by reducing payroll while continuing to\nprovide necessary public services. See 2011 V.I. Sess. Laws 84\npmbl. The Act encouraged some of the Government’s most\nexpensive employees (those with at least thirty years of\ncredited service) to retire using a carrot-and-stick approach:\nVIESA offered $10,000 to each long-tenured employee who\nchose to retire within three months. Id. § 7(a). And those\ndeclining to retire had to contribute an additional 3% of their\nsalary to the Government Employees Retirement System (the\nSystem) starting at the end of those three months. Id. § 7(k).\nThe legality of that 3% contribution requirement is the subject\nof this appeal.\n\n Appellants Marie Bryan and Naomi Thomas are\nmembers of the System with over thirty years of credited\nservice who chose not to retire during the statutory period.\nThey do not object to the $10,000 carrot, but they claim the 3%\nstick violates federal and territorial laws protecting workers\nover the age of 40 from discrimination based on their age. We\ndisagree, and hold the provision valid because: (1) it did not\n\n\n\n\n 3\n\ftarget employees because of their age under the Supreme\nCourt’s decision in Hazen Paper Co. v. Biggins, 507 U.S. 604,\n610 (1993); (2) its focus on credited years of service entitles\nthe Government to the ADEA’s reasonable-factor-other-than-\nage defense; and (3) the Virgin Islands Supreme Court would\ndeem Section 7(k) consistent with existing territorial anti-\ndiscrimination statutes. Accordingly, we will affirm.\n\n I\n\n Essentially all employees of the Government of the\nVirgin Islands are members of the System. Like many pension\nplans, the System provides members with a retirement annuity\nbased on their years of service and average salary. To receive\ncredit for years of service, members must regularly contribute\na portion of their salary to the System. Thirty years of service\nentitles a member to retire with a full-service retirement\nannuity.\n\n On top of the employee contribution, the Government is\nrequired by statute to contribute to the System, “which together\nwith the members’ contributions and the income of the\n[S]ystem will be sufficient to provide adequate actuarially\ndetermined reserve for the annuities, benefits and\nadministration of [the System].” 3 V.I.C. § 718(f). Since 2007,\nthe Government has contributed 17.5% of employees’\ncompensation per pay period. Id. § 718(g).\n\n In 2014, Bryan and Thomas brought separate actions\nalleging that Section 7(k) violated the Age Discrimination in\nEmployment Act of 1967 (ADEA), the Virgin Islands Civil\nRights Act, and the Virgin Islands Discrimination in\nEmployment Act. Their actions were consolidated and the\nDistrict Court certified a class of similarly situated persons.\n\n\n\n\n 4\n\fThe parties presented a stipulated record and agreed to a\nbifurcated trial so the District Court could address liability\nfirst. The Court dismissed the territorial law claims and entered\njudgment in favor of the Government on the federal claims.\nThis appeal followed.\n\n II\n\n The District Court had jurisdiction under 28 U.S.C.\n§ 1331 and 29 U.S.C. § 626 over Bryan and Thomas’s federal\n(ADEA) claims, and supplemental jurisdiction under 28 U.S.C.\n§ 1367 over their territorial law claims. We have jurisdiction\nunder 28 U.S.C. § 1291. Our review is plenary because the\nDistrict Court decided legal questions on a stipulated record.\nSee, e.g., In re Johns, 37 F.3d 1021, 1023 (3d Cir. 1994).\n\n III\n\n We first address the federal claims, which rely on both\ndisparate treatment and disparate impact theories of liability.\nAlthough both are cognizable under the ADEA, neither applies\nhere because Section 7(k) reasonably sought to reduce payroll\ncosts and increase the System’s solvency based on employees’\ncredited years of service, not age.\n\n A\n\n To succeed on a disparate treatment claim, a plaintiff\nmust demonstrate “the employee’s protected trait actually\nplayed a role” and “had a determinative influence on the\noutcome” of the decisionmaking process that led to the\nchallenged action. Hazen Paper, 507 U.S. at 610; see 29 U.S.C.\n§ 623(a) (“It shall be unlawful for an employer . . . [to]\ndiscriminate against any individual . . . because of such\n\n\n\n\n 5\n\findividual’s age . . . .” (emphasis added)). In other words, age\nmust have been a but-for cause of the action, and the plaintiff\nbears the burden of proving so. Gross v. FBL Fin. Servs. Inc.,\n557 U.S. 167, 177, 180 (2009). Accordingly, “there is no\ndisparate treatment under the ADEA when the factor\nmotivating the employer is some feature other than the\nemployee’s age.” Hazen Paper, 507 U.S. at 609. Critical for\npurposes of this appeal, the Supreme Court has distinguished\nbetween age and years of service, concluding that “it is\nincorrect to say that a decision based on years of service is\nnecessarily ‘age based.’” Id. at 611; see also Tomasso v.\nBoeing Co., 445 F.3d 702, 710 n.8 (3d Cir. 2006) (finding a\ndecision to reduce layoff protection for employees based on\nyears of service did not equate to age-based discrimination).\n\n When an employer’s action is based on years of service,\nit does not involve the inaccurate and stigmatizing age-based\nstereotypes the ADEA intended to address. Hazen Paper, 507\nU.S. at 611. For that reason, termination based solely on\nfinancial considerations related to years of service is not\nactionable under the ADEA. See id. at 612–13. And although\nan employer may not use a direct proxy for age to discriminate\nsurreptitiously against older workers, an employee’s tenure\n(without more) is not such a direct proxy. See id. at 611–13; cf.\nErie Cty. Retirees Ass’n v. Cty. of Erie, 220 F.3d 193, 211 (3d\nCir. 2000) (recognizing Medicare eligibility as a proxy for age\nbecause it necessarily follows turning 65).\n\n Here, Bryan and Thomas have not demonstrated that\nage played a role in the decisionmaking process that led to\nSection 7(k)’s enactment. VIESA does not discuss age or any\nstereotypes based on age. Instead, it cites the economic\ndownturn and budgetary shortfall facing the Virgin Islands in\n2011. See 2011 V.I. Sess. Laws 84 pmbl. And to address that\n\n\n\n 6\n\fproblem, it targets years of service, not age. See Hazen Paper,\n507 U.S. at 611.\n\n Bryan and Thomas first argue Section 7(k) facially\ndiscriminates based on age. This is a nonstarter because\nnothing in the statute mentions age. Cf. Int’l Union, United\nAuto., Aerospace & Agric. Implement Workers of Am. v.\nJohnson Controls, Inc., 499 U.S. 187, 198–99 (1991) (finding\nfacial discrimination in policy that classified employees “on\nthe basis of gender and childbearing capacity”).\n\n Unable to demonstrate facial discrimination, Bryan and\nThomas also invoke a proxy theory for age. Since thirty\ncredited years of service implicates only members over 40,\nthey argue, the Government must have targeted older workers\nfor the 3% contribution. They also note that some courts have\nfound non-age factors that always correlate with age satisfy the\nADEA’s “because of age” requirement. See, e.g., Hilde v. City\nof Eveleth, 777 F.3d 998, 1006 (8th Cir. 2015) (addressing\nretirement eligibility that depended on an employee reaching\nage fifty); Erie Cty. Retirees Ass’n, 220 F.3d at 211 (addressing\nMedicare eligibility as age-dependent). But while it is true that\nevery Government employee with thirty years of service is\nover 40 (because the Government does not hire nine-year-\nolds), Bryan and Thomas point to nothing in the record to\nestablish that all System members in the protected class have\nachieved thirty years of credited service. Nor does the record\nsuggest that the Government used thirty years of credited\nservice as a proxy for age.1 So this is not the “special case”\n\n 1\n Rather than point to such evidence, Bryan and Thomas\nclaim a former Government Director of Personnel’s testimony\nin another case establishes cost savings could not have been a\n\n\n\n\n 7\n\fwhere a direct proxy could be masquerading as a factor other\nthan age. Hazen Paper, 507 U.S. at 613.\n\n In sum, because Section 7(k) was motivated by factors\nother than age—factors that are not direct proxies for age—it\ndoes not violate the ADEA’s bar on disparate treatment.\n\n B\n\n We turn next to the disparate impact claim. Such claims\nchallenge facially neutral employment practices “that in fact\nfall more harshly on one group than another.” Hampton v.\nBorough of Tinton Falls Police Dep’t, 98 F.3d 107, 112 (3d\nCir. 1996) (quoting Hazen Paper, 507 U.S. at 609). Disparate\nimpact claims do not require proof of discriminatory motive\nlike disparate treatment claims. Id. But the Supreme Court has\nheld that disparate impact liability under the ADEA “is\nnarrower than under Title VII,” in large part because of the\n\nreason for the 3% contribution. Even if that were so, it does not\nfollow that age was a but-for reason. But more importantly, it’s\nnot so. Using the increased contribution to encourage\nemployees to retire from the Government payroll directly\nreduces costs as those retirees cease to draw Government\nsalaries and begin to draw pensions from the System.\nAdditionally, requiring employees who get more out of the\nSystem to pay more into the System contributes to its solvency.\nAlthough the contribution does not result in direct cost-savings\nfor the Government because the System is a separate fisc, the\n3% contribution does lower costs for that System—to which\nthe Government must contribute directly to prevent\ninsolvency. And it directly reduces payroll costs by increasing\nemployee turnover.\n\n\n\n\n 8\n\fADEA’s reasonable-factor-other-than-age (RFOA)\naffirmative defense. Smith v. City of Jackson, 544 U.S. 228,\n240 (2005); see 29 U.S.C. § 623(f)(1).2\n\n A reasonable, non-age factor that explains an\nemployer’s decision therefore precludes disparate impact\nliability, Smith, 544 U.S. at 239, and the burden is on the\nemployer to demonstrate the factor’s reasonableness,\nMeacham v. Knolls Atomic Power Lab., 554 U.S. 84, 91\n(2008). Reasonableness does not require “that ‘there are no\nother ways for the employer to achieve its goals.’” Karlo v.\nPittsburgh Glass Works, LLC, 849 F.3d 61, 70 (3d Cir. 2017)\n(alteration omitted) (quoting Smith, 544 U.S. at 243). In fact,\nwe have described the burden to demonstrate reasonableness\nas “relatively light.” Id. at 80.\n\n Particularly relevant examples of RFOAs include\n“seniority and rank,” Smith, 544 U.S. at 242, preserving\nemployees’ eligibility for a supplemental insurance plan,\nCarson v. Lake Cty., 865 F.3d 526, 536–37 (7th Cir. 2017), and\n“lowering overall employee costs by increasing turnover,”\n\n\n 2\n The Government does not also assert a “bona fide\nemployee benefit plan” defense. See 29 U.S.C. § 623(f)(2).\nBryan and Thomas argue that Section 7(k) does not satisfy the\n“equal benefit or equal cost rule” of Section 623(f)(2)(B), but\nthat is beside the point. That rule provides an exception to an\naffirmative defense the Government does not assert, not a\nstandalone ground for liability. See Am. Ass’n of Retired\nPersons v. E.E.O.C., 489 F.3d 558, 561–62 (3d Cir. 2007)\n(referring to the ADEA’s equal benefit or equal cost defense).\nSo even assuming Section 7(k) “violates” the rule, it does not\nbear on the Government’s liability here.\n\n\n\n 9\n\fAllen v. Highlands Hosp. Corp., 545 F.3d 387, 405 (6th Cir.\n2008) (alteration omitted).\n\n Because Section 7(k)’s cost-savings justification was\nreasonable, the Government is entitled to the RFOA defense.\nAs we noted, the additional 3% contribution reasonably\nresulted in cost savings to the Government by increasing both\nemployee turnover and the System’s solvency. See supra note\n1. Even though it falls disproportionately on older employees,\nthe action reasonably targets long-tenured employees with\nhigher salaries—not all older workers—to encourage them to\nretire from the Government payroll and to pay more into the\npension system. That suffices to meet the defense’s relatively\nlight burden and stave off the disparate impact claim.\n\n IV\n\n We turn last to the territorial law claims. Because the\nSupreme Court of the Virgin Islands has not yet interpreted the\nVirgin Islands Civil Rights Act (VICRA) or the Virgin Islands\nDiscrimination in Employment Act (VIDEA) as to age\ndiscrimination, our task is “to predict how the Supreme Court\nof the Virgin Islands would decide” the issue. Edwards v.\nHOVENSA, LLC, 497 F.3d 355, 360–61 (3d Cir. 2007). We\nagree with the District Court that the Virgin Islands Supreme\nCourt is unlikely to hold that VIESA violated VICRA or\nVIDEA for two reasons.\n\n First, we expect the Virgin Islands Supreme Court\nwould try to harmonize the three statutes if at all possible. See\nVirgin Islands Taxi Ass’n v. W. Indian Co., Ltd., 66 V.I. 473,\n484–85 (2017). The Court presumes that when the legislature\nenacts a new law, the law is intended to operate in harmony\nwith existing statutes because it deems the legislature to have\n\n\n\n\n 10\n\fknowledge of existing law when it legislates. Haynes v. Ottley,\n61 V.I. 547, 566–67 (2014). So the Court strives to give effect\nto multiple statutes on the same subject “unless doing so would\nbe impossible.” Id.\n\n There is no conflict among the three statutes if, as with\nfederal law, they are read to mean that targeting years of\nservice alone does not constitute age-based discrimination\nunder VICRA or VIDEA. We do not suppose the Court would\nfind that VIESA repealed parts of VICRA or VIDEA by\nimplication, because such repeals are generally disfavored.\nSimmonds v. People, 59 V.I. 480, 499 (2013). And invalidating\nthe more recent and more specific Section 7(k) (for violating a\nstatute already on the books when it was enacted) would run\ncontrary to the Court’s typical approach to statutory\ninterpretation. See Haynes, 61 V.I. at 564. So harmonizing the\nstatutes is not only possible, but practical as well.\n\n Second, for the reasons discussed already regarding the\nfederal claims, the Virgin Islands statutes’ bar on\ndiscrimination “because of age,” 10 V.I.C. § 64(1)(a), is\nunlikely to apply to Section 7(k)’s distinction based on credited\nyears of service. Beyond the distinction between age and years\nof service in Hazen Paper, by enacting VIESA, the Virgin\nIslands legislature was responding to a crisis that threatened\nthe welfare of all of the Territory’s residents, young and old. It\ntherefore acted because of several reasons, none of them age.\n\n For these reasons, we perceive no error in the District\nCourt’s dismissal of Bryan and Thomas’s territorial law\nclaims.\n\n\n\n\n 11\n\f * * *\n\n Although other reasonable measures could have also\nachieved the Government’s cost-saving goals, we do not\nsecond-guess an employer’s choice among reasonable,\nnondiscriminatory alternatives. See Karlo, 849 F.3d at 84.\nRequiring that long-tenured employees who declined to retire\ncontribute 3% more of their salaries to the pension system each\nyear was reasonably related to maintaining the System’s\nsolvency and it did not discriminate based on age. We will thus\naffirm the District Court in all respects.\n\n\n\n\n 12", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368984/", "author_raw": "HARDIMAN, Circuit Judge."}]} | CHAGARES | HARDIMAN | RESTREPO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4591731/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,591,732 | Carmen Josefina CONTRERAS AYBAR; Dario De Jesus Moreta Contrera, Appellants v. SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY; Director United States Citizenship and Immigration Services; Director United States Citizenship and Immigration Services Vermont; Attorney General United States of America; United States Attorney New Jersey | Carmen Contreras Aybar v. Secretary United States Depart | 2019-02-19 | 18-1462 | U.S. Court of Appeals for the Third Circuit | {"judges": "Ambro, Scirica, Rendell", "parties": "", "opinions": [{"author": "AMBRO, Circuit Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ________________\n\n No. 18-1462\n ________________\n\n CARMEN JOSEFINA CONTRERAS AYBAR;\n DARIO DE JESUS MORETA CONTRERA,\n\n Appellants\n\n v.\n\n SECRETARY UNITED STATES DEPARTMENT OF\n HOMELAND SECURITY;\n DIRECTOR UNITED STATES CITIZENSHIP AND\n IMMIGRATION SERVICES;\n DIRECTOR UNITED STATES CITIZENSHIP AND\n IMMIGRATION SERVICES VERMONT;\nATTORNEY GENERAL UNITED STATES OF AMERICA;\n UNITED STATES ATTORNEY NEW JERSEY\n\n ________________\n\n Appeal from the United States District Court\n for the District of New Jersey\n (D.C. Civil Action No. 2-16-cv-01539)\n District Judge: Honorable Esther Salas\n ________________\n\f Argued November 6, 2018\n\nBefore: AMBRO, SCIRICA, and RENDELL, Circuit Judges\n\n (Opinion filed: February 19, 2019)\n\nJoshua S. Cohn, Esquire\nJames I. McClammy, Esquire\nBenjamin Zhu, Esquire (Argued)\nDavis Polk & Wardwell\n450 Lexington Avenue\nNew York, NY 10017\n\nSamuel I. Portnoy, Esquire\nGibbons\nOne Gateway Center\nNewark, NJ 07102\n\n Counsel for Appellants\n\nChad A. Readler\n Acting Assistant Attorney General, Civil Division\nWilliam C. Peachey\n Director, Office of Immigration\n Litigation, District Court Section\nGisela A. Westwater\n Assistant Director, District Court Section\nAlexander J. Halaska, Esquire (Argued)\nUnited States Department of Justice\nOffice of Immigration Litigation\nP.O. Box 868, Ben Franklin Station\nWashington, DC 20044\n\n\n\n\n 2\n\f Counsel for Appellees\n\nGary W. Kubek, Esquire\nMatthew D. Forbes, Esquire\nMeryl Holt Silverman, Esquire\nElizabeth Costello, Esquire\nDebevoise & Plimpton LLP\n919 Third Avenue\nNew York, NY 10022\n\n Counsel for Amicus Curiae\n\n ________________\n\n OPINION OF THE COURT\n ________________\n\n\nAMBRO, Circuit Judge\n\n Carmen Josefina Contreras Aybar (“Carmen”) became\na lawful permanent resident under provisions of the\nImmigration and Nationality Act (“INA”) known as the “U\nVisa” statute. She then sought permanent resident status for\nher son, Dario, based on a related provision of the INA, 8\nU.S.C. § 1255(m)(3), which empowers the U.S. Department of\nHomeland Security (“DHS”) to grant that status to certain\nfamily members, including a “child,” of an immigrant in\nCarmen’s situation. But that application hit a snag: while it\nwas pending Carmen’s son reached the age of twenty-one,\nwhich made him ineligible under a DHS regulation that\nimplements § 1255(m)(3). Citing that regulation, it denied the\napplication.\n\n\n\n\n 3\n\f Carmen and her son challenge the regulation as contrary\nto § 1255(m)(3) as well as being arbitrary and capricious. But\nwe cannot sustain that challenge. Instead we hold that\n§ 1255(m)(3) unambiguously requires DHS to assess the\nfamilial relationship required under that statute as it exists\nwhen DHS decides the application, even though this means a\nchild can “age out” of eligibility while an application is\npending. The DHS regulation in question adheres to this\nunambiguous meaning of the statute, as did DHS’s denial of\nCarmen’s application. We thus affirm the District Court’s\ngrant of summary judgment in favor of the Government.\n\nI. Background\n\n A. Legal Framework\n\n In 2000 Congress passed legislation that created a new\nnonimmigrant visa classification—the U Visa—within the\nINA. See Victims of Trafficking and Violence Protection Act\nof 2000, Pub. L. No. 106-386, 114 Stat. 1464. It is a temporary\nlegal status offered to victims of rape and other specified\ncrimes who have cooperated, or are likely to cooperate, in the\ninvestigation and prosecution of those crimes.\nSee 8 U.S.C. § 1101(a)(15)(U)(i). Congress passed the statute\nto “strengthen the ability of law enforcement agencies to\ndetect, investigate, and prosecute” the specified crimes, and to\n“offer[] protection to victims of such offenses in keeping with\nthe humanitarian interests of the United States.” Pub. L. No.\n106-386, § 1513(a)(2)(A). The statute also gives a pathway to\npermanent resident status: after three years of holding a U\nVisa, an alien may apply for permanent resident status under a\nprovision of the INA, 8 U.S.C. § 1255(m)(1), that applies\nspecifically to holders of U Visas.\n\n Certain U-Visa benefits also extend to qualifying family\nmembers. Persons who are seeking or have already obtained\n\n\n\n\n 4\n\fpermanent resident status based on their receiving a U Visa,\nsuch as Carmen, may seek that status for a qualifying family\nmember under 8 U.S.C. § 1255(m)(3). It states:\n\n Upon approval of adjustment of status under [8\n U.S.C. § 1255(m)(1)] of an alien [who received\n a principal U Visa,] the Secretary of Homeland\n Security may adjust the status of or issue an\n immigrant visa to a spouse, a child, or, in the case\n of an alien child, a parent who did not receive a\n [derivative U Visa] if the Secretary considers the\n grant of such status or visa necessary to avoid\n extreme hardship.\n\n8 U.S.C. § 1255(m)(3). The term “child” is defined elsewhere\nin the INA as “an unmarried person under twenty-one years of\nage.” 8 U.S.C. § 1101(b)(1).\n\n DHS has promulgated regulations setting procedures\nand criteria for obtaining permanent resident status under\n8 U.S.C. § 1255(m)(3). See 73 Fed. Reg. 75,548–51 (Dec. 12,\n2008). They contain a provision that requires a § 1255(m)(3)\napplicant to meet the eligibility criteria through the time DHS\ndecides the application:\n\n The qualifying family relationship, [such as a\n parent–child relationship], [must] exist[] at the\n time of the U–1 principal’s adjustment and\n continue[] to exist through the adjudication of\n the adjustment or issuance of the immigrant visa\n for the qualifying family member.\n\n8 C.F.R. § 245.24(g)(2). The parties refer to this regulation as\nan “age-out regulation” because it creates the risk that a child\non whose behalf an application is filed under § 1255(m)(3) will\n“age out” of eligibility before DHS acts on the application.\n\n\n\n\n 5\n\f B. Facts and Procedural History\n Carmen is a former citizen of the Dominican Republic\nwho entered the United States in 2005. The victim of a rape in\nNew York City, she assisted law enforcement with their\ninvestigation and, on that basis, obtained a U Visa from DHS.\nAfter holding the U Visa for more than three years, she\nobtained permanent resident status under 8 U.S.C.\n§ 1255(m)(1).\n\n After doing so, Carmen began the process to obtain the\nsame status for her son, Dario. She chose to do so under 8\nU.S.C. § 1255(m)(3). Dario was one day shy of his twenty-\nfirst birthday when Carmen began the application process by\nfiling the first of two petitions that were required under the\nDHS regulations implementing the statutory provision.\n\n Although it initially approved Carmen’s petition, DHS\nlater revoked its approval and denied the petition because, by\nthe time DHS decided it, Dario “had reached the age of 21\nyears and did not meet the definition of child for immigration\npurposes.” Carmen appealed that decision to the\nAdministrative Appeals Office of the U.S. Citizenship and\nImmigration Services (“Immigration Services”), which\ndismissed the appeal based on 8 C.F.R. § 245.24(g)(2), the\nage-out regulation noted above. It held the regulation was a\npermissible implementation of § 1255(m)(3) that mandated\ndenial of Carmen’s petition.\n\n Carmen and Dario then filed a complaint in the District\nCourt under the Administrative Procedure Act, asserting that\nthe age-out regulation is invalid because it exceeds DHS’s\nauthority under 8 U.S.C. § 1255(m)(3) and is arbitrary and\ncapricious. On cross-motions for summary judgment, the\nDistrict Court granted summary judgment in favor of the\nGovernment and denied it to Carmen and Dario, thus ruling the\n\n\n\n\n 6\n\fregulation is a valid means to implement 8 U.S.C.\n§ 1255(m)(3). They appeal to us.\nII. Jurisdiction and Standard of Review\n\n The District Court had jurisdiction under\n28 U.S.C. § 1331 to review DHS’s denial of the application\nbecause it rested on DHS’s “interpretation of the legal\nstandards for eligibility for such adjustment.” Zheng v.\nGonzales, 422 F.3d 98, 111 (3d Cir. 2005). We have\njurisdiction over the District Court’s grant of summary\njudgment under 28 U.S.C. § 1291, and we review de novo that\nCourt’s grant of summary judgment. See Dwyer v. Cappell,\n762 F.3d 275, 279 (3d Cir. 2014).\n\nIII. Discussion\n\n Carmen and Dario contend the age-out regulation is not\na valid implementation of 8 U.S.C. § 1255(m)(3). We consider\nthis contention under the familiar Chevron framework: “first,\nif the statute is clear we must give effect to Congress’\nunambiguous intent, and, second, if the statute is silent or\nambiguous with respect to a specific issue, we defer to an\nimplementing agency’s reasonable interpretation of that\nstatute.” De Leon–Ochoa v. Att’y Gen., 622 F.3d 341, 348 (3d\nCir. 2010) (citing Chevron, USA, Inc. v. Natural Res. Def.\nCouncil, Inc., 467 U.S. 837, 842–43 (1984)). Put another way,\n“[i]f Congress has directly and clearly spoken to the question\nat issue, our Chevron analysis is complete at step one, and\nCongress’s unambiguous intent controls.” Shalom Pentecostal\nChurch v. Acting Sec’y U.S. Dep’t of Homeland Security, 783\nF.3d 156, 164 (3d Cir. 2015).\n To determine whether a statutory provision is\n“unambiguous,” we consider the text of the provision and the\nbroader context of the statute as a whole, but we do not\n\n\n\n\n 7\n\fconsider legislative history. Geisinger Cmty. Med. Ctr. v.\nSec’y U.S. Dep’t of Health & Human Servs., 794 F.3d 383, 391\n(3d Cir. 2015) (citing United States v. Geiser, 527 F.3d 288,\n294 (3d Cir. 2008)).1 We also acknowledge the principle that\ncourts “are obligated to construe statutes sensibly and avoid\nconstructions which yield absurd or unjust results.” United\nStates v. Fontaine, 697 F.3d 221, 227 (3d Cir. 2012) (internal\nquotation marks omitted); see also Hanif v. Att’y Gen., 694\nF.3d 479, 483–84 (3d Cir. 2012). We consider each of these\nguideposts in turn.\n\n A. Text\n\n The Government contends the plain terms of the statute\nrequire DHS to determine eligibility at the time it rules on a\n§ 1255(m)(3) application. For this argument, the Government\nleans on the grammatical structure of the provision, which, by\nits literal terms, only authorizes DHS to grant permanent\nresident status to “a spouse, a child, or . . . a parent” of the\nprincipal U-Visa holder. It argues that, in the case of a child\napplication, it cannot grant the application if the person in\nquestion has reached the age of twenty-one before his status is\nadjusted, as he no longer is a child under 8 U.S.C. § 1101(b)(1).\n\n The Government’s reading of § 1255(m)(3) finds\nsupport in Robinson v. Napolitano, 554 F.3d 358 (3d Cir.\n2009). There we reviewed Immigration Services’ denial of a\nU.S. citizen’s application for permanent resident status for his\nspouse under a provision of the INA that allows those\napplications for “immediate relatives” of U.S. citizens. Id. at\n363. While the application was pending, the U.S. citizen died\nunexpectedly. Id. at 360. Immigration Services then denied\n\n1\n Although we do not rest our interpretation of the statute on\nlegislative history, we thank the amicus curiae, Her Justice, for\nits thorough and valuable submission on that subject.\n\n\n\n\n 8\n\fthe application, ruling the widow was not a “spouse” under\nthe INA at the time the application was decided; hence the\nwidow could not obtain permanent resident status as an\n“immediate relative.” Id. at 363. The statute in question stated\nthat DHS “shall, if [it] determines that the facts stated in the\npetition are true and that the alien in [sic] behalf of whom the\npetition is made is an immediate relative . . . , approve the\npetition.” Id. (emphases omitted). We agreed with\nImmigration Services’ interpretation of the statute, holding\nthat “eligibility for an immediate relative visa depends upon\nthe alien’s status at the time [Immigration Services]\nadjudicates the [applicable] petition, not when that petition\nwas filed.” Id. at 364. The grammatical structure of the\nstatute in Robinson is similar to the structure of § 1255(m)(3)\nin that both statutes, by their literal terms, imply an\nequivalence in time between the eligibility criteria\n(“immediate relative” in Robinson; a “child” here) and DHS’s\nauthority to grant benefits (“shall . . . approve” in Robinson;\n“may adjust” here). Robinson’s approach to a similar statute\nthus cuts in favor of the Government’s interpretation of\n§ 1255(m)(3).\n\n For their textual argument, Carmen and Dario focus on\nthe phrase “[u]pon approval of adjustment of status” in\n§ 1255(m)(3). They contend this phrase establishes the timing\nof the “child” determination DHS must make because the word\n“upon” is a temporal word and the rest of § 1255(m)(3) is\nlinked to this timing. We are not persuaded. “Upon approval\nof adjustment of status” imposes a precondition to DHS’s\nconsideration of an application under § 1255(m)(3); it does not\nrequire DHS to determine eligibility under § 1255(m)(3) by\nlooking back to the state of affairs when the principal U-Visa\nholder obtained LPR status.\n\n\n\n\n 9\n\f In sum, the text favors the Government’s position that a\npotential beneficiary’s status as a “child” must be evaluated\nwhen DHS rules on the § 1255(m)(3) application.\n\n B. Statutory Context\n We next consider other provisions of the U-Visa statute\nand the INA to probe further the meaning of § 1255(m)(3).\nTwo provisions of the statute stand out as relevant. The first is\n8 U.S.C. § 1101(a)(15)(U)(ii)(I), which extends derivative U-\nVisa eligibility to the “unmarried siblings” of a U-Visa holder.\nThey are siblings who are “under 18 years of age on the date\non which such alien applied for [U-Visa] status.” Id.\n(emphasis added). This provision suggests that, when\nCongress wants a derivative U-Visa applicant’s age to be\ndetermined as of the application date, it says that explicitly.\nSimilarly, the U-Visa statute expressly protects against the age-\nout problem for derivative U-Visa applications as opposed to\nthe permanent resident application we review here. For the\nformer, a child applicant “shall continue to be classified as a\nchild” for purposes of the derivative U-Visa application even\nif the child attains the age of twenty-one while the parent’s\napplication is pending. See 8 U.S.C. § 1184(p)(7)(A). No\nequivalent safeguard applies to applications under\n§ 1255(m)(3).\n A similar suggestion stems from provisions of the Child\nStatus Protection Act. Pub. L. No. 107-208, 116 Stat. 927.\nAmong other things, it protects child asylum applicants by\nfixing their ages for asylum purposes as of when they submit\ntheir applications, thus protecting them against the age-out\nproblem. See 8 U.S.C. § 1158(b)(3)(B). But, as the District\nCourt observed, that implies that other children seeking\nimmigration benefits could still age out of eligibility.\n\n\n\n\n 10\n\f In short, the broader context of the statute also favors\nthe Government’s interpretation of § 1255(m)(3).\n C. The Absurdity Principle\n\n Appellants urge that several “absurd” results would\nflow from reading § 1255(m)(3) as containing an age-out\nmechanism for child applicants. It would put child\napplications at the whim of agency processing times, over\nwhich applicants have absolutely no control. It also would\nmake it impossible to predict a child’s eligibility under the\nstatute at the time of filing an application. And it would mean\nthat two identically situated children—twin children of a\nwoman who obtains U-1 immigrant status, for example—\nmight be denied or granted LPR status based purely on how\nquickly DHS processes their separate applications.\n\n There is heft to these arguments and, were we writing\non a blank slate, we may well be swayed. But, unfortunately,\nwe are not because Congress and the Supreme Court do not\nappear to view “aging out” of immigration benefits as an\nabsurdity. Congress made that viewpoint clear in, among other\nlaws, the Child Status Protection Act, which protects certain\ncategories of children from aging out of immigration benefits\nwhile their applications are pending. The incomplete coverage\nof that Act implies Congress knows but has not addressed\nwhen children not protected by it may still be subject to aging\nout of eligibility due to the vagaries of the application process.\nSimilarly, in a recent decision, the Supreme Court\nacknowledged without pause the potential for “aging out”\nunder the immigration laws. See Scialabba v. Cuellar de\nOsorio, 573 U.S. 41, 45 (2014) (discussing the “aging out”\nphenomenon in the immigration context and observing that\n“someone who was a youngster at the start of the process may\nbe an adult at the end, and no longer qualify for an immigration\nstatus given to minors”). We view these authorities as fatal to\n\n\n\n\n 11\n\fappellants’ arguments based on the arguably absurd results of\na literal interpretation of § 1255(m)(3).\n * * * * *\n\n We hold that 8 U.S.C. § 1255(m)(3) unambiguously\nrequires DHS to determine qualifying family member status\nwhen it decides an application per that provision. It adhered to\nthat interpretation of the statute when it denied Carmen’s\n§ 1255(m)(3) application for permanent resident status on\nbehalf of her son because he was no longer a child when it ruled\non the application. Hence our analysis concludes here, and we\naffirm the District Court’s entry of summary judgment for the\nGovernment.\n\n\n\n\n 12", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368985/", "author_raw": "AMBRO, Circuit Judge"}]} | AMBRO | SCIRICA | RENDELL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4591732/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,592,086 | In RE: Paul H. TITUS, Alleged Debtor Robert Shearer, Trustee Appellant in No. 17-3823 v. Paul H. Titus; Bonnie Titus, Appellants in No. 17-3701 | Shearer v. Titus (In Re Titus) | 2019-02-20 | 17-3701 & 17-3823 | U.S. Court of Appeals for the Third Circuit | {"judges": "Ambro, Shwartz, Fuentes", "parties": "", "opinions": [{"author": "AMBRO, Circuit Judge", "type": "010combined", "text": "PRECEDENTIAL\n\nUNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ________________\n\n Nos. 17-3701 & 17-3823\n ________________\n\n In re: PAUL H. TITUS, Alleged Debtor\n\n ROBERT SHEARER, Trustee\n\n Appellant in No. 17-3823\n\n v.\n\n PAUL H. TITUS; BONNIE TITUS,\n\n Appellants in No. 17-3701\n ________________\n\nAppeal from the United States District Court\n for the Western District of Pennsylvania\n(D.C. Civil Action No. 2-17-cv-00479/548)\nDistrict Judge: Honorable Joy Flowers Conti\n ________________\n\n Argued January 7, 2019\n\n Before: AMBRO, SHWARTZ,\n and FUENTES, Circuit Judges\n\f (Opinion filed February 20, 2019)\n\nDouglas A. Campbell (Argued)\nKathryn L. Harrison\nCampbell & Levine\n310 Grant Street\n1700 Grant Building\nPittsburgh, PA 15219\n\n Counsel for Appellants/Cross-Appellees\n\nNeal H. Levin (Argued)\nFreeborn & Peters\n311 South Wacker Drive\nSuite 3000\nChicago, IL 60606\n\n Counsel for Appellee/Cross-Appellant\n ________________\n\n OPINION OF THE COURT\n ________________\n\nAMBRO, Circuit Judge\n\n When his old law firm broke its lease, attorney Paul\nTitus was on the hook for millions of dollars in unpaid\ncommercial rent. The landlord tried to recover the rent by\ntargeting the wages Mr. Titus was earning at his new firm. But\nMr. Titus’s wages never passed through his hands alone;\ninstead, they were deposited by his new firm directly into a\nbank account owned by both Mr. Titus and his wife as tenants\nby the entireties.\n\n\n\n\n 2\n\f Eventually, Mr. Titus was forced into bankruptcy and\nthe landlord’s claim became a claim of the bankruptcy trustee.\nNow, after two trials in the Bankruptcy Court and two appeals\nto the District Court, we reach three conclusions. First, Mr.\nand Mrs. Titus are liable for a fraudulent transfer. When the\nwages of an insolvent spouse are deposited into a couple’s\nentireties account, both spouses are fraudulent transferees.\nSecond, as for the precise measure of the Tituses’ liability, the\nbankruptcy trustee waived any challenge to the method used\nby previous courts to calculate fraudulent-transfer liability.\nGoing forward, however, we clarify how future courts should\nmeasure liability when faced with an entireties account like the\nTituses’ — an account into which deposits consist of both\n(fraudulent) wages and (non-fraudulent) other sources, and\nfrom which cash is spent on both (permissible) household\nnecessities and (impermissible) other expenditures.1 Until\nnow, a trustee somehow had to show that wage deposits were\nimpermissibly spent on non-necessary expenditures, even\nthough wage and nonwage deposits had become commingled\nin the account. Rather than expect a trustee to trace the\nuntraceable, future courts should generally presume that wage\ndeposits were spent on non-necessary expenditures in\nproportion to the overall share of wages in the account as a\nwhole. Third, in evaluating the Bankruptcy Court’s\n\n1\n Judge Shwartz joins the opinion in all respects except\nits discussion of the pro rata approach because, among other\nthings, the panel has unanimously concluded that the trustee\nwaived his challenge to the method of calculating the Tituses’\nliability, and thus it is unnecessary to discuss the pro rata\napproach. Judge Shwartz is also of the view that the method\nfor calculating the amount of fraudulent-transfer liability\nshould be left to the discretion of the trial judge based upon the\nevidence provided. Cf. In re Gen. Motors Corp. Pick-Up Truck\nFuel Tank Prods. Liab. Litig., 55 F.3d 768, 821 (3d Cir. 1995).\n\n\n\n\n 3\n\fapplication of the method in play at the time of its decision, we\nperceive no clear error. Thus we affirm.\n I. Background\n\n A. Facts\n\n In 1999, the Pittsburgh law firm of Titus & McConomy\ndissolved. One of the firm’s named partners, Paul Titus, joined\nanother firm, Schnader Harrison Segal & Lewis LLP. The\nSchnader firm began depositing Mr. Titus’s wages into a bank\naccount he owned jointly with his wife.\n\n Evidently the dissolved Titus firm had walked away\nfrom its commercial lease. To recover rent that had gone\nunpaid since the dissolution, the landlord brought a breach-of-\ncontract suit against the former partners of the Titus firm and\nultimately secured a multimillion dollar judgment against the\npartners, including Mr. Titus.\n\n Armed with the breach-of-contract judgment, the\nlandlord set its sights on the wages that Mr. Titus’s new\nemployer, the Schnader firm, was depositing into the Tituses’\nbank account. It brought a fraudulent-transfer action in\nPennsylvania state court against Mr. and Mrs. Titus. This\ntriggered an involuntary bankruptcy against Mr. Titus. Thus\nthe landlord’s fraudulent-transfer claim became a claim of the\nbankruptcy trustee in the Bankruptcy Court.2\n\n\n\n2\n Several former partners of the Titus firm have faced the\nsame fate since the firm’s dissolution. See In re Wettach, 811\nF.3d 99 (3d Cir. 2016); Cardiello v. Arbogast, 533 F. App’x\n150 (3d Cir. 2013); Cohen v. Sikirica, 487 B.R. 615 (W.D. Pa.\n2013); In re Oberdick, 490 B.R. 687 (Bankr. W.D. Pa. 2013).\n\n\n\n\n 4\n\f B. Procedural History in Bankruptcy\n After a first trial, the Bankruptcy Court concluded that\nthe direct deposit of wages into the Tituses’ bank account was\na fraudulent transfer that the trustee could recover from either\nMr. or Mrs. Titus, who jointly owned the account as tenants by\nthe entireties. As for the measure of liability, Mr. and Mrs.\nTitus were liable for the amount of Mr. Titus’s wages that were\n“not spent on necessities.” In re Titus (Titus I), 467 B.R. 592,\n620 (Bankr. W.D. Pa. 2012).\n\n On appeal, the District Court affirmed that the wage\ndeposits were a fraudulent transfer. It remanded for a new trial,\nhowever, to give the Tituses a second chance to identify both\nthe source of certain “unexplained deposits” into the bank\naccount and the destination of certain “unknown expenditures”\nfrom the account. Titus v. Shearer (Titus II), 498 B.R. 508,\n520, 525 (W.D. Pa. 2013).\n\n After a second trial, the Bankruptcy Court made the\nfollowing findings as to deposits into, and expenditures from,\nthe bank account:\n\n DEPOSITS EXPENDITURES\n\n Total Wages Necessities\n $1,125,255.58 $1,134,000.67\n\n Entireties Account\n ($91,272 preexisting)\n Explained\n Nonwages\n $634,998.83 Non-Necessities\n $1,000,133.51\n Unexplained\n Nonwages\n $268,167.09\n\n\n\n\n 5\n\fSee In re Titus (Titus III), 566 B.R. 755, 797 (Bankr. W.D. Pa.\n2017). A note on terminology: The Bankruptcy Court divided\nthe spending from the account into “necessity expenditures”\nand “non-necessity expenditures,” which it sometimes called\n“Non-Objectionable Expenditures” and “Objectionable\nExpenditures,” respectively. See, e.g., id.; see also id. at 765,\n768, 777–78. For simplicity, we use the necessity/non-\nnecessity nomenclature. To give some content to these terms,\n“necessities” included items such as a lawnmower and\nbatteries, id. at 792–93, while the Tituses’ “non-necessities”\nincluded, among other things, their grandson’s application fee\nto Notre Dame, id. at 797.\n\n Using the figures set out above, the Bankruptcy Court\nwent about calculating the Tituses’ liability. But the Court\nimmediately hit a roadblock: Because money is fungible and\nwage and nonwage deposits commingled in the account, it was\nimpossible to determine whether a dollar of wages was\neventually spent on a permissible “necessity” or an\nimpermissible “non-necessity.” As a result, the Court had to\ncalculate liability indirectly.\n\n It did so using what it could measure: nonwage deposits\nand non-necessity spending, which are represented below the\ndotted line in the chart. The Court’s underlying assumption\nwas that all explained, nonwage sources of cash in the account\n(both explained nonwage deposits and cash already in the\naccount) were spent on non-necessities before any wage\ndeposits were impermissibly spent on whatever non-\nnecessities remained. Thus the Tituses’ total liability was:\n\n\n\n\n 6\n\f(Non-Necessities) – (Explained Nonwages) – (Initial Balance)\n\n = $1,000,133.51 – $634,998.83 – $91,272.00\n = $273,862.68.\n\nId. at 799. Over the Tituses’ objection, the Court did not offset\ntheir non-necessity spending even further by the amount of\nunexplained nonwage deposits. Had it done so, an additional\n$268,167.09 would have been shaved off the remaining non-\nnecessity spending, leaving a judgment against the Tituses of\nonly $5,695.59.\n\n The District Court affirmed. Neither side is fully\nsatisfied with various rulings of the Bankruptcy and District\nCourts, and both have appealed.\n\n II. Jurisdiction and Standard of Review\n\n The District Court had jurisdiction to review the final\norder of the Bankruptcy Court under 28 U.S.C. § 158(a). We\nhave jurisdiction to review the final order of the District Court\nper 28 U.S.C. § 158(d) and 28 U.S.C. § 1291. Because the\nDistrict Court acted as an appellate court, we review its\ndeterminations de novo. In re Bocchino, 794 F.3d 376, 379 (3d\nCir. 2015). We review the legal conclusions of the Bankruptcy\nCourt de novo and its factual determinations for clear error. Id.\nat 380.\n\nIII. Discussion\n\n After two trials in the Bankruptcy Court, two appeals to\nthe District Court, and four rounds of briefing in our Court,\nthere are three issues for our review:\n\n (1) Are the Tituses liable for a fraudulent transfer?\n\n\n\n\n 7\n\f (2) Did the trustee waive any challenge to the method\nused to calculate the Tituses’ liability?\n (3) Did the Bankruptcy Court clearly err in applying the\nmethod it used?\n\n We include an additional area of discussion on the\nsecond issue. Even if the trustee waived its challenge to the\ncalculation method, should future courts measure liability for\ncommingled accounts differently?\n\n A. Threshold Fraudulent-Transfer Liability\n\n The bankruptcy trustee “may avoid any transfer of an\ninterest of the debtor in property” if the transfer “is voidable\nunder applicable law by a creditor.” 11 U.S.C. § 544(b)(1).\nThe applicable law here, the Pennsylvania Uniform Fraudulent\nTransfer Act (PUFTA), permits a creditor to avoid a fraudulent\ntransfer “to the extent necessary to satisfy the creditor’s claim.”\n12 Pa. Cons. Stat. § 5107(a)(1).3\n\n We reach three conclusions on the threshold question of\nthe Tituses’ fraudulent-transfer liability. First, the wage\ndeposits into the Tituses’ entireties account were a “transfer”\nunder the PUFTA. Second, Mrs. Titus is personally subject to\nPUFTA liability as an entireties tenant. Third, Mr. Titus is\nsubject to transferee liability even though he is the debtor-\ntransferor as well. As a result, the wage deposits constituted a\nfraudulent transfer that the bankruptcy trustee could avoid.\n\n\n\n\n3\n As of February 22, 2018, the PUFTA was renamed the\nPennsylvania Uniform Voidable Transactions Act. See 12 Pa.\nCons. Stat. § 5101(a).\n\n\n\n\n 8\n\f 1. The wage deposits constituted a “transfer.”\n “[T]he direct deposit of wages into an entireties account\nis a ‘transfer’ of an ‘asset’ under the PUFTA.” Wettach, 811\nF.3d at 115. This statement settles the question whether the\nwage deposits from the Schnader firm into the Tituses’\nentireties account were a transfer.\n\n The reasoning behind this conclusion is as follows. On\na macro level, Mr. Titus’s wages (i) began as his “asset” for\npurposes of the PUFTA and (ii) were not his “asset” once they\nwere in the entireties account. Id at 114–15. That change in\nstatus is deemed a “transfer.” Id. at 115.\n\n As to the first point, Mr. Titus “exercised control over\nwhere his employer deposited his wages.” See id. at 114. This\ncontrol overrode Pennsylvania’s baseline rule that “wages” are\nexempt from creditors “while in the hands of the employer.”\n42 Pa. Cons. Stat. § 8127(a). In other words, when the\nSchnader firm “initiated the direct deposit,” the wages left\nSchnader’s “hands” and became, temporarily, an asset of Mr.\nTitus. See Wettach, 811 F.3d at 114–15.\n\n As to the second point, the wages ceased being an\n“asset” of Mr. Titus once they were in the entireties account.\nThe definition of “asset” under the PUFTA excludes property\nheld in a tenancy by the entireties “to the extent it is not subject\nto process by a creditor holding a claim against only one\ntenant.” 12 Pa. Cons. Stat. § 5101(b). That predicate is\nsatisfied here: The landlord held a claim against only one\nentireties tenant (Mr. Titus), and “entireties property is\nunavailable to satisfy the claims of the creditor of only one of\nthe tenants.” Garden State Standardbred Sales Co. v. Seese,\n611 A.2d 1239, 1243 (Pa. Super. Ct. 1992). As a result, once\nthe wage deposits reached the entireties bank account, they\nwere no longer an “asset” of Mr. Titus under the PUFTA.\n\n\n\n\n 9\n\f Putting these points together, Mr. Titus started with an\n“asset” and later relinquished it to the entireties account. This\nmaneuver meets the PUFTA’s definition of “transfer” as an\n“indirect . . . disposing of or parting with an asset or an interest\nin an asset.” 12 Pa. Cons. Stat. § 5101(b). To sum up, Mr.\nTitus, “by depositing [his] own funds into an entireties bank\naccount, is converting [the] funds into entireties property and,\nthereby, transferring [that] property for purposes of the\n[PUFTA].” See In re Meinen, 232 B.R. 827, 841 (Bankr. W.D.\nPa. 1999) (setting out the reasoning above).\n\n 2. Mrs. Titus is a transferee subject to PUFTA liability.\n\n Even assuming that the wage deposits were a “transfer”\nunder the PUFTA, Mrs. Titus has a further objection of her\nown — that her status as a co-tenant by the entireties cannot\nopen her up to personal liability for wages deposited by her\ninsolvent husband into their joint account.\n\n Case law prevents this position’s success. “[W]hen a\nspouse conveys individual property to a tenancy by the\nentireties in fraud of creditors, the creditor may nevertheless\nexecute against the property so conveyed.” Garden State, 611\nA.2d at 1243; see also Stinner v. Stinner, 446 A.2d 651, 652\n(Pa. Super. Ct. 1982) (same). Numerous courts have applied\nthis rule to hold an insolvent debtor’s spouse personally liable\nfor a fraudulent transfer. See, e.g., Wettach, 811 F.3d at 114–\n15; Meinen, 232 B.R. at 840–41; Garden State, 611 A.2d at\n1243; Stinner, 446 A.2d at 652.\n\n In doing so, courts have acknowledged the point that\nMrs. Titus urges here — that this liability rule leads to a harsh\nresult. See, e.g., Stinner, 446 A.2d at 654–55 (McEwen, J.,\nconcurring) (applying the rule “even though I find it most\ndifficult to accept the determination that the regular routine\ndeposit of salary and bonuses by a husband, into a household\n\n\n\n\n 10\n\fchecking account owned by himself and his wife as tenants by\nthe entireties, is a conveyance of individual property in fraud\nof creditors”). One court even “invite[d] the General\nAssembly” to scrap the usual creditor-friendly presumption of\na fraudulent transfer “when the conveyance results in the\ncreation of entireties property.” Garden State, 611 A.2d at\n1243–44. All courts nonetheless continue to apply the rule.\n\n 3. Mr. Titus is subject to PUFTA transferee liability\n even though he is the debtor-transferor as well.\n\n Mr. Titus is both transferor and transferee. As an\nindividual debtor-transferor, he is subject to liability under the\nlandlord’s claim for breach of the lease agreement. As a\ntransferee, he has fraudulent-transfer liability as a tenant of the\nentireties account. In sum, his different capacities make him\nliable in different ways. His argument that he cannot be both\ntransferor and transferee therefore fails.\n\n Nor is there a risk of double recovery — that is, one\nrecovery from Mr. Titus as an individual debtor and another\nfrom him as an entireties tenant. Once the trustee secures a\nrecovery from one source, he will not have recourse against the\nother source. Cf. In re Integra Realty Res., Inc., 354 F.3d 1246,\n1266 (10th Cir. 2004) (noting that the trustee may only “restore\nthe estate to the financial condition it would have enjoyed if\nthe transfer had not occurred”) (quotations omitted). The\nfraudulent-transfer suit was only instituted as part of the overall\ncollection effort to satisfy the judgment entered on the breach\nof the lease agreement.\n\n B. Method for Calculating PUFTA Liability\n Having concluded that Mr. and Mrs. Titus can be\nindividually liable for a fraudulent transfer of Mr. Titus’s\nwages, we reach the question of how to measure that liability.\n\n\n\n\n 11\n\fWe begin with the baseline rule that a transfer is not\n“fraudulent” under the PUFTA if the wages deposited into the\nentireties account are “used to pay for reasonable and\nnecessary household expenses.” Wettach, 811 F.3d at 105\n(quotations omitted) (discussing 12 Pa. Cons. Stat.\n§ 5104(a)(2)); see also 11 U.S.C. § 550(a) (providing that the\ntrustee in a § 544 action “may recover” from a transferee either\n“the property transferred” or “the value of such property,” but\nnot explaining how to identify the property or calculate its\nvalue in the first place). This rule accounts for the Bankruptcy\nCourt’s decision, explained above, to segregate expenditures\nfrom the account into “necessities” and “non-necessities.” But,\nhaving determined the amounts of wage deposits, nonwage\ndeposits, necessity spending, and non-necessity spending, the\nquestion remains how to combine these inputs to reach a figure\nfor the Tituses’ liability. This question, in turn, depends on the\nallocation of burdens in a fraudulent-transfer action in\nPennsylvania.\n\n Between the two trials in this case, we clarified the\nburdens in a PUFTA action. First, our Court presumes that\n“funds deposited into an entireties account were not in\nexchange for reasonably equivalent value.” Wettach, 811 F.3d\nat 111. In our case, this means we presume that the wages in\nquestion were not spent on necessities. See id. Second, the\nTituses may rebut that presumption by producing “some\nevidence as to uses of funds in the entireties account.” Id. at\n109 (quotations omitted). Imposing this burden of production\non the Tituses “serves an information-forcing purpose” by\nrequiring them “to come forward with information” about\n“how they used funds transferred into [the] entireties account.”\nId. Third, once the Tituses have met their burden of\nproduction, the trustee bears the burden of persuasion “as to all\nelements of a constructive fraudulent-transfer claim under the\nPUFTA.” Id. at 107. Among other things, the trustee must\n\n\n\n\n 12\n\fprove by a preponderance of the evidence that wage deposits\nwere not spent on necessities.\n But the trustee is faced with what appears to be an\nimpossible task in a commingled account, circumstances that\ndid not exist in other cases before us. Because money is\nfungible, and funds from multiple sources commingle in the\nentireties account, “it may be impossible to determine what\ndeposit was used for a particular expenditure.” In re Wettach,\n489 B.R. 496, 507 (Bankr. W.D. Pa. 2013); see also Oberdick,\n490 B.R. at 710 n.15 (describing the “impossible burden” on\nthe trustee to trace deposits into the account to spending from\nthe account).\n\n No wonder, then, that the trustee here could not carry\nhis burden of persuasion. For example, in the first trial in this\ncase, the Bankruptcy Court explained that it was “at least as\nlikely as not” that a given dollar of deposits went toward\nnecessity spending as toward non-necessity spending. Titus I,\n467 B.R. at 624. As a result, the trustee “ha[d] not\npreponderantly proven” that wages were improperly spent on\nnon-necessities. Id. The uncertainty of the dollar’s final\ndestination, moreover, is compounded by a “fairness issue” —\nnamely, Mr. and Mrs. Titus “created the uncertainty by\ncommingling the funds,” but the trustee “is expected to\nsomehow unravel it.” See Oberdick, 490 B.R. at 710 n.15.\n\n Faced with this commingling problem, every court to\nencounter the issue has adopted a baseline assumption: All\nexplained nonwage deposits were spent on non-necessities\nbefore any wage deposits were spent on non-necessities. E.g.,\nTitus v. Shearer (Titus IV), No. AP 10-2338, 2017 WL\n5467712, at *5 (W.D. Pa. Nov. 14, 2017) (“The bankruptcy\ncourt found . . . that all non-necessities were purchased with\nexplained nonwages.”). Another way of stating the same\nassumption is that all wage deposits were spent on necessities\n\n\n\n\n 13\n\fbefore being spent on anything else. Either phrasing expresses\nthe same idea: Deposited funds travel horizontally, rather than\ndiagonally, across the charts reproduced in this opinion. See\nsupra p. 5; infra p. 15. The assumption has supported a method\nfor calculating PUFTA liability, which parties and courts have\ndubbed the “Non-Necessities Approach” or the “Other Deposit\nMethodology.” It provides the following formula for\ncalculating fraudulent-transfer liability:\nLiability = (Non-Necessity Spending) – (Nonwage Deposits).\n\n In this case, the trustee waived any challenge to the\nselection of this method and formula. An issue is waived on\nremand if it was “not raised in a party’s prior appeal.”\nSkretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 203 (3d\nCir. 2004). Also, “when a party fails to raise an issue in the\nbankruptcy court, the issue is waived.” In re Kaiser Grp. Int’l\nInc., 399 F.3d 558, 565 (3d Cir. 2005). The trustee here did\nnot object to the Non-Necessities Approach during the first\ntrial in the Bankruptcy Court or in the first appeal to the District\nCourt. Instead, he waited to challenge it for the first time on\nremand to the Bankruptcy Court for a second trial. See Titus\nIII, 566 B.R. at 769. Thus the Bankruptcy Court and District\nCourt agreed that the choice of method had been waived. See,\ne.g., id. at 773. We affirm that conclusion. Hence we turn to\nits application in the next section.\n\n Before doing so, however, we set out a different way to\ncalculate liability for future courts facing commingled funds:\nthe pro rata approach. Under this approach, we presume,\nabsent other evidence, that spending out of the entireties\naccount was made up of a mixture of wage and nonwage\ndeposits in proportion to the overall ratio of wage to nonwage\ndeposits in the account. As we explain below, this approach\naddresses practically the commingling of fungible funds in the\naccount and is not foreclosed by precedent in our Circuit.\n\n\n\n\n 14\n\f 1. The pro rata approach accounts practically for the\n commingling of fungible funds.\n As noted, the first Bankruptcy Court in this case stated\nthat it was “at least as likely as not” that a dollar of nonwage\ndeposits funded non-necessity spending, and that the trustee\nhad therefore failed to prove by a preponderance of the\nevidence that wage deposits impermissibly funded non-\nnecessities. See Titus I, 467 B.R. at 624. This is incorrect.\nAbsent unusual circumstances, a dollar deposited into the\naccount is equally likely to be spent on necessities and on non-\nnecessities only if the same amount is spent on both necessities\nand non-necessities. In all other situations, the deposited dollar\nis more likely to be spent on whichever category of spending\n(necessities or non-necessities) is larger. By the same token, a\ndollar spent from the account is more likely to come from\nwhichever category of deposits (wage or nonwage) is larger.\n\n The pro rata approach accounts for the fungibility of\nwage and nonwage funds that are commingled in the entireties\naccount. In our case, the liability would be calculated based on\nthe inflows and outflows found by the second Bankruptcy\nCourt decision (for simplicity, and to be consistent with our\nconclusion in the next section, we have eliminated\n“unexplained” nonwage deposits):\n\n DEPOSITS EXPENDITURES\n\n Total Wages Necessities\n $1,125,255.58 $1,134,000.67\n\n Entireties Account\n ($91,272 preexisting)\n Nonwage\n Deposits Non-Necessities\n $634,998.83 $1,000,133.51\n\n\n\n\n 15\n\fTitus III, 566 B.R. at 797. The total amount of money flowing\ninto the account is the sum of wage deposits, nonwage\ndeposits, and preexisting cash in the account:\n\nTotal Inflows = (Wages) + (Nonwages) + (Preexisting Cash)\n\n = ($1,125,255.58) + ($634,998.83) + ($91,272)\n = $1,851,526.41.\n\nThus the calculation of wage deposits as a percentage of total\ninflows is:\n\n (Wage Deposits) / (Total Inflows)\n\n = ($1,125,255.58) / ($1,851,526.41)\n\n = 60.8%.\n\nHence we can presume that, of the $1,000,133.51 spent on non-\nnecessities, 60.8% impermissibly came from wage deposits.\nThe Tituses’ liability would be that wage-derived portion:\n\n (0.608) * ($1,000,133.51) = $607,825.96.\n\n Eyeballing these figures, we note that this measure of\nliability makes intuitive sense: Wages account for just under\ntwo-thirds of all deposits into the account, so it stands to reason\nthat just under two-thirds of all non-necessity spending came\nfrom wage deposits. Appropriately, then, the Tituses’ liability\nunder the pro rata approach would be just under two-thirds of\nall non-necessity spending.\n We add one further note on the mechanics of the pro\nrata approach. We alluded earlier to “unusual circumstances”\nthat could overcome the default presumption that spending out\nof the entireties account is made up of a mixture of wage and\n\n\n\n\n 16\n\fnonwage dollars in proportion to the overall ratio of wage to\nnonwage deposits into the account. See supra p. 15. Recall\nthat the pro rata approach rests on our observation that a\ntrustee should not be asked to trace the untraceable. It follows\nthat the presumption would yield where a factfinder could trace\nthe (ordinarily) untraceable — in other words, where the\nfactfinder could track a dollar from a given category of deposits\ninto a given category of spending.\n Say, for instance, that a trial court could trace X dollars\nof nonwage deposits into an account to X dollars of non-\nnecessity spending from the account. (An example might be\nmonies placed into the account from a bequest requiring its\nspending on what is not necessary.) Before performing the pro\nrata calculation for the rest of the cash inflows and outflows,\nthe trial court would reduce both its nonwage deposit figure\nand its non-necessity spending figure by X. The result of this\nreduction in nonwage deposits (while wage deposits remain\nconstant) would be a greater percentage share of all deposits\ninto the account coming from wages. This greater percentage\nshare would then be applied to the reduced amount of total non-\nnecessity spending.\n\n In sum, the trial court should trace whatever is traceable\nbefore using the pro rata approach to proportionally derive the\nuntraceable flows. We leave to the trial court’s discretion the\nthreshold decision whether it is able to trace the ordinarily\nuntraceable.\n\n 2. The pro rata approach is not foreclosed by\n precedent in our Circuit.\n The only possible precedent of this Court, Wettach, 811\nF.3d 99, does not foreclose the pro rata approach. In the\ncourse of setting out the rebuttable presumption and the\nburdens of production and persuasion, the Wettach Court noted\n\n\n\n\n 17\n\fthat the Bankruptcy Court had applied the Non-Necessities\nApproach, which we abandon today for certain situations in\nwhich an account is commingled. We explained that Mr. and\nMrs. Wettach, who bore the burden of production,\n produced no evidence to demonstrate how they\n spent the wages deposited into the entireties\n account. The bankruptcy court even offered\n them a “dollar-for-dollar reduction against any\n liability” for other deposits into the account. . . .\n Having failed to carry their burden of production\n and absent clear error by the bankruptcy court,\n the Wettachs have no claim for relief on appeal.\n\nWettach, 811 F.3d at 111 (quoting Wettach, 489 B.R. at 507)\n(emphasis added). The “dollar-for-dollar reduction” for\nnonwage deposits refers to the formula dictated by the Non-\nNecessities Approach (Liability = Non-Necessity Spending –\nNonwage Deposits).\n\n For three reasons, however, this statement in Wettach\ndoes not mandate the Non-Necessities Approach for accounts\nthat commingle wage and nonwage deposits.\n\n First, the passage is not a ringing endorsement of the\napproach. We merely noted that the Bankruptcy Court “even\noffered” the Wettachs another potential offset. The statement\nis hardly a holding.\n\n Second, even if the statement were taken as a holding,\nWettach is distinguishable. It confronted a mixture of deposits\nmuch simpler than those facing us here: The Wettachs had\nproduced “no evidence of any ‘other deposits.’” See Titus III,\n566 B.R. at 772 (discussing Wettach). In other words, “the\nonly deposits that proved to be at issue in Wettach were the\nwage deposits of the debtor.” Id. As a result, the Wettach\n\n\n\n\n 18\n\fCourt had no need to “directly address” the choice of method\nfor measuring liability. Id. When the only source of funding\ninto an account is wage deposits, there is no mystery about the\nsource of a dollar spent on non-necessities, and thus no reason\nto consider a way of measuring liability like the pro rata\napproach. Hence Wettach does not bind us now.\n\n Third, even the Wettach Bankruptcy Court expressed\n“some reservations” about the dollar-for-dollar offset dictated\nby the Non-Necessities Approach. Wettach, 489 B.R. at 507\n(Agresti, J.). Bankruptcy Judge Agresti applied the approach\nonly because a prior District Court decision had already\napproved it. See id. at 507–08 (citing Cohen, 487 B.R. 615).\nIn yet another case arising out of the dissolution of the Titus\nfirm, moreover, Judge Agresti had sounded the alarm about the\ndollar-for-dollar offset. See Oberdick, 490 B.R. at 710 n.15\n(“The Court does have some concerns about the [Non-\nNecessities Approach] as to this point.”). Were he “writing on\na blank slate,” he explained he would “give serious\nconsideration” to employing “a presumption” in which “a pro\nrata share of the non-necessary expenditures could be deemed\nto have come from funds originating from the other deposits.”\nId. (emphasis added). Now faced with such a blank slate, we\nfollow Judge Agresti’s prescient thinking.\n\n * * *\n\n In sum, the trustee missed his chance to challenge the\nuse of the Non-Necessities Approach in the first appeal to the\nDistrict Court. Hence his objection to the method for\nmeasuring liability has been waived. Going forward, however,\ncourts faced with the situation here — in which wages and\nnonwages are commingled in a single account and are\nsubsequently spent on both necessities and non-necessities —\nshould apply a pro rata approach. They should presume,\nabsent other evidence, that any spending out of the account was\n\n\n\n\n 19\n\fmade up of a mixture of wage and nonwage dollars in\nproportion to the overall ratio of wage to nonwage deposits in\nthe account.\n\n C. Application of Non-Necessities Approach\n\n Because the trustee waived his argument that another\nmethod should apply in calculating liability, we turn to the\nparties’ dispute over the application of the Non-Necessities\nApproach. To repeat, the approach proceeds from the\nassumption that all nonwage deposits into the account were\nspent on non-necessities before any wage deposits were\nimpermissibly spent on non-necessities. This, in turn, informs\nits formula for fraudulent-transfer liability:\n\nLiability = (Non-Necessity Spending) – (Nonwage Deposits).\n\n The final skirmish in the case centers on the last term in\nthe formula: nonwage deposits. In the Bankruptcy Court, the\nparties stipulated that nonwage deposits could be divided into\n$634,998.83 of explained nonwage deposits and $268,167.09\nof unexplained nonwage deposits. See Titus III, 566 B.R. at\n798 (“The Parties agree that [the $268,167.09] were not wage\ndeposits, but they also agree that other than being non-wage\nthe source or sources of such deposits are unexplained.”). In\napplying the Non-Necessities Approach, the Bankruptcy Court\ncounted only explained nonwage deposits toward the\n“nonwage deposits” term in the formula. Had the Court also\ncounted the $268,167.09 of stipulated unexplained nonwage\ndeposits, the Tituses’ ultimate liability would have been\nreduced from $273,862.68 to $5,695.59. Thus the question\npresented in this section is whether the parties’ joint stipulation\nthat the unexplained deposits were not wages was sufficient to\nmeet the Tituses’ burden of production as to nonwage deposits.\n\n\n\n\n 20\n\f To begin, we review the Bankruptcy Court’s decision\non this point for clear error. See Wettach, 811 F.3d at 111. The\nCourt did not commit clear error in the face of the “bright line\nrule” established by the District Court that “unexplained\ndeposits may not be used to set off liability.” Titus III, 566\nB.R. at 768 (“[T]he District Court . . . does not provide for any\ndiscretion in the matter — it provides there shall be no\nreduction for unexplained deposits.”). In remanding the case\nfor a second trial, the District Court made clear that the Tituses\nwould need to “produce evidence about the source of the\nunknown funds” in order to offset their liability. Titus II, 498\nB.R. at 521.\n\n Aside from expecting the Tituses to follow this\nstraightforward directive, there are at least three compelling\nreasons to apply a bright-line rule in situations like this. First,\nallowing an offset for unexplained deposits would\n“incentivize” debtors “not to come forward with any\ninformation that they had regarding the source of those funds,”\nCohen, 487 B.R. at 625, even though the debtor is “certainly in\na better position than the [t]rustee to determine the source of\nthe unexplained deposits,” Titus IV, 2017 WL 5467712, at *6.\nSecond, allowing an offset for unexplained deposits would\nallow debtors “to avoid judgment . . . merely by having funds\ndeposited into the account that could not be traced.” Cohen,\n487 B.R. at 625. Third, even a “nonwage” unexplained deposit\ncould be a fraudulent transfer. “For example, if Paul Titus\nindividually owned a rare painting, sold it for $268,167.09, and\ndeposited the proceeds into the entireties checking account,\nthose funds could not be used to offset objectionable\nexpenses.” Titus IV, 2017 WL 5467712, at *6; see also Titus\nIII, 566 B.R. at 768 n.8.\n In sum, we affirm the decisions of the Bankruptcy Court\nand District Court not to allow unexplained nonwage deposits\nto offset the Tituses’ liability.\n\n\n\n\n 21\n\fIV. Conclusion\n To recap, we reach three conclusions on the path to\naffirming the judgment of the District Court. First, fraudulent-\ntransfer liability attaches to both Mr. and Mrs. Titus for the\ndeposit of Mr. Titus’s wages from his law firm directly into the\nTituses’ entireties bank account. The wage deposits into the\naccount constituted a “transfer” under the PUFTA. Mrs. Titus\nis personally subject to fraudulent-transfer liability as a joint\nowner of the account. And Mr. Titus is subject to transferee\nliability even though he is the debtor-transferor as well. As a\nresult, the wage deposits were a fraudulent transfer that the\nbankruptcy trustee could avoid.\n\n Second, the trustee waived any objection to the\nBankruptcy Court’s chosen method to calculate the Tituses’\nliability. The Court followed the so-called Non-Necessities\nApproach, which holds that fraudulent-transfer liability is non-\nnecessity spending less nonwage deposits, and the trustee did\nnot challenge the approach in his first appeal to the District\nCourt. Going forward for commingled accounts, however, the\nNon-Necessities Approach rests on an unreasonable\nexpectation that a trustee can show by a preponderance of the\nevidence that a dollar of wages was impermissibly spent on a\nnon-necessity. When deposits from different sources are\ncommingled in an account, the Non-Necessities Approach\nalmost always forces a trustee to explain the unexplainable.\nAbsent other evidence, future courts instead should presume\nthat any spending out of an entireties account is made up of a\nmixture of wage and nonwage dollars in proportion to the\noverall ratio of wage to nonwage deposits in the account. This\npro rata approach accounts practically for the commingling of\nfungible funds and is not foreclosed by precedent in our\nCircuit.\n\n\n\n\n 22\n\f Third, the Bankruptcy Court did not clearly err in its\napplication of the Non-Necessities Approach. The District\nCourt had set out a simple rule that the Tituses had to explain\nthe source of their deposits into the account. Despite the\nparties’ stipulation that certain unexplained deposits were not\nwages, the Bankruptcy Court did not clearly err in refusing to\noffset the Tituses’ liability by the amount of those unknown\ndeposits.\n\n Thus we affirm.\n\n\n\n\n 23", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369339/", "author_raw": "AMBRO, Circuit Judge"}]} | AMBRO | SHWARTZ | FUENTES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4592086/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,593,109 | Mary Barbato v. Greystone Alliance LLC | 2019-02-22 | 18-1042 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges (Opinion", "parties": "", "opinions": [{"author": "KRAUSE, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _______________\n\n No. 18-1042\n _______________\n\n MARY BARBATO\n\n v.\n\n GREYSTONE ALLIANCE, LLC; TURNING POINT\n CAPITAL INC; CROWN ASSET MANAGEMENT LLC\n\n Crown Asset Management LLC,\n Appellant\n _______________\n\n On Appeal from the United States District Court\n for the Middle District of Pennsylvania\n (M.D. Pa. Civil Action No. 3-13-cv-02748)\n Honorable Malachy E. Mannion, U.S. District Judge\n _______________\n\n Argued: September 6, 2018\n\nBefore: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges\n\n (Opinion Filed: February 22, 2019)\n\fAnthony J. Gingo\nMichael J. Palumbo\nGingo Palumbo Law Group\n4700 Rockside Road\nSuite 440\nIndependence, OH 44131\n\nMatthew R. Rosenkoff [ARGUED]\nTaylor English Duma\n1600 Parkwood Circle\nSuite 200\nAtlanta, GA 30339\n\n Counsel for Defendant-Appellant Crown Asset\n Management LLC\n\nDaniel A. Edelman [ARGUED]\nEdelman Combs Latturner & Goodwin\n20 South Clark Street\nSuite 1500\nChicago, IL 60603\n\nBrett M. Freeman\nCarlo Sabatini\nSabatini Law Firm\n216 North Blakely Street\nDunmore, PA 18512\n\n Counsel for Plaintiff-Appellee Mary Barbato\n\n\n\n\n 2\n\f _______________\n\n OPINION OF THE COURT\n _______________\n\nKRAUSE, Circuit Judge.\n\n The Fair Debt Collection Practices Act (“FDCPA”)\nprotects consumers from abusive, deceptive, or otherwise\nunfair debt collection practices. 15 U.S.C. § 1692(a). It applies\nto “debt collectors,” defined alternatively as those engaged “in\nany business the principal purpose of which is the collection of\nany debts” and those “who regularly collect[]” debts “owed or\ndue another.” Id. § 1692a(6). This appeal concerns only the\nfirst definition and requires us to determine whether an entity\nthat acquires debt for the “purpose of . . . collection” but\noutsources the actual collection activity qualifies as a “debt\ncollector.” The District Court held that it does, and we agree:\nan entity that otherwise meets the “principal purpose”\ndefinition cannot avoid the dictates of the FDCPA merely by\nhiring a third party to do its collecting. We therefore will\naffirm.\n\nI. Background\n\n A. Factual Background\n\n Appellant Crown Asset Management (“Crown”) is a\npurchaser of charged-off receivables, that is, accounts on\nwhich a consumer has stopped paying the debt owed. When\nCrown purchases an account, it determines if the debtor has\nfiled for bankruptcy or is deceased. If neither is the case,\nCrown does not collect on the account itself; rather, it refers\n\n\n\n\n 3\n\fthe charged-off receivable to a third-party servicer for\ncollection or it hires a debt collection law firm to file a\ncollection lawsuit on its behalf. Although Crown does not\ncontact consumers directly, it principally derives revenue from\nliquidating the consumer debt it has acquired.\n\n In this case, Appellee Mary Barbato obtained a\nconsumer credit card from GE Electric Capital Corporation\nand GE Money Bank (collectively “GE”) in 2007. She made\nher last payment on the account in November 2010, leaving an\noutstanding balance. GE subsequently charged off that balance\nand, after a number of sales and assignments, Crown purchased\nBarbato’s debt. Pursuant to its standing service agreement\nwith collection agency Turning Point Capital, Inc. (“Turning\nPoint”), Crown then referred that debt to Turning Point for\ncollection.\n\n Crown’s service agreement with Turning Point\nexplained that Crown was seeking “to procure certain\ncollection services” from Turning Point, and Turning Point\nwas agreeing to “undertake collection on each Account placed”\nwith it by Crown. App. 376. In addition, the agreement said\nthat Crown had the “sole and absolute discretion,” App. 378,\nas to which accounts it would forward, that Crown’s obligation\nto pay Turning Point was contingent upon Turning Point’s\nsuccess, and that Crown could establish settlement guidelines\nfrom which Turning Point would have to obtain permission in\norder to deviate.\n\n Pursuant to this agreement, Turning Point sent Barbato\na collection letter in February 2013, identifying itself as a\n“National Debt Collection Agency” and Crown as its client.\nTurning Point also called Barbato and left her two voicemail\n\n\n\n\n 4\n\fmessages. For its part, Crown did not have any direct\ncommunication with Barbato regarding her account, nor did it\nreview or approve the letter sent to her by Turning Point.\nWhen Barbato filed for bankruptcy, however, Crown recalled\nBarbato’s account from Turning Point and subsequently closed\nit.\n\n B. Procedural Background\n\n Several months later, after Turning Point was absorbed\nby Greystone Alliance, LLC (“Greystone”), Barbato filed a\nstate court complaint against Greystone, alleging that it had\nviolated the FDCPA. And after Greystone removed the action\nto federal court, Barbato filed an amended complaint in which\nshe added Turning Point and Crown as defendants and alleged\nthat each was a “debt collector” as defined by the FDCPA.1\nTurning Point was served but never answered. Barbato\neventually dismissed both Turning Point and Greystone from\nthe action, leaving only Crown as a defendant.\n\n Barbato and Crown subsequently filed cross-motions\nfor summary judgment on, among other issues, the question\nwhether Crown was a debt collector. Barbato did not argue\n\n 1\n Although of limited relevance for this appeal, the\nspecific conduct that Barbato alleged violated the FDCPA was\n(1) that Turning Point left her voicemail messages without\ndisclosing that the calls were from a debt collector, as required\nunder 15 U.S.C. § 1692e(11), and (2) that Turning Point’s\nletter neglected to inform her how to properly exercise her\nvalidation rights, as required under 15 U.S.C. § 1692g.\nBarbato purported to bring this latter claim on behalf of a\nputative class of Pennsylvania residents.\n\n\n\n\n 5\n\fthat Crown satisfied the “regularly collects” definition, i.e.,\nthat it “regularly collect[ed]” debts “owed or due another.” 15\nU.S.C. § 1692a(6). Rather, she argued that Crown was a “debt\ncollector” because: (1) it purchased debts when they were in\ndefault, which, under then-controlling precedent, was a\nprerequisite to being considered a “debt collector” as opposed\nto a “creditor”2—statuses we had deemed mutually exclusive\nunder § 1692a(6), see F.T.C. v. Check Inv’rs, Inc., 502 F.3d\n159, 171 (3d Cir. 2007)—and (2) it satisfied the statute’s\n“principal purpose” definition because the principal purpose of\nits business was the collection of those defaulted debts, even if\nit hired third-party debt collectors to do the collecting. 15\nU.S.C. § 1692a(6); App. 209–10 (citing Pollice v. Nat’l Tax\nFunding, L.P., 225 F.3d 379, 403–04 (3d Cir. 2000)). Crown\ncountered that, regardless of the default status of the debt,\nBarbato could not prove it fit the “principal purpose” definition\nbecause it took no collection action towards her and its\nprincipal purpose was not the collection of debt but, rather, its\nacquisition.\n\n Siding with Barbato on these issues, the District Court\nheld that Crown was “acting as [a] ‘debt collector’” because:\n(1) it acquired debts like Barbato’s when they were in default\nand (2) the summary judgment record supported that Crown’s\n“principal purpose” was the “collection of ‘any debts.’”\nBarbato v. Greystone All., LLC, No. 3:13-CV-2748, 2017 WL\n1193731, at *10 (M.D. Pa. Mar. 30, 2017). As to the second\nground, the Court found little difference between collecting on\n\n 2\n The statute defines “creditor” as “any person who\noffers or extends credit creating a debt or to whom a debt is\nowed.” 15 U.S.C. § 1692a(4).\n\n\n\n\n 6\n\fcharged-off receivables and referring charged-off receivables\nto third-party independent servicers for collection. Instead,\ngiven that Crown purchased debt, that ninety to ninety-five\npercent of that debt came from consumers, and that Crown\nreferred all of that debt out for collection, the District Court\nconcluded that “Crown’s principal purpose is to acquire\naccounts in ‘default’ for the purpose of collection.” Id. The\nDistrict Court nevertheless denied Barbato’s motion for\nsummary judgment, holding that she had not established that\nCrown was vicariously liable for Turning Point’s conduct\nbecause (1) in the District Court’s view, vicarious liability\ncould be imputed to Crown in these circumstances only if the\nagent too was a “debt collector,” and (2) the evidence in the\nrecord was insufficient to hold that Turning Point was a debt\ncollector under the FDCPA. The Court granted the parties\nleave to file renewed motions for summary judgment to\naddress Turning Point’s status as a debt collector.\n\n While these proceedings continued in the District Court,\nhowever, the Supreme Court issued a decision that prompted\nCrown to seek reconsideration of the District Court’s ruling\nthat it was a “debt collector.” In Henson v. Santander,\nConsumer USA Inc., in interpreting the “regularly collects”\ndefinition and deciding whether the entity there “regularly\ncollect[ed] . . . debts owed or due another,” 15 U.S.C. §\n1692a(6), the Supreme Court held that it was irrelevant\nwhether the debt acquired and sought to be collected was in\ndefault; instead, it held “[a]ll that matters is whether the target\nof the lawsuit regularly seeks to collect debts for its own\naccount or does so for ‘another,’” 137 S. Ct. 1718, 1721, 1724\n(2017). Construing that language to apply to § 1692a(6)\ngenerally, Crown urged that it could no longer be considered a\ndebt collector, even under the “principal purpose” definition,\n\n\n\n\n 7\n\fbecause it too was collecting debts on its own behalf and not\nfor another. The District Court disagreed, holding that Henson\npertained only to the “regularly collects” definition of “debt\ncollector” and did not affect its holding that Crown was a debt\ncollector under the “principal purpose” definition. See Barbato\nv. Greystone All., LLC, No. CV 3:13-2748, 2017 WL 5496047,\nat *1, *9–*10 (M.D. Pa. Nov. 16, 2017).\n\n Nevertheless, the District Court certified its decision for\ninterlocutory appeal and presented a controlling question of\nlaw to this Court: “whether Henson requires a finding that\nCrown is not a debt collector in this case when it was a third-\nparty buyer of the debt, and the debt was in default at the time\nit purchased it.” App. 34. Crown then filed a petition for\npermission to file the interlocutory appeal and to appeal the\nDistrict Court’s denial of its motion for reconsideration, which\nwe granted.\n\nII. Jurisdiction and Applicable Standards\n\n The District Court had jurisdiction under 28 U.S.C.\n§ 1331, and we have jurisdiction over this interlocutory appeal\nunder 28 U.S.C. § 1292(b). When reviewing an interlocutory\nappeal under 28 U.S.C. § 1292(b), we exercise plenary review\nover the question certified. Florence v. Bd. of Chosen\nFreeholders of Cty. of Burlington, 621 F.3d 296, 301 (3d Cir.\n2010). The scope of our review, however, is not limited to the\nquestion set forth in the certification motion but, rather,\nincludes any issue fairly included within the certified order.\nSee Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199,\n205 (1996) (“As the text of § 1292(b) indicates, appellate\njurisdiction applies to the order certified to the court of\n\n\n\n\n 8\n\fappeals, and is not tied to the particular question formulated by\nthe district court.”).\n\n “We review a denial of a motion for reconsideration for\nabuse of discretion, but we review the District Court’s\nunderlying legal determinations”—its denial of summary\njudgment to Crown in this case—“de novo and factual\ndeterminations for clear error.” Howard Hess Dental Labs.\nInc. v. Dentsply Int’l, Inc., 602 F.3d 237, 246 (3d Cir. 2010).\nSummary judgment is appropriate only where there is no\ngenuine issue as to any material fact. Fed. R. Civ. P. 56(c).\n\nIII. Discussion\n\n On appeal, Crown contends that it does not qualify as a\n“debt collector” under the “principal purpose” definition for\nthree reasons: First, the Supreme Court’s decision in Henson\nundermined our prior precedent that would render it a debt\ncollector. Second, its principal purpose is the acquisition—not\nthe collection—of debt, and a faithful interpretation of the\nstatute requires that we distinguish between the two. And\nthird, the legislative history demonstrates that Congress\nintended to regulate the proverbial “repo man,” not a “passive\ndebt owner” like Crown. Appellant Br. 32. We begin with a\nbrief overview of the FDCPA and, with that context for\nCrown’s arguments, address—and reject—each in turn.\n\n A. The FDCPA\n\n Congress enacted the FDCPA in 1977 “to eliminate\nabusive debt collection practices by debt collectors” and “to\ninsure that those debt collectors who refrain from using abusive\ndebt collection practices are not competitively disadvantaged.”\n\n\n\n\n 9\n\f15 U.S.C. § 1692(e). It provides a private right of action\nagainst debt collectors who violate its provisions. 15 U.S.C. §\n1692k; see also Brown v. Card Serv. Ctr., 464 F.3d 450, 453\n(3d Cir. 2006). “As remedial legislation, the FDCPA must be\nbroadly construed in order to give full effect to these\npurposes.” Caprio v. Healthcare Revenue Recovery Grp.,\nLLC, 709 F.3d 142, 148 (3d Cir. 2013).\n\n “To prevail on an FDCPA claim, a plaintiff must prove\nthat (1) she is a consumer, (2) the defendant is a debt collector,\n(3) the defendant’s challenged practice involves an attempt to\ncollect a ‘debt’ as the [FDCPA] defines it, and (4) the\ndefendant has violated a provision of the FDCPA in attempting\nto collect the debt.” St. Pierre v. Retrieval-Masters Creditors\nBureau, Inc., 898 F.3d 351, 358 (3d Cir. 2018) (quoting\nDouglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d\nCir. 2014)). The only element at issue in this case is the\nsecond—whether Crown qualifies as a “debt collector.”\n\n As noted, the statute defines “debt collector” as any\nperson (1) “who uses any instrumentality of interstate\ncommerce or the mails in any business the principal purpose of\nwhich is the collection of any debts” (the “principal purpose”\ndefinition), or (2) “who regularly collects or attempts to collect,\ndirectly or indirectly, debts owed or due or asserted to be owed\nor due another” (the “regularly collects” definition).3 15\n\n 3\n The statute also provides two other definitions of “debt\ncollector,” neither of which is relevant here: “any creditor who,\nin the process of collecting his own debts, uses any name other\nthan his own which would indicate that a third person is\ncollecting or attempting to collect such debts” and “any person\nwho uses any instrumentality of interstate commerce or the\n\n\n\n\n 10\n\fU.S.C. § 1692a(6). The statute thus provides two separate\npaths to establishing an entity’s status as a “debt collector.”\nSee Henson, 137 S. Ct. at 1721.\n\n As we recently had occasion to remark, the debt\ncollection industry has changed since Congress enacted the\nFDCPA in 1977, and the simple creditor-debt collector duo has\nbeen complicated by the advent and growth of debt buying.\nSee Tepper v. Amos Fin., LLC, 898 F.3d 364, 366 (3d Cir.\n2018). With the proliferation of debt buying have come\nquestions about the boundaries of the statute’s definitions.\n\n In Henson v. Santander, the Supreme Court clarified the\n“regularly collects” definition. There, Santander Bank\npurchased loans once they were already in default and sought\nto collect on them. 137 S. Ct. at 1720. Focusing on the plain\nlanguage of the statutory definition at issue, the Court held that\na third-party buyer of debt that seeks to collect debt owed to it\ndoes not fit the second definition because it does not “regularly\nseek to collect debts ‘owed . . . another.’” Id. at 1721. It\nrejected the petitioners’ arguments that either the origin of the\ndebt or the default status of the debt had any bearing on that\nanalysis. As to the debt’s origin, it reasoned that the statutory\nlanguage did not suggest that “whether the owner originated\n\n\nmails in any business the principal purpose of which is the\nenforcement of security interests.” 15 U.S.C. § 1692a(6).\nExcluded from the definition’s reach are, among others, a\ncreditor’s officers and employees who collect debts for the\ncreditor, an entity collecting a debt it originated, and an entity\ncollecting a debt it obtained that was not in default at the time\nof purchase. Id. §§ 1692a(6)(A), (F).\n\n\n\n\n 11\n\fthe debt or came by it only through a later purchase” was\nrelevant. Id. The Court similarly saw no basis in the text for\nconcluding that an entity that obtains debts after default\nautomatically qualifies as a “debt collector” under the\ndefinition. See id. at 1724. “All that matters,” the Court\nconcluded, “is whether the target of the lawsuit regularly seeks\nto collect debts for its own account or does so for ‘another.’”\nId. at 1721. Relevant for our purposes, the Court explicitly\ndeclined to address whether such debt buyers could\nnevertheless qualify as debt collectors under the “principal\npurpose” definition. Id.\n\n B. Henson and Third Circuit Precedent\n\n Crown’s primary argument on appeal is that Henson\nabrogated our prior precedent such that it no longer qualifies\nas a “debt collector” under the statute. Crown contends this is\nso for two reasons: first, because Henson renders it a creditor,\nnot a debt collector, and the two statuses are mutually\nexclusive; and second, because Henson rejected the so-called\n“default” test on which we relied, thereby undermining “the\nvery foundation” of our prior caselaw. Appellant Br. 30.\nCrown overstates the effect of Henson.\n\n We need not dwell on Crown’s first argument because\nour recent decision in Tepper v. Amos forecloses it. In Tepper,\nthe defendant was a company whose “sole business [wa]s\npurchasing debts entered into by third parties and attempting\nto collect them.” 898 F.3d at 369. The defendant claimed that\nbecause it met the statutory definition of creditor—it was\ntrying to collect debts it owned and was thus an entity “to\nwhom [the] debt is owed”—it could not also be a debt\ncollector. Id. at 371 (quoting 15 U.S.C. § 1692a(4)). Like\n\n\n\n\n 12\n\fCrown, the defendant based this argument on Third Circuit\nprecedent that characterized the two statuses as “mutually\nexclusive.” Id. (citing Check Inv’rs, 502 F.3d at 173); see also\nPollice, 225 F.3d at 403. Until Henson, as we explained, we\nrelied on the “default” test to determine whether an entity was\na creditor or a debt collector: either the entity obtained the debt\nbefore default and was a creditor or it acquired the debt\nafterwards and was a debt collector. Tepper, 898 F.3d at 366–\n67. Given the binary nature of default status, an entity could\nbe only one or the other. But, we observed, Henson rejected\nthe “default” test, id. at 367, and with it, the basis for treating\nthe terms “debt collector” and “creditor” as mutually exclusive.\nFollowing the Supreme Court’s direction to hew more closely\nto the statutory definitions, we concluded that “an entity that\nsatisfies both [definitions] is within the Act’s reach.” Id. at\n371. The same is true here.\n\n As to Crown’s second argument about Henson’s overall\neffect on our caselaw, it simply proves too much. While it is\nno doubt true that Henson abrogated the default test on which\nwe relied to distinguish between creditors and debt collectors\nand that it clarified the scope of the “regularly collects”\ndefinition of debt collector, Henson did not address the other\nprong of § 1692a(6)—the wholly separate “principal purpose”\ndefinition. To the contrary, the Court conducted a close textual\nanalysis of the “regularly collects” definition, deriving from\nthat portion of the statute—which requires the entity to\n“collect” debt “owed or due another”—that “[a]ll that matters\nis whether the target of the lawsuit regularly seeks to collect\ndebts for its own account or does so for ‘another.’” 137 S. Ct.\nat 1721. That requirement, however, does not appear in the\n“principal purpose” definition, and the Supreme Court went\nout of its way in Henson to say that it was not opining on\n\n\n\n\n 13\n\fwhether debt buyers could also qualify as debt collectors under\nthat prong of § 1692a(6). See id.\n\n But we have previously opined on this question—and in\nsimilar circumstances. In Pollice v. National Tax Funding,\nL.P., a debt buyer, National Tax Funding L.P. (“NTF”),\npurchased delinquent municipal tax and utility claims from the\ngovernment. 225 F.3d at 385. Like Crown, NTF had no direct\ncontact with debtors; rather, it outsourced all of its collection\nactivities to others. Id. at 386. We concluded that NTF was a\ndebt collector both because it purchased debt in default—a fact\nHenson has since rendered irrelevant—and also because “there\n[was] no question that the ‘principal purpose’ of NTF’s\nbusiness is the ‘collection of any debts,’ namely, defaulted\nobligations which it purchases from municipalities.” Id. at\n404. The fact that someone else did the actual collecting did\nnot deter us from concluding that NTF was a “debt collector”\ngiven that “NTF exist[ed] solely for the purpose of holding\nclaims for delinquent taxes and municipal obligations.” Id. at\n404 n.27 (emphasis added). True, Pollice predated Henson,\nbut for the reasons we explain below, we continue to find its\nlogic persuasive.\n\n C. Statutory Interpretation\n\n To determine whether Crown is a “debt collector” under\nthe “principal purpose” definition, we look first to the plain\nmeaning of the statutory text. See S.H. ex rel. Durrell v. Lower\nMerion Sch. Dist., 729 F.3d 248, 257 (3d Cir. 2013). The text\nstates that “any person who uses any instrumentality of\ninterstate commerce or the mails in any business the principal\npurpose of which is the collection of any debts” is a “debt\ncollector.” 15 U.S.C. § 1692a(6). Focusing on the word\n\n\n\n\n 14\n\f“collection,” which it defines as “the act or process of\ncollecting,” Crown argues that the “principal purpose”\ndefinition applies only to those that engage in “overt acts of\ncollection” by interacting with consumers—not entities like\nCrown that purchase debt and outsource the collection.\nAppellant Br. 25, 31, 33.\n\n As much as Crown might wish that it were otherwise,\nnothing suggests that the definition is so limited. An entity\nqualifies under the definition if the “principal purpose” of its\n“business” is the “collection of any debts.” “Principal” is\ndefined as “most important, consequential, or influential,”\nPrincipal, Webster’s Third New International Dictionary 1802\n(1976) (“Webster’s Third”), and “purpose” is defined as\n“something that one sets before himself as an object to be\nattained : an end or aim” and “an object, effect, or result aimed\nat, intended, or attained,” id. at 1847. Thus, an entity that has\nthe “collection of any debts” as its “most important” “aim” is\na debt collector under this definition. While it is true that\n“collection” can be defined as “the act or process of\ncollecting,” it can also be defined as “that which is collected.”\nCollection, Random House Dictionary of the English\nLanguage 290 (1973). So defined, the focus shifts from the act\nof collecting to what is collected, namely, the acquired debts.\nAs long as a business’s raison d’être is obtaining payment on\nthe debts that it acquires, it is a debt collector. Who actually\nobtains the payment or how they do so is of no moment.\n\n The statutory context of the “principal purpose”\ndefinition casts further doubt on Crown’s argument that\nCongress meant to limit it to only those entities that actively\ncollect from consumers. See Allen ex rel. Martin v. LaSalle\nBank, N.A., 629 F.3d 364, 367 (3d Cir. 2011) (“If the plain\n\n\n\n\n 15\n\flanguage fails to express Congress’ intent unequivocally . . .\nwe will examine the surrounding words and provisions in their\ncontext.”) (citing Tavarez v. Klingensmith, 372 F.3d 188, 190\n(3d Cir. 2004)). In contrast to the “regularly collects”\ndefinition, where Congress explicitly used the verb “to collect”\nin describing the actions of those it intended the definition to\ncover, in the “principal purpose” definition, Congress used the\nnoun “collection” and did not specify who must do the\ncollecting or to whom the debt must be owed.4 15 U.S.C. §\n1692a(6); see also Tepper, 898 F.3d at 370. Thus, by its terms,\nthe “principal purpose” definition sweeps more broadly than\nthe “regularly collects” definition, and we must presume that\nthe “legislature says . . . what it means and means . . . what it\nsays.” Henson, 137 S. Ct. at 1725 (quoting Dodd v. United\nStates, 545 U.S. 353, 357 (2005)).\n\n In a plain language argument of its own, Crown retorts\nthat to find that it qualifies under the “principal purpose”\ndefinition even though it outsources its collection activities\nwould be to read the word “indirectly” into the statute where it\ndoes not appear. This is especially problematic, Crown\ncontends, because the “regularly collects” definition does\nspecify that an entity can collect “directly or indirectly,” while\nCongress omitted this qualifier from the “principal purpose”\ndefinition.\n\n\n\n 4\n At both oral argument and in its supplemental briefing,\nCrown argued that the word “collection” is a verb. It is not. It\nis a noun. See Collection, Webster’s Third at 444 (denoting\nwith the abbreviation “n” that the word being defined is a\nnoun).\n\n\n\n\n 16\n\f We are unpersuaded. Again, the fact that the “regularly\ncollects” definition employs a verb and the “principal purpose”\ndefinition employs a noun is critical. In the “regularly collects”\ndefinition, the “directly or indirectly” qualification is\nnecessary because one could reasonably interpret “collect” to\nrefer to only direct efforts to collect—it is, after all, “a verb that\nrequires action.” Appellant Reply Br. 15 (citation omitted).\n\n The “principal purpose” definition, however, needs no\nsuch qualification. “Collection” by its very definition may be\nindirect, and that is the type of collection in which Crown\nengages: it buys consumer debt and hires debt collectors to\ncollect on it.5 The existence of a middleman does not change\nthe essential nature—the “principal purpose”—of Crown’s\nbusiness. As Barbato points out, Crown could buy debt for the\ncharitable purpose of forgiving it, or it could buy debt for the\npurpose of reselling it to unrelated parties at a profit. In both\n\n 5\n Although not addressed by the District Court or the\nfocus of the parties’ arguments on appeal, Barbato has\nsuggested that Crown itself collects debt because it is the\nnamed plaintiff in many collection lawsuits. Because Crown’s\nlitigation efforts did not give rise to this appeal and we\nconclude that Crown otherwise satisfies the “principal\npurpose” definition, we need not address this argument. We\nnote, however, that Crown’s answer to it—that its litigation\nefforts are irrelevant because its counsel, not Crown itself, does\nthe collecting by, for example, drafting the pleadings—is in\ntension with our precedent, e.g., Pollice, 225 F.3d at 404–05\n(recognizing that a debt collector may be held vicariously\nliable for the conduct of its attorneys), and squarely refuted by\nour holding today.\n\n\n\n\n 17\n\fof those cases, the entity’s “principal purpose” would not be\ncollection. But Crown does neither of those things. Indeed,\nthe record reflects that Crown’s only business is the purchasing\nof debts for the purpose of collecting on those debts, and, as\nCrown candidly acknowledged at oral argument, without the\ncollection of those debts, Crown would cease to exist. In short,\nCrown falls squarely within § 1692a(6)’s “principal purpose”\ndefinition.\n\n D. Crown’s Purpose and Legislative History\n Argument\n\n Finally, Crown argues that the legislative history of the\nFDCPA demonstrates that Congress did not intend for the\nstatutory definition of “debt collector” to apply to a “passive\ndebt owner” like itself but only to a repo man who was\npersonally hounding debtors to hand over the money they owe.\nAppellant Br. 32. This argument is flawed in two respects.\n\n First, it proves too much. There is no doubt that\n“[d]isruptive dinnertime calls, downright deceit, and more\nbesides drew Congress’s eye to the debt collection industry.”\nHenson, 137 S. Ct. at 1720. But even if the purpose of the\nstatute was to reach repo men, that purpose is furthered by\nrecognizing Crown as a debt collector under § 1692a(6).\nUnlike a traditional creditor, such as a bank or a retail outlet\nthat has its own incentive to cultivate good will among its\ncustomers and for which debt collection is one of perhaps\nmany parts of its business, an independent debt collector like\nCrown has only one need for consumers: for them to pay their\ndebts. As market-based incentives go, that makes it far more\nlike a repo man than a creditor and gives it every incentive to\nhire the most effective repo man to boot.\n\n\n\n\n 18\n\f Second, while the Supreme Court acknowledged in\nHenson that “[e]veryone agrees that the term embraces the repo\nman,” id., the language on which Congress settled sweeps\nmore broadly to include “any business the principal purpose of\nwhich is the collection of any debts,” 15 U.S.C. § 1692a(6)\n(emphasis added), without regard to whether that entity\ndelegates its collecting activities. The statute is clear, and\nCrown’s argument fails for this reason as well: “[R]ecourse to\nlegislative history or underlying legislative intent is\nunnecessary when a statute’s text is clear and does not lead to\nan absurd result.” In re Phila. Newspapers, LLC, 599 F.3d 298,\n317 (3d Cir. 2010) (quoting Hay Grp., Inc. v. E.B.S.\nAcquisition Corp., 360 F.3d 404, 406 (3d Cir. 2004)).\n\n E. Issues for Remand\n\n Of course, our holding that Crown is a debt collector\ndoes not answer the ultimate question of liability, which turns\nhere on principles of vicarious liability. As the District Court\nrecognized, “when Congress creates a tort action, it legislates\nagainst a legal background of ordinary tort-related vicarious\nliability rules,” Barbato, 2017 WL 1193731, at *12 (quoting\nMeyer v. Holley, 537 U.S. 280, 285 (2003)), and we have relied\non traditional agency principles in holding parties vicariously\nliable under the FDCPA, see Pollice, 225 F.3d at 404–05, as\nhave other Courts of Appeals in the context of analogous\nremedial statutes, see, e.g., Jones v. Federated Fin. Reserve\nCorp., 144 F.3d 961, 965 (6th Cir. 1998) (applying agency\nprinciples to determine vicarious liability under the Fair Credit\nReporting Act).\n\n As Crown’s ultimate liability for the acts of Turning\nPoint was not the question certified in this interlocutory appeal\n\n\n\n\n 19\n\fnor the focus of the parties’ briefing, we will leave that issue\nfor the District Court’s consideration in the first instance. By\nway of guidance on remand, however, we offer two brief\nobservations. First, to the extent Crown argues that the District\nCourt was obligated to find that Crown exerted actual control\nover Turning Point in order to be held vicariously liable,\nCrown misunderstands the tenets of agency law and our\nprecedent. See Meyer, 537 U.S. at 285–86 (explaining that the\nprincipal-agent relationship requires that the principal either\ncontrol “or [have] the right to direct or control” the agent)\n(emphasis added); see also Janetos v. Fulton Friedman &\nGullace, LLP, 825 F.3d 317, 326 (7th Cir. 2016) (interpreting\nPollice to mean that vicarious liability need not be based “on a\nshowing of actual control over the specific activity alleged to\nviolate the [FDCPA]”).\n\n Second, in inviting further development of the record on\nTurning Point’s own status as a “debt collector,” the District\nCourt assumed that Crown could not be held vicariously liable\nfor the acts of an agent under the FDCPA unless the agent\nqualified as a “debt collector” in its own right. Barbato, 2017\nWL 1193731, at *13. But our case law imposes no such\nrequirement; to the contrary, we have focused on whether the\nprincipal qualifies as a debt collector because “an entity which\nitself meets the definition of ‘debt collector’ may be held\nvicariously liable for unlawful collection activities carried out\nby another on its behalf.” Pollice, 225 F.3d at 404. And as we\nexplained in Pollice, and we reinforce today, this is “a fair\nresult because an entity that is itself a ‘debt collector’—and\nhence subject to the FDCPA—should bear the burden of\nmonitoring the activities of those it enlists to collect debts on\nits behalf.” Id. at 405.\n\n\n\n\n 20\n\fIV. Conclusion\n\n For the foregoing reasons, we will affirm the District\nCourt’s order denying reconsideration of its summary\njudgment decision and will remand for further proceedings\nconsistent with this opinion.\n\n\n\n\n 21", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370362/", "author_raw": "KRAUSE, Circuit Judge."}]} | HARDIMAN | KRAUSE | BIBAS | 1 | {"HARDIMAN": ", Circuit", "KRAUSE": ", Circuit", "BIBAS": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593109/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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8,443,889 | Mary BARBATO v. GREYSTONE ALLIANCE, LLC Turning Point Capital Inc Crown Asset Management LLC Crown Asset Management LLC | Barbato v. Greystone Alliance, LLC | 2019-02-22 | No. 18-1042 | U.S. Court of Appeals for the Third Circuit | {"judges": "Bibas, Hardiman, Krause", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415319/", "author_raw": ""}]} | BIBAS | HARDIMAN | KRAUSE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443889/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,593,528 | FEDERAL TRADE COMMISSION, Appellant v. SHIRE VIROPHARMA, INC. | Fed. Trade Comm'n v. Shire Viropharma, Inc. | 2019-02-25 | 18-1807 | U.S. Court of Appeals for the Third Circuit | {"judges": "Smith, McKee, Fisher", "parties": "", "opinions": [{"author": "SMITH, Chief Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 18-1807\n _____________\n\n FEDERAL TRADE COMMISSION,\n Appellant\n\n v.\n\n SHIRE VIROPHARMA, INC.\n _____________\n\n On Appeal from the United States District Court\n for the District of Delaware\n District Court No. 1-17-cv-00131\nDistrict Judge: The Honorable Richard G. Andrews\n\n Argued December 11, 2018\n\nBefore: SMITH, Chief Judge, McKEE, and FISHER,\n Circuit Judges\n\n (Filed: February 25, 2019)\n\fBradley S. Albert\nMeredyth Andrus\nThomas J. Dillickrath\nMatthew M. Hoffman [ARGUED]\nJune Im\nNicholas Leefer\nJoel R. Marcus\nJoseph Mathias\nJames H. Weingarten\nFederal Trade Commission\n600 Pennsylvania Avenue, N.W.\nWashington, DC 20580\n Counsel for Appellant\n\nJ. Clayton Everett, Jr.\nScott A. Stempel\nMorgan Lewis & Bockius\n1111 Pennsylvania Avenue, N.W.\nSuite 800 North\nWashington, DC 20004\n\nNoah J. Kaufman\nMorgan Lewis & Bockius\nOne Federal Street\nBoston, MA 02110\n\nSteven A. Reed [ARGUED]\nJessica J. Taticchi\nMorgan Lewis & Bockius\n 2\n\f1701 Market Street\nPhiladelphia, PA 19103\n Counsel for Appellee\n\nGeorge P. Slover\nConsumers Union\n1101 17th Street, N.W.\nSuite 500\nWashington, DC 20036\n Counsel for Amicus Appellant\n\nRichard A. Samp\nWashington Legal Foundation\n2009 Massachusetts Avenue, N.W.\nWashington, DC 20036\n Counsel for Amicus Appellee\n\n ________________\n\n OPINION OF THE COURT\n ________________\n\nSMITH, Chief Judge.\n\n\n\n\n 3\n\f Shire ViroPharma, Inc. (“Shire”),1 manufactured\nand marketed the lucrative drug Vancocin, which is\nindicated to treat a life-threatening gastrointestinal\ninfection. After Shire got wind that manufacturers were\nconsidering making generic equivalents to Vancocin, it\ninundated the United States Food and Drug\nAdministration (“FDA”) with allegedly meritless filings to\ndelay approval of those generics. The FDA eventually\nrejected Shire’s filings and approved generic equivalents\nto Vancocin, but the filings nonetheless resulted in a high\ncost to consumers—Shire had delayed generic entry for\nyears and reaped hundreds of millions of dollars in profits.\n\n Nearly five years later—and after Shire had\ndivested itself of Vancocin—the Federal Trade\nCommission (“FTC”) filed suit against Shire in the United\nStates District Court for the District of Delaware under\nSection 13(b) of the Federal Trade Commission Act, 15\nU.S.C. § 53(b). The FTC sought a permanent injunction\nand restitution, alleging that Shire’s petitioning was an\nunfair method of competition prohibited by the Act. Shire\nmoved to dismiss, arguing that the FTC’s allegations of\nlong-past petitioning activity failed to satisfy Section\n13(b)’s requirement that Shire “is violating” or “is about\n\n\n 1\n Shire ViroPharma, Inc. is the corporate successor\nto ViroPharma, which it acquired in 2014—after the\npetitioning activity at issue in this case ceased.\n 4\n\fto violate” the law. The District Court agreed and\ndismissed the case.\n\n On appeal, the FTC urges us to adopt a more\nexpansive view of Section 13(b). According to the FTC,\nthe phrase “is violating, or is about to violate” in Section\n13(b) is satisfied by showing a past violation and a\nreasonable likelihood of recurrent future conduct. We\nreject the FTC’s invitation to stretch Section 13(b) beyond\nits clear text. The FTC admits that Shire is not currently\nviolating the law. And the complaint fails to allege that\nShire is about to violate the law. We will therefore affirm\nthe District Court’s judgment.\n\n I.2\n A.\n A company that wishes to manufacture and market\na new drug in the United States must submit to the FDA a\nNew Drug Application (“NDA”) demonstrating the safety\n\n\n\n 2\n We derive the facts of this case from the FTC’s\ncomplaint. In our review of the grant of the motion to\ndismiss, we take the allegations to be true and construe\nthem in the light most favorable to the FTC. In re: Tower\nAir, Inc., 416 F.3d 229, 232 n.1 (3d Cir. 2005).\n 5\n\fand efficacy of the product.3 Usually, the NDA filer\ndemonstrates safety and efficacy by using expensive in\nvivo clinical endpoint studies, where researchers provide\nsick patients with either the proposed drug or a placebo to\ncompare the safety and efficacy of the drug with the\nplacebo. See Fed. Trade Comm’n v. Actavis, Inc., 570\nU.S. 136, 142 (2013) (describing the “long,\ncomprehensive, and costly testing process” underlying an\nNDA). After FDA approval, the manufacturer must seek\napproval through a supplemental NDA if it wishes to\nchange the drug or its label.\n A generic drug manufacturer need not file an NDA\nbecause it is essentially copying the approved branded\ndrug. The generic manufacturer must instead file an\nAbbreviated New Drug Application (“ANDA”), which\nrelies on the approved drug’s profile for safety and\nefficacy. See id. (“The Hatch-Waxman process, by\nallowing the generic to piggy-back on the pioneer’s\n\n 3\n The regulatory scheme employed by the FDA is\ngoverned by the Food, Drug, and Cosmetic Act, 21 U.S.C.\n§ 301, as amended by the Drug Price Competition and\nPatent Term Restoration Act of 1984 (“Hatch-Waxman”),\nPub. L. No. 98-417, 98 Stat. 1585 (1984) (codified as\namended at 21 U.S.C. § 355 and 35 U.S.C. § 271(e)\n(1994)), and the Medicare Prescription Drug,\nImprovement, and Modernization Act of 2003, Pub. L. No.\n108-173, 117 Stat. 2066 (2003).\n 6\n\fapproval efforts, speeds the introduction of low-cost\ngeneric drugs to market, thereby furthering drug\ncompetition.” (internal alteration, quotation marks, and\ncitation omitted)). The generic manufacturer must\ndemonstrate, inter alia, that the proposed generic drug is\nbioequivalent to the referenced branded drug.4 See 21\nC.F.R. § 314.3(b) (defining bioequivalence as “the\nabsence of a significant difference in the rate and extent to\nwhich the active ingredient or active moiety in\npharmaceutical equivalences or pharmaceutical\nalternatives becomes available at the site of drug\naction . . . .”).\n\n B.\n Shire develops, manufactures, and markets branded\ndrugs. Until Shire divested itself of the product in 2014,\n\n\n\n\n 4\n The FDA has flexibility in determining how a\nmanufacturer must establish bioequivalence. See, e.g., 21\nC.F.R. § 320.24(a) (providing that the FDA may require\neither in vivo or in vitro studies to demonstrate\nbioequivalence).\n\n 7\n\fthis included Vancocin capsules.5 Vancocin capsules are\nan oral antibiotic used to treat Clostridium-difficile\nassociated diarrhea, which is a serious, potentially life-\nthreatening gastrointestinal infection. When Vancocin\ncapsules were developed, the NDA did not include in vivo\nclinical endpoint studies because the capsules were an\nalternative delivery system to Vancocin oral solution,\nwhich the FDA already knew to be safe and effective.\nInstead, the NDA included in vitro dissolution data (which\nmeasures how quickly the capsules dissolve) and in vivo\npharmacokinetic data (which compares the absorption of\nthe drug in capsule form versus oral solution form).\n\n In April 1986, the FDA approved Vancocin\ncapsules. Shire acquired Vancocin capsules in November\n2004. From then until 2011, Vancocin capsules were\nShire’s largest revenue-generating product. Vancocin\ncapsules accounted for all of Shire’s net revenue until\n2009 and up to 53% of its net revenue in 2011. United\n\n\n\n 5\n We take judicial notice of this fact—which is not\nin the complaint—from Shire’s Form 8-K filings with the\nSecurities Exchange Commission. Shire plc, Form 8-K, 5\n(Oct. 24, 2014), https://bit.ly/2SxTOm8; see Oran v.\nStafford, 226 F.3d 275, 289 (3d Cir. 2000) (taking judicial\nnotice of SEC filings).\n\n 8\n\fStates sales for Vancocin capsules grew from $40 million\nin 2003 to almost $300 million in 2011.\n\n Generic manufacturers, attracted by Vancocin’s\nfinancial success, wanted to enter the market. Vancocin\nwas vulnerable to generic competition because it lacked\nboth patent protection and regulatory exclusivity. One\nprimary barrier to generic entry remained—the FDA’s\nrecommendation that generic manufacturers seeking to\ndemonstrate bioequivalence conduct in vivo clinical\nendpoint studies. Ironically, these tests were more\nexpensive and onerous than the in vitro dissolution testing\nand in vivo pharmacokinetic studies that had been used to\ngain approval of Vancocin capsules in the first place. The\nFDA apparently realized this inconsistency; in October\n2004 it convened a public meeting of the Advisory\nCommittee for Pharmaceutical Science (the “Advisory\nCommittee”)6 to reassess bioequivalence testing for\nlocally-acting gastrointestinal drugs like Vancocin.\n Shire became increasingly concerned that the FDA\nmight allow generic manufacturers to demonstrate\nbioequivalence using in vitro data. Shire thus hired a\n\n 6\n The Advisory Committee is a body of sixteen\nindependent experts from academia, non-profits, and\nhospitals. These experts are “knowledgeable in the fields\nof pharmaceutical sciences, clinical pharmacology, and\ngastrointestinal diseases.” Compl. ¶ 85.\n 9\n\fbioequivalence consultant to advise it on the FDA’s likely\ncourse of action. In November 2005, the consultant\nconfirmed Shire’s suspicions, advising Shire that the FDA\nwould likely allow generic manufacturers to submit in\nvitro dissolution data to establish bioequivalence to\nVancocin capsules. The consultant counseled Shire to\nsubmit a citizen petition “sooner than later” but warned\nthat without supporting clinical data, Shire “could not\nconvince the FDA of its position against use of in vitro\ndissolution testing.” Compl. ¶ 45.\n\n Shire’s fear came to pass: the FDA indeed changed\nits position on bioequivalence testing for Vancocin\ncapsules. In February 2006, the FDA advised a generic\nmanufacturer that bioequivalence for Vancocin capsules\ncould be demonstrated by in vitro dissolution testing. The\nFDA also shared this guidance with other generic\nmanufacturers that inquired. In March 2007, the first\ngeneric manufacturer submitted its ANDA for Vancocin\ncapsules. Two other generic manufacturers followed suit\nlater that year.\n\n C.\n Not surprisingly, Shire wanted to protect its\nmonopoly on the Vancocin market. Among its options\nwas a citizen petition. The First Amendment guarantees\nindividuals the right to petition the government. U.S.\nConst. amend. I. Consistent with that right, the\nAdministrative Procedure Act permits any “interested\n 10\n\fperson” to petition a federal agency “for the issuance,\namendment, or repeal of a rule.” 5 U.S.C. § 553(e); see\nalso 21 C.F.R. § 10.30 (FDA regulation governing citizen\npetitions).\n\n The filing of a citizen petition can substantially\ndelay approval of a generic drug. During the time period\nat issue here, the FDA automatically suspended ANDA\napproval if a branded manufacturer filed a citizen\npetition.7 The FDA is obligated to respond to every citizen\npetition within 180 days.8 Id. § 10.30(e)(5); see also 21\n\n 7\n Although inapplicable to Shire’s citizen petition,\nCongress passed the Food and Drug Administration\nAmendments Act of 2007 to assuage the FDA’s fear that\nmany brand manufacturers’ citizen petitions were\nmeritless attempts to delay generic competition. See 21\nU.S.C. § 355(q). Post-2007, the FDA cannot delay ANDA\napproval due to a citizen petition unless “a delay is\nnecessary to protect the public health.” Id.\n§ 355(q)(1)(A)(ii). Under the amendment, the FDA may\nalso deny a citizen petition filed “with the primary purpose\nof delaying” ANDA approval that “does not on its face\nraise valid scientific or regulatory issues.” Id.\n§ 355(q)(1)(E).\n\n 8\n This time period has since been shortened to 150\ndays. 21 C.F.R. § 10.30(e)(5).\n 11\n\fU.S.C. § 355(q)(1)(F). But the FDA’s response need not\ndispose of the entire petition within that time. The FDA\nmay deny the petition, approve it in whole or in part,\nprovide a tentative response, or delay a decision by\nmodifying or postponing any suggested action. See 21\nC.F.R. § 10.30(e)(2)(i)–(iv).\n\n From March 2006 to April 2012, Shire submitted a\ntotal of forty-three filings to the FDA and instituted three\nfederal court proceedings—all allegedly to delay the\napproval of generic Vancocin capsules by convincing the\nFDA to require ANDA applicants to conduct in vivo\nclinical endpoint studies. Shire’s filings ranged from a\ncitizen petition and amendments thereto to public\ncomments on other manufacturers’ ANDAs. Many of\nthese filings were around the same time Shire suspected\nthe FDA was nearing approval of generic equivalents to\nVancocin.\n\n On April 9, 2012, the FDA rejected Shire’s citizen\npetition.9 The FDA concluded that Shire’s scientific\nchallenges to the bioequivalence recommendation\n“lack[ed] merit” and “were unsupported.” Compl. ¶ 104\n(internal quotation marks omitted); App. 77–95. On that\nsame day the FDA approved three ANDAs for generic\n\n\n 9\n Shire did not prevail in any of its lawsuits, which\nwere either dismissed or withdrawn.\n 12\n\fVancocin capsules. Shire lost almost 70% of its unit sales\nfor Vancocin capsules within three months.\n\n D.\n Nearly five years later, on February 7, 2017, the\nFTC sued Shire, seeking a permanent injunction and\nequitable monetary relief under Section 13(b) of the FTC\nAct. The FTC claimed that Shire’s conduct—submitting\nserial, meritless filings—had harmed consumers and\ncompetition because it enabled Shire to maintain and\nextend its monopoly by delaying the FDA’s approval of\ngeneric alternatives to Vancocin capsules. See 15 U.S.C.\n§ 45(a).\n\n The FTC alleged that, absent an injunction, “there\nis a cognizable danger” that Shire will “engage in similar\nconduct causing future harm to competition and\nconsumers.” Compl. ¶ 150. It based this assertion on\nShire’s (1) knowledge that its petitioning campaign would\nenrich it at the expense of consumers; (2) incentive to\nengage in similar conduct in the future; and (3)\nopportunity to engage in similar conduct in the future. As\nto the third point, the FTC specifically alleged that Shire\n“marketed and developed drug products,” namely\nCinryze, “for commercial sale in the United States, and it\ncould do so in the future.” Id. ¶¶ 8, 151.\n\n Shire moved to dismiss the complaint, arguing that\nthe FTC had failed to plead sufficient facts to invoke its\n 13\n\fauthority under Section 13(b). Shire also contended that\nits petitioning activity was immune from antitrust\nchallenge pursuant to the Noerr-Pennington doctrine. See\nE. R.R. Presidents Conference v. Noerr Motor Freight,\nInc., 365 U.S. 127, 136 (1961); United Mine Workers of\nAm. v. Pennington, 381 U.S. 657, 670 (1965). The FTC\nresponded that Section 13(b) authorized its lawsuit and\nthat Shire had engaged in sham petitioning, which is not\nprotected by Noerr-Pennington.\n The District Court granted Shire’s motion to\ndismiss, ruling that the FTC had failed to plead sufficient\nfacts to show that Shire “is violating, or is about to violate”\nthe law.10 The Court flatly rejected the FTC’s contention\nthat Shire was about to violate the law merely because it\nhad the incentive and opportunity to engage in similar\nconduct in the future.\n\n\n\n 10\n Despite the District Court’s grant of Shire’s\nmotion to dismiss—which was couched in jurisdictional\nterms—the Court also reached Shire’s Noerr-Pennington\ndefense. The Court declined to dismiss the case on these\ngrounds, explaining that the allegations in the complaint\nwere sufficient to invoke the sham petitioning exception—\nat least at the pleading stage. Because we affirm the\nDistrict Court’s dismissal, Shire’s Noerr-Pennington\ndefense is not before us on appeal.\n 14\n\f The FTC filed this timely appeal.\n\n II.\n We begin by addressing whether Section 13(b)’s\nrequirements are jurisdictional. The FTC contends that\nSection 13(b) is not jurisdictional while Shire argues the\nopposite. The District Court appears to have assumed—\nwithout expressly analyzing the issue—that Section 13(b)\ndoes not impose a jurisdictional requirement.11\n\n The Supreme Court of the United States has\ninstructed us to assume that statutory limitations are\nnonjurisdictional unless Congress provides otherwise. In\nArbaugh v. Y&H Corp., the Court addressed whether Title\nVII’s definition of “employer” (which only includes those\nhaving fifteen or more employees) “affects federal-court\nsubject-matter jurisdiction or, instead, delineates a\nsubstantive ingredient of a Title VII claim for relief.” 546\nU.S. 500, 503 (2006). The Court held that it was the latter,\ncautioning courts against “drive-by jurisdictional rulings”\n 11\n The District Court’s opinion was murky on this\npoint, citing both Rule 12(b)(1) and 12(b)(6) of the Federal\nRules of Civil Procedure. At several points the District\nCourt couched its inquiry as jurisdictional, yet still\naddressed the merits of Shire’s Noerr-Pennington defense.\nRegardless of the District Court’s conclusion, our review\nis plenary.\n 15\n\fthat fail to actually assess “whether the federal court had\nauthority to adjudicate the claim in suit.” Id. at 511\n(citation omitted).\n\n The Supreme Court reiterated that a plaintiff obtains\nthe “basic statutory grant[]” of subject matter jurisdiction\nin 28 U.S.C. § 1331 by pleading a colorable claim that\narises under the Constitution or the laws of the United\nStates. Id. at 513. The plaintiff in Arbaugh had invoked\nfederal question jurisdiction by pleading a claim under\nTitle VII. Id. The Court held that the fifteen-employee\nthreshold went to the merits of the Title VII claim,\nexplaining that Congress had not clearly delineated it as a\njurisdictional requirement. Id. at 514–16. The Supreme\nCourt created a “readily administrable bright line”—\n“when Congress does not rank a statutory limitation on\ncoverage as jurisdictional, courts should treat the\nrestriction as nonjurisdictional in character.” Id. at 516.\n\n Under the standard announced in Arbaugh, Section\n13(b)’s “is” or “is about to violate” requirement is\nnonjurisdictional. Section 13(b) provides, in relevant part:\n Whenever the [FTC] has reason to believe—\n\n\n\n\n 16\n\f (1) that any person, partnership, or\n corporation is violating, or is about to\n violate, any provision of law enforced\n by the [FTC,] and\n\n (2) that the enjoining thereof pending the\n issuance of a complaint by the [FTC]\n and until such complaint is dismissed\n by the [FTC] or set aside by the court\n on review, or until the order of the\n [FTC] made thereon has become final,\n would be in the interest of the public—\n the [FTC] . . . may bring suit in a district court\n of the United States to enjoin any such act or\n practice.\n15 U.S.C. § 53(b) (emphasis added).\n\n The FTC’s claim arises under a law of the United\nStates—15 U.S.C. § 53(b). It thus falls within the general\ngrant of jurisdiction in § 1331. The District Court also had\njurisdiction under 28 U.S.C. §§ 1337(a) and 1345.\n\n Section 13(b) includes no indicia that Congress\nintended to “rank a statutory limitation . . . as\njurisdictional”; as such, we must follow the Supreme\nCourt’s “readily administrable bright line” rule and treat\nthe statutory language as nonjurisdictional. Arbaugh, 546\nU.S. at 516. Whether a person “is violating, or is about to\n 17\n\fviolate” the law relates to the merits of a Section 13(b)\nclaim, and does not indicate that Congress intended to strip\ndistrict courts of their authority to resolve the FTC’s claim.\nBecause “nothing in [Section 13(b)] displays any intent to\nwithdraw federal jurisdiction . . . we will not presume that\nthe statute means what it neither says nor fairly implies.”\nVerizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S.\n635, 644 (2002).\n We conclude that the District Court had jurisdiction\npursuant to 28 U.S.C. §§ 1331, 1337(a), and 1345.\n\n\n\n\n 18\n\f III.12\n\n A.\n The FTC Act declares “[u]nfair methods of\ncompetition in or affecting commerce” to be unlawful, 15\nU.S.C. § 45(a)(1), and directs the FTC to prevent\nviolations of the Act, id. § 45(a)(2). The FTC has multiple\ninstruments in its toolbox to combat unfair methods of\ncompetition; among these are administrative proceedings\nand lawsuits in federal court. See id. §§ 45(b), 53(b).\n Section 5(b), the FTC’s administrative remedy, is\nits traditional enforcement tool. See id. § 45(b). Since its\ninception, the FTC Act has provided for administrative\n\n 12\n We exercise jurisdiction under 28 U.S.C. § 1291.\nBecause Section 13(b)’s requirements are\nnonjurisdictional, we consider the dismissal to be under\nRule 12(b)(6) of the Federal Rules of Civil Procedure. We\nexercise plenary review over the District Court’s order\ngranting a motion to dismiss for failure to state a claim.\nMariotti v. Mariotti Bldg. Prods., Inc., 714 F.3d 761, 765\n(3d Cir. 2013). We accept “all well-pleaded allegations in\nthe complaint as true and view[] them in the light most\nfavorable to the plaintiff.” Id. The movant can obtain\nrelief only if the complaint’s allegations, “however true,\ncould not raise a claim of entitlement to relief.” Id.\n(alteration and internal quotation marks omitted).\n 19\n\fproceedings to remedy unfair methods of competition.\nFederal Trade Commission Act § 5, 38 Stat. 719 (1914)\n(current version at 15 U.S.C. § 45(b) (2018)). If the FTC\nhas “reason to believe” that a person, partnership, or\ncorporation “has been or is using” unfair methods of\ncompetition, the FTC can issue an administrative\ncomplaint “stating its charges in that respect.” 15 U.S.C.\n§ 45(b). If after receiving the FTC’s complaint the\nrespondent contests the charges, the parties adjudicate in a\ntrial-type proceeding in front of an administrative law\njudge (“ALJ”). Either party may appeal the ALJ’s\ndecision. If the FTC believes the respondent is violating\nthe law, it issues a written report and serves a cease and\ndesist order upon the respondent. Id. The respondent has\nsixty days to seek review “in the appropriate court of\nappeals.”13 Id.\n In addition to cease and desist orders, Section 5\nprovides for limited monetary remedies. If a respondent\nviolates a cease and desist order, the FTC may seek a civil\npenalty of no more than $10,000 per violation. Id. § 45(l).\nThe civil penalty is recoverable in a “civil action brought\nby the Attorney General.” Id. The FTC may also file a\ncivil action to recover a penalty for knowing violations of\n\n 13\n The appropriate court of appeals is “any circuit\nwhere the method of competition . . . was used or where\n[the respondent] resides or carries on business.” 15 U.S.C.\n§ 45(c).\n 20\n\frules “respecting unfair or deceptive acts or practices.” Id.\n§ 45(m)(1)(A). In these actions the District Court is\npermitted “to grant mandatory injunctions and such other\nand further equitable relief” as appropriate to enforce the\nFTC’s final order. Id. § 45(l).\n Section 13 authorizes the FTC—in certain\ncircumstances—to file suit in federal district court. Unlike\nSection 5, Section 13 was not part of the original FTC Act.\nRather, Section 13(b) was added later in an effort to solve\none of the main problems of the FTC’s relatively slow-\nmoving administrative regime—the need to quickly enjoin\nongoing or imminent illegal conduct. In Section 5\nproceedings, the FTC must prevail to obtain a cease and\ndesist order. See id. § 45(b). Even if the FTC issues a\ncease and desist order, it must seek a court’s aid in\nenforcing the order. Id. § 45(l) To remedy this\nshortcoming and allow a quicker response, Congress\namended the FTC Act in 1973 to allow the FTC to obtain\na temporary restraining order or preliminary injunction in\nfederal court whenever it “has reason to believe” that\nviolations of the FTC Act are occurring or are about to\noccur. Id. § 53(b). Section 13(b) thus empowers the FTC\nto speedily address ongoing or impending illegal conduct,\nrather than wait for an administrative proceeding to\nconclude. See id.\n\n\n\n\n 21\n\f B.\n The crux of the FTC’s claim is that it is entitled to\npursue immediate relief in the District Court under Section\n13(b), rather than via the administrative remedy set forth\nin Section 5. We begin with the text of the FTC Act. See\nMurphy v. Millennium Radio Grp. LLC, 650 F.3d 295, 302\n(3d Cir. 2011) (“When the statute’s language is plain, the\nsole function of the courts—at least where the disposition\nrequired by the [text] is not absurd—is to enforce it\naccording to its terms.” (internal quotation marks\nomitted)). Section 13(b) provides, in relevant part,\n Whenever the [FTC] has reason to believe—\n\n (1) that any person, partnership, or\n corporation is violating, or is about to\n violate, any provision of law enforced\n by [the FTC,] and\n (2) that the enjoining thereof\n pending the issuance of a complaint by\n the [FTC] and until such complaint is\n dismissed by the [FTC] or set aside by\n the court on review, or until the order\n of the [FTC] made thereon has become\n final, would be in the interest of the\n public—\n\n\n\n 22\n\f the [FTC] by any of its attorneys designated\n by it for such purpose may bring suit in a\n district court of the United States to enjoin\n any such act or practice. Upon a proper\n showing that, weighing the equities and\n considering the [FTC]’s likelihood of\n ultimate success, such action would be in the\n public interest, and after notice to the\n defendant, a temporary restraining order or a\n preliminary injunction may be granted\n without bond: Provided, however, That if a\n complaint is not filed within such period (not\n exceeding 20 days) as may be specified by\n the court after issuance of the temporary\n restraining order or preliminary injunction,\n the order or injunction shall be dissolved by\n the court and be of no further force and effect:\n Provided further, That in proper cases the\n [FTC] may seek, and after proper proof, the\n court may issue, a permanent injunction.\n15 U.S.C. § 53(b)(1)–(2) (first emphasis added).\n Section 13(b) requires that the FTC have reason to\nbelieve a wrongdoer “is violating” or “is about to violate”\nthe law. Id. § 53(b)(1). We conclude that this language is\nunambiguous; it prohibits existing or impending conduct.\nSimply put, Section 13(b) does not permit the FTC to bring\na claim based on long-past conduct without some evidence\n\n 23\n\fthat the defendant “is” committing or “is about to” commit\nanother violation.\n\n The plain language of Section 13(b) is reinforced by\nits history. “Generally, where the text of a statute is\nunambiguous, the statute should be enforced as written\nand only the most extraordinary showing of contrary\nintentions in the legislative history will justify a departure\nfrom that language.” Millennium Radio Grp. LLC, 650\nF.3d at 302 (internal quotation marks omitted). When\nCongress added Section 13(b), the provision was expected\nto be used for obtaining injunctions against illegal conduct\npending completion of FTC administrative hearings. See\nS. Rep. No. 93-151, at 30 (1973) (“The purpose of\n[Section 13(b)] is to permit the [FTC] to bring an\nimmediate halt to unfair or deceptive acts or practices\nwhen . . . [a]t the present time such practices might\ncontinue for several years until agency action is\ncompleted.”). The provision was not designed to address\nhypothetical conduct or the mere suspicion that such\nconduct may yet occur. Cf. id. (explaining that Section\n13(b) is meant to “bring an immediate halt to unfair or\ndeceptive acts or practices. . . .”). Nor was it meant to\nduplicate Section 5, which already prohibits past conduct.\n\n C.\n The FTC’s arguments to the contrary are\nunconvincing. The FTC contends that relief under Section\n13(b) is appropriate when it shows a reasonable likelihood\n 24\n\fthat past violations will recur. In other words, “when a\ndefendant has already violated the law but the illegal\nconduct has ceased, injunctive relief should be granted if\n‘there exists some cognizable danger of recurrent\nviolation.’” Br. of Appellant 21 (quoting United States v.\nW.T. Grant Co., 345 U.S. 629, 633 (1953)).\n\n The FTC borrows its “likelihood of recurrence”\nstandard from the common law standard for an award of\ninjunctive relief. A party can generally obtain injunctive\nrelief for past conduct that is likely to recur; the wrongdoer\ncannot avoid an injunction by voluntarily ceasing its\nillegal conduct. W.T. Grant Co., 345 U.S. at 632.\nAlthough injunctive relief can survive discontinuance of\nthe illegal conduct, “the moving party must satisfy the\ncourt that relief is needed. The necessary determination is\nthat there exists some cognizable danger of recurrent\nviolation, something more than the mere possibility which\nserves to keep the case alive.” Id. at 633.\n The FTC insists that other courts have\n“consistently” applied the likelihood of recurrence\nstandard in Section 13(b) cases. Br. of Appellant 21–22.\nThis is true, and unsurprising, given that Section 13(b)\nexplicitly authorizes the FTC to obtain injunctions. But\nnone of the cases cited by the FTC considers the issue\npresented here—the meaning of Section 13(b)’s threshold\nrequirement that a party “is” violating or “is about to”\nviolate the law.\n\n 25\n\f The FTC relies heavily on Federal Trade\nCommission v. Evans Products Co., 775 F.2d 1084, 1087\n(9th Cir. 1985). There, the United States Court of Appeals\nfor the Ninth Circuit upheld the denial of an injunction\nunder Section 13(b), ruling that “an injunction will issue\nonly if the wrongs are ongoing or likely to recur.” Id. The\nFTC sued a home seller at least two years after it had\nstopped making allegedly illegal misrepresentations. Id.\nat 1085–88. The district court denied the FTC’s motion\nfor an injunction; the Ninth Circuit affirmed, ruling that\n\n\n\n\n 26\n\fthe seller’s conduct had completely ceased and was not\nlikely to recur.14 Id.\n\n In another case cited by the FTC, Federal Trade\nCommission v. Accusearch Inc., the United States Court of\nAppeals for the Tenth Circuit upheld a Section 13(b)\ninjunction prohibiting the operator of a website that sold\nillegally-acquired personal data from engaging in future\nmisconduct. 570 F.3d 1187, 1191 (10th Cir. 2009). The\nTenth Circuit did not even quote—let alone analyze—\nSection 13(b)’s “about to violate” language because it was\n\n 14\n Although the result in Evans Products Co. cuts\nagainst the FTC, the Commission tries to rely on portions\nof the Ninth Circuit’s reasoning. The Ninth Circuit,\nhowever, did not interpret “about to violate.” See Fed.\nTrade Comm’n v. Evans Prods. Co., 775 F.2d 1084, 1086\n(9th Cir. 1985). Instead, it gave Chevron deference to the\nFTC’s interpretation of a different part of Section 13(b)—\nthe so-called permanent injunction proviso. See id. The\nFTC claimed that the permanent injunction proviso was a\nstandalone cause of action that authorized it to obtain a\npermanent injunction against violations of any provision\nof law it enforced. See id. Here, however, the FTC has\nexpressly disclaimed reliance on the permanent injunction\nproviso, see Br. of Appellant 23 n.8, making the FTC’s\narguments relying on Evans Products Co. at best\ninapposite and at worst misleading.\n\n 27\n\fclear that the website operator had the capacity and\nmotivation to engage in similar conduct in the future. See\nid. at 1202. The Tenth Circuit did not address whether the\nFTC had properly filed suit under Section 13(b).\n\n The FTC next protests that our interpretation of “is\nabout to violate” would make it harder to get in the\ncourthouse door than to win injunctive relief.15 The FTC\ncontends that the likelihood of recurrence standard—\nwhich applies when a court is considering whether to grant\nor deny injunctive relief—must be the sole standard to\nplead a Section 13(b) claim. But the FTC cannot\novercome Congress’s plain language in Section 13(b),\nwhich requires the FTC to plead, at the time it files suit,\nthat a violation “is” occurring or “is about to” occur. 15\nU.S.C. § 53(b). Furthermore, the FTC ignores that the\n“about to violate” and “likelihood of recurrence” standards\ncoexist. The “about to violate” pleading requirement—\n\n 15\n The FTC argues that the District Court erred by\nimposing a “higher” pleading threshold of “imminent\nrecurrence.” Br. of Appellant 22. The FTC is wrong. The\nDistrict Court never imposed an imminence requirement.\nIn fact, it didn’t even use the word “imminent” in its\nopinion. The Court held that the factual allegations in the\nFTC’s complaint failed to “plausibly suggest [Shire] is\n‘about to violate’ any law enforced by the FTC,\nparticularly when the alleged misconduct ceased almost\nfive years before filing of the complaint.” Op. 12.\n 28\n\fwhich is applied right out of the gate—is not inconsistent\nwith the likelihood of recurrence standard, which a court\nuses to determine the FTC’s entitlement to an injunction.\n\n The FTC also places much weight on cases\ninterpreting the Securities Act of 1933 and the Securities\nExchange Act of 1934. These Acts permit the Securities\nExchange Commission to seek injunctive relief in federal\ncourt when a defendant “is engaged” or is “about to\nengage” in a violation of securities laws. 15 U.S.C.\n§§ 77t(b) and 78u(d)(1). We reject the FTC’s invitation to\nimport the interpretation of “is” or “is about to” contained\nin cases interpreting the securities laws. We “look to other\nstatutes pertaining to the same subject matter which\ncontain similar terms” only if “the ordinary meaning of a\nstatute and the statute’s legislative history fail to provide\nsufficient guidance to a term’s meaning.” Liberty Lincoln-\nMercury, Inc. v. Ford Motor Co., 171 F.3d 818, 823 (3d\nCir. 1999). Here, the plain language of Section 13(b)\nanswers the question for us—“is about to violate” means\nsomething more than a past violation and a likelihood of\nrecurrence. If we were in doubt, the structure and history\nof the FTC Act support our interpretation. Moreover, the\nstatutory scheme—the addition of Section 13(b) to cure a\nshortcoming of Section 5(b)—is not similar to the\nsecurities laws, which have always permitted suits for\ninjunctions. See also Amicus Br. of Washington Legal\nFoundation 9 (“While several other statutes include\nlanguage similar to the FTC’s ‘about to violate’ language,\n 29\n\fnone of those statutes include agency-litigating authority\nthat even remotely resembles the overall structure and\nhistory of the FTC Act.”).\n\n Finally, the FTC trots out the old adage that a\nremedial statute like the FTC Act should be construed\nbroadly. Because Section 13(b)’s “is” or “is about to”\nrequirement allegedly conflicts with the remedial purpose\nof the FTC Act, the FTC says we should disregard the\nplain meaning of that language. Of course, none of the\nauthority the FTC cites stands for the broad proposition\nthat we can ignore clear statutory language if it does not\npromote a remedial interpretation. See Touche Ross & Co.\nv. Redington, 442 U.S. 560, 578 (1979) (explaining that\n“generalized references” to “remedial purposes” of a\nstatute will “not justify reading a provision more broadly\nthan its language and the statutory scheme reasonably\npermit” (internal quotation marks omitted)).\n\n The FTC points to a parade of horribles that it\npredicts will result if we uphold the District Court’s\ndecision.16 See, e.g., Br. of Appellant 35 (“Limiting the\nFTC’s Section 13(b) authority to cases of ongoing or\nimminent violation would make it easy for wrongdoers to\n\n 16\n The FTC also claims that the District Court’s\ninterpretation could interfere with other statutes that\ncontain similar language. Given the unique history and\nstructure of the FTC Act, we consider this fear unfounded.\n 30\n\fevade Congress’ purposes in creating the regime. As soon\nas a potential defendant got wind that the FTC was\ninvestigating its activities, it could simply stop those\nactivities and render itself immune from suit in federal\ncourt unless the FTC could allege and prove an imminent\nre-violation.”). But there is no reason to believe that our\ndecision today unnecessarily restricts the FTC’s ability to\naddress wrongdoing. Section 5 authorizes administrative\nproceedings based on past violations. And, of course, if\nthe FTC believes that a wrongdoer is “about to violate” the\nlaw during the pendency of an administrative proceeding,\nit could then come to court and obtain an injunction under\nSection 13(b).\n The FTC’s understandable preference for litigating\nunder Section 13(b), rather than in an administrative\nproceeding, does not justify its expansion of the statutory\nlanguage. If the FTC wants to recover for a past\nviolation—where an entity “has been” violating the law—\nit must use Section 5(b). 15 U.S.C. § 45(b). If the FTC\ninstead chooses to use Section 13(b), it must plead that a\nviolation of the law “is” occurring or “is about to” occur.\nId. § 53(b). Here, the FTC wants to use the most\nadvantageous aspects of each statutory provision—to\npunish Shire for a past violation using the less onerous\nenforcement mechanism. But the FTC’s attempt to\nsqueeze Shire’s conduct into the “about to violate”\ncategory distorts Section 13(b) beyond its intended\npurpose. Section 13(b) cannot accommodate the FTC’s\n 31\n\finterpretation—that “about to violate” means only that a\nviolation could recur at some future point.\n\n In short, we reject the FTC’s contention that Section\n13(b)’s “is violating” or “is about to violate” language can\nbe satisfied by showing a violation in the distant past and\na vague and generalized likelihood of recurrent conduct.17\nInstead, “is” or “is about to violate” means what it says—\nthe FTC must make a showing that a defendant is violating\nor is about to violate the law.\n\n\n\n 17\n The FTC also asserts that Section 13(b)’s “reason\nto believe” language confers upon it unreviewable\ndiscretion to file suit. See 15 U.S.C. § 53(b) (“Whenever\nthe Commission has reason to believe—(1) that any\nperson, partnership, or corporation is violating, or is about\nto violate, any provision of law. . .[the FTC] may bring\nsuit in a district court of the United States to enjoin any\nsuch act or practice.” (emphasis added)). We decline to\nconsider this argument because the FTC failed to raise it\nin the District Court. Garza v. Citigroup Inc., 881 F.3d\n277, 284 (3d Cir. 2018) (“It is well established that\narguments not raised before the District Court are waived\non appeal.” (internal citation omitted)). Even if this\nargument were not waived, we would find it unpersuasive.\nHere, there is no evidence to support the FTC’s “reason to\nbelieve” Shire is violating or is about to violate the law.\n 32\n\f D.\n Here, the FTC never initiated Section 5 proceedings\nagainst Shire.18 Instead, the FTC waited until five years\nafter Shire had stopped its allegedly illegal conduct before\nseeking an injunction under Section 13(b). Viewed under\nthe correct standard, the FTC’s complaint fails to allege\nthat Shire “is violating” or “is about to violate” the law.\nThe FTC does not contest that Shire is not currently\nviolating the law. Indeed, Shire divested itself of\nVancocin in 2014, two years after generic competition\nentered the market.\n Instead, the FTC relies on Section 13(b)’s “is about\nto violate” language. The few factual allegations in the\nFTC’s forty-five page complaint that suggest Shire “is\nabout to violate” the law are woefully inadequate to state\na claim under Section 13(b). The FTC alleges generally\nthat Shire “is engaged in the business of, among other\nthings, developing, manufacturing, and marketing branded\ndrug products, including inter alia, Cinryze.” Compl. ¶ 8.\nAs to the likelihood that Shire will engage in illegal\n\n 18\n At oral argument in the District Court, the FTC\nexplained that it “generally” pursues administrative\nproceedings and a preliminary injunction simultaneously.\nApp. 381. It is unclear why the FTC did not use that\nstrategy here, particularly when Shire’s allegedly illegal\nconduct ceased long before the FTC filed suit.\n 33\n\fbehavior, the FTC alleges, “[a]bsent an injunction, there is\na cognizable danger that [Shire] will engage in similar\nconduct causing future harm to competition and\nconsumers. [Shire] knowingly carried out its\nanticompetitive and meritless petitioning campaign to\npreserve its monopoly profits. It did so conscious of the\nfact that this conduct would greatly enrich it at the expense\nof consumers.” Id. ¶ 150. Without mentioning Cinryze by\nname, the FTC alleges that Shire “has the incentive and\nopportunity to continue to engage in similar conduct in the\nfuture. At all relevant times, [Shire] marketed and\ndeveloped drug products for commercial sale in the United\nStates, and it could do so in the future. Consequently,\n[Shire] has the incentive to obstruct or delay competition\nto these or other products.” Id. ¶ 151.\n\n The District Court concluded that these vague\nallegations failed to “plausibly suggest [Shire] is ‘about to\nviolate’ any law enforced by the FTC, particularly when\nthe alleged misconduct ceased almost five years before\nfiling of the complaint.” Op. 12. We agree. Taking the\nfactual allegations in the complaint as true, Shire stopped\nits sham petitioning campaign in 2012 when the FDA\napproved generic equivalents to Vancocin. The complaint\ncontains no allegations that Shire engaged in sham\npetitioning in the five-year gap between the 2012 cessation\nin petitioning and the 2017 lawsuit. The complaint also\nlacks specific allegations that Shire is “about to violate”\n\n\n 34\n\fthe law by petitioning as to Cinryze, the only other drug\nmentioned.\n\n At oral argument in the District Court, the FTC\nprovided more support for its argument that Shire “is about\nto violate” the law. The FTC explained that Shire is\n“perfectly positioned” to commit violations in the future\nbecause it is already marketing a “blockbuster drug” that\nis in the pipeline. Id. at 11. That drug, Cinryze, is not ripe\nfor generic entry but has “the same type of significance as\nVancocin . . . .” Id. We need not consider whether these\nallegations might satisfy the pleading standard. None of\nthese facts—other than that Shire markets Cinryze—are\npleaded in the complaint, which the FTC chose not to\namend. Based upon the pleading before us, we conclude\nthat the FTC has failed to plead that Shire is “about to\nviolate” any law.\n\n In this case, given the paucity of allegations in the\ncomplaint, the FTC fails to state a claim under any\nreasonable definition of “about to violate.” Whatever the\nouter reach of “about to violate” may be, the facts in this\ncase do not approach it.19 We therefore leave for another\n\n\n 19\n We also reject the FTC’s standalone claim for\nequitable monetary relief. Assuming that such relief is\navailable under Section 13(b), the FTC must still meet the\n“is” or “is about to” requirement.\n 35\n\fday the exact confines of Section 13(b)’s “about to\nviolate” language.\n\n IV.\n Under Section 13(b) of the FTC Act, the FTC must\nplead that Shire “is” violating or “is about to” violate the\nlaw. But Shire indisputably is not currently violating the\nlaw, nor is it alleged to be poised to do so anytime in the\nforeseeable future. The FTC thus fails to state a claim\nupon which relief can be granted. We will affirm the\nDistrict Court’s judgment.\n\n The FTC’s improper use of Section 13(b) to pursue\nlong-past petitioning has the potential to discourage lawful\npetitioning activity by interested citizens—activity that is\nprotected by the First Amendment. Because we affirm the\nDistrict Court’s judgment dismissing the complaint, we\nneed not address the issue further but suggest that the FTC\nbe mindful of such First Amendment concerns.\n\n\n\n\n 36", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370781/", "author_raw": "SMITH, Chief Judge"}]} | SMITH | MCKEE | FISHER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593528/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,593,925 | UNITED STATES of America v. Donte ISLAND, A/K/A Norman Tomas, A/K/A Norman Thomas Donte Island, Appellant | United States v. Donte Island | 2019-02-26 | 17-3826 | U.S. Court of Appeals for the Third Circuit | {"judges": "Scirica, Rendell", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888066/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888067/", "author_raw": ""}, {"author": "SCIRICA, Circuit Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ___________\n\n No. 17-3826\n\n ___________\n\n UNITED STATES OF AMERICA\n\n v.\n\n DONTE ISLAND,\n a/k/a Norman Tomas, a/k/a Norman Thomas\n\n Donte Island,\n Appellant\n\n _______________________\n\n On Appeal from the United States District Court\n for the Eastern District of Pennsylvania\n (D.C. Criminal Action No. 2-03-cr-00592-001)\n District Judge: Honorable Jan E. DuBois\n ______________\n\n Argued: November 6, 2018\n\nBefore: AMBRO, SCIRICA, and RENDELL, Circuit\n Judges.\n\n (Filed: February 26, 2019)\n\nKeith M. Donoghue, Esq. [ARGUED]\nFederal Community Defender Office for the\nEastern District of Pennsylvania\n601 Walnut Street\nThe Curtis Center\nSuite 540 West\nPhiladelphia, PA 19106\n\n Counsel for Appellant\n\nBernadette A. McKeon, Esq. [ARGUED]\nRobert A. Zauzmer, Esq.\nOffice of the United States Attorney\n615 Chestnut Street\nSuite 1250\nPhiladelphia, PA 19106\n\n Counsel for Appellee\n\n\n _________________\n\n OPINION OF THE COURT\n _________________\n\n\nSCIRICA, Circuit Judge\n\n\n In this appeal, we determine whether a defendant can\ncount toward the service of his supervised release term a period\n\n\n\n\n 2\n\nof time he is fugitive, that is, absent from the court’s\nsupervision. The statutory provisions governing supervised\nrelease do not contain plain language—or indeed any\nlanguage—that expressly resolves that question. But, as the\nmajority of Courts of Appeals to address the question have\nconcluded, a defendant does not in fact serve his supervised\nrelease term while he deliberately absconds from the court’s\nsupervision. Accordingly, a defendant’s supervised release\nterm tolls while he is of fugitive status.\n\n Defendant Donte Island appealed to challenge the\nDistrict Court’s order revoking his supervised release and\nsentencing him to a term of imprisonment. Island primarily\ncontended that under 18 U.S.C. § 3583(i) the Court’s\njurisdiction terminated at the end of his three-year supervised\nrelease term. Island asserted the Court accordingly lacked\nauthority to revoke his release based on his involvement in a\npolice officer shooting first raised to the court a few days after\nthose three years had passed. The government maintained the\nCourt had jurisdiction to revoke Island’s supervised release for\nthe officer shooting violation based on an earlier-issued\nwarrant for unrelated violations. We have no occasion to\nresolve that jurisdictional dispute, however, because we join\nthe majority of Circuits that have addressed the issue to hold\nIsland’s supervised release term tolled while he was fugitive\nfrom the court’s supervision. As a result of that tolling, Island’s\nterm of supervised release had not yet expired when the later\nwarrant was issued. Because the District Court therefore had\njurisdiction over the second warrant and underlying petition of\nviolation, we will affirm.\n\n I.\n\n\n\n\n 3\n\n Following a jury trial in 2004, the District Court\nsentenced Island to 110 months’ imprisonment and 3 years’\nsupervised release for possession of a firearm by a convicted\nfelon, 18 U.S.C. § 922(g)(1). Island commenced that three-year\nsupervised release term on June 26, 2013, and it was scheduled\nto end on June 25, 2016.\n\n Island completed the first two years of his release term\nwithout incident, but on September 18, 2015, Island’s\nprobation officer filed a petition of violation. The petition\nalleged Island had breached the terms of his release by\ncommitting several technical, i.e., noncriminal or minor,\nviolations, such as failing to notify his probation officer of a\nchanged address and failing several drug tests. The petition\nnoted that “[m]ore troublesome” among the violations was\nIsland’s failure to report to his probation officer. App’x 34. The\nofficer relayed that Island “ceased reporting as instructed” on\nJuly 17, 2015, after which his “whereabouts [were] unknown.”\nApp’x 34, 28. The petition chronicled over half a dozen\nattempts to contact Island in the coming months, none of which\nwere successful. Island failed to report for a scheduled\nmeeting, then did not respond to phone calls, voicemails,\nletters, or emails sent to him at several possible numbers and\naddresses. The Court issued a warrant on the basis of that\npetition the day it was filed, but that warrant remained\noutstanding.\n\n On June 27, 2016—just over three years after Island’s\nsupervised release term had begun—the probation office filed\na second petition of violation, styled as an “[a]mended” version\nof the first. App’x 35. The Court again issued a warrant the\nsame day, now based on a new violation. The second petition\nalleged Island had committed a serious violation of the terms\n\n\n\n\n 4\n\nof his release on June 21—just under three years after Island’s\nsupervised release term had begun—by firing a weapon at two\npolice officers, hitting one. Island was arrested and taken into\ncustody by Delaware County authorities that day. The District\nCourt held a teleconference with the government and Island’s\ncounsel soon after receiving the petition, and the parties then\nagreed to delay a hearing on both petitions of violation until\nafter the disposition of Island’s Delaware County charges.\nIsland was convicted in July 2017 of attempted murder and\nother charges, then sentenced in the Court of Common Pleas of\nDelaware County, Pennsylvania to 33 to 100 years’\nimprisonment.\n\n The District Court held a supervised release revocation\nhearing on December 13, 2017. The government sought the\nstatutory maximum revocation term of 24 months’\nimprisonment; at the hearing, it stressed the severity of the\nofficer shooting underlying the second violation petition. The\ngovernment further emphasized Island “wasn’t within hours of\ncompleting his sentence on this. . . . He was 11 months a\nfugitive, right, so it’s not like he committed the crime on the\n11th hour.” App’x 57–58. In response, Island emphasized he\nwould already be serving 33 to 100 years in prison and argued\n“it would be excessive and unnecessary based on the practical\nrealities of his case” to also enforce a revocation term of\nimprisonment. App’x 62. The court imposed the government’s\nrecommended revocation sentence of 24 months, to run\nconsecutively after Island’s state sentence, on the basis of only\nthe second violation petition. Island now appeals.1\n\n\n1\n The District Court had jurisdiction over the original charges\nunder 18 U.S.C. § 3231 and over the supervised release\n\n\n\n\n 5\n\n II.\n\n Island asserts on appeal that the District Court lacked\njurisdiction under 18 U.S.C. § 3583(i) to revoke his supervised\nrelease because the warrant underlying revocation—based on\nthe shooting—was untimely issued after the three-year\ncalendar on his supervised release term had run. The\ngovernment responds that the earlier warrant for unrelated\ntechnical violations endowed the District Court with ongoing\njurisdiction, but also contends the warrant was timely because\nIsland’s three-year supervised release term was tolled while he\nwas of fugitive status. We may “affirm on any ground\nsupported by the record,” United States v. Mussagre, 405 F.3d\n161, 168 (3d Cir. 2005),2 and we will here affirm on the basis\nthat fugitive tolling of Island’s supervised release term\nrendered the second warrant timely.\n\n A.\n\n We begin with an overview of the purpose of the\nsupervised release scheme before turning to how fugitive\ntolling supports that scheme. Congress designed supervised\nrelease, laid out in 18 U.S.C. § 3583, to be “a form of\npostconfinement monitoring overseen by the sentencing\n\nviolations under 18 U.S.C. § 3583. This court has appellate\njurisdiction under 28 U.S.C. § 1291.\n2\n The parties dispute the appropriate standard of review for the\nquestion whether the District Court had jurisdiction under 18\nU.S.C. § 3583(i) to revoke Island’s supervised release.\nBecause we affirm the District Court’s decision on a different\nground, we have no occasion to resolve that dispute.\n\n\n\n\n 6\n\ncourt.” Johnson v. United States, 529 U.S. 694, 696–97 (2000).\n“[T]he supervised release term constitutes part of the original\nsentence, and the congressional intent is for defendants to serve\ntheir full release term.” United States v. Buchanan, 638 F.3d\n448, 455 (4th Cir. 2011). As the Supreme Court has explained,\n“Congress intended supervised release to assist individuals in\ntheir transition to community life. Supervised release fulfills\nrehabilitative ends,” providing “individuals with\npostconfinement assistance” through the supervision of the\ncourt. United States v. Johnson, 529 U.S. 53, 59 (2000). The\ncourt can provide such assistance because, “[w]hile on\nsupervised release, the offender [is] required to abide by\ncertain conditions,” Johnson v. United States, 529 U.S. at 697,\nsuch as regularly reporting to a probation officer, pursuing\nschooling or work, and refraining from further criminal\nactivity, see U.S.S.G. § 5D1.3(c); 18 U.S.C. § 3583(d).\nCongress authorized supervising courts to revoke supervised\nrelease and order reimprisonment when defendants fail to meet\ntheir release conditions. See id. § 3583(e); Johnson v. United\nStates, 529 U.S. at 697.\n\n The plain language of the supervised release statutory\nprovisions is, contrary to the dissent’s suggestion, silent on\nhow a defendant’s failure to comply with release terms effects\nthe running of his sentence. See 18 U.S.C. §§ 3583, 3624.\nThough those provisions do not expressly provide for tolling\nwhen a defendant absconds from supervision, fugitive tolling\nfurthers the purposes of the supervised release scheme. See\nStaples v. United States, 511 U.S. 600, 605 (1994). When a\ndefendant under supervised release fails to meet release\nconditions by absconding from supervision, a court cannot\neffectively oversee his transition to the community. The\nmajority of Courts of Appeals to address this question have\n\n\n\n\n 7\n\naccordingly determined a defendant’s term of supervised\nrelease is tolled during the period he is of “fugitive” status, i.e.,\nfails to report and comply with the terms of his postrelease\nsentence. See United States v. Barinas, 865 F.3d 99, 106 (2d\nCir. 2017); United States v. Buchanan, 638 F.3d 448, 453–58\n(4th Cir. 2011); United States v. Murguia-Oliveros, 421 F.3d\n951, 954 (9th Cir. 2005). But see United States v. Hernandez-\nFerrer, 599 F.3d 63, 67–68 (1st Cir. 2010) (declining to adopt\nfugitive tolling for supervised release).\n\n The fugitive tolling doctrine reflects two key principles\nthat align with the purposes of supervised release. First, the\nrehabilitative goals of supervised release are served only when\ndefendants abide by the terms of their supervision—those\ngoals are not served simply by the passage of time during the\nrelease term. “Mere lapse of time without imprisonment or\nother restraint contemplated by the law does not constitute\nservice of sentence.” Anderson v. Corall, 263 U.S. 192, 196\n(1923). A supervising court cannot offer postconfinement\nassistance or ensure compliance with the terms of release while\na defendant is truant. See Barinas, 865 F.3d at 107 (reasoning\nthat measuring a supervised release term “by rote reference to\na calendar” is “inconsistent . . . with Congress’s goals in\nrequiring supervised release”); Murgia-Oliveros, 421 F.3d at\n954 (“A person on supervised release should not receive credit\nagainst his period of supervised release for time that . . . he was\nnot in fact observing the terms of his supervised release.”).\n\n Second, the fugitive tolling doctrine reflects the settled\nprinciple that defendants are not generally credited for\nmisdeeds, such as failing to comply with the terms of\nsupervised release. See Buchanan, 638 F.3d at 452\n(recognizing the “general rule that ‘when the service of a\n\n\n\n\n 8\n\nsentence is interrupted by conduct of the defendant the time\nspent out of custody on his sentence is not counted as time\nserved thereon’”) (quoting United States v. Luck, 664 F.2d 311,\n312 (D.C. Cir. 1981)); United States v. Crane, 979 F.2d 687,\n691 (9th Cir. 1992) (explaining the fugitive tolling doctrine\nenables courts to avoid “reward[ing] those who flee from\nbench warrants and maintain their fugitive status until the\nexpiration of their original term of supervised release”). As the\nSecond Circuit noted, the fugitive tolling doctrine corresponds\nto a variety of procedural doctrines that prevent rewarding\nfugitive defendants for misconduct: fugitive defendants are\nbarred from invoking statutes of limitations, see 18 U.S.C. §\n3290; appeals can be dismissed if defendants abscond, see\nOrtega-Rodriguez v. United States, 507 U.S. 234, 239 (1993);\nand defendants may not credit toward a term of imprisonment\ntime when they have escaped from prison, Corall, 263 U.S. at\n196. See Barinas, 865 F.3d at 107–08.\n\n Because the fugitive tolling doctrine helps realize the\ndesign and purpose of supervised release, we join the majority\nof circuits to have considered the question and recognize a\nsupervised release term tolls while a defendant is of fugitive\nstatus. A defendant cannot count toward his sentence time\nspent out of the court’s supervision as a consequence of his\nown doing. At the same time, the defendant’s absence does not\nfree him to violate the terms of his supervised release without\nconsequence; the defendant remains responsible for his\nviolating conduct.3 Fugitive tolling does not lift the conditions\n\n3\n As the Fourth Circuit explained:\n When a defendant absconds while on supervised\n release, his absence precludes the sentencing\n court from exercising supervision over him.\n\n\n\n\n 9\n\nof a defendant’s supervised release, but instead recognizes the\ngoals of supervised release are not served when defendants\ndeliberately fail to follow its conditions.\n\n This conclusion follows readily from our existing law.\nWe considered the application of tolling doctrines to\nsupervised release in United States v. Cole, 567 F.3d 110 (3d\nCir. 2009), where we held supervised release would not toll\nwhen a defendant was deported as a condition of supervised\nrelease. We noted deportation is a statutorily-contemplated\ncondition of supervised release under 18 U.S.C. § 3583(d), and\nreasoned “[i]f a defendant is removed and ordered excluded\nfrom the United States as a condition of supervised release,\nhow can it be that the period of supervised release is tolled\nduring that period?” Id. at 115. We compared that unsuccessful\ndeportation tolling argument to 18 U.S.C. § 3624(e), which\nexpressly provides for tolling of a supervised release period\nwhere “the person is imprisoned in connection with a\n\n Tolling is necessary in that instance to ensure\n that, upon being apprehended, the defendant will\n be subject to judicial supervision for a complete\n term. However, that does not mean that a\n defendant who has absconded thereby nullifies\n the terms and conditions of the supervised\n release order during his flight. Rather, the terms\n and conditions remain in effect, and the fugitive-\n defendant is not at liberty to embark on a\n “holiday” from them. To the extent that this\n result may seem harsh, it is the defendant’s own\n misconduct which creates it.\nBuchanan, 638 F.3d at 458; see also Barinas, 865 F.3d\nat 109.\n\n\n\n\n 10\n\nconviction for a Federal, State, or local crime” for at least 30\ndays. That comparison demonstrated Congress had considered\ntwo circumstances in which the defendant would be outside the\ncourt’s supervision—deportation and imprisonment—and\ndetermined how that difference would affect the running of the\nsupervised release term. In the case of deportation, where the\ndefendant’s distance from supervision results from Congress’s\ndesign in 18 U.S.C. § 3583(d), the defendant would get credit\nfor time served; while in the case of imprisonment, where the\ndefendant’s own actions lead to interruption of the release\nterm, the release term would toll.\n\n We find unconvincing the reliance of Island and the\ndissent on Cole to contend imprisonment is the only context in\nwhich supervised release may be tolled. We found “persuasive\nCole’s argument that the canon of expressio unius est exclusio\nalterius suggests that where Congress has explicitly allowed\nfor tolling only when the defendant is imprisoned on another\ncharge, it does not intend for district courts to toll supervised\nrelease under any other circumstance.” 567 F.3d at 115. The\nFirst Circuit similarly depended on the expressio unius canon\nin rejecting the fugitive tolling doctrine. See Hernández-\nFerrer, 599 F.3d at 68. But as noted, Congress explicitly laid\nout how imprisonment and deportation would affect the\nrunning of a supervised release term. We accordingly inferred\nin Cole that in addressing deportation and treating it as a\ncondition of supervised release, Congress determined tolling\nshould not then apply. But Congress did not address at all\nwhether tolling principles should apply when a defendant is\nfugitive from the court’s supervision.\n\n Indeed, Congress was silent on the question. While the\ndissent suggests that silence counsels in favor of proscribing\n\n\n\n\n 11\n\nfugitive tolling, we note, as some of our sister Circuits have,\n“[t]he normal rule of statutory construction is that if Congress\nintends for legislation to change the interpretation of a\njudicially created concept” such as the one that a defendant\ncannot profit from his misdeeds, “it makes that intent specific.”\nMidatlantic Nat. Bank v. New Jersey Dep’t of Env. Protection,\n474 U.S. 494, 501 (1986); see Barinas, 865 F.3d at 109 (“[W]e\ntypically expect a clearer expression of an intention to override\nsuch longstanding precepts as the principle that a fugitive\nshould not profit by his unlawful or contumacious conduct.”);\nBuchanan, 638 F.3d at 456 (“We find no indication to suggest\nthat Congress considered the issue and intended to preclude the\njudicially created doctrine of fugitive tolling in the supervised\nrelease context.”); cf. Young v. United States, 535 U.S. 43, 52\n(2002) (drawing “no negative inference from the presence of\nan express tolling provision” in one section of the Bankruptcy\nCode “and the absence of one in” another section, where the\ndiffering treatment “would be quite reasonable”). Recognizing\ntolling only in the single case of imprisonment would in fact,\nas our sister Circuits have explained, “impede achievement of\nCongress’s stated goals for supervised release.” Barinas, 865\nF.3d at 109.\n\n Our reasoning in Cole accords with the premises of\nfugitive tolling and reflects the distinction between defendants\nwho deliberately defy the conditions of supervised release and\nthose who leave the jurisdiction not on their own but at the\ngovernment’s order. Accord Barinas, 865 F.3d at 109–10\n(describing the running of a term during deportation as a “far\ncry from the circumstances in which [the defendant] was to\nremain in the United States for supervision and instead fled, in\nviolation of the conditions imposed on him”); Buchanan, 638\nF.3d at 457 (explaining fugitive tolling is “distinguishable”\n\n\n\n\n 12\n\nfrom the decision not to toll during deportation “because the\nfugitive-defendant’s absence arises from his own misconduct.\nThe same cannot be said about a defendant who has been\nremoved from the country by government order”). Cole\nconfirms a defendant cannot profit from his own misdeeds; the\nfugitive tolling doctrine reflects that principle.\n\n Finally, the dissent contends 18 U.S.C. § 3583(i)\nprecludes fugitive tolling. Section 3583(i) reads:\n\n The power of the court to revoke a term of\n supervised release for violation of a condition of\n supervised release . . . extends beyond the\n expiration of the term of supervised release for\n any period reasonably necessary for the\n adjudication of matters arising before its\n expiration if, before its expiration, a warrant or\n summons has been issued on the basis of an\n allegation of such a violation.\n\nWe have held “§ 3583(i) is in fact jurisdictional and thus not\nsubject to equitable tolling,” United States v. Merlino, 785 F.3d\n79, 86 (3d Cir. 2015), but that holding does little to help Island\nbecause fugitive tolling is not based in Section 3583(i)’s\njurisdictional grant. Section 3583(i) concerns the extension of\na court’s jurisdiction, but it is undisputed that a court has\njurisdiction during the defendant’s service of his supervised\nrelease term. We here begin with the question whether Island\nin fact served his supervised release term. Because, as we have\nexplained, a defendant does not serve his term while fugitive,\npart of a fugitive defendant’s term remains to be served. During\nthe remainder of that supervised release term, the district court\ncorrespondingly has jurisdiction. As the Second Circuit has\n\n\n\n\n 13\n\nrecognized, it is not “§ 3583(i) itself” which “authoriz[es] the\ntolling of the supervised-release period based on the\ndefendant’s fugitive status.” United States v. Barinas, 865 F.3d\n99, 109 (2d Cir. 2017). Instead, as discussed, “such tolling is\nconsistent with the traditional principle that an absconder\nshould not benefit from his fugitivity and is consistent with\nCongress’s sentencing scheme of supervision to facilitate the\ndefendant’s transition to a law-abiding life in free society.” Id.\n\n B.\n\n For at least the period between the court’s issuance of\nthe first warrant for violating supervised release in September\n2015 and the shooting leading to Island’s apprehension by law\nenforcement in June 2016, Island was of fugitive status.4 As\nIsland’s probation officer timely notified the court and the\ngovernment confirmed at the revocation hearing, Island\nrepeatedly failed to report for scheduled meetings and drug\ntests. Island did not respond to the officer’s many attempts at\ncontact in different media and at different addresses.5 Under\n\n4\n To the extent Island suggests the fugitive tolling doctrine\nposes administrability problems because the precise date a\ndefendant becomes fugitive may be difficult to ascertain, such\nconcerns are overblown—and not at issue in this case. We note\nthe Ninth Circuit has applied the fugitive tolling doctrine for\ndecades without noteworthy administrability problems. See\nUnited States v. Ignacio Juarez, 601 F.3d 885, 886 (9th Cir.\n2010); Murgia-Oliveros, 421 F.3d at 954.\n5\n In fact, had Island actually been under the court’s supervision,\nthe first warrant following technical violations of his\nsupervised release could have been executed.\n\n\n\n\n 14\n\nthe fugitive tolling doctrine, Island cannot count those months\nspent outside the court’s supervision toward his supervised\nrelease term. Accordingly, when the second warrant for\nviolation of supervised release issued on June 27, 2016, it fell\nwell within the tolled term. We therefore need not consider\nwhether the first warrant endowed the District Court with\njurisdiction over the unrelated later violations alleged in the\nsecond warrant. Because the second warrant was issued within\nthe supervised release term properly accounting for fugitive\ntolling, we will affirm the trial court’s revocation of supervised\nrelease.\n\n\n\n\n 15", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371178/", "author_raw": "SCIRICA, Circuit Judge"}, {"author": "RENDELL, Circuit Judge, dissenting", "type": "dissent", "text": "RENDELL, Circuit Judge, dissenting:\n\n The Majority opinion focuses on the goals of supervised\nrelease and concludes that tolling for fugitives from supervised\nrelease is appropriate. I believe this is incorrect for two\nreasons. First, the proper focus should be on the plain language\nof 18 U.S.C. § 3583(i), which states that the court has the\npower to extend the term of supervised release only when a\nwarrant is issued prior to the expiration of the term of\nsupervised release. Second, two precedential opinions of this\ncourt—United States v. Merlino and United States v. Cole—\nshould lead us to conclude that tolling does not apply. Thus,\ntolling does not apply and the District Court was without the\npower to extend the term of Island’s supervised release based\nupon tolling.\n\n Section 3583(i) grants the court the power to extend\nsupervised release “beyond the expiration of the term of\nsupervised release for any period reasonably necessary for the\nadjudication of matters arising before its expiration if, before\nits expiration, a warrant or summons has been issued on the\nbasis of an allegation of such a violation.” 18 U.S.C.\n§ 3583(i). By its plain language, a court has the power to\nadjudicate matters after the expiration of supervised release if\na warrant or summons had been issued before the expiration of\nsupervised release. There is no dispute that the District Court\nhere issued the warrant after the technical term of supervised\nrelease expired. When faced with a similar issue we held in\nUnited States v. Merlino that § 3583(i) is “in fact\njurisdictional,” and thus cannot be equitably tolled. 785 F.3d\n79, 86 (3d Cir. 2015). I suggest that, in light of the express\nstatutory directive of § 3583(i) and our opinion in Merlino, the\n\n\n\n\n 1\n\nMajority’s holding that “a supervised release term tolls while\na defendant is of fugitive status” is wrong. Maj. Op. at 9.\n\n In addition, Congress did incorporate tolling under 18\nU.S.C. § 3624(e) for periods of imprisonment,1 but has not\nincorporated tolling for fugitive status. We must determine\nwhether Congress’ silence regarding tolling for supervised\nrelease is evidence of its intent to preclude or include tolling\nfor fugitive status. See, e.g., Coffelt v. Fawkes, 765 F.3d 197,\n202 (3d Cir. 2014) (quoting Burns v. United States, 501 U.S.\n129, 136 (1991)) (considering “textual and contextual\nevidence” to resolve congressional silence). The expression of\none exception is often, but not always, evidence of the\nexclusion of other exceptions. See Marx v. General Rev.\nCorp., 568 U.S. 371, 381 (2013) (“The force of any negative\nimplication, however, depends on context.”) (citing expressio\nunius est exclusio alterius). Expressio unius applies if it is “fair\nto suppose that Congress considered the unnamed possibility\nand meant to say no to it.” Id. (quoting Barnhart v. Peabody\nCoal Co., 537 U.S. 149, 168 (2003)). In essence, if Congress\nincorporated an exception to a rule, and in doing so would have\nconsidered other exceptions, but failed to include them, then\nwe should presume Congress intended to exclude them.\n\n That is the case here. Section 3624 is an express\nexception to § 3583. At a minimum, § 3624 is evidence that\nCongress considered tolling, and nonetheless only found\n\n1\n Section 3624(e) provides: “A term of supervised release does\nnot run during any period in which the person is imprisoned in\nconnection with a conviction for a Federal, State, or local crime\nunless the imprisonment is for a period of less than 30\nconsecutive days.” 18 U.S.C. § 3624(e).\n\n\n\n\n 2\n\nimprisonment to be an adequate justification. More telling is\nthat, as the First Circuit noted, “the Sentencing Reform Act of\n1984, which . . . codified prior case law that provided for tolling\nwhen a probationer was imprisoned for another offense, []\nmade no similar reincorporation of prior case law” for fugitive\nstatus. United States v. Hernandez-Ferrer, 599 F.3d 63, 68 (1st\nCir. 2010).2 “If Congress had wanted to authorize tolling when\nan offender absconds from supervision, we believe that it\nwould have said so.” Id.\n\n We have reasoned similarly and reached the same\nconclusion in the deportation context. In United States v. Cole,\n\n2\n Prior case law in the probation context lends further support\nto the conclusion that Congress intended § 3583(i)’s warrant\nrequirement to govern the extension of a term of supervised\nrelease for fugitivity. In United States v. Martin, the Tenth\nCircuit addressed a defendant who absconded from federal\nsupervision for three years, and determined that the period of\nsupervision “tolled from the time the New Jersey court issued\nits violator warrant until the time Martin was returned to\nfederal supervision after release from the Colorado state\nprison.” 786 F.2d 974, 975 (10th Cir. 1986) (emphasis added).\nSimilarly, in Nicholas v. United States, the Ninth Circuit held\n“the five-year probationary period prescribed by section 3651\nwas extended by operation of law by the amount of time within\nthe five-year period during which a probationer, in violation of\nthe terms of his probation, and for whom an arrest warrant has\nissued, has voluntarily absented himself from the jurisdiction.”\n527 F.2d 1160, 1162 (9th Cir. 1976) (emphasis added). In both\ncases, and just like under § 3583(i), the issuance of a valid\nwarrant was a prerequisite to the court maintaining jurisdiction\nfor an offender who absconded from supervision.\n\n\n\n\n 3\n\nwe held that the District Court plainly erred when it ordered\nthe defendant’s supervised release be tolled during the period\nhe is removed from the country. 567 F.3d 110, 117 (3d Cir.\n2009). The Majority contends that the fugitive tolling doctrine\n“follows readily from our existing law,” Maj. Op. at 10, since\n“Cole confirms a defendant cannot profit from his own\nmisdeeds,” Maj. Op. at 13. Far from confirming the fugitive\ntolling doctrine, in Cole we reasoned appropriately, and\ncontrary to the Majority, that if tolling has not been provided\nfor, it is not authorized: “Congress has provided for an\nexception to this rule in only one situation: where the defendant\nis imprisoned for more than 30 days for another conviction . . .\nthe canon of expressio unius est exclusio alterius suggests that\nwhere Congress has explicitly allowed for tolling only when\nthe defendant is imprisoned on another charge, it does not\nintend for district courts to toll supervised release under any\nother circumstance.” Cole, 567 F.3d at 114–15. The fact that\ntolling for fugitive status, as opposed to tolling for deportation,\nis a “traditional principle,” Maj. Op. at 14 (quoting United\nStates v. Barinas, 865 F.3d 99, 109 (2d Cir. 2017)), makes it\nmore, not less, likely that it would have been contemplated and\nincorporated by Congress.\n\n While the Majority suggests that defendants would\nreceive a windfall without a tolling provision, the opportunity\nto benefit from absconding is small. “If an offender absconds\nbefore the expiration of his supervised release term, he will not\ndo so with impunity.” Hernandez-Ferrer, 599 F.3d at 69. As\nlong as the Government issues a warrant before the expiration\nof the term of supervised release, it may extend the term of\nsupervised release “for any period reasonably necessary for the\nadjudication of matters arising before its expiration[.]” 18\nU.S.C. § 3583(i). And because absconding from supervision\n\n\n\n\n 4\n\nis, on its own, grounds to revoke supervision, there is little\nexcuse for the Government failing to issue a timely warrant in\nmost circumstances. Although it is possible for an eleventh\nhour violation to go unpunished, such a circumstance is rare\n“given the ease with which the statute can be satisfied,” United\nStates v. Janvier, 599 F.3d 264, 268 (2d Cir. 2010), and such\nis the nature of jurisdictional statutes. See Dolan v. United\nStates, 560 U.S. 605, 610 (2010) (describing the prohibition of\na jurisdictional statute as “absolute”). And in such a case, the\nonly disadvantage to the Government occasioned by adhering\nto § 3583(i) is that the new warrant must stand on its own, i.e.,\nit is a warrant for a violation of law, not a violation of\nsupervised release.\n\n The ease and clarity of the current regime of a defined\nterm of supervised release only makes the decision to permit\ntolling for fugitivity more troubling, especially considering the\ndifficulties associated with defining a “fugitive” in the\nsupervised release context. Contrary to the Majority’s\nassertion, Maj. Op. at 14, n.4, in the Ninth Circuit, district\ncourts have extended the deadline of supervised release for\n“merely [] failing to comply with the terms of supervised\nrelease.” United States v. Ertell, Case No. 1:11-cr-00278-SAB\n2016 WL 7491630 at *3 (E.D. Cal. December 29, 2016)\n(quoting U.S. v. Murguia-Oliveros, 421 F.3d 951, 953 (9th Cir.\n2005)). As a result, the clock may stop and start again when,\nfor example, a supervisee fails to immediately notify his\nsupervisor of a change in address, but does so a week later, fails\nto show up for a drug test, but calls his supervisor two hours\nafter the missed appointment, and misses a required Alcoholics\nAnonymous meeting, but shows up to the meeting the\nfollowing week. The best answer to these complex factual\nquestions is found in the certainty of the text of the statute: “as\n\n\n\n\n 5\n\nlong as a warrant or summons issues before the expiration of\nthe term, an offender who remains a fugitive will still be\nsubject to the court's jurisdiction once located, and his conduct\nwhile a fugitive will be considered at sentencing.” Hernandez-\nFerrer, 599 F.3d at 69. Instead, the Majority’s judicially\ncreated exception to § 3583(i) transforms a “minimal burden,”\nMerlino, 785 F.3d at 85, on the Government into an onerous\ntask for the courts, and a complicated regime for the supervisee\nin attempting to determine the applicable period of tolling, and\nthus, when his term of supervised release ends.\n\n * * *\n\n The First Circuit correctly noted that, “[i]n the end, this\ndispute boils down to a matter of statutory construction.”\nHernandez-Ferrer, 599 F.3d at 66. Congress chose not to toll\nwhen a person absconds from supervised release, and in the\nabsence of clear congressional intent, the plain language of §\n3583(i) should control. Moreover, requiring the Government\nto fulfill the minimal burden of issuing a warrant before the\nexpiration date is preferable to creating a new amorphous\nexception to a strictly jurisdictional statute. Thus, I\nrespectfully dissent and would vacate the sentencing order and\nremand to the District Court for further proceedings.3\n\n3\n I can only speculate as to what those proceedings might entail.\nThere would remain the issue of whether the Court would re-\nsentence Island believing that it had jurisdiction over the\nviolation contained in the June warrant based on the earlier\nSeptember warrant issued for factually unrelated violations.\nSee Maj. Op. at 3–4. I would conclude that it does not have\njurisdiction. See, e.g., United States v. Campbell, 883 F.3d\n1148, 1153 (9th Cir. 2018) (concluding an earlier warrant does\n\n\n\n\n 6\n\nnot provide jurisdiction for factually unrelated violations). Of\ncourse, the Court could then consider whether to sentence\nIsland for the violations alleged in the September warrant. It is\nunclear whether the Court previously did so. The District Court\nfound that Island had committed those violations but stated that\nit chose “not . . . to impose punishment[.]”App. 69. It may have\ndone so knowing it would impose punishment based on the\nlater warrant.\n\n\n\n\n 7", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371178/", "author_raw": "RENDELL, Circuit Judge, dissenting"}]} | SCIRICA | RENDELL | SCIRICA | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593925/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,593,926 | Thomas SKÖLD, Appellant in 17-3148 v. GALDERMA LABORATORIES L.P.; Galderma Laboratories, Inc.; Galderma S.A.; Nestle Skin Health S.A., Appellants in 17-3231 | Thomas Skold v. Galderma Laboratories LP | 2019-02-26 | 17-3148; 17-3231 | U.S. Court of Appeals for the Third Circuit | {"judges": "Chagares, Jordan, Vanaskie", "parties": "", "opinions": [{"author": "JORDAN, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n Nos. 17-3148 & 17-3231\n _____________\n\n THOMAS SKÖLD,\n\n Appellant in 17-3148\n\n\n v.\n\nGALDERMA LABORATORIES L.P.; GALDERMA\n LABORATORIES, INC.;\nGALDERMA S.A.; NESTLE SKIN HEALTH S.A.,\n\n Appellants in 17-3231\n _____________\n\n On Appeal from the United States District Court\n for the Eastern District of Pennsylvania\n (D.C. No. 2-14-cv-05280)\n District Judge: Hon. Wendy Beetlestone\n _______________\n\n Argued\n October 30, 2018\n\fBefore: CHAGARES, JORDAN, and VANASKIE,* Circuit\n Judges\n\n (Filed: February 26, 2019)\n _______________\n\nBruce W. Clark [ARGUED]\nChristopher J. Michie\nClark Michie\n220 Alexander Street\nPrinceton, NJ 08540\n\nMichael D. LiPuma\n325 Chestnut Street – Ste. 1109\nPhiladelphia, PA 19106\n Counsel for Thomas Sköld\n\nBenjamin L. Mesches\nHaynes & Boone\n2323 Victory Avenue – Ste. 700\nDallas, TX 75219\n\n\n\n\n *\n The Honorable Thomas I. Vanaskie retired from the\nCourt on January 1, 2019 after the argument and conference\nin this case, but before the filing of the opinion. This opinion\nis filed by a quorum of the panel pursuant to 28 U.S.C.\n§ 46(d) and Third Circuit I.O.P. Chapter 12.\n\n\n\n\n 2\n\fJoseph Lawlor\nRichard D. Rochford, Jr. [ARGUED]\nHaynes & Boone\n30 Rockefeller Center – 26th Fl.\nNew York, NY 10112\n Counsel for Galderma Laboratories L.P.; Galderma\n Laboratories, Inc.; Galderma S.A.; Nestle Skin Health\n S.A.\n _______________\n\n OPINION OF THE COURT\n _______________\n\nJORDAN, Circuit Judge.\n\n This case proves once again that people will fight for a\ncatchy name. Thomas Sköld sued his former business\npartner, Galderma Laboratories L.P. (“Galderma”), alleging\nthat its use of the trademark “Restoraderm” constitutes\ntrademark infringement, false advertising, unfair competition,\nbreach of contract, and unjust enrichment. In the District\nCourt, only Sköld’s unjust enrichment claim was successful.\nHe now appeals the Court’s refusal to direct a verdict in his\nfavor on infringement and its denial of his post-trial motions.\nGalderma cross-appeals,1 arguing that Sköld does not own the\n 1\n The District Court granted judgment on Sköld’s\nunjust enrichment claim against Defendants Galderma L.P.,\nGalderma S.A., and Nestle Skin Health S.A, but not against\nGalderma Laboratories, Inc. because “the 2004 Agreement\nprecluded that claim against [Galderma Laboratories,] Inc. as\nCollaGenex’s successor-in-interest.” Accordingly, Galderma\nLaboratories, Inc. did not cross-appeal.\n\n\n\n\n 3\n\fRestoraderm mark and that the unjust enrichment verdict\ncannot stand. For the reasons that follow, we will affirm in\npart and reverse in part the judgment entered by the District\nCourt and will thus absolve Galderma of liability.\n\nI. BACKGROUND\n\n A. Factual History2\n\n Sköld is an inventor and entrepreneur. He coined the\nname “Restoraderm” for a proprietary drug-delivery\nformulation that he developed for potential use in skin-care\nproducts. In the early 2000s, he began searching for a partner\nto help produce and sell Restoraderm products. To that end,\nhe attended a dermatology conference in 2002, where he\npresented a publication on Restoraderm and distributed\nsamples of a potential product.\n\n Even before that, Sköld had attracted the interest of\nCollaGenex, a skin-care company that was later acquired by\nGalderma. CollaGenex and Sköld began negotiations to\n\n 2\n While a post-trial motion for judgment as a matter of\nlaw is given plenary review, we generally assume the jury\nproperly found facts. Mancini v. Northampton Cty., 836 F.3d\n308, 314 (3d Cir. 2016). The facts recounted here are\nconsistent with Sköld’s perspective, despite our ultimate\ndisagreement with the legal conclusion he seeks. Cf. id.\n(“Because the jury returned a verdict in favor of the plaintiff,\nwe must examine the record in a light most favorable to the\nplaintiff, giving [the plaintiff] the benefit of all reasonable\ninferences, even though contrary inferences might reasonably\nbe drawn.”)\n\n\n\n\n 4\n\festablish a co-development partnership, and, after several\nmonths, they executed a letter of intent. The letter, signed in\n2001, stated that “[a]ll trade marks associated with the drug\ndelivery system; the proposed intellectual property; products\nderiving therefrom and products marketed or to be marketed\nby CollaGenex and/or any commercial partner of CollaGenex\nanywhere in the world shall be applied for and registered in\nthe name of CollaGenex and be the exclusive property of\nCollaGenex.” (App. at 1456 (emphasis added).)\n\n Then, in 2002, Sköld and CollaGenex signed a\ncontract they titled the “Co-Operation, Development and\nLicensing Agreement” (the “2002 Agreement”). Under its\nterms, “[a]ll trade marks applied for or registered (including\n‘Restoraderm’) shall be in the sole name of CollaGenex and\nbe the exclusive property of CollaGenex during the Term and\nthereafter[.]” (App. at 1465 (emphasis added).) A survival\nprovision stipulated that vested rights would outlive the term\nof the agreement. In particular, that provision said, “[a]ny\ntermination under this Agreement … shall not affect in any\nmanner vested rights of either party arising out of this\nAgreement prior to termination.” (App. at 1469.)\n\n After the 2002 Agreement was executed, CollaGenex\nissued a press release announcing its plans to develop a\nRestoraderm product line. It proudly publicized that “it ha[d]\nlicensed a novel … technology … named\nRestoraderm(TM)… [that would] form the basis for a novel,\nproprietary and differentiated portfolio of topical\ndermatological pharmaceuticals.” (D.I. 78-5 at 676). With\nSköld’s cooperation, CollaGenex promptly applied to register\nthe Restoraderm mark with the United States Patent and\nTrademark Office (the “PTO”).\n\n\n\n\n 5\n\f Two years later, Sköld and CollaGenex replaced their\n2002 Agreement with an Asset Purchase and Product\nDevelopment Agreement (the “2004 Agreement”). Under the\n2004 Agreement, Sköld transferred “Restoraderm Intellectual\nProperty” and related goodwill to CollaGenex. (App. at\n1479.) “Restoraderm Intellectual Property” was defined to\ninclude patent rights and associated know-how. (App. at\n1478.) While separate provisions addressing trademark rights\nwere initially contained in a draft of the 2004 Agreement,\nthose provisions were removed prior to finalization of the\ndocument. Sköld later admitted at his deposition that their\nremoval was “probably” because CollaGenex already owned\nthe Restoraderm trademark.3 (D.I. 76-23 at 351-352.)\n\n 3\n Q. Now, you’ll see here that in Mr. Glazer’s email\n to you, as we talked about this morning, he cites,\n “Also, Collagenex has informed me that it already\n owns the Restoraderm trademark. Accordingly, are\n there any other trademarks that you own that should be\n assigned to Collagenex relating to this technology? If\n there's not, we can delete these trademark provisions\n from the agreement.” Now, in fact, that’s what\n happened; isn’t that correct, sir? The trademark\n provisions that we just looked at in Exhibit F in\n Section 1.20 and 1.24 were removed, were deleted or\n removed from the draft; isn’t that correct?\n A. I don’t know when, but it’s apparent that it is not in\n the signed version, and I imagine that that is due to\n that I didn’t have any other names that they were\n interested in to be part of the asset.\n Q. Okay.\n A. So your conclusion is probably right.\n\n\n\n\n 6\n\f In 2008, Galderma bought CollaGenex. Afterwards, it\nconducted two analyses of its newly acquired intellectual\nproperty portfolio. Both analyses proposed using\nRestoraderm as a brand name, given its strength and implicit\nassociations with skin restoration, but the suggestion was to\nuse the name on products employing other technologies, not\nSköld’s.4\n\n By early 2009, Galderma decided in fact to use the\nRestoraderm mark on products that did not use Sköld’s\ntechnology. While Galderma informed its employees of that\nplan, it did not inform Sköld. He later heard a rumor that\nGalderma was abandoning his technology, so, in June 2009,\nhe confronted an executive but was told he “shouldn’t take\nany notice of [the rumor].” (App. at 242:13-14.) Actually, he\nshould have, because, in November 2009, Galderma\nterminated the 2004 Agreement.5\n\n\n(D.I. 76-23 at 351-352.)\n 4\n The analyses were conducted in 2008 and 2009. The\n2008 analysis noted that the “[a]greement with the inventor\n[Sköld] could be stopped at any time.” (App. at 1791.) The\n2009 analysis noted that the Restoraderm mark “fits well with\nthe concept of barrier repair/restoration[,]” and that the name\n“implies barrier repair/restoring and is appreciated by the\nHCP [(“Health Care Professional”)] community.” (App. at\n1649.)\n 5\n After the partnership ended, Sköld petitioned the\nUnited States Patent and Trademark Office to cancel\nCollaGenex’s (then Galderma’s) registration of the\n\n\n\n\n 7\n\f After that, Sköld sent Galderma a list of assets for it to\nreturn, including the Restoraderm trademark. Galderma did\nnot surrender the mark and instead responded that “we are\n[the] owner of this trade name” and that Sköld should not\n“use this name anymore in your communication on the\ntechnology.” (App. at 1670.) Sköld conceded in reply that\nGalderma was “for now, the rightful owner until your\nposition is challenged.” (App. at 1669.)\n\n Sköld sought and eventually found new co-\ndevelopment partners for his skin-care technology.6 The\nresulting products, both nascent and on the market, are based\non the original Restoraderm technology but do not bear the\nRestoraderm mark.7 In the meantime, Galderma’s\nRestoraderm product line has enjoyed international success.\n B. Procedural History\n\n In September 2014, Sköld filed this suit against\nGalderma. He alleged trademark infringement, unfair\n\n\nRestoraderm mark. The contest over that petition remains\npending.\n 6\n Finding new partners was difficult for Sköld because\nof Galderma’s success and the resulting brand recognition of\nRestoraderm. “Various companies did not feel comfortable\ndiscussing business with Sköld about RESTORADERM and\nRESTORADERM technology, given Galderma’s use of the\ntrademark.” (App. at 1756.)\n 7\n Sköld tried to register a similar trademark for his\nproducts – Restoraderm Lipogrid – but Galderma opposed it.\n\n\n\n\n 8\n\fcompetition, and false advertising under the Lanham Act, and\nbreach of contract, unfair competition, and unjust enrichment\nunder Pennsylvania law.\n\n Galderma moved for summary judgment, alleging that\nSköld did not own the Restoraderm mark. Sköld v. Galderma\nLabs., L.P., No. 14-5280, 2016 WL 724755, at *2 (E.D. Pa.\nFeb. 24, 2016). The District Court disagreed and concluded\nthat, despite the language in the 2002 Agreement with respect\nto trademark ownership, the 2004 Agreement voided any\nownership rights that Galderma had in the mark. Id. The\nCourt also considered a provision in the 2004 Agreement\nstating, “Sk[ö]ld shall sell, transfer and deliver to CollaGenex\n… all goodwill, if any, relating to the [Restoraderm\nIntellectual Property].” (App. at 1479;) Sköld, 2016 WL\n724755, at *5. Whether that provision encompassed, and thus\nagain transferred, the Restoraderm mark to CollaGenex was\nsomething the District Court decided should await further\nfact-finding. Id. at *5-6. The Court therefore denied\nsummary judgment. Id. at *6.\n\n The case went to trial and, assuming he would win on\nthe question of ownership of the mark, Sköld asked the\nDistrict Court to direct the jury to find a likelihood of\nconfusion due to Galderma’s use of an identical mark on\nsimilar skin-care products. The Court denied that request.\n\n The jury decided that Sköld was the rightful owner of\nthe mark and that he had proven unjust enrichment.\nNonetheless, the jury also concluded that Sköld had failed to\nestablish his claims for infringement, unfair competition, false\nadvertising, and breach of contract. According to the special\ninterrogatories returned with the verdict, the jury concluded,\n\n\n\n\n 9\n\fon the infringement and unfair competition claims, that Sköld\nhad failed to demonstrate a likelihood of confusion, despite\nthe identical word mark being used on skin-care products\nsimilar to ones Sköld had developed. The jury likewise\nconcluded that, with respect to the false advertising claim,\nGalderma’s use of the Restoraderm mark had no capacity to\ndeceive.\n\n Both Sköld and Galderma filed post-trial motions.\nSköld moved for judgment as a matter of law or a new trial on\nhis claims, except for his successful unjust enrichment claim,\nas to which he sought a new trial on damages and declaratory\nrelief confirming the jury’s finding in his favor. Regarding\nthe trademark infringement and false advertising claims, he\nargued that the District Court had erred in denying his motion\nto direct a judgment on likelihood of confusion. Moreover,\nhe argued, declaratory and injunctive relief was warranted\nand should have been granted. Galderma argued in its post-\ntrial motion that Sköld’s unjust enrichment claim should be\nrejected on both substantive and procedural grounds. The\nCourt granted Sköld’s request for a declaration as to unjust\nenrichment, but otherwise denied the motions.\n\n In this appeal, Sköld argues that the District Court\nerred by failing to direct the jury on likelihood of confusion,\nas he had asked, and by denying his post-trial motions with\nrespect to infringement, false advertising, and the remedy for\nhis unjust enrichment claim. Galderma has cross-appealed\nand argues that Sköld does not own the Restoraderm mark. It\nalso seeks dismissal of the unjust enrichment judgment.\n\n\n\n\n 10\n\fII. DISCUSSION8\n\n Ownership of the Restoraderm mark is the dispositive\nissue in this case, and, on this record, it is a matter of contract\ninterpretation subject to plenary review.9 At the end of the\nday, we conclude that Galderma is the rightful owner. The\n2002 Agreement unambiguously provided for transfer of the\nmark to Galderma’s predecessor in interest, CollaGenex.\nUpon registration of the mark, that ownership became vested\nand was confirmed for all the world to see. Even assuming\nthat the 2004 Agreement completely superseded the 2002\nAgreement, it did nothing to disturb those vested rights. The\nownership issue should not have gone to the jury.\n\n A contract provision is ambiguous if it is susceptible to\ntwo reasonable interpretations. Duquesne Light Co. v.\n\n 8\n The District Court had jurisdiction under 28 U.S.C.\n§§ 1331, 1338(a) and (b). We have jurisdiction pursuant to\n28 U.S.C. § 1291.\n 9\n “We exercise plenary review over the District\nCourt’s legal conclusions ….” Checkpoint Sys., Inc. v. Check\nPoint Software Techs., Inc., 269 F.3d 270, 279 (3d Cir. 2001).\nThe determination of “[w]hether a contract is ambiguous is an\nissue of law subject to plenary review.” Mylan Inc. v.\nSmithKline Beecham Corp., 723 F.3d 413, 419 (3d Cir. 2013).\nAnd we review the interpretation of an unambiguous contract\nde novo. See Tamarind Resort Assocs. v. Gov’t of Virgin\nIslands, 138 F.3d 107, 110 (3d Cir. 1998) (“[I]t is a\nfundamental principle of contract law that ‘disputes involving\nthe interpretation of unambiguous contracts are resolvable as\na matter of law[.]’” (citation omitted)).\n\n\n\n\n 11\n\fWestinghouse Elec. Corp., 66 F.3d 604, 614 (3d Cir. 1995).\nAmbiguity arises when language “is obscure in meaning\nthrough indefiniteness of expression or has a double\nmeaning.” Id. “A contract is not ambiguous if the court can\ndetermine its meaning without any guide other than a\nknowledge of the simple facts on which, from the nature of\nthe language in general, its meaning depends ….” Id.\n(quoting Samuel Rappaport Family P’ship v. Meridian Bank,\n657 A.2d 17, 21–22 (Pa. Super. Ct. 1995)).10\n\n From the outset, the dealings between Sköld and\nGalderma’s predecessor in interest, CollaGenex,\ndemonstrated a clear intent that CollaGenex would own the\ntrademark at issue. As the 2001 letter of intent put it: “[a]ll\ntrade marks associated with [Restoraderm intellectual\nproperty and products] … shall be applied for and registered\nin the name of CollaGenex and be the exclusive property of\nCollaGenex.” (App. at 1456.) That intent was confirmed\nagain in the 2002 Agreement, which said that, upon\napplication with the PTO for registration of the Restoraderm\nmark, CollaGenex would be the sole owner of the mark. The\nlanguage of the agreement is straightforward: “[a]ll trade\nmarks applied for or registered (including ‘Restoraderm’)\nshall be in the sole name of CollaGenex and be the exclusive\nproperty of CollaGenex during the Term [of the agreement]\nand thereafter[.]” (App. at 1465.)\n\n Beyond broadly affirming that any trademarks applied\nfor during the term were the sole property of CollaGenex, the\n2002 Agreement explicitly identified the Restoraderm mark.\n\n 10\n It is undisputed that both the 2002 and 2004\nAgreements are governed by Pennsylvania law.\n\n\n\n\n 12\n\fAccordingly, by the terms of the agreement, when\nCollaGenex applied to register “Restoraderm,” the mark\nbecame CollaGenex’s sole property. And, when the 2002\nAgreement said the Restoraderm mark would “be the\nexclusive property of CollaGenex during the Term [of the\nagreement] and thereafter[,]” it demonstrated clearly the\nparties’ intent that the mark was to remain CollaGenex’s\nproperty, regardless of any termination of the agreement.\n(App. at 1465.)\n\n That conclusion is confirmed by another provision in\nthe 2002 Agreement. Because it created rights that would\noutlive its term,11 the agreement included a provision\naddressing those rights, titled “Term and Termination and\nReversion of Rights.” (App. at 1468.) That provision stated\nthat “[a]ny termination [of the 2002 Agreement] … shall not\naffect in any manner vested rights of either party arising out\nof this Agreement prior to termination.” (App. at 1469\n(emphasis added).) In other words, the 2002 Agreement\nunambiguously stipulated that, in the event of any\ntermination, vested rights would survive. CollaGenex’s right\nto Restoraderm vested upon its application for registration of\nthat mark, and when the parties voluntarily terminated the\n2002 Agreement that right remained unaffected. The survival\nprovision reinforces that the transfer provision is not\nsusceptible to another reasonable interpretation. Thus, the\n2002 Agreement plainly and permanently transferred to\n\n 11\n “Term,” as used in the trademark transfer provision\nof the 2002 Agreement, was defined as “the term of this\nAgreement and any extension thereto as defined herein.”\n(App. at 1458.) The term of the Agreement was tied to the\nlife of patent rights Sköld had acquired.\n\n\n\n\n 13\n\fCollaGenex all ownership rights in the Restoraderm mark,\nonce application to register the mark was made.\n\n The 2004 Agreement did not change that. The subject\nmatter of the 2004 Agreement was limited to “Restoraderm\nIntellectual Property.” On its face, that might appear to\ninclude trademarks, but the term “Restoraderm Intellectual\nProperty” is precisely defined and limited to patent rights,\nknow-how, and the right to enforce those proprietary rights.\nTo his credit, Sköld acknowledges that, in the 2004\nAgreement, “[t]he definition of ‘Restoraderm Intellectual\nProperty’ did not include trademarks.” (Sköld Opening Br. at\n10.) That concession is sensible since the 2004 Agreement\ndoes not identify or address the Restoraderm mark in\nparticular, nor does it address trademarks generally. While\nthe 2004 Agreement may have been designed to replace and\nterminate the 2002 Agreement, it cannot fairly be interpreted\nas recovering ownership of the Restoraderm trademark for\nSköld. Not a word is said about such a significant step. The\nmostly boilerplate integration clause in the 2004 Agreement\ndid not silently unwind the vested trademark rights, especially\ngiven the parties’ very plain statement in the 2002 Agreement\nthat, in the event of a termination of that earlier agreement,\nthe ownership rights in the Restoraderm mark would remain\nvested. See Int’l Milling Co. v. Hachmeister, Inc., 110 A.2d\n186, 191 (Pa. 1955) (“The presence of an integration clause\ncannot invest a writing with any greater sanctity than the\nwriting merits[.]”).\n\n To the extent the integration clause in the 2004\nAgreement strayed from boilerplate language, it supports\nGalderma’s ownership of the mark, by succession to\nCollaGenex’s rights. The clause states that it “cancels and\n\n\n\n\n 14\n\fsupersedes any and all prior negotiations, correspondence,\nunderstandings and agreements (including the [2002\nAgreement]) whether oral or written, between the Parties\nrespecting the subject matter hereof and thereof; provided that\nnothing in this Agreement shall replace, supercede [sic],\ncancel or modify any prior agreements or assignments\nbetween the Parties that have been filed with the United\nStates Patent and Trademark Office.” (App. at 1495.) The\nclause thus carved out certain rights arising from the 2002\nAgreement that would not be superseded or otherwise undone\nby the 2004 Agreement, namely, agreements and assignments\nregistered with the PTO. Although the 2002 Agreement itself\nwas not filed with the PTO, Sköld does not argue that\nCollaGenex’s ownership, documented at the PTO, is excluded\nfrom the 2004 Agreement’s intention to not disturb or\notherwise affect rights memorialized at the PTO, and we see\nno sound reason why it would be.\n\n In short, it is apparent that, rather than voiding\nCollaGenex’s ownership of the mark by implication, the\nparties intended to and did confirm that CollaGenex owned\nthe Restoraderm mark. Galderma later succeeded to those\nvested rights.\n\n Despite the conspicuous absence of any language\nabout trademark ownership in the 2004 Agreement, Sköld\nnevertheless argues that the 2002 transfer of the mark was\nundone by the 2004 Agreement. He further contends that the\n2004 Agreement, sub silentio, both returned the mark to him\nand simultaneously retransferred the mark to CollaGenex\nunder the “goodwill” provision of that agreement, but only\n\n\n\n\n 15\n\fprovisionally.12 For two reasons, we disagree that any such\nownership ping-pong took place. First, as already\nemphasized, the 2002 Agreement specifically provided that\n“any termination … shall not affect in any manner vested\nrights[.]” (App. at 1469.) Thus, when that agreement\nterminated, CollaGenex continued to own Restoraderm,\nabsent some clear documentation that ownership was\nchanging hands again. There is nothing of the sort.13\n\n Second, we reject Sköld’s interpretation of the phrase\n“hereof and thereof” in the 2004 Agreement’s integration\nclause to include all subject matter in either the 2004\nAgreement or the 2002 Agreement.14 Sköld, 2016 WL\n\n 12\n The 2004 Agreement provided, in the event of\ntermination by Sköld or CollaGenex, that CollaGenex would\nreturn certain assets, including related goodwill, to Sköld.\n 13\n Accordingly, at summary judgment, the District\nCourt erred in concluding that the goodwill provision was\nsubject to two reasonable interpretations – i.e. the term\nincluded Restoraderm or the term did not include\nRestoraderm – requiring further fact-finding. Sköld, 2016\nWL 724755, at *5-6. Because CollaGenex’s ownership of the\nmark survived termination of the 2002 Agreement, Sköld had\nno rights to Restoraderm when he executed the 2004\nAgreement. Therefore he could not have transferred the mark\nunder the “goodwill” provision or any other.\n 14\n To repeat, that phrase appears in this context: “[The\n2004 Agreement] … cancels and supersedes any and all prior\nnegotiations, correspondence, understandings and agreements\n(including the [2002 Agreement]) whether oral or written,\n\n\n\n\n 16\n\f724755 at *2. That phrase – “hereof and thereof” – includes\nonly the subject matter shared between the two agreements.\nTo interpret it otherwise, to include any subject matter in\neither agreement, would negate the difference between\n“hereof and thereof” and “hereof or thereof.” The\nconjunctive phrase includes only shared subject matter and\nthe disjunctive phrase includes any subject matter. Indeed, as\na general matter, integration clauses are meant to act as\n“conclusive evidence that the parties intended to supersede\nany prior contract on the same subject matter.” ADR N. Am.,\nL.L.C. v. Agway, Inc., 303 F.3d 653, 658 (6th Cir. 2002)\n(emphasis added). Since the 2002 Agreement encompassed\ntrademarks, expressly including Restoraderm, and the 2004\nAgreement did not, the prior transfer of Restoraderm is not\ncontained in “the subject matter hereof and thereof” in the\n2004 Agreement’s integration clause. (App. at 1495.) So,\neven if one thought that a property right like the one at issue\nhere, documented at a government agency and announced to\nthe world, could be divested by broad and non-specific\nlanguage in an integration clause, the 2004 Agreement did not\naffect CollaGenex’s (and hence Galderma’s) ownership of\nRestoraderm. See Kreiss v. McCown De Leeuw & Co., 37 F.\nSupp. 2d 294, 301 (S.D.N.Y. 1999) (finding that provisions in\na new agreement superseded provisions in an older agreement\nonly to the extent that they covered the same subject matter\neven where the new agreement contained merger and\n\n\n\nbetween the Parties respecting the subject matter hereof and\nthereof; provided that nothing in this Agreement shall replace,\nsupercede [sic], cancel or modify any prior agreements or\nassignments between the Parties that have been filed with the\nUnited States Patent and Trademark Office.” (App. at 1495.)\n\n\n\n\n 17\n\fintegration clauses providing that the agreement “supersedes\nall prior arrangements or understandings … with respect\nthereto.” (alteration in original)).\n\n Accordingly, based on the unambiguous language of\nthe 2002 Agreement, Galderma, as successor-in-interest to\nCollaGenex, became the rightful owner of the Restoraderm\nmark and remained so after the termination of that agreement.\nThe 2004 Agreement did nothing to alter those rights. We\nreach that conclusion as a matter of law, based on the\nunambiguous language of the contracts.\n\n Given that Sköld’s unjust enrichment claim was\npremised on Galderma’s use of the “Restoraderm trademark\nand related good will” being unlawful (App. at 1184), he was\nrequired to establish ownership of the mark to prevail.\nBecause Galderma, not Sköld, is the rightful owner of the\nmark, its use of the mark is not unlawful or unjust, and\nSköld’s unjust enrichment claim fails. And, since Sköld’s\nclaims for infringement, false advertising, and unfair\ncompetition were also premised on ownership of the mark,\neach of those claims must fail as well.\n\nIII. CONCLUSION\n\n For the foregoing reasons, we will affirm the District\nCourt’s judgment in all respects, except for Sköld’s unjust\nenrichment claim, which we will reverse.\n\n\n\n\n 18", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371179/", "author_raw": "JORDAN, Circuit Judge."}]} | CHAGARES | JORDAN | VANASKIE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593926/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,594,518 | Jason PIASECKI, Appellant v. COURT OF COMMON PLEAS, BUCKS COUNTY, PA; District Attorney Bucks County; Attorney General of the Commonwealth of Pennsylvania | Piasecki v. Court of Common Pleas, Bucks Cnty., PA | 2019-02-27 | 16-4175 | U.S. Court of Appeals for the Third Circuit | {"judges": "McKee, Ambro, Restrepo", "parties": "", "opinions": [{"type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 16-4175\n _____________\n\n JASON PIASECKI,\n\n Appellant\n v.\n\n COURT OF COMMON PLEAS, BUCKS COUNTY, PA;\n DISTRICT ATTORNEY BUCKS COUNTY;\nATTORNEY GENERAL OF THE COMMONWEALTH OF\n PENNSYLVANIA\n\n Appeal from the United States District Court\n for the Eastern District of Pennsylvania\n (No. 2-14-cv-07004)\n District Judge: Honorable Legrome D. Davis\n _____________\n\n Argued March 6, 2018\n ____________\n\n\nBefore: McKEE, AMBRO and RESTREPO, Circuit Judges.\n\n (Opinion Filed: February 27, 2019)\n______________\nPeter Goldberger, Esq.\n50 Rittenhouse Place\nArdmore, PA 19003\n\nMatthew Stiegler, Esq. [Argued]\n7145 Germantown Avenue\nSuite 2\nPhiladelphia, PA 19119\n\n Attorneys for Appellant\n\fKaren A. Diaz, Esq.\nStephen B. Harris, Esq. [Argued]\nBucks County Office of District Attorney\nBucks County Justice Center\n100 North Main Street\nDoylestown, PA 18901\n\n Attorneys for Appellee\n\nAaron J. Marcus, Esq.\nDefender Association of Philadelphia\n1441 Sansom Street\nPhiladelphia, PA 19102\n\n Attorneys for Amicus Defender Association of\nPhiladelphia\n\nMark B. Sheppard, Esq.\nMontgomery McCracken Walker & Rhoads\n1735 Market Street, 21st Floor\nPhiladelphia, PA 19103\n\n Attorneys for Amicus Pennsylvania Association of\nCriminal Defense Attorneys\n\n\n ______________\n\n OPINION OF THE COURT\n ______________\n\nMcKEE, Circuit Judge.\n\n We are asked to decide whether a habeas corpus\npetitioner who was subject only to registration requirements\nunder Pennsylvania’s Sex Offender Registration and\nNotification Act (“SORNA”) when he filed his petition was “in\ncustody pursuant to the judgment of a State Court,” as required\nfor jurisdiction. We hold that the registration requirements\nwere sufficiently restrictive to constitute custody and that they\nwere imposed pursuant to the state court judgment of sentence.\n\n\n 2\n\fAccordingly, we will reverse the District Court and remand for\nfurther proceedings.\n\n I.\n\n Following a bench trial in the Court of Common Pleas\nof Bucks County, Jason Piasecki was convicted of fifteen\ncounts of possession of child pornography. On April 26, 2010,\nthe court sentenced him to a term of three years’ probation. At\nsentencing, the court informed Piasecki:\n So as to counts 16 through 30, as\n to each count the defendant is\n sentenced to 36 months’ county\n probation. The conditions of his\n sentence are that he undergo sex\n offender supervision, that he be\n subject to ten-year registration,\n that he have no unsupervised\n contact with minor children under\n the age of 18, excluding your son\n and your girlfriend’s son, without\n written permission of Bucks\n County Adult Probation and\n Parole.\n\n You’re to have no computer\n Internet use. You’re to continue in\n treatment with Dean Dixon and\n Dr. Nover. You’re not to drink,\n and you’re to take medications as\n directed. You’re ordered to pay\n court costs.\n\n I’m going to have you sign the\n mandatory sex offender\n conditions. 1\n\n At the time of sentencing, Pennsylvania sex offenders\nwere subject to registration requirements under a statutory\nscheme referred to as Megan’s Law III. 2 But in December of\n\n1\n App. 150–52.\n2\n 18 Pa.C.S. § 4915(a)(1) et seq. (expired Dec. 20, 2012).\n 3\n\f2012, as Piasecki pursued appellate and collateral relief in state\ncourt, the Pennsylvania legislature permitted its Megan’s Law\nstatute to expire and replaced it with SORNA. It was enacted\nto “bring the Commonwealth into substantial compliance with\nthe Adam Walsh Child Protection and Safety Act of 2006.” 3\nAny state that did not implement restrictions similar to those\nset forth in the Adam Walsh Act stood to lose ten percent “of\nthe funds that would otherwise be allocated for that fiscal year\n[under] . . . the Omnibus Crime Control and Safe Streets Act\nof 1968.” 4 When Piasecki filed his petition under 28 U.S.C. §\n2254, SORNA applied retroactively to any Megan’s Law\nregistrant who lived in the Commonwealth. 5 An offender who\nhad been required to comply with Megan’s Law III was\ntherefore automatically subject to SORNA’s increased\nregistration and reporting requirements.\n\n Piasecki was a Tier III offender under the provisions of\nSORNA. Accordingly, he was required to register in-person\nwith the State Police every three months for the rest of his life. 6\nThe statute also required him to appear, in-person, at a\nregistration site if he were to:\n • Change his name;\n • Change his residence or become transient;\n • Begin a new job or lose previous\n employment;\n • Matriculate or end enrollment as a student;\n • Add or change a phone number;\n • Add, change, or terminate ownership or\n operatorship of a car or other motor vehicle,\n and, as part of that visit, provide his license\n\n\n\n3\n 42 Pa.C.S. § 9799.10 (citing P.L. 109-248, 120 Stat. 587).\n4\n P.L. 109-248, 120 Stat. 587 34, § 125 (implemented as 34\nU.S.C. § 20927).\n5\n 42 Pa.C.S §§ 9799.12–9799.14.\n6\n 42 Pa.C.S. §§ 9799.15(a)(3), 9799.15(e)(3). A Tier III\nSORNA registrant could petition a court to exempt him or her\nfrom the registration requirements after twenty-five years\nprovided that the registrant satisfied certain criteria and\nsatisfy a threat assessment board. Id. § 9799.15(a.2)(1)-(9).\n\n 4\n\f plate number, VIN number, and location\n where the vehicle will be stored;\n\n • Commence or change “temporary lodging;” 7\n\n • Add, change, or terminate any email address\n or other online designation; or\n\n • Add, change, or terminate any information\n related to an occupational or professional\n license. 8\n\nIf Piasecki were to become homeless, he was required to\n“appear in person monthly and to be photographed.” 9 Prior to\nany international travel, Piasecki had to “appear in person at an\napproved registration site no less than 21 days” before his\nanticipated departure. 10 Failure to abide by any of these\nreporting requirements exposed Piasecki to criminal\nprosecution. 11\n\n The parties do not dispute that Piasecki was subject to\nthese restrictions—and only these restrictions—when he filed\nhis § 2254 petition on December 4, 2014. 12 His probation and\nits attendant conditions of supervision had expired on April 26,\n2013. Piasecki’s habeas petition attacked his underlying\nconviction on four grounds, none of which are relevant to the\nissues before us. 13\n\n7\n Temporary lodging is defined as “[t]he specific location,\nincluding street address, where a sexual offender is staying\nwhen away from the sexual offender’s residence for seven or\nmore days.” 42 Pa.C.S. § 9799.12.\n8\n 42 Pa.C.S. § 9799.15(g)(1)-(9).\n9\n 42 Pa.C.S. § 9799.15(h)(1).\n10\n Id. § 9799.15(i).\n11\n 42 Pa.C.S. § 9799.21(a); see also 18 Pa.C.S. § 4915.1\n(relating to failure to comply with registration requirements).\n12\n Br. for Appellant 12; Br. for Appellee 13–15.\n13\n Specifically, Piasecki alleged that the incriminating\nstatements that were admitted at trial were given in violation\nof Miranda; the evidence was insufficient to support the\nverdict; the Commonwealth failed to preserve electronic\n\n 5\n\f The District Court referred the matter to a Magistrate\nJudge, who recommended that the petition be dismissed for\nlack of jurisdiction. The Magistrate Judge acknowledged that\nPennsylvania’s SORNA statute made “sex offenders’\nregistration obligations considerably more burdensome,” but\nultimately concluded that Piasecki was “free to live, work,\ntravel, or engage in any legal activity without the approval of a\ngovernment official.” 14 The Magistrate Judge also concluded\nthat Pennsylvania’s sex offender registration requirements\nwere “collateral consequences and not direct consequences of\nthe petitioner’s conviction.” 15 Accordingly, the court reasoned\nthat they were not part of the judgment of the state court and\ncould not support habeas corpus jurisdiction.\n\n In overruling objections that Piasecki filed to the Report\nand Recommendation, the District Court emphasized that\nPiasecki’s sentence had expired, and that the registration\nrequirements were “merely collateral consequences of a\nconviction.” 16 It also noted that Piasecki’s reporting\nrequirements were not explicitly included in the state court’s\njudgment and that the requirements were “remedial rather than\npunitive.” 17 Consequently, the court held that they could not\nsupport habeas jurisdiction because they did not constitute\ncustody.\n\n We granted a certificate of appealability, and this timely\nappeal followed.\n\n\n II. 18\n\nevidence that was favorable to his defense; and that his\nattorney was ineffective for failing to raise these issues.\n14\n App. 13a–14a.\n15\n App. 15a.\n16\n App. 3a.\n17\n App. 4a.\n18\n This Court has appellate jurisdiction pursuant to 28 U.S.C.\n§ 1291 (granting jurisdiction over appeals from all final\ndecisions of the District Court) and § 2253 (subjecting the\nfinal order in a habeas corpus proceeding to review). We\ngranted a certificate of appealability pursuant to 28 U.S.C. §\n\n 6\n\f A federal court has jurisdiction to entertain a petition for\na writ of habeas corpus under § 2254 only if the petitioner was\n“in custody pursuant to the judgment of a State court” when\nthe petition was filed. 19 “Thus, custody is the passport to\nfederal habeas corpus jurisdiction.” 20 The jurisdictional\nrequirement has two components—“custody” that arises\n“pursuant to the judgment of a state court” that is under\nattack. 21 Put differently, the habeas jurisdictional provision\nrequires that the petitioner be subject to a “non-negligible\nrestraint on physical liberty” that is a “direct consequence of\n[the] conviction” being challenged. 22 Therefore, we must\nexamine these elements separately to determine if\nPennsylvania’s SORNA requirements were sufficiently\nrestrictive to constitute custody. If they were, we must\ndetermine if they were directly imposed pursuant to the\njudgment of a state court.\n\n A. “In Custody”\n\n Over the past half-century, courts have addressed the\nissue of habeas custody in an effort to determine when various\nstate-imposed restrictions were sufficiently onerous to\nconstitute “custody” for purposes of habeas jurisdiction. It is\nnow beyond dispute that custody is not limited to “actual\nphysical custody.” 23 Rather, for the purposes of habeas\njurisdiction, a petitioner is “in custody” if he or she files while\nsubject to significant restraints on liberty that are not otherwise\nexperienced by the general public. 24\n\n2253(c)(2) & (3). We review the District Court’s dismissal of\na habeas petition on jurisdictional grounds de novo. We\nreview the denial of an evidentiary hearing for abuse of\ndiscretion.\n19\n 28 U.S.C. § 2254(a).\n20\n United States ex rel. Dessus v. Pennsylvania, 452 F.2d 557,\n560 (3d Cir. 1971).\n21\n 28 U.S.C. § 2254(a).\n22\n Stanbridge v. Scott, 791 F.3d 715, 719 (7th Cir. 2015).\n23\n Jones v. Cunningham, 371 U.S. 236, 239 (1963).\n24\n Id.; see also Lehman v. Lycoming Cty. Children Servs.\nAgency, 458 U.S. 502, 510 (1982) (“[P]ast decisions have\nlimited the writ’s availability to challenges to state-court\n\n 7\n\f In Jones v. Cunningham, the Supreme Court considered\nwhether a parolee was “in custody” for the purposes of habeas\njurisdiction under 28 U.S.C. § 2241. 25 The conditions of\nJones’s parole required him to live with his family in Georgia;\nobtain permission to leave the community, change residence,\nand own or operate a car; and make monthly visits to his parole\nofficer. 26 Additionally, he was required to permit parole\nofficers to come into his home or place of employment, “follow\nthe officer’s instructions and advice,” and be subject to\n“revocation and modification at any time.” 27\n\n Jones held that these parole restrictions were\nsufficiently restrictive to render the petitioner “in custody.” It\nrooted its analysis in the historical development of the custody\nrequirement. The Court acknowledged that “the chief use of\nhabeas corpus statutes has been to seek release of persons held\nin actual, physical custody in prison or jail.” 28 However, the\nCourt also noted that courts had “long recognized the writ as a\nproper remedy even [when] the restraint [was] something less\nthan close physical confinement.” 29 For example, English\ncourts permitted the use of habeas corpus where “a woman\nalleged to be the applicant’s wife was being constrained by her\nguardians to stay away from her husband against her will.” 30\nThe test employed in England was “simply whether she was ‘at\n\n\n\njudgments in situations where–as a result of a state-court\ncriminal conviction–a petitioner has suffered substantial\nrestraints not shared by the public generally.”); Hensley v.\nMun. Court, San Jose v. Mipitas Judicial Dist., Santa Clara\nCty., Cal., 411 U.S. 345 (1973) (“The custody requirement of\nthe habeas corpus statute is designed to preserve the writ of\nhabeas corpus as a remedy for severe restraints on individual\nliberty.”).\n25\n Jones, 371 U.S. at 238.\n26\n Id. at 237.\n27\n Id. at 238.\n28\n Id.\n29\n Id.\n30\n Id. at 238–39 (citing Rex. v. Clarkson, 1 Str. 444, 93 Eng.\nRep. 625 (K.B. 1722)).\n\n 8\n\fher liberty to go where she pleased.’” 31 Jones noted that United\nStates courts have historically found that “the use of habeas\ncorpus has not been restricted to situations in which the\napplicant is in actual, physical custody.” 32 Rather, “[h]istory,\nusage, and precedent can leave no doubt that, besides physical\nimprisonment, there are other restraints on [a person’s] liberty,\nrestraints not shared by the public generally, which have been\nthought sufficient in the English-speaking world to support the\nissuance of habeas corpus.” 33\n\n Turning to the specific conditions of Jones’s parole, the\nCourt found that they constituted custody because they\n“significantly restrain[ed] petitioner’s liberty to do those things\nwhich in this country free men [were] entitled to do.” 34 Indeed,\nthe parole restrictions were myriad and demanding. The parole\norder confined Jones to “a particular community, house, and\njob at the sufferance of his parole officer.” 35 He could not drive\na car without permission, and he was required to open his home\nand place of employment to his parole officer at any time.\nAdditionally, his parole officer required him to “keep good\ncompany and good hours,” stay away from “undesirable\n\n\n31\n Id. (quoting Clarkson, 93 Eng. Rep. at 625); accord Rex v.\nDelaval, 3 Burr. 1434, 97 Eng. Rep. 913 (K.B. 1763)\n(ordering an indentured girl “discharged from all restraint,\nand be at liberty to go where she will” after her “master”\nassigned her to another man for “bad purposes”).\n32\n Jones, 371 U.S. at 239.\n33\n Id. at 240.\n34\n Id. at 243. The Court also observed that the Virginia statute\nthat governed Jones’s supervision explicitly provided that a\n“paroled prisoner shall be released ‘into the custody of the\nParole Board,’ and the parole order itself placed Jones under\nthe ‘custody and control of the Virginia Parole Board.’” Id. at\n241–42 (quoting Va. Code Ann. § 53-264). While not\ndispositive, the Court was informed by the plain language of\nthe statute and the order to which Jones was subject. As we\ndiscuss below, Pennsylvania’s sex offender registration\nrequirements were included in the state court’s judgment of\nsentence here.\n35\n Id. at 242.\n\n 9\n\fplaces,” and “to live a clean, honest, and temperate life.” 36 Any\nfailure to follow these provisions, however slight, could have\nresulted in Jones being returned to prison.\n\n Under these circumstances, the Court concluded that\neven though Jones has been “release[d] from immediate\nphysical imprisonment,” his parole conditions “significantly\nconfine[d] and restrain[ed] his freedom.” 37 That was “enough\nto keep him in the ‘custody’ of the members of the Virginia\nParole Board within the meaning of the habeas corpus\nstatute[.]” 38\n\n After Jones, the Supreme Court decided Hensley v.\nMunicipal Court. 39 There, it considered whether a similar—\nbut slightly less—restrictive scheme than the one in Jones\ncould support habeas jurisdiction to adjudicate a § 2254\npetition of a petitioner who was released on his own\nrecognizance pending appeal. 40 The relevant bail statute\nrequired Hensley to appear “at all times and places as ordered\nby the court or magistrate releasing him and as ordered by any\ncourt in which, or any magistrate before whom, the charge\n[was] pending.” 41 Finally, any court could “revoke the order of\nrelease and either return him to custody or require that he give\nbail or other assurance of his appearance.” 42\n\n The Court held that these conditions supported habeas\njurisdiction even though Hensley was subject to less restrictive\nsupervision requirements than Jones. 43 Despite the less\nintrusive requirements, Hensley was still subject to “restraints\n\n36\n Id.\n37\n Id. at 243.\n38\n Id.\n39\n 411 U.S. 345 (1973).\n40\n Hensley, 411 U.S. at 351.\n41\n Id. at 348. Additionally, if he failed to “appear and [was]\napprehended outside of the State of California” he waived his\nright to an extradition hearing. Id.\n42\n Id.\n43\n Id. at 348 (“It is true, of course, that the parolee is generally\nsubject to greater restrictions on his liberty of movement than\na person released on bail or his own recognizance.”).\n\n 10\n\f‘not shared by the public generally,’” as Jones had been. 44\nHensley was obligated to appear wherever and whenever a\ncourt ordered him. 45 He could not “come and go as he\nplease[d]” because his “freedom of movement rest[ed] in the\nhands of state judicial officers, who [could have] demand[ed]\nhis presence at any time without a moment’s notice.” 46 The\nCourt also noted that any failure to abide by these conditions\nwas, itself, a criminal offense. 47 He was, therefore, “in\ncustody.” 48\n\n We have also held that the jurisdictional “custody”\nrequirement can be satisfied by restrictions other than physical\nconfinement. 49 In Barry v. Bergen County Probation\nDepartment, 50 we were asked to decide whether a sentence of\ncommunity service was sufficiently onerous to qualify as\ncustody under § 2254. Barry’s probationary sentence had\n\n44\n Id. (quoting Jones, 371 U.S. at 240).\n45\n Id.\n46\n Id. at 351.\n47\n Id. Hensley also found it compelling that the petitioner’s\nliberty only resulted from a judicial order staying his\nsentence—which the government had twice tried to lift. In\nother words, incarceration was not a “speculative possibility.”\nRather, Hensley had been forced to “fend off the state\nauthorities,” and this “need to keep the stay in force [was]\nitself an unusual and substantial impairment of his liberty.”\nFinally, the Court also noted that its holding “did not interfere\nwith any significant interest of the State” because even if it\nhad concluded that Hensley was not in custody, it would only\ndelay the filing of the petition until he was incarcerated after\nthe stay was lifted.\n48\n Id. at 351.\n49\n See, e.g. Barry v. Brower, 864 F.2d 294, 296 (3d Cir. 1988)\n(finding that habeas jurisdiction continued “at least until the\nexpiration of Barry’s probationary term”); Pringle v. Court of\nCommon Pleas, 744 F.2d 297, 300 (3d Cir. 1984) (“Custody,\nhowever, has been liberally defined to include persons on\nparole, those released on their own recognizance pending\nappeal, and those who have been released from confinement\npursuant to [a ‘good behavior’ time credit statute].”).\n50\n 128 F.3d 152 (3d Cir. 1997).\n\n 11\n\fexpired when he filed his petition, but the sentencing court had\nalso ordered him to complete 500 hours of community service\nover a period of three years. 51 The community service\nrequirement was imposed in lieu of a fine, which the\nsentencing court concluded Barry was unable to pay.52\n\n We held that the community service obligation\nconstituted custody even though the “State did not monitor or\nrestrict Barry’s every act” because his sentence nevertheless\nrequired him “to be in a certain place—or in one of several\nplaces—to attend meetings or to perform services.” 53 Thus, he\nwas “clearly subject to restraints on his liberty not shared by\nthe public generally.” 54 As a result, Barry’s community service\nsentence constituted custody that was sufficiently restrictive to\nsupport habeas jurisdiction. 55\n\n In reaching that decision, we relied on Dow v. Circuit\nCourt of the First Circuit, a per curiam decision from the Court\n\n51\n Id. at 159, 161.\n52\n Id. at 158–59.\n53\n Id. at 161.\n54\n Id. at 161 (citing Dow v. Circuit Court of the First Circuit,\n995 F.2d 922 (9th Cir. 1993) (per curiam)).\n55\n We rejected the state’s argument that Barry was not in\ncustody because he was not “supervised on a continuous\nbasis.” Barry, 128 F.3d at 161 (citing Poodry v. Tonawanda\nBand of Seneca Indians, 85 F.3d 894 (2d Cir. 1996)). A per\ncuriam opinion issued by this Court in 2003, Obado v. New\nJersey, 328 F.3d 716 (3d Cir. 2003) (per curiam), cited Barry\nfor the proposition that “some type of continuing\ngovernmental supervision” was required to support habeas\njurisdiction. However, Obado cited the portion of Barry that\ndiscussed the state’s argument concerning habeas jurisdiction.\nObado, 328 F.3d at 717 (citing Barry, 128 F.3d at 160). The\nvery paragraph in Barry that Obado cites ends with the\nconclusion “that the state has read § 2254’s custody\nrequirement too narrowly,” Barry, 128 F.3d at 160. In fact,\nBarry conclusively rejects that argument. Id. at 161 (“Equally\nunavailing is the State’s contention that Barry was not ‘in\ncustody’ because he was not supervised on a continuous\nbasis.”).\n\n 12\n\fof Appeals for the Ninth Circuit, which we found to be “quite\ncompelling and analogous” to the question before us in\nBarry. 56 Dow’s sentence for DUI required him to attend\nfourteen hours of alcohol rehabilitation classes. 57 He had the\noption of scheduling the classes over a three- or five-day\nperiod. 58 Dow filed a § 2254 petition after his probationary\nsentence was completed but before he attended the classes. The\ncourt concluded that Dow’s in-class obligation supported\nhabeas jurisdiction. The sentence required Dow’s “physical\npresence at a particular place” and “significantly restrain[ed]\n[his] liberty to do those things which free persons in the United\nStates are entitled to do.” 59 His mandated presence at the\nclasses meant that he could not “come and go as he\nplease[d].” 60 Therefore, the Court held that the sentence “must\nbe characterized, for jurisdictional purposes, as ‘custody.’” 61\n\n More recently, in United States v. Ross, 62 we considered\nwhether a $100 “special assessment” that accompanied a\nconviction for possessing a machine gun constituted “custody”\nfor the purposes of § 2255. 63 Relying on the precedent we have\ndescribed above, Ross set forth a three-part test for answering\nthat question. 64 We held that a restriction is custodial if it\n\n56\n Barry, 128 F.3d at 160.\n57\n Dow, 995 F.2d at 922.\n58\n Id. at 922–23.\n59\n Id. at 923.\n60\n Id (quoting Hensley, 411 U.S. at 351).\n61\n Id.\n62\n 801 F.3d 374 (3d Cir. 2015).\n63\n Ross, 801 F.3d at 379. Ross arose in a slightly different\ncontext, but it is still helpful. In Ross, the government alleged\nthat the petitioner was ineligible for relief under § 2255\nbecause that statute could only afford relief to a “prisoner in\ncustody . . . claiming the right to be released upon the ground\nthat the sentence was imposed in violation of the Constitution\nor laws of the United States[.]” Id. at 378 (quoting 28 U.S.C.\n§ 2255a)). The issue in Ross was, therefore, about “custody,”\nbut not jurisdiction. Nevertheless, we addressed the definition\nof “custody” for the purposes of habeas corpus. Accordingly,\nwe think that its analysis is helpful to our inquiry here.\n64\n Id. at 379.\n\n 13\n\fprovides for restraints that are “(1) severe, (2) immediate (i.e.\nnot speculative), and (3) not shared by the public generally.” 65\n\n Applying this test to Ross’s special assessment, we\nconcluded that a fine is not the type of obligation that can\nsupport habeas jurisdiction. We noted that the Supreme Court\nhas “emphasized the physical nature of the restraints” when\ndefining custody. 66 Ross’s fine imposed no analogous\nrestriction on his freedom of movement and thus could not be\nviewed as “severe.” 67 Thus, Ross could not challenge a special\nassessment under § 2255. The decision was consistent with our\nown precedent and decisions of our sister circuit courts of\nappeals. Courts consistently conclude that the “monetary\ncomponent of a sentence is not capable of satisfying the ‘in\ncustody’ requirement of federal habeas statutes.” 68\n\n Given this precedent, the question of whether Piasecki’s\nregistration requirements were sufficiently restrictive to\nconstitute custody is easily answered. They were. At a\nminimum, Piasecki was required “to be in a certain place” or\n“one of several places”—a State Police barracks—at least four\ntimes a year for the rest of his life. 69 The state’s ability to\ncompel a petitioner’s attendance weighs heavily in favor of\nconcluding that the petitioner was in custody. 70 Further,\nPiasecki was not free to “come and go as he please[d].” 71 Any\nchange of address, including any temporary stay at a different\nresidence, required an accompanying trip to the State Police\nbarracks within three business days. 72 He was even required to\nregularly report to police if he had no address and became\nhomeless. In addition, Piasecki could have no “computer\n\n\n\n65\n Id. (parenthetical in original).\n66\n Id. at 379–80 (citing Hensley, 411 U.S. at 351; Peyton v.\nRowe, 391 U.S. 54, 66–67 (1934); Jones, 371 U.S. at 242).\n67\n Id. at 379.\n68\n Id. at 380 (citations omitted).\n69\n Barry, 128 F.3d at 161; 42 Pa.C.S. § 9799.15(a)(3).\n70\n Dow, 995 F.2d at 923; Barry, 128 F.3d at 160–61.\n71\n Hensley, 411 U.S. at 351.\n72\n 42 Pa.C.S. § 9799.15(g)(2), (3), (4), (7).\n\n 14\n\finternet use.” 73 The SORNA statute also compelled Piasecki to\npersonally report to the State Police if he operated a car, began\n\n73\n Such prohibitions on computer and internet access are\nrelatively common. Yet, it is not at all clear that the judges\nimposing such sweeping and unconditional bans appreciate\nthe impact they would have if literally interpreted and\nenforced. A literal enforcement of such provisions would\nsubject one to violation for using an ATM, using a\n“smartphone,” seeking directions from any device that\nutilizes GPS navigation, or even driving a relatively late\nmodel car—most, if not all, of which are equipped with\ncomputers that are an integral part of the car’s functioning.\nSee United States v. Voelker, 489 F.3d 139, 148 n.8 (3d Cir.\n2007) (noting that modern cars “contain at least one\ncomputer” and “might have as many as 50 microprocessors”)\n(citations omitted). As a result, many courts have struck down\nstatutes or vacated sentences that impose broad bans on\ncomputer and internet usage. See, e.g., Packingham v. North\nCarolina, 137 S. Ct. 1730, 1738 (2017) (holding that a statute\nthat prevented sex offenders from accessing social media\nwebsites violated the First Amendment); United States v.\nHolena, 906 F.3d 288, 295 (3d Cir. 2018) (vacating a\nsentence that banned a defendant from possessing or using a\ncomputer or other electronic communication device and\nprohibited him from using the internet without his probation\nofficer’s approval); Voelker, 489 F.3d at 144 (vacating a\nsentence that imposed “an absolute lifetime ban on using\ncomputers and computer equipment as well as accessing the\ninternet”); United States v. Miller, 594 F.3d 172, 188 (3d Cir.\n2010) (vacating a sentence that prohibited an offender from\nusing a computer with internet access “unless he received\napproval from his probation officer to use the internet and\nother computer networks”); United States v. Albertson, 645\nF.3d 191, 194, 200 (3d Cir. 2011) (vacating a sentence that\nbarred an offender from using a computer with online access\nwithout preapproval from a probation officer and holding\nthat, “in a time where the daily necessities of life and work\ndemand not only internet access but internet fluency,\nsentencing courts need to select the least restrictive\nalternative for achieving their sentencing purpose”); United\nStates v. Holm, 326 F.3d 872, 878 (7th Cir. 2003) (“We find\n\n 15\n\fstoring his car in a different location, changed his phone\nnumber, or created a new email address. 74 These are\ncompulsory, physical “restraints ‘not shared by the public\ngenerally.’” 75 Unlike the special assessment considered in\nRoss, these restraints compelled Piasecki’s physical presence\nat a specific location and severely conditioned his freedom of\nmovement. They were more severe than the community service\nrequirement in Barry or the mandatory alcohol classes\nconsidered in Dow.\n\n Moreover, any failure to abide by the restrictions was\n“itself a crime,” just like the situation facing the petitioner in\nHensley. 76 If Piasecki failed to report to the State Police\nbarracks within three days of any triggering event listed in the\nSORNA statute, he could be charged with a felony of the\nsecond degree. 77 In Pennsylvania, such felonies are punishable\nby up to ten years’ imprisonment. 78 If Piasecki provided\ninaccurate information, he faced prosecution for a felony of the\nfirst degree and incarceration of up to twenty years. 79 Given\nthe level of restriction imposed by the registration\nrequirements and the harsh consequences that would result\nfrom failing to adhere to them, we easily conclude that the\nrestrictions placed on Piasecki were “severe.” 80\n\n The remaining two prongs of the test we announced in\nRoss are also easily satisfied. The restrictions were “immediate\n(i.e. not speculative)” 81—neither side disputes that Piasecki\nwas subject to all of SORNA’s requirements when he filed the\npetition at issue. Finally, and as explained above, these\n\n\nthat to the extent that the condition is intended to be a total\nban on Internet use, it sweeps more broadly and imposes a\ngreater deprivation on Holm’s liberty than is necessary[.]”).\n74\n 42 Pa.C.S. § 9799.15(g).\n75\n Hensley 411 U.S. at 351 (quoting Jones, 371 U.S. at 240).\n76\n Id.\n77\n 42 Pa.C.S. § 9799.21; 18 Pa.C.S. § 4915.1(c)(1).\n78\n 18 Pa.C.S. § 106(b)(3).\n79\n 42 Pa.C.S. § 4915.1(c)(3); 18 Pa.C.S. § 106(b)(2).\n80\n Ross, 801 F.3d at 379.\n81\n Id.\n\n 16\n\frestrictions were obviously “not shared by the public\ngenerally.” 82\n\n We recognize that several of our sister circuit courts of\nappeals have found that various sex offender registration\nschemes were not sufficiently restrictive to constitute\n“custody.” 83 As we explain below, many courts have held that\nregistration requirements cannot support habeas jurisdiction\nbecause they were collateral consequences of a conviction that\nwere not imposed pursuant to the judgment of a state court. 84\nOthers have held that sex-offender registration conditions do\nnot impose a severe restriction on an individual’s freedom. 85\nWe do not find those cases compelling for two reasons.\n\n First, many of our sister circuit courts of appeals that\nhave found sex offender registration requirements could not\nsupport habeas jurisdiction reached that conclusion when\nconsidering restrictions imposed under pre-SORNA statutes. 86\n\n\n\n82\n Id.\n83\n See, e.g., Wilson v. Flaherty, 689 F.3d 332, 338 (4th Cir.\n2012); Virsnieks v. Smith, 521 F.3d 707, 719 (7th Cir. 2008);\nLeslie v. Randle, 296 F.3d 518, 521–23 (6th Cir. 2002);\nZichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir. 2001).\n84\n See infra Part II.B.\n85\n E.g., Calhoun v. Attorney Gen. of Colo., 745 F.3d 1070,\n1074 (10th Cir. 2014) (holding that “the Colorado sex-\noffender registration requirements at issue here are collateral\nconsequences of conviction that do not impose a severe\nrestriction on an individual’s freedom” because the registrant\nwas “free to live, work, travel, and engage in all legal\nactivities without limitation and without approval by a\ngovernment official”); Virsnieks, 521 F.3d at 719 (“[T]he\nWisconsin sexual offender registration statute does not\nimpose any significant restriction on a registrant’s freedom of\nmovement . . . . [It] does not limit where a registrant may\nmove or travel within Wisconsin, within the United States or\ninternationally”).\n86\n See Zichko 247 F.3d at 1019; Leslie 296 F.3d at 521–23;\nWilson 689 F.3d at 338.\n\n 17\n\fThose registration requirements were not as onerous as those\nimposed under SORNA. 87\n\n Second, we have explicitly departed from the courts that\nhave held that registration requirements are not custodial\nbecause they do not require pre-approval from the government\nbefore a registrant travels, thus not limiting his or her ability to\nmove freely. 88 In Barry, we held that custodial “restraint does\nnot require ‘on-going supervision’ or ‘prior approval.’” 89\nRather, we concluded that even though the government did not\n“monitor[] Barry’s every move, [it] nevertheless performed an\noversight function” and that “level of supervision was clearly\nadequate” to qualify as custody. 90 Accordingly, we cannot\nconclude that Piasecki’s supervision did not amount to custody\nbased on a “pre-approval” theory.\n\n In sum, we hold that Piasecki was subject to severe\nrestraints on his liberty not shared by the public generally.\nTasks as banal as changing an e-mail address or taking a\nweek’s vacation required him to physically appear at a State\nPolice barracks. Even in the absence of those ostensibly\nelective choices, Piasecki was compelled by the state to report\nto a police station every three months for the rest of his life.\nWe hold that those requirements were at least as restrictive as\nthose encountered in Barry and Dow and clearly rise to the\nlevel of “custody” for purposes of our habeas jurisdiction.\n\n B. “Pursuant to the Judgment of a State Court”\n\n\n87\n See, e.g., Wilson, 689 F.3d at 338 (allowing registration by\nmail); Williamson v. Gregoire, 151 F.3d 1180, 1184 (9th Cir.\n1998) (same). We take no position on whether we would find\nsuch conditions sufficiently restrictive to constitute custody\nfor habeas purposes if the issue were presented to us in an\nappropriate case.\n88\n See, e.g., Virsnieks, 521 F.3d at 719; Williamson, 151 F.3d\nat 1184 (“Williamson cannot say that there is anywhere that\nthe sex offender law prevents him from going.”).\n89\n Barry, 128 F.3d at 161 (citing Poodry v. Tonawanda Band\nof Seneca Indians, 85 F.3d 894 (2d Cir. 1996)).\n90\n Id.\n\n 18\n\f Even an onerous restriction cannot support habeas\njurisdiction if it is nothing more than a “collateral\nconsequence” of a conviction. 91 Rather, the custody that is a\ncondition precedent to our habeas jurisdiction must be a direct\nresult of “the conviction or sentence under attack” when the\npetition is filed. 92 Thus, a court will not have jurisdiction to\nrule on a habeas petition if “the sentence imposed for [the\nchallenged] conviction has fully expired at the time [the]\npetition is filed.” 93 This requirement is evident from the plain\ntext of § 2254, which states that the petitioner must be “in\ncustody pursuant to the judgment of a State court.” 94\n\n We must therefore decide whether Piasecki’s custodial\nrestrictions were imposed as part of his sentence or if they were\nmerely collateral consequences of his underlying child\npornography convictions.\n\n We begin at perhaps the most obvious starting point—\nthe actual judgment of sentence entered by the state court. Two\ndocuments from the state court record inform and guide our\ninquiry—the “Bucks County Criminal Court Sheet” and the\n“Bucks County Mandatory Sex Offender Conditions” Order.\nBoth show that the registration requirements were part of the\njudgment of sentence.\n\n The Court Sheet has a handwritten notation under\n“Sentence,” stating that, in addition to “Sex Offender\nSupervision,” Piasecki was sentenced to “Registration” for “10\nyrs.” More compellingly, the Sex Offender Conditions Order\nstates that Piasecki’s “SENTENCE IS SUBJECT TO THE\nFOLLOWING CONDITIONS IN ADDITION TO THOSE\nWHICH APPEAR ON THE COURT SHEET.” Under that\nheading, the sentencing court checked a box next to “Sex\nOffender Registration Pursuant to Megan’s Law” and another\nbox indicating “10 Year Registration.”\n\n\n\n91\n Maleng v. Cook, 490 U.S. 488, 492 (1989) (per curiam).\n92\n Id. at 490.\n93\n Id. at 491.\n94\n 28 U.S.C § 2254(a) (emphasis added).\n\n 19\n\f These documents weigh strongly in favor of finding that\nthe sex-offender registration requirements were part of\nPiasecki’s sentence and therefore imposed “pursuant to the\njudgment of a state court.” 95 Both of the documents plainly\nreflect that the registration requirements were a part of the\nsentence.\n\n As compelling as this record is, we will not end our\ninquiry there. Federal courts confronted with the question of\nwhether sex offender registration requirements are part of the\nstate court judgment of sentence also look to state law to see if\nthe state construes sex offender registration as a punitive aspect\nof a criminal sentence or a remedial measure imposed\ncollaterally. Our sister circuit courts of appeals that have held\nregistration requirements are not imposed pursuant to the\njudgment of sentence have done so, in part, because the\nrespective state courts have determined that their state\nregistration schemes are remedial, not punitive. 96\n\n Pennsylvania courts have concluded otherwise. Just two\nmonths before Piasecki filed his habeas petition, the\nCommonwealth Court of Pennsylvania decided Coppolino v.\n\n95\n 28 U.S.C § 2254(a)\n96\n See Bonser, 659 Fed. App’x at 127 n.1 (quoting\nCommonwealth v. Whanger, 30 A.3d 1212, 1215 (Pa. Super.\nCt. 2011) (noting that Pennsylvania deemed a sexually violent\npredator designation as a “collateral consequence of a\nconviction” and hence “not a sentence”)); Calhoun, 745 F.3d\nat 1074 (citing People v. Sheth, 318 P.3d 533, 534 (Colo.\nApp. 2013) (“Moreover, the Colorado sex-offender\nregistration requirements are remedial, not punitive.”));\nVirsnieks 521 F.3d at 720 (citing State v. Bollig, 605 N.W. 2d\n199, 205 (Wis. 2000) (“[T]he Wisconsin sexual offender\nregistration is considered remedial, rather than punitive, in\nnature.”)); Leslie, 296 F.3d at 522–23 (citing State v. Cook,\n700 N.E. 2d 570, 585 (Ohio 1998) (“The Ohio Supreme Court\nhas also held that the sexual-predator statute is remedial as\nopposed to punitive in nature . . . . [This] provides additional\nsupport for our conclusion that the classification, registration,\nand community notification provisions are more analogous to\ncollateral consequences . . . .”)).\n\n 20\n\fNoonan, which held that SORNA’s “in-person updating\nrequirements” were punitive. 97 There, Coppolino filed a writ\nof mandamus asking the Commonwealth Court to remove him\nfrom the list of offenders required to comply with SORNA.\nLike Piasecki, he had initially been required to register under\nMegan’s Law, but became subject to SORNA’s registration\nrequirements when they took effect in 2012. He alleged that\nseveral of the new registration requirements were punitive and\nthat subjecting him to the increased punishment violated\nprinciples of double jeopardy.\n\n Coppolino held that the quarterly registration\nrequirements were not punitive, but the in-person updates\nwere. The court reasoned that the quarterly registration\nrequirements were not punitive because they left Coppolino\nfree to live as he chooses and did not prevent him from\nengaging in any given activity.\n\n The in-person updates, however, were punitive because\nthey imposed “an affirmative disability or restraint on\nregistrants by inhibiting their ability to travel freely.” 98 The\ncourt specifically pointed to the “temporary lodging” and\n“motor vehicle” restrictions that SORNA required registrants\nto follow and held that they were particularly restrictive. 99 If,\nthe court surmised, a hotel where the registrant was planning\nto stay was full, “he would have three days to return to\nPennsylvania and report the change in person or risk a five year\nprison sentence.” 100 Similarly, it was “unclear how a registrant\ntravelling to another city would be able to register, prior to\nrenting a car there, a vehicle’s license plate number and\nregistration number and other identifier.” 101 If the registrant\nwere unable to determine such information in advance, he\nwould have to return within three business days to report the\ninformation in person.” 102 The court noted that this “might be\n\n97\n Coppolino v. Noonan, 102 A.3d 1254, 1278 (Pa. Commw.\nCt. 2014).\n98\n Id. at 1277.\n99\n Id.\n100\n Id.\n101\n Id.\n102\n Id.\n\n 21\n\fimpossible” depending on “where and how the registrant is\ntraveling.” 103\n\n Coppolino concluded that, by impairing a citizen’s\n“basic right” of “freedom of movement,” the periodic reporting\nrequirements imposed an affirmative restraint that was\ndisproportionate to any public purpose that it served. 104 “On\nbalance, this disproportionality, along with the similarity to the\ntraditional punishment of parole and the substantial\ninfringement of a fundamental right” led the court to conclude\nthat the provisions were punitive. 105 Therefore, the\nCommonwealth Court held that those restrictions could not be\napplied to Coppolino without violating prohibitions against ex\npost facto laws.\n\n The Pennsylvania Supreme Court affirmed Coppolino\nin a per curiam opinion. 106 But that was not its final say on\nPennsylvania’s SORNA statute. In Commonwealth v.\nMuniz, 107 it held that all of the SORNA registration provisions\nwere punitive and that applying them retroactively violated the\nPennsylvania Constitution. 108 The OAJC and two concurring\n\n103\n Id (internal quotation marks omitted).\n104\n Id. at 1278.\n105\n Id.\n106\n Coppolino v. Noonan, 125 A.3d 1196 (Pa. 2015) (per\ncuriam).\n107\n 164 A.3d 1189 (Pa. 2017).\n108\n Muniz, 164 A.3d at 1193. Muniz was a divided opinion.\nThree justices joined the Opinion Announcing the Judgment\nof the Court (“OAJC”) concluding that Pennsylvania’s\nSORNA statute violated both the U.S. Constitution and the\nPennsylvania Constitution, which, in their estimation,\nprovided “even greater [ex post facto] protections than its\nfederal counterpart.” Id. at 1223. Two justices concurred in\nthe entirety of the opinion except for the portions that held the\nPennsylvania Constitution provided greater protections than\nthe U.S. Constitution. In their view, the “state and federal ex\npost facto clauses are coterminous.” Id. at 1232 (Wecht, J.,\nconcurring). The Chief Justice of the Pennsylvania Supreme", "author": "McKEE"}, {"type": "dissent", "author": "Court", "text": "Court dissented, finding that “SORNA does not impose\npunishment and, thus, does not violate either the federal or\n\n 22\n\fjustices agreed that the Pennsylvania legislature did not intend\nto create a punitive scheme—but nevertheless did so when it\nenacted SORNA. 109 Retroactive application of the scheme\ntherefore violated the Pennsylvania Constitution’s ex post facto\nclause.\n\n As a result of Coppolino and Muniz, Pennsylvania\ncourts have concluded that SORNA’s registration\nrequirements are punitive, not remedial—unlike the courts in\nnearly every other state. This supports Piasecki’s claim that the\nregistration requirements imposed upon him are punitive\nsanctions imposed pursuant to the state court’s judgment of\nsentence rather than collateral consequences or remedial\nmeasures.\n\n Moreover, Pennsylvania state court decisions have\nhistorically treated sex offender registration requirements as\npart of the judgment of sentence. The Commonwealth\nconcedes that registrants seeking to challenge their registration\nstatus have traditionally done so by appealing the judgment of\nsentence, and Pennsylvania courts treat a registrant’s “status”\nunder a sex offender registration statute as “a component of the\njudgment of sentence.” 110 Challenges to a registration\nclassification, therefore, must be made in the context of a\nchallenge to the judgment of sentence itself. 111 Thus, under\n\nstate constitutions’ ex post facto clauses.” Id. at 1233 (Saylor,\nC.J., dissenting). The net precedential effect of these opinions\nwas “confined to the determination that SORNA’s\nregistration requirement is punishment that runs afoul of the\nex post facto clause of the Pennsylvania Constitution when\napplied retroactively.” Commonwealth v. Hart, 174 A.3d 660,\n667 n.9 (Pa. Super. Ct. 2017).\n109\n Muniz, 164 A.3d at 1219, 1223; id. at 1224 (Wecht, J.,\nconcurring).\n110\n Br. for Appellee, 20 (quoting Commonwealth v. Harris,\n972 A.2d 1196, 1201–02 (Pa. Super. Ct. 2009) (“We agree\nthat the term ‘judgment’ is not limited to the court’s sentence\nof incarceration, but also includes that status determination\nunder Megan’s Law.”)).\n111\n Commonwealth v. Leonard, 172 A.3d 628, 631 (Pa Super.\nCt. 2017) (“Appellant challenges the requirements imposed\n\n 23\n\fPennsylvania law, SORNA registration requirements are\nimposed pursuant to the state court judgment of sentence.\n\n Nevertheless, we recognize that one factor does support\nthe contrary view. As the Commonwealth notes, the\nregistration requirements at issue here were created more than\ntwo years after Piasecki was sentenced. Arguably, then,\nPiasecki’s registration requirements were imposed pursuant to\nan act of the legislature, not a state court judgment. This\nargument has some force, but ultimately we disagree with the\nCommonwealth’s position because Piasecki became subject to\nSORNA’s registration requirements as a “direct consequence\nof [the] conviction” being challenged. 112\n\n Piasecki became subject to SORNA’s registration\nrequirements by virtue of his conviction and subsequent\njudgment of sentence. Under the initial version of SORNA\npassed by the Pennsylvania legislature, any person who was\n“required to register with the Pennsylvania State Police . . .\nprior to the [amendment]” and who had “not fulfilled the period\nof registration as of the effective date of this section” became\nsubject to SORNA’s increased registration requirements. 113 In\nother words, Piasecki was subject to SORNA’s registration\nrequirements because of the sentence imposed pursuant to the\nstate court judgment.\n\n We therefore conclude that SORNA’s registration\nrequirements rendered Piasecki “in custody pursuant to the\njudgment of a State Court” when he filed his petition.\n\n\nby the trial court that he register as a sex offender for life\nbased upon the court’s interpretation of SORNA’s\nrequirements.”) (emphasis in original); Commonwealth v.\nSauers, 159 A.3d 1, 16 (Pa. Super. Ct. 2017) (noting that a\nchallenge to a Tier III SORNA classification is a “non-\nwaivable legality-of-sentence issue,” vacating “the lifetime\nregistration portion of Appellant’s sentence” and\n“remand[ing] for re-sentencing under SORNA”).\n112\n Stanbridge, 791 F.3d 715, 719 (7th Cir. 2015).\n113\n 42 Pa.C.S. § 9799.13(3) (2012); 2011 Pa. Legis. Serv. Act\n2011-111 (S.B. 1183) (PURDON'S)\n\n 24\n\f C. The Limits of Our Ruling\n\n Many of our sister circuits have predicted that a ruling\nsuch as the one we announce today would render the “in\ncustody” requirement of the habeas statute superfluous. 114 Our\ndecision today raises no such concerns. We do not hold that\nany collateral consequence of conviction can support habeas\njurisdiction. Rather, we hold that the custodial jurisdiction\nrequirement is satisfied by severe, immediate, physical, and\n(according to the state’s own definition) punitive restraints on\nliberty that are imposed pursuant to—and included in—the\njudgment of a state court such as the one here. Truly collateral\nconsequences—such as the “inability to vote, engage in certain\nbusinesses, hold public office, or serve as a juror” 115—are not\nanalogous to the restrictive and invasive regime created under\nSORNA’s registration requirements. The physical compulsion\nof SORNA’s registration requirements and their direct relation\nto the judgment of sentence set them apart from consequences\nthat are truly collateral and noncustodial.\n\n Additionally, this is not a situation where Piasecki was\nin custody as a result of an intervening judgment such as a\nseparate conviction or a civil commitment hearing. 116 In those\ncases, a litigant could not challenge a previously expired\nconviction that is no longer the source of any restrictions. As\nwe have explained, Piasecki’s registration requirements were\npart of his sentence and continue as such into the future. No\nseparate order is involved.\n\n\n\n114\n See, e.g., Calhoun 745 F.3d at 1074 (quoting Maleng, 490\nU.S. at 492)(suggesting that a holding that sex offender\nregistration requirements can give rise to habeas jurisdiction\n“would read the ‘in custody’ requirement out of the statute”);\nWilson, 689 F.3d at 339 (“To rule otherwise [and find that\nsex-offender registration requirements can support habeas\njurisdiction] would drastically expand the writ of habeas\ncorpus beyond its traditional purview and render § 2254’s ‘in\ncustody’ requirement meaningless.”).\n115\n Maleng, 490 U.S. at 491–92.\n116\n Stanbridge, 791 F.3d at 719.\n\n 25\n\f Finally, nothing we have said should be interpreted as\ncalling into question the wisdom or propriety of\nPennsylvania’s sex offender registration requirements. That\ndetermination is the province of the legislature, not the\ncourts. 117 The legislature determined that long-term, in-person\nregistration and supervision was necessary for those who\ncommit sexual offenses 118—including those who possess truly\nhorrific videos such as those possessed by Piasecki. Today, we\nhold only that the restrictions that follow from that level of\nsupervision constitute custody for the purposes of habeas\njurisdiction.\n\n III. CONCLUSION\n\n The writ of habeas corpus “is not now and never has\nbeen a static, narrow, formalistic remedy.” 119 The scope of the\nwrit has grown in accordance with its purpose—to protect\nindividuals against the erosion of their right to be free from\nwrongful restraints upon their liberty. 120 SORNA’s registration\nrequirements clearly constitute a restraint upon liberty, a\nphysical restraint not shared by the public generally. The\nrestraint imposed on Piasecki is a direct consequence of a state\ncourt judgment of sentence, and it therefore can support habeas\ncorpus jurisdiction. For all of the reasons set forth above, the\norder of the District Court is vacated and the case is remanded\nfor further proceedings consistent with this opinion.\n\n\n\n\n117\n To the extent that we have cautioned against imposition of\noverly broad restrictions on internet and computer use, see\nsupra note 73, we have done so merely to call attention to the\nease with which such restrictions can sweep further than\nintended or warranted and to note the unintended\nconsequences that may follow if they are not appropriately\ntailored to focus on the conduct that the court was attempting\nto address.\n118\n 42 Pa.C.S. § 9799.11.\n119\n Jones, 371 U.S. at 243.\n120\n Id.\n 26"}]} | MCKEE | AMBRO | RESTREPO | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4594518/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,586,748 | Oscar Adilio CRUZ-QUINTANILLA, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent. | Oscar Cruz-Quintanilla v. Matthew Whitaker | 2019-02-01 | 17-2404 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Motz, Keenan, Harris", "parties": "", "opinions": [{"author": "PAMELA HARRIS, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-2404\n\n\nOSCAR ADILIO CRUZ-QUINTANILLA,\n\n Petitioner,\n\n v.\n\nMATTHEW G. WHITAKER, Acting Attorney General,\n\n Respondent.\n\n\nOn Petition for Review of an Order of the Board of Immigration Appeals.\n\n\nArgued: October 31, 2018 Decided: February 1, 2019\n\n\nBefore MOTZ, KEENAN, and HARRIS, Circuit Judges.\n\n\nPetition for review dismissed in part, granted in part, and remanded for further\nproceedings by published opinion. Judge Harris wrote the opinion, in which Judge Motz\nand Judge Keenan joined.\n\n\nARGUED: Abraham Fernando Carpio, CARPIO LAW FIRM, LLC, Hyattsville,\nMaryland, for Petitioner. Sara J. Bayram, UNITED STATES DEPARTMENT OF\nJUSTICE, Washington, D.C., for Respondent. ON BRIEF: Chad A. Readler, Acting\nAssistant Attorney General, Melissa Neiman-Kelting, Assistant Director, Jessica A.\nDawgert, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division,\nUNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.\n\fPAMELA HARRIS, Circuit Judge:\n\n Oscar Adilio Cruz-Quintanilla, a native of El Salvador and legal permanent\n\nresident of the United States, faces removal as a result of two criminal convictions. As a\n\nformer gang member, Cruz-Quintanilla fears he will be tortured if forced to return to El\n\nSalvador, and thus seeks relief under the Convention Against Torture. To qualify, he\n\nmust establish not only that it is more likely than not that he will be tortured if removed,\n\nbut also that the government will acquiesce in that torture. 8 C.F.R. § 1208.16(c)(2). An\n\nimmigration judge denied Cruz-Quintanilla relief after holding that he had failed to\n\ndemonstrate the requisite government acquiescence. The Board of Immigration Appeals,\n\nreviewing that determination as a factual finding subject to clear error review, affirmed.\n\n We conclude that the Board applied the wrong standard of review. Whether Cruz-\n\nQuintanilla established that the government would acquiesce in his torture under 8 C.F.R.\n\n§ 1208.16(c)(2) is a mixed question of law and fact, and the immigration judge’s\n\ndetermination that the evidence did not meet the relevant standard is a legal judgment\n\nsubject to de novo review by the Board. Accordingly, we grant Cruz-Quintanilla’s\n\npetition for review and remand so that the Board may review the immigration judge’s\n\ndetermination under the proper standard.\n\n\n\n I.\n\n A.\n\n At the age of twelve, Oscar Adilio Cruz-Quintanilla lawfully entered the United\n\nStates to live with his mother and stepfather in Montgomery County, Maryland. Two or\n\n 2\n\fthree years later, members of the MS-13 gang recruited Cruz-Quintanilla to join their\n\nranks. He agreed, and as part of his initiation into MS-13, received four tattoos indicating\n\nhis gang affiliation. Several of the tattoos – including an “X3” (representing the number\n\n13) on his forearm and an “NSL” (designating the clique to which he belonged) on his\n\nhand – are readily visible. Although MS-13 forbids members from leaving the group,\n\nCruz-Quintanilla left the gang in 2005 after a rival gang member shot him in the foot.\n\n Cruz-Quintanilla continued to live in the Montgomery County area, and in 2013 a\n\ngrand jury in Maryland state court indicted him in connection with a home robbery. A\n\njury later convicted Cruz-Quintanilla on three counts: reckless endangerment; conspiracy\n\nto commit robbery with a dangerous weapon; and wearing, carrying, and transporting a\n\nhandgun. Cruz-Quintanilla spent three years in prison as a result of these convictions.\n\nFollowing his release, the Department of Homeland Security took him into custody and\n\ninitiated the removal proceedings that give rise to this appeal.\n\n B.\n\n Under 8 U.S.C. § 1227(a)(2), a noncitizen who has been convicted of certain\n\ncrimes is removable. Those crimes include “aggravated felon[ies],” id.\n\n§ 1227(a)(2)(A)(iii), and specific firearms offenses, id. § 1227(a)(2)(C). The government\n\nseeks to remove Cruz-Quintanilla under this statute, pointing to his conviction for\n\nconspiracy to commit armed robbery as an “aggravated felony” and his handgun\n\nconviction as a qualifying firearms offense.\n\n Cruz-Quintanilla sought relief from removal under the United Nations Convention\n\nagainst Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the\n\n 3\n\f“Convention”), 8 C.F.R § 1208.16(c). The Convention’s implementing regulations\n\nauthorize relief when an individual demonstrates that it is more likely than not that “he or\n\nshe would be tortured if removed to the proposed country of removal.” 8 C.F.R.\n\n§ 1208.16(c)(2). To satisfy this standard, a petitioner must make two distinct showings.\n\nTurkson v. Holder, 667 F.3d 523, 526 (4th Cir. 2012) (citing 8 C.F.R. § 208.16(c)(2)).\n\nFirst, the petitioner must demonstrate “likely future mistreatment.” Id. at 530.\n\nSpecifically, the petitioner must prove that it is more likely than not that, if removed, he\n\nwill endure “severe pain or suffering” that is “intentionally inflicted.” 8 C.F.R.\n\n§ 1208.18(a)(1). And second, the petitioner must show that this “likely future\n\nmistreatment” “will occur at the hands of government or with the consent or\n\nacquiescence of government.” Turkson, 667 F.3d at 526.\n\n The second, “acquiescence” prong of the torture inquiry – directly at issue here –\n\ncomes from the regulatory definition of “torture.” That definition requires not only that\n\nthe petitioner will endure “severe pain or suffering,” but also that the harm will be\n\n“inflicted by . . . or with the consent or acquiescence of a public official.” 8 C.F.R.\n\n§ 1208.18(a)(1). “Acquiescence,” in turn, is shown when a public official, “prior to the\n\nactivity constituting torture, ha[s] awareness of such activity and thereafter breach[es] his\n\nor her legal responsibility to intervene to prevent such activity.” Id. § 1208.18(a)(7).\n\nAnd as this court has held, “awareness of such activity” includes “willful blindness.”\n\nSuarez-Valenzuela v. Holder, 714 F.3d 241, 245–46 (4th Cir. 2013). In sum, where\n\ngovernment agents themselves would not inflict the feared torture, a petitioner still may\n\n\n\n 4\n\festablish government acquiescence by showing that the government would have actual\n\nknowledge of torture or that it would turn a “blind eye” to torture by third parties. Id.\n\n An immigration judge heard Cruz-Quintanilla’s case in June 2017. Cruz-\n\nQuintanilla testified that given his former membership in MS-13, he believed he would\n\nnot be safe if removed to El Salvador. He feared that MS-13 would kill him for leaving\n\nthe gang, or, given his visible gang-related tattoos, that a rival gang would attack him.\n\nCruz-Quintanilla testified that gang members have extorted members of his family, and\n\nthat one of Cruz-Quintanilla’s cousins, a member of a rival gang, was shot because of his\n\ngang affiliation.\n\n On the “acquiescence” prong of the torture inquiry, Cruz-Quintanilla alleged that\n\nSalvadoran officials would turn a blind eye to any efforts by either MS-13 or rival gang\n\nmembers to target him – and that government officials might even actively target him\n\nthemselves, due to his former gang affiliation. He testified that police in El Salvador\n\noffer little protection in gang disputes, and that officers sometimes attack individuals with\n\ngang-related tattoos as vengeance for violence inflicted on the police by gangs. Cruz-\n\nQuintanilla also introduced into evidence the United States State Department’s 2015\n\nHuman Rights Report on El Salvador, which details complaints received by the\n\nSalvadoran Office of the Ombudsman for Human Rights. According to that report,\n\nduring the preceding year the Ombudsman received 17 complaints of alleged\n\nextrajudicial killings by government officials. In the same time period, it also received\n\n2,202 complaints of human rights violations, more than 90 percent of which alleged\n\nmisconduct by the Salvadoran police and military. Based on that evidence and his\n\n 5\n\ftestimony, Cruz-Quintanilla argued that it is more likely than not that if removed to El\n\nSalvador, he would be tortured by or with the acquiescence of the Salvadoran\n\ngovernment.\n\n The immigration judge found Cruz-Quintanilla credible, and agreed that Cruz-\n\nQuintanilla had “valid concerns that he might be harmed by MS-13 for no longer\n\nparticipating in his gang or by a rival gang, especially since he has MS-13-related\n\ntattoos.” A.R. 131. She further recognized “serious concerns about crime, violence, and\n\ninstances of official corruption in El Salvador.” Id. Ultimately, however, the\n\nimmigration judge concluded that the evidence was not “sufficient to show that it is more\n\nlikely than not that [Cruz-Quintanilla] would be tortured with the consent or\n\nacquiescence of the government in [] El Salvador,” pointing out that the State\n\nDepartment’s Human Rights Report “indicates that the government of El Salvador is\n\ntaking steps to address gang violence and instances of official corruption there.” Id.\n\n(emphasis added). Accordingly, the immigration judge denied relief under the\n\nConvention, and ordered Cruz-Quintanilla removed to El Salvador.\n\n Cruz-Quintanilla appealed the immigration judge’s removal order to the Board of\n\nImmigration Appeals. He did not challenge the immigration judge’s finding that he was\n\nremovable, arguing instead that the immigration judge erred in finding him ineligible for\n\nrelief under the Convention.\n\n In a single-member decision, the Board dismissed Cruz-Quintanilla’s appeal. The\n\nBoard began by summarizing Cruz-Quintanilla’s argument that “as a tattooed former\n\ngang member, deported from the United States, he is at risk of torture and death by gang\n\n 6\n\fmembers and will not be able to obtain protection from the police.” A.R. 3. That claim,\n\nthe Board held, could not succeed because Cruz-Quintanilla could not establish “clear\n\nerror” in the immigration judge’s “factual finding that the Salvadoran government would\n\nnot acquiesce in his torture.” Id. (citing Saintha v. Mukasey, 516 F.3d 243, 249–50 (4th\n\nCir. 2008)). “[D]iscern[ing] no clear error [in] the Immigration Judge’s finding that the\n\nSalvadoran government does not acquiesce in torture,” the Board concluded that the\n\nimmigration judge’s removal order was proper. Id.\n\n Cruz-Quintanilla timely noticed his petition for review, and we granted Cruz-\n\nQuintanilla’s motion for stay of removal pending appeal.\n\n\n\n II.\n\n Cruz-Quintanilla raises two principal arguments before this court. First, he\n\ncontends that the immigration judge and Board of Immigration Appeals incorrectly\n\nassessed the record evidence, and wrongly concluded that he had not established a\n\nlikelihood that he would be tortured by or with the acquiescence of the Salvadoran\n\ngovernment. Second, Cruz-Quintanilla argues that the Board used the wrong standard of\n\nreview when it affirmed the immigration judge’s decision. Although we lack jurisdiction\n\nover Cruz-Quintanilla’s first argument, we may review his second. And because the\n\nBoard improperly characterized the immigration judge’s finding regarding government\n\nacquiescence as a purely factual determination subject only to clear error review, we\n\n\n\n\n 7\n\fgrant Cruz-Quintanilla’s petition for review on that ground and remand his case so that\n\nthe Board may apply the correct standard. 1\n\n A.\n\n Cruz-Quintanilla’s first argument is that he produced sufficient proof that it is\n\nmore likely than not that he will be tortured by or with the acquiescence of the\n\nSalvadoran government if he is removed, and that the immigration judge and Board erred\n\nin finding otherwise. Our jurisdiction over Cruz-Quintanilla’s appeal is limited, however,\n\nand this claim falls outside those limits.\n\n Removal orders – like this one – that involve noncitizens convicted of aggravated\n\nfelonies or specific firearms offenses generally are not subject to judicial review. 8\n\nU.S.C. § 1252(a)(2)(C); see also id. § 1227(a)(2)(A)(iii) (defining “aggravated felony”\n\nfor purposes of § 1252(a)(2)(C)); id. § 1227(a)(2)(C) (defining “firearm offenses” for\n\npurposes of § 1252(a)(2)(C)). There is, however, an exception: In 2005, Congress\n\namended this jurisdiction-stripping provision to confer “a narrowly circumscribed\n\njurisdiction to resolve constitutional claims or questions of law” raised by petitions\n\nchallenging such orders. Higuit v. Gonzales, 433 F.3d 417, 419 (4th Cir. 2006); see also\n\n8 U.S.C. § 1252(a)(2)(D).\n\n\n\n 1\n Cruz-Quintanilla also advances a third, due process-based argument regarding a\nmotion he filed to re-open his pleadings before the immigration judge, denied by the\njudge as untimely. Because Cruz-Quintanilla did not appeal that denial to the Board of\nImmigration Appeals, he failed to “exhaust[] all administrative remedies available to\n[him] as of right,” 8 U.S.C. § 1252(d)(1), and we therefore lack jurisdiction to consider\nthis claim. See Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004) (per curiam).\n\n 8\n\f Here, the immigration judge found that Cruz-Quintanilla had been convicted of a\n\nqualifying aggravated felony and firearms offense, triggering § 1252(a)(2)(C)’s\n\njurisdiction-stripping provision. We therefore have jurisdiction only to review\n\n“constitutional claims” and “questions of law” presented by Cruz-Quintanilla’s challenge\n\nto his removal order. 8 U.S.C. § 1252(a)(2)(D). Cruz-Quintanilla makes no contention\n\nthat his first argument – that the immigration judge and the Board improperly weighed\n\nthe evidence in his case – amounts to a constitutional claim. The only remaining question\n\nis whether that argument raises a question of law for purposes of the § 1252(a)(2)(D)\n\nexception or instead challenges a finding of fact. We hold that it does the latter.\n\n We addressed precisely this question in Saintha v. Mukasey, 516 F.3d 243, 249–50\n\n(4th Cir. 2008), and held that an argument almost identical to Cruz-Quintanilla’s\n\nconstituted a challenge to a factual determination over which we lacked jurisdiction.\n\nLike Cruz-Quintanilla, the petitioner in Saintha argued that the Board “erred in finding\n\ninsufficient evidence to conclude that the [] government would likely acquiesce in his\n\ntorture.” Id. at 247–48. We concluded that we lacked jurisdiction over that claim, as\n\n“determinations regarding governmental acquiescence” are “properly characterized as\n\nfactual, not legal, in nature” under § 1252’s jurisdictional provisions. Id. at 250. And\n\nalthough Cruz-Quintanilla describes his argument as one that challenges both “factual\n\nfindings and conclusions of law,” the undeniable crux of his claim is the same as that\n\npresented in Saintha: that he in fact “proved [] acquiescence by the Salvadoran\n\ngovernment officials,” and that the agency erred in concluding otherwise. Pet’r’s Br. 9,\n\n15. Because we lack jurisdiction to hear challenges to factual findings, we are unable to\n\n 9\n\freview the merits of Cruz-Quintanilla’s contention and dismiss that portion of his petition\n\nfor review.\n\n B.\n\n Cruz-Quintanilla next contends that the Board applied the wrong standard of\n\nreview in affirming the immigration judge’s determination that he is ineligible for relief\n\nunder the Convention. As we have explained before, whether the Board has applied the\n\nproper standard of review is a question of law for purposes of § 1252(a)(2)(D), Upatcha\n\nv. Sessions, 849 F.3d 181, 184 (4th Cir. 2017), and the government does not dispute that\n\nwe have jurisdiction under that provision. Our review of this legal issue is de novo, id.,\n\nand we conclude that the Board applied the wrong standard of review to the immigration\n\njudge’s finding that Cruz-Quintanilla did not establish a likelihood of government\n\nacquiescence within the meaning of the regulations.\n\n The Board’s review of immigration judges’ decisions is governed by 8 C.F.R.\n\n§ 1003.1(d)(3). Until 2002, that regulation provided for de novo review by the Board of\n\nall aspects of such decisions. In 2002, however, new regulations established a bifurcated\n\nstandard of review. Under the new standard, “findings of fact determined by an\n\nimmigration judge” are excepted from the general rule calling for de novo review, and\n\ninstead reviewed only for clear error. 8 C.F.R. § 1003.1(d)(3)(i). But the Board\n\ncontinues to review de novo “all other issues,” id. § 1003.1(d)(3)(ii), including, in cases\n\ninvolving mixed questions of law and fact, the application of the governing legal standard\n\nto the facts found by the immigration judge, Upatcha, 849 F.3d at 184; Massis v.\n\nMukasey, 549 F.3d 631, 636 n.6 (4th Cir. 2008). So to decide whether the Board\n\n 10\n\fproperly applied clear error review in this case, we must first consider whether the\n\nimmigration judge’s determination that Cruz-Quintanilla’s evidence failed to establish\n\ngovernment acquiescence represents a purely factual finding or the answer to a mixed\n\nquestion of law and fact.\n\n Our precedent makes clear that it is the latter. We already have held that the first\n\nprong of the torture inquiry – whether a petitioner has shown “likely future mistreatment”\n\nthat satisfies the regulatory definition of “torture” – is a mixed question of law and fact\n\nunder 8 C.F.R. § 1003.1(d)(3). Turkson, 667 F.3d at 529, 530. An immigration judge’s\n\nholding that a noncitizen likely will or will not face harm amounting to torture, we\n\nrecognized, does involve a purely factual determination – subject to clearly erroneous\n\nreview – in the form of a prediction as to “what would likely happen” to the noncitizen if\n\nremoved. Id. at 528–29 (citing Kaplun v. Att’y Gen., 602 F.3d 260 (3d Cir. 2010)). But\n\nwhether that predicted outcome satisfies the regulatory definition of “torture,” we held, is\n\na distinct question. Id. And an immigration judge’s answer to that question constitutes a\n\n“legal judgment” subject to de novo review, as it necessarily involves “applying the law\n\nto decided facts.” Id. at 528.\n\n Here, we consider whether Turkson’s hybrid approach to the first prong of the\n\ntorture inquiry applies also to the second, “acquiescence” prong. We conclude that it\n\ndoes. As Turkson explained with respect to a petitioner’s future treatment, the\n\n“acquiescence” prong, too, first requires that an immigration judge make an essentially\n\nfactual prediction as to “what would likely happen” upon removal – here, a “factual\n\nfinding or findings as to how public officials will likely act in response to the harm the\n\n 11\n\fpetitioner fears,” Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017). Those factual\n\nfindings are reviewable by the Board only for clear error, consistent with the relevant\n\nregulations. 8 C.F.R. § 1003.1(d)(3)(i). But just as the immigration judge in Turkson\n\nwas required to take another step, applying the regulatory definition of “torture” to his\n\npredictive factual findings, so too here: The immigration judge in this case was required\n\nto decide whether “how public officials will likely act” qualifies as “acquiescence” under\n\nthe relevant regulations. And like the Third Circuit, we think that determination amounts\n\nto a legal judgment that must be reviewed by the Board de novo. Accord Myrie, 855 F.3d\n\nat 516–17.\n\n Indeed, we can find no way to differentiate Turkson on this point. The regulations\n\nestablish a legal definition for “acquiescence” just as they define the suffering necessary\n\nto constitute “likely future mistreatment,” Turkson, 677 F.3d at 530. See 8 C.F.R.\n\n§§ 1208.18(a)(1), (a)(7). Turkson makes clear that whether “what would happen”\n\nsatisfies the “likely future mistreatment” prong of the torture inquiry is a legal judgment,\n\n667 F.3d at 528–29, and the same reasoning applies for whether “what the government\n\nwould do” meets the standard for the “acquiescence” prong. And while the Board\n\nreviews the immigration judge’s specific findings as to what will happen and what the\n\ngovernment will do for clear error only, the regulations require that it apply de novo\n\nreview when it comes to the immigration judge’s “application of the standard of law to\n\nthose facts.” Upatcha, 849 F.3d at 184 (internal quotation marks omitted).\n\n Our conclusion follows the holding of the only other court of appeals to address\n\nthis question. See Myrie, 855 F.3d at 516–17 (holding that an immigration judge’s\n\n 12\n\fassessment of whether the likely response from public officials qualifies as acquiescence\n\nis a legal question subject to de novo review by the Board). It also is fully consistent\n\nwith a line of cases from this court treating very similar immigration judge\n\ndeterminations as mixed questions of law and fact. In Massis, for instance, we applied\n\nthe same bifurcated approach to an immigration judge’s grant of a discretionary waiver,\n\nholding that while the clearly erroneous standard applies to the determination of “‘what\n\nhappened’ to the individual,” the Board reviews de novo “application of the law to those\n\nfacts – to determine, for example, whether those facts amount to ‘exceptional and\n\nextremely unusual hardship.’” 549 F.3d at 636 n.6 (quoting Board of Immigration\n\nAppeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878,\n\n54,888–90 (Aug. 26, 2002) (to be codified at 8 C.F.R. pt. 3)). We likewise held in\n\nUpatcha that an immigration judge’s determination as to whether a noncitizen has\n\nentered into a marriage in “good faith” involves both findings of historical fact, reviewed\n\nby the Board only for clear error, and also a legal judgment as to whether those facts\n\nsatisfy the regulatory standard for good faith marriage, which must be reviewed by the\n\nBoard de novo. 849 F.3d at 185. And that is before we even get to Turkson, of course, in\n\nwhich we took this same approach to the other half of the very torture inquiry before us\n\nnow.\n\n The Board did not follow that approach here. Instead, it treated government\n\nacquiescence as a solely factual finding subject to clear error review, citing our holding in\n\nSaintha for support. It is true, as discussed above, that Saintha describes an immigration\n\njudge’s determination as to government acquiescence as a factual finding that we lack\n\n 13\n\fjurisdiction to review. 516 F.3d at 250. But whether a court has jurisdiction to review an\n\nagency acquiescence determination is a separate question from how the Board should\n\nreview the acquiescence findings of an immigration judge, and Saintha speaks only to the\n\nfirst question, not the second.\n\n At issue in Saintha was § 1252(a)(2)’s “jurisdiction-stripping” provision, which\n\ncommits certain immigration matters – including challenges to removal orders by\n\npetitioners like Cruz-Quintanilla – to the “sound discretion of the Executive” rather than\n\nthat of the judiciary. Higuit, 433 F.3d at 420; see also Reno v. Am.-Arab Anti-\n\nDiscrimination Comm., 525 U.S. 471, 486 (1999) (describing the “theme of the\n\nlegislation” as “protecting the Executive’s discretion from the courts”). When Congress\n\namended that provision to except constitutional claims and questions of law, it was clear\n\nthat Congress intended only a narrow exception, and that the “default” rule remained that\n\nthe agency and not the courts should have the final word. Higuit, 433 F.3d at 419. And it\n\nwas against this background that Saintha, emphasizing the “narrow scope” of\n\n§ 1252(a)(2)(D)’s exception, 516 F.3d at 248, held that a final agency determination on\n\nacquiescence is for jurisdictional purposes a factual finding, outside the “narrowly\n\ncircumscribed jurisdiction” of the federal courts, id. (quoting Higuit, 433 F.3d at 419).\n\n Here, on the other hand, we consider a different question: not the division of\n\nauthority between the Executive and the judiciary, to which Congress spoke in\n\n§ 1252(a)(2), but the division of labor within the agency itself, governed by agency\n\nregulations set out in 8 C.F.R. § 1003.1(d)(3). And here, the default presumptions are\n\nreversed. Before 2002, the Board reviewed all parts of an immigration judge’s decision\n\n 14\n\fde novo; in 2002, amended regulations carved out an exception for findings of fact and\n\ncredibility determinations, which now are reviewed only for clear error. See Upatcha,\n\n849 F.3d at 184. Again, as with § 1252(a)(2), it was the exception that was to be\n\nconstrued narrowly, to apply “only to ‘the specific findings of fact’” of immigration\n\njudges. Id. (quoting 67 Fed. Reg. at 54,890). With respect to mixed questions of law and\n\nfact, the agency made clear, the Board would defer to an immigration judge’s factual\n\nfindings but “retain [its] independent judgment and discretion . . . regarding . . .\n\napplication of the standard of law to those facts.” Id. (second alteration in original)\n\n(quoting 67 Fed. Reg. at 54,888).\n\n Given this regulatory assignment of broad inter-agency review authority to the\n\nBoard, Turkson properly characterized an immigration judge’s determination under the\n\nfirst prong of the torture inquiry as a mixed question of law and fact, with the judge’s\n\napplication of law to fact subject to de novo review under 8 C.F.R. § 1003.1(d)(3). We\n\ndo no more today than adopt the same reasoning and the same result with respect to an\n\nimmigration judge’s determination under the second, “acquiescence” prong of the very\n\nsame torture inquiry. And Saintha, of course, continues to govern application of\n\n§ 1252(a)(2)’s jurisdictional provisions.\n\n Although we take this opportunity to explain our holding in some detail, we note\n\nthat the government does not dispute its essentials, agreeing that Turkson’s hybrid\n\nstandard of review applies in this case, as well. Instead, the government defends the\n\ndecision here by arguing that the Board in fact did apply that hybrid standard, and did\n\nnot, as Cruz-Quintanilla contends, treat the immigration judge’s acquiescence\n\n 15\n\fdetermination as a purely factual finding subject only to clear error review. We cannot\n\nagree. The Board’s opinion is unambiguous on this point: After setting out Cruz-\n\nQuintanilla’s position, the Board rejects it because “[Cruz-Quintanilla] has not\n\nestablished clear error in the Immigration Judge’s factual finding that the Salvadoran\n\ngovernment would not acquiesce in his torture.” A.R. 3 (emphases added). The Board\n\nfollows with a citation to Saintha for the proposition that “whether the government\n\nacquiesces in torture is a factual finding,” and then concludes that it “discern[s] no clear\n\nerror [in] the Immigration Judge’s finding that the Salvadoran government does not\n\nacquiesce in torture.” Id. A fair reading of the opinion leaves no doubt that the Board\n\nreviewed the immigration judge’s acquiescence determination only for clear error, failing\n\nto bring to bear its “independent judgment,” Upatcha, 849 F.3d at 184 (internal quotation\n\nmarks omitted), as to whether the predictive facts found by the immigration judge\n\nsatisfied the regulatory standard for government acquiescence. 2 Accordingly, we remand\n\nso that the Board may review the immigration judge’s acquiescence determination under\n\nthe correct standard of review.\n\n\n\n\n 2\n As the government notes, the Board at the start of its opinion cites Turkson and\nits hybrid standard of review in affirming the immigration judge’s ultimate conclusion\nthat Cruz-Quintanilla is ineligible for relief under the Convention. A.R. 2–3. But that\nconclusion rests critically on the immigration judge’s acquiescence determination, which\nthe Board failed to subject to the requisite scrutiny. The Board, that is, affirmed the\nimmigration judge’s ultimate holding because and only because it “discern[ed] no clear\nerror [in] the Immigration Judge’s finding that the Salvadoran government does not\nacquiesce in torture.” A.R. 3. On remand, the Board will have the opportunity to apply\nthe correct standard of review to that crucial determination.\n\n 16\n\f III.\n\n For the foregoing reasons, we dismiss in part and grant in part Cruz-Quintanilla’s\n\npetition for review, and remand the case to the Board for further proceedings consistent\n\nwith this opinion.\n\n\n\n PETITION FOR REVIEW DISMISSED IN PART AND GRANTED IN PART;\n REMANDED FOR FURTHER PROCEEDINGS\n\n\n\n\n 17", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364001/", "author_raw": "PAMELA HARRIS, Circuit Judge:"}]} | MOTZ | KEENAN | HARRIS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4586748/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,587,201 | UNITED STATES of America, Plaintiff - Appellee, v. James Eric JONES, Defendant - Appellant. | United States v. James Jones | 2019-02-04 | 18-6070 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "King, Niemeyer, Wynn", "parties": "", "opinions": [{"author": "KING, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-6070\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n v.\n\nJAMES ERIC JONES,\n\n Defendant – Appellant.\n\n\nAppeal from the United States District Court for the District of South Carolina, at\nFlorence. Terry L. Wooten, Chief District Judge. (4:06-cr-01238-TLW-1; 4:16-cv-\n01447-TLW)\n\n\nArgued: December 13, 2018 Decided: February 4, 2019\n\n\nBefore NIEMEYER, KING, and WYNN, Circuit Judges.\n\n\nVacated and remanded by published opinion. Judge King wrote the opinion, in which\nJudge Niemeyer and Judge Wynn joined.\n\n\nARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Columbia, South Carolina, for Appellant. Robert Frank Daley, Jr.,\nOFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for\nAppellee. ON BRIEF: Casey P. Riddle, Assistant Federal Public Defender, William F.\nNettles, IV, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Florence, South Carolina, for Appellant. Beth Drake, United States\nAttorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,\nfor Appellee.\n\fKING, Circuit Judge:\n\n James Eric Jones appeals from a decision in the District of South Carolina denying\n\nhis 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, which was\n\nimposed more than ten years ago in 2008. By his motion, Jones sought to be resentenced\n\nbased on the contention that — in light of recent Supreme Court decisions — he no\n\nlonger qualifies for the fifteen-year mandatory minimum sentence required by the Armed\n\nCareer Criminal Act (the “ACCA”). According to Jones, he does not have the three\n\npredicate convictions that are required to be properly designated as an “armed career\n\ncriminal.” More specifically, he maintains that his South Carolina felony conviction for\n\nassaulting, beating, or wounding a law enforcement officer while resisting arrest\n\n(hereinafter, the “ABWO offense”) is not a “violent felony” predicate conviction under\n\nthe ACCA. As explained below, we agree with Jones that the ABWO offense is not an\n\nACCA “violent felony,” and we thus vacate and remand.\n\n\n\n I.\n\n A.\n\n On April 10, 2007, a jury in South Carolina found Jones guilty of the federal\n\noffense of possessing a firearm as a convicted felon, in violation of 18 U.S.C.\n\n§ 922(g)(1). Leading to his sentencing hearing, the probation officer prepared a\n\npresentence report (the “PSR”) that recommended to the district court that Jones be\n\ndesignated as an “armed career criminal” under the ACCA. The ACCA mandates that a\n\ndefendant who contravenes § 922(g)(1) is subject to a minimum sentence of fifteen years\n\n 2\n\f— as opposed to the otherwise applicable ten-year maximum for that offense — if the\n\ndefendant has three prior “violent felony” or “serious drug offense” convictions. See 18\n\nU.S.C. § 924(a)(2), (e)(1). 1 Although the PSR did not identify the specific offenses on\n\nwhich it relied for the ACCA enhancement, it identified several prior convictions of\n\nJones for South Carolina offenses, including those for attempted burglary, second-degree\n\nburglary, and strong arm robbery. In addition, the PSR relied on an ABWO offense,\n\nwhich violates South Carolina Code section 16-9-320(B) (hereinafter, the “ABWO\n\nstatute”), plus two convictions for assault and battery of a high and aggravated nature\n\n(“ABHAN”).\n\n At the sentencing hearing conducted on March 20, 2008, the district court ruled —\n\nconsistent with the PSR — that Jones was an armed career criminal because he had at\n\nleast three prior “violent felony” convictions. Pursuant to the ACCA, a “violent felony”\n\nis any crime punishable by a term of imprisonment exceeding one year that:\n\n (i) has as an element the use, attempted use, or threatened use of physical\n force against the person of another [the “force clause”]; or\n\n (ii) is burglary, arson, or extortion, involves use of explosives [the\n “enumerated crimes clause”], or otherwise involves conduct that presents a\n serious potential risk of physical injury to another [the “residual clause”].\n\n\n\n\n 1\n Section 924(a)(2) of Title 18 provides that a defendant convicted of violating\n§ 922(g)(1) shall be imprisoned not more than ten years. If the defendant has three\nACCA predicate convictions, however, § 924(e)(1) of Title 18 requires that he be\nimprisoned not less than fifteen years. A defendant who satisfies the criteria for an\nACCA mandatory minimum enhancement is an “armed career criminal.”\n\n\n 3\n\fSee 18 U.S.C. § 924(e)(2)(B). The ACCA thus contains three distinct clauses (i.e., the\n\nforce clause, the enumerated crimes clause, and the residual clause) that define a “violent\n\nfelony.”\n\n Relying on the ACCA’s force and enumerated crimes clauses, the district court\n\ndetermined that Jones’s prior convictions for attempted burglary, second-degree burglary,\n\nand strong arm robbery were ACCA “violent felon[ies],” and were thus ACCA predicate\n\noffenses. Although the Government argued that Jones’s other convictions — the ABWO\n\noffense and the ABHAN offenses — also constituted ACCA predicates, the court did not\n\naddress that proposition. Because of his armed career criminal designation, Jones was\n\nsubject to a mandatory minimum sentence of fifteen years. The court sentenced him to\n\n456 months in prison. 2\n\n Jones appealed his conviction and sentence to this Court, and his counsel filed\n\nwhat we call an “Anders brief,” advising us that he could not identify any reversible\n\nerror, but questioning whether the sentencing court had correctly designated Jones to be\n\nan armed career criminal. 3 Relying on Jones’s convictions for second-degree burglary,\n\n\n 2\n At the sentencing hearing for Jones on March 20, 2008, the district court\npronounced a 520-month sentence. Five days later, however, the court sua sponte\nreconvened and imposed a sentence of 456 months. Absent his armed career criminal\ndesignation, Jones’s maximum potential punishment would have been 120 months.\n 3\n An “Anders brief” takes its name from the Supreme Court’s decision in Anders v.\nCalifornia, 386 U.S. 738 (1967). Pursuant thereto, a lawyer who concludes that an\nappeal on behalf of his criminal defendant client would be “wholly frivolous” should\nadvise the appellate court as such and request permission to withdraw from\nrepresentation, but not before filing “a brief referring to anything in the record that might\narguably support the appeal.” See id. at 744.\n\n\n 4\n\fstrong arm robbery, and the ABHAN offenses, we ruled that Jones had been correctly\n\nclassified as an armed career criminal and affirmed. See United States v. Jones, 312 F.\n\nApp’x 559, 560 (4th Cir. 2009). Jones unsuccessfully petitioned for certiorari in the\n\nSupreme Court of the United States. See Jones v. United States, 557 U.S. 927 (2009).\n\nHe thereafter also sought collateral relief by way of a 28 U.S.C. § 2255 motion, which the\n\ndistrict court denied. In 2011, we affirmed the court’s denial of § 2255 relief. See United\n\nStates v. Jones, 419 F. App’x 365, 365 (4th Cir. 2011).\n\n B.\n\n Five years later, in April 2016, Jones moved us for authorization to file a\n\nsuccessive motion under 28 U.S.C. § 2255, predicated on the Supreme Court’s 2015\n\ndecision in Johnson v. United States, 135 S. Ct. 2551 (2015) (hereinafter, “Johnson II”). 4\n\nSee 28 U.S.C. §§ 2244(b)(3); 2255(h) (specifying procedures and standards for filing\n\nsuccessive § 2255 motions). The Johnson II decision had invalidated as\n\nunconstitutionally vague the residual clause of the ACCA’s “violent felony” definition, as\n\ncodified in § 924(e)(2)(B)(ii). That decision, however, left intact the ACCA’s other two\n\nclauses defining a “violent felony,” i.e., the force clause and enumerated crimes clause.\n\nSee 135 S. Ct. at 2563. Soon thereafter, in Welch v. United States, the Court ruled that\n\nJohnson II applies retroactively to cases on collateral review. See 136 S. Ct. 1257, 1268\n\n\n 4\n We identify the Supreme Court’s 2015 Johnson v. United States decision as\n“Johnson II.” We do so because the Court had rendered an earlier decision in 2010 also\ncalled Johnson v. United States, 559 U.S. 133 (2010) (hereinafter, “Johnson I”), where it\nlikewise addressed the ACCA.\n\n\n 5\n\f(2016). As a result of the Court’s rulings in Johnson II and Welch, we authorized Jones\n\nto file a successive § 2255 motion in the district court.\n\n By way of his § 2255 motion, Jones contended that he no longer qualified for an\n\nACCA-enhanced sentence and that he was entitled to be resentenced to no more than ten\n\nyears. The Government disagreed, however, and moved for summary judgment. It\n\nasserted — even after Johnson II — that Jones yet had at least three predicate “violent\n\nfelony” convictions. In particular, the Government argued that Jones had been twice\n\nconvicted of strong arm robbery in South Carolina and once convicted of the ABWO\n\noffense. Significantly, the Government no longer argued that Jones’s convictions for\n\nattempted burglary, second-degree burglary, and the ABHAN offenses were ACCA\n\npredicate convictions, apparently because of intervening decisions from the Supreme\n\nCourt and this Court interpreting the ACCA’s definition of a “violent felony.”\n\n On January 11, 2018, the district court granted summary judgment to the\n\nGovernment and denied Jones’s § 2255 motion. See United States v. Jones, No. 4:06-cr-\n\n01238 (D.S.C. Jan. 11, 2018), ECF No. 204. In so ruling, the court relied on our 2016\n\ndecision in United States v. Doctor, where we concluded — notwithstanding Johnson II\n\n— that South Carolina’s strong arm robbery offense is a “violent felony” under the\n\nACCA’s force clause. See 842 F.3d 306, 312 (4th Cir. 2016). The summary judgment\n\ndecision thus ruled that Jones still had at least two ACCA predicate convictions. The\n\ncourt then also concluded that other convictions earlier used to declare Jones an armed\n\ncareer criminal — attempted burglary, second-degree burglary, and the ABHAN offenses\n\n— no longer qualify as ACCA predicate offenses. Consequently, the court recognized\n\n 6\n\fthat Jones’s armed career criminal designation depended solely on whether his ABWO\n\noffense constitutes an ACCA “violent felony.” The court then ruled that the ABWO\n\noffense is a “violent felony” under the force clause of the ACCA, that Jones had thus\n\nbeen properly sentenced as an armed career criminal, and that he was not entitled to\n\n§ 2255 relief.\n\n The district court nevertheless saw fit to issue Jones a certificate of appealability.\n\nSee 28 U.S.C. § 2253(c) (providing that a court of appeals can only review the final order\n\nin a § 2255 proceeding if a circuit justice or judge issues a certificate of appealability\n\nbased on “a substantial showing of the denial of a constitutional right”). Jones has timely\n\nappealed from the denial of his § 2255 motion, and we possess jurisdiction pursuant to 28\n\nU.S.C. §§ 1291 (providing for appellate review of final decision of district court);\n\n2253(a), (c) (providing for appellate review of final order in § 2255 proceeding after\n\nissuance of certificate of appealability); and 2255(d) (providing for appellate review of\n\norder entered on § 2255 motion). 5\n\n\n\n II.\n\n We review de novo a district court’s legal conclusions concerning a denial of\n\n§ 2255 relief. See United States v. Carthorne, 878 F.3d 458, 464 (4th Cir. 2017). Our\n\n\n 5\n If Jones prevails in this appeal — as the parties agree — he will have served\nmore than the ten-year maximum permissible sentence for his firearm offense. After oral\nargument in early December 2018, we therefore granted his release on bond pending\nresolution of the appeal.\n\n\n 7\n\fplenary review of such a denial encompasses the question of whether a prior conviction\n\nqualifies as a “violent felony” under the ACCA. See United States v. Smith, 882 F.3d\n\n460, 462 (4th Cir. 2018). A prisoner is entitled to § 2255 relief if he can “show that his\n\nsentence is unlawful.” See United States v. Hodge, 902 F.3d 420, 426 (4th Cir. 2018);\n\nsee also 28 U.S.C. § 2255(b) (recognizing that movant is entitled to § 2255 relief if his\n\nsentence “was not authorized by law”). As pertinent here, “[a] sentence is unlawful\n\nwithin the meaning of § 2255 when it was enhanced under the ACCA based on three\n\nACCA predicate convictions and one or more of those predicates [becomes] invalid.”\n\nSee Hodge, 902 F.3d at 426. Put succinctly, an ACCA-enhanced sentence is illegal if a\n\nretroactive change in the applicable law leaves the enhancement unsupported by the\n\nnecessary three predicate convictions. See United States v. Newbold, 791 F.3d 455, 460\n\n(4th Cir. 2015) (explaining that “there are serious, constitutional, separation-of-powers\n\nconcerns that attach to sentences above the statutory maximum penalty authorized by\n\nCongress” (internal quotation marks omitted)).\n\n\n\n III.\n\n On appeal, Jones contends that the district court erred in ruling that the ABWO\n\noffense is a “violent felony” under the ACCA’s force clause. Jones maintains that the\n\nABWO offense is not a “violent felony” under the applicable categorical approach\n\nbecause it does not have, as an element, the use, attempted use, or threatened use of\n\nphysical force. More specifically, Jones argues that the Supreme Court has ruled that the\n\nACCA’s force clause applies only to those felony offenses that categorically involve\n\n 8\n\fviolent physical force, see Johnson I, 559 U.S. 133, 140 (2010), and that the ABWO\n\noffense can be committed without the use, attempted use, or threatened use of such\n\nforce. 6\n\n The Government agrees with Jones that the categorical approach applies in these\n\nproceedings. It nevertheless argues, however, that the district court did not err in ruling\n\nthat the ABWO offense is a “violent felony.” The Government contends that the ABWO\n\noffense fits squarely within the ACCA’s force clause because, in order to commit that\n\noffense, a person must use or threaten to use violent physical force against another.\n\nConsequently, our resolution of this appeal turns on whether a conviction for the ABWO\n\noffense requires the use, attempted use, or threatened use of violent physical force. 7\n\nBefore resolving that question, however, we will first explain how the categorical\n\napproach applies to the ABWO offense.\n\n A.\n\n We begin our analysis with the parties’ agreement that the categorical approach\n\napplies to our assessment of the ABWO statute. As a general proposition, we are obliged\n\nto use the categorical approach when deciding whether a state offense constitutes a\n\n\n 6\n Jones also contends on appeal that our decision in United States v. Doctor, 842\nF.3d 306 (4th Cir. 2016), was erroneously decided. That is, he asserts that the offense of\nstrong arm robbery in South Carolina does not qualify as a “violent felony,” and that\nDoctor is wrong. As he acknowledges, however, “one panel of this Court is not entitled\nto overrule another panel.” See United States v. Said, 798 F.3d 182, 193 (4th Cir. 2015).\n 7\n Neither party contends on appeal that the enumerated crimes clause is pertinent\nto our analysis of whether the ABWO offense is a “violent felony.”\n\n\n 9\n\f“violent felony.” See United States v. Townsend, 886 F.3d 441, 444 (4th Cir. 2018). We\n\nwill not apply the categorical approach, however, when the relevant state statute is\n\n“divisible,” that is, if the statute lists “elements in the alternative and thereby define[s]\n\nmultiple crimes.” See United States v. Dozier, 848 F.3d 180, 183 (4th Cir. 2017)\n\n(alteration and internal quotation marks omitted); see also Descamps v. United States,\n\n570 U.S. 254, 258 (2013) (explaining that categorical approach must be used unless\n\nstatute at issue is divisible).\n\n The ABWO statute provides, in pertinent part, that it is a felony punishable by ten\n\nyears in prison for any person\n\n to knowingly and wilfully assault, beat, or wound a law enforcement officer\n engaged in serving, executing, or attempting to serve or execute a legal writ\n or process or to assault, beat, or wound an officer when the person is\n resisting an arrest being made by one whom the person knows or\n reasonably should know is a law enforcement officer, whether under\n process or not.\n\nSee S.C. Code Ann. § 16-9-320(B). Put succinctly, we agree that the categorical\n\napproach applies to the ABWO offense and that the ABWO statute is indivisible.\n\nAlthough that statute identifies three types of offending physical actions (that is,\n\nassaulting, beating, or wounding), those actions are simply different ways of satisfying a\n\nsingle element of the ABWO offense. See Mathis v. United States, 136 S. Ct. 2243,\n\n2256-57 (2016) (explaining difference between elements of offense and means of\n\ncommission). In other words, the ABWO statute contains a single physical action\n\nelement and that element can be satisfied by proof of any one of the three specified\n\nmeans of commission.\n\n\n 10\n\f At least two other sound reasons support our determination concerning the\n\napplicability of the categorical approach. First, there is no authority from the South\n\nCarolina courts requiring that a jury agree on the way the defendant’s physical action\n\ncontravened the statute. See Mathis, 136 S. Ct. at 2256 (observing that, where jury need\n\nnot make unanimous finding as to any item contained in statutory list, the listed items are\n\neach single means of committing offense). To the contrary, the only South Carolina\n\nappellate decision we have identified that discusses jury instructions for the ABWO\n\noffense recounts that the trial court had instructed the jury that it only had to find that the\n\ndefendant had assaulted, beaten, or wounded the police officer. See State v. Williams,\n\n624 S.E.2d 443, 446 (S.C. Ct. App. 2005). Second, the ABWO statute does not provide\n\nfor any alternative punishments that depend on whether the defendant had either\n\nassaulted, beaten, or wounded the officer. See Mathis, 136 S. Ct. at 2256 (explaining that\n\ncourt can look to whether “statutory alternatives carry different punishments”). We are\n\ntherefore satisfied to apply the categorical approach to the ABWO offense. 8\n\n\n 8\n Even if those two features of the ABWO offense — a single physical action\nelement and the same punishment for each physical action — failed to satisfy the inquiry\nof whether the categorical approach applies to the ABWO statute, we could reach that\nconclusion for yet another sound reason. Specifically, taking a “peek” at the state court\nindictment for the ABWO offense in Jones’s prosecution, it tracks the statutory language\nand charges him with assaulting, beating, or wounding an officer. See Mathis, 136 S. Ct.\nat 2257 (recognizing that, where case law or other sources do not “clearly answer”\nwhether a statute is divisible, a court can look to certain pertinent state court documents\n— such as an indictment — to determine whether to apply the categorical approach). As\nthe Supreme Court has explained, when a charging document “reiterat[es] all the terms of\n[the state] law,” that is “an indication . . . that each alternative is only a possible means of\ncommission.” See id.\n\n\n 11\n\f B.\n\n 1.\n\n With application of the categorical approach being resolved, we turn to how that\n\napproach applies in this appeal. We have recognized that the categorical approach\n\n“focuses on the elements, rather than the facts, of the prior offense.” See United States v.\n\nShell, 789 F.3d 335, 338 (4th Cir. 2015) (alteration and internal quotation marks omitted).\n\nWhen we use the categorical approach to resolve whether a state offense qualifies as a\n\n“violent felony” under the ACCA’s force clause, “we examine whether [that offense] has\n\nas an element the use, attempted use, or threatened use of physical force against the\n\nperson of another.” See United States v. Burns-Johnson, 864 F.3d 313, 316 (4th Cir.\n\n2017); see also 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent felony” in ACCA’s force\n\nclause as offense that “has as an element the use, attempted use, or threatened use of\n\nphysical force against the person of another”). In making that analysis, we utilize the\n\nSupreme Court’s understanding of the phrase “physical force,” as used in the ACCA,\n\nwhich the Court interprets as “violent force — that is, force capable of causing physical\n\npain or injury to another person.” See Johnson I, 559 U.S. at 140.\n\n To decide whether a particular state offense includes the use, attempted use, or\n\nthreatened use of violent physical force, we are entitled to turn to the relevant state court\n\ndecisions to discern “the minimum conduct required to sustain a conviction for [that\n\noffense].” See Doctor, 842 F.3d at 308 (internal quotation marks omitted); see also\n\nUnited States v. Middleton, 883 F.3d 485, 488 (4th Cir. 2018) (explaining that the\n\ncategorical approach “requires courts to review the most innocent conduct that the law\n\n 12\n\fcriminalizes” (internal quotation marks omitted)). Such minimum conduct includes any\n\nconduct that there is a “realistic probability” the state would punish under its criminal\n\nstatute. See Doctor, 842 F.3d at 308. If there is a realistic probability that the state would\n\napply the statute to conduct that does not involve the use, attempted use, or threatened\n\nuse of violent physical force against another, then the offense is not categorically a\n\n“violent felony” under the ACCA’s force clause, and it is thus not an ACCA predicate\n\nunder that clause. See Middleton, 883 F.3d at 488 (“If the offense sweeps more broadly\n\nthan the ACCA’s definition of a violent felony, the offense does not qualify as an ACCA\n\npredicate.” (internal quotation marks omitted)).\n\n 2.\n\n With the foregoing principles in mind, we will examine the minimum conduct to\n\nwhich South Carolina might reasonably apply the ABWO statute. Of the three physical\n\nactions specified in the ABWO statute, an “assault” would be the least likely to involve\n\nviolent physical force. We will thus focus our minimum conduct analysis on the meaning\n\nof an “assault” under South Carolina law.\n\n The Supreme Court of South Carolina has defined an “assault” in various but\n\nsimilar ways. 9 For example, an assault is an “attempted battery or an unlawful attempt or\n\noffer to commit a violent injury upon another person, coupled with the present ability to\n\n 9\n Because the ABWO statute does not define an “assault,” we must look to\ndecisions of the South Carolina appellate courts describing that term. See United States\nv. Carthorne, 726 F.3d 503, 512 (4th Cir. 2013) (analyzing Virginia common law\ndefinition of assault where Virginia statute criminalizing assault against officer failed to\ndefine assault).\n\n\n 13\n\fcomplete the attempt or offer by a battery.” See State v. Sutton, 532 S.E.2d 283, 285-86\n\n(S.C. 2000) (internal quotation marks omitted); see also State v. Sanders, 75 S.E. 702,\n\n703 (S.C. 1912) (describing assault as attempt or offer to commit battery). 10 In other\n\ndecisions, the state supreme court has described an assault as “intentionally creat[ing] a\n\nreasonable apprehension of bodily harm” in another person by words and conduct. See,\n\ne.g., In re McGee, 299 S.E.2d 334, 334 (S.C. 1983). Along with those descriptions, the\n\ncourt has identified certain actions that might constitute an assault, including raising a fist\n\n“within striking distance [of another], pointing a gun [at another] within the distance it\n\nwill carry, [or] spitting in [another’s] face.” See Sanders, 75 S.E. at 703 (quoting State v.\n\nDavis, 19 S.C.L. (1 Hill) 46 (1833)).\n\n In addition to recognizing and describing an assault as a stand-alone common law\n\noffense, the Supreme Court of South Carolina has construed the term “assault” in the\n\ncontext of common law assault and battery. In one situation, the court explained that an\n\nassault and battery is “any touching of the person of an individual in a rude or angry\n\nmanner, without justification.” See State v Mims, 335 S.E.2d 237, 237 (S.C. 1985). The\n\ncourt therein recognized that an assault differs from an assault and battery only “in that\n\nthere is no touching of the victim.” See id. 11 Under Mims, an assault occurs when a\n\n\n 10\n In State v. Jackson, a decision preceding State v. Sutton and State v. Sanders, the\nSupreme Court of South Carolina defined an “assault,” similarly to those decisions, as\n“an offer or attempt to do violence to the person of another, in a rude, angry, or resentful\nmanner.” See 10 S.E. 769, 771 (S.C. 1890).\n 11\n Consistent with the state supreme court’s Mims decision, the Court of Appeals\nof South Carolina has recognized that “[a]ssault differs from assault and battery in that\n(Continued)\n 14\n\fperson attempts to touch another “in a rude or angry manner, without justification.” See\n\nid.; see also Sutton, 532 S.E.2d at 285-86 (recognizing attempted battery type of assault).\n\nIn Mims, however, the court also explained that it had previously defined an “assault” as\n\nan attempt or offer to commit a violent injury, not just a rude or angry touching. See 335\n\nS.E.2d at 237.\n\n 3.\n\n a.\n\n Notwithstanding the existence of some tension between the definitions of an\n\n“assault” provided by the South Carolina courts, we are satisfied that an assault under\n\nSouth Carolina law can be committed without the use, attempted use, or threatened use of\n\nviolent physical force. More specifically, pursuant to both Sutton and Mims, a person can\n\nperpetrate an assault by attempting to touch another in a rude or angry manner. See State\n\nv. LaCoste, 553 S.E.2d 464, 471 (S.C. Ct. App. 2001) (discussing Mims’s definition of\n\nassault and battery in describing assault). Our determination today is consistent with the\n\nSouth Carolina high court’s recognition that spitting at another’s face — which can be\n\naccomplished in a rude or angry manner but without violent physical force — constitutes\n\nan assault. See Sanders, 75 S.E. at 703.\n\n With the breadth of South Carolina’s assault principles so understood, we must\n\nresolve whether there is a realistic probability that the state would in fact apply the\n\n\n\nthere is no touching of the victim in an assault.” See, e.g., State v. Murphy, 471 S.E.2d\n739, 741 (S.C. Ct. App. 1996); In re Doe, 458 S.E.2d 556, 560 (S.C. Ct. App. 1995).\n\n\n 15\n\fABWO offense to an assault involving only an attempt to touch an officer in a rude or\n\nangry manner while resisting arrest, such as spitting at the officer. Because South\n\nCarolina courts have actually applied the ABWO statute in such a situation, we are\n\nconvinced that the realistic probability test has been satisfied. Specifically, in State v.\n\nBurton, a jury convicted the defendant of violating the ABWO statute by spitting blood\n\non an officer’s boot. See 562 S.E.2d 668, 670 (S.C. Ct. App. 2002). After the\n\nintermediate court of appeals vacated the defendant’s conviction because of a Fourth\n\nAmendment violation, see id. at 674, the state supreme court reinstated Burton’s\n\nconviction, see State v. Burton, 589 S.E.2d 6, 9 (S.C. 2003). Although neither court\n\ndirectly addressed the issue of whether the defendant had been properly charged and\n\nconvicted under the ABWO statute, we are satisfied that Burton’s conviction by jury for\n\nthe ABWO offense, plus the Supreme Court of South Carolina’s reinstatement of that\n\nconviction, satisfies the reasonable probability inquiry. Because South Carolina applies\n\nthe ABWO statute to conduct that does not involve the use, attempted use, or threatened\n\nuse of violent physical force against another, the ABWO offense is not categorically a\n\n“violent felony” under the ACCA’s force clause. 12\n\n Our conclusion is informed by, and faithful to, our 2013 decision concerning the\n\nSouth Carolina ABHAN offense in United States v. Hemingway, 734 F.3d 323 (4th Cir.\n\n\n 12\n In support of its position on appeal, the Government points to several South\nCarolina decisions wherein defendants were convicted under the ABWO statute for\nconduct that undoubtedly involves violent physical force. Its minimal conduct\ndiscussion, however, does not confront the Burton case.\n\n\n 16\n\f2013). We concluded therein that ABHAN, and its lesser included offense of South\n\nCarolina common law assault of a high and aggravated nature (“AHAN”), are not\n\n“violent felon[ies]” under the ACCA’s force clause. See id. at 335, 338 n.14. Regarding\n\nthe ABHAN offense, we ruled that it is not a “violent felony” because it “can be\n\ncommitted even if no real force was used against the victim.” See id. at 335 (internal\n\nquotation marks omitted). With respect to AHAN, we explained that the offense has the\n\nsame elements as ABHAN except for a “completed act of violence.” See id. at 338 n.14.\n\nBecause AHAN is a lesser included offense of ABHAN, we concluded that our ruling on\n\nthe ABHAN offense led “inescapably to the conclusion that AHAN is also not\n\ncategorically an ACCA violent felony.” See id.\n\n Hemingway thus provides strong support for our determination today that an\n\nassault under South Carolina law can be committed without the use, attempted use, or\n\nthreatened use of violent physical force. 13 Indeed, it would be logically inconsistent with\n\nHemingway for us to now decide that an assault in South Carolina necessarily requires\n\nthe use, attempted use, or threatened use of such violent physical force, when we have\n\nalready ruled that a South Carolina assault and battery does not. We are therefore\n\nsatisfied that the ABWO offense is not an ACCA “violent felony” and that the district\n\ncourt erred in ruling otherwise.\n\n\n 13\n Our conclusion today that an assault in South Carolina can be committed\nwithout employing violent physical force is also consistent with our recent unpublished\ndecision in United States v. Dinkins, 714 F. App’x 240 (4th Cir. 2017). There, we\nexplained that, under South Carolina law, “neither assault nor battery involve the type of\nviolent, physical injury required by the ACCA force clause.” See id. at 242.\n\n\n 17\n\f b.\n\n The Government resists our ruling today for several reasons, but none are\n\nconvincing. It contends, for example, that an “assault” within the ABWO statute has an\n\n“elevated” meaning because it is included in a list with “beat” and “wound.” See Br. of\n\nAppellee 15. The Government fails, however, to identify any South Carolina precedent\n\nsupporting that proposition. And if the South Carolina legislature intended for an\n\n“assault” to carry a unique meaning within the context of the ABWO statute, it knew how\n\nto specify that meaning. See S.C. Code Ann. § 16-3-600 (prohibiting several different\n\nforms of assault and battery and defining their elements). 14\n\n The Government emphasizes that its position on appeal is supported by a 2009\n\nopinion letter of the South Carolina Attorney General. The Attorney General therein\n\noffers his views on actions that contravene the ABWO statute, and he contrasts\n\nsubsection (B) thereof with subsection (A), which concerns a misdemeanor resisting\n\n 14\n The Government also argues that our decision to assign “assault” its ordinary\nmeaning under South Carolina law leads to an absurd result. More specifically, it asserts\nthat, under our reading of the ABWO statute, a person who attempts and fails to touch an\nofficer in a rude or angry manner will have contravened the statute; in contrast, a person\nwho succeeds in his attempt to touch the officer in a rude or angry manner will not have\nviolated the statute, unless that touch constitutes a beating or wounds the officer. The\nGovernment’s position, however, overlooks the proposition that a battery has been\ndefined as a completed assault. See United States v. Hampton, 628 F.3d 654, 660 (4th\nCir. 2010); State v. Chase, No. 2011-UP-210, 2011 WL 11734321, at *8 (S.C. Ct. App.\nMay 11, 2011). Accordingly, in the Government’s hypothetical, both persons could be\ncharged under the ABWO statute because they both committed an assault. Additionally,\nthe Government overlooks that, in the Burton case, the defendant was convicted of\nviolating the ABWO statute even though he completed his attempt to touch the officer in\na rude or angry manner, that is, by spitting blood on the officer. See 589 S.E.2d at 8; 562\nS.E.2d at 670.\n\n\n 18\n\farrest offense and does not use the phrase “assault, beat, or wound.” See Letter from\n\nAtt’y Gen. to Investigator/General Counsel to Pickens Cty. Sheriff’s Office (Jan. 22,\n\n2009), available at 2009 WL 276750.\n\n Although the Attorney General’s opinion arguably supports the Government’s\n\ncontention that the ABWO statute satisfies the force clause, it is only one view as to how\n\nthe statute should be applied. Under South Carolina law, the Attorney General’s opinions\n\nare not binding on the courts. See State v. Ramsey, 762 S.E.2d 15, 18 (S.C. 2014); S.C.\n\nPub. Interest Found. v. Greenville Cty., 737 S.E.2d 502, 505 n.3 (S.C. Ct. App. 2013).\n\nInsofar as the Attorney General’s view could constitute persuasive authority, the letter\n\nfailed to consider the Burton decision and several of the other decisions discussed\n\nheretofore. Cf. United States v. Lawson, 677 F.3d 629, 654 (4th Cir. 2012) (concluding\n\nthat the Attorney General’s opinion was persuasive “[i]n the absence of any South\n\nCarolina law to the contrary”). Put simply, we are not convinced that the Attorney\n\nGeneral’s letter requires us to reach another result.\n\n Finally, the Government relies on the Supreme Court’s recent decision in\n\nStokeling v. United States, No. 17-5554 (U.S. Jan. 15, 2019). There, the Court\n\nconsidered the question of whether the Florida offense of robbery, as codified in section\n\n812.13(1) of the Florida Statutes, constitutes a “violent felony” under the ACCA’s force\n\nclause. See Stokeling, slip op. at 2-3. Section 812.13(1) defines “robbery” as “the taking\n\nof money or other property . . . from the person or custody of another . . . when in the\n\ncourse of the taking there is the use of force.” As the Stokeling Court explained, under\n\nFlorida law, force that overcomes the victim’s resistance is sufficient to support a robbery\n\n 19\n\fconviction. Id. at 2. Relying on “the history of [the] ACCA” and the Johnson I decision,\n\nthe Court concluded that the Florida offense of robbery — despite requiring only enough\n\nforce to overcome the victim’s resistance — is a “violent felony” under the ACCA’s\n\nforce clause. Id. at 3.\n\n The Stokeling Court first explained that a prior version of the ACCA specified\n\n“robbery” as a predicate offense and defined “robbery” as “the taking of the property of\n\nanother from the person . . . by force or violence.” See Stokeling, slip op. at 3-4. The\n\nCourt observed that this statutory definition of robbery “mirrored” the common law\n\ndefinition, and that — at common law — a person committed robbery by seizing property\n\nfrom another using sufficient force to overcome the victim’s resistance. Id. at 4.\n\nAlthough the ACCA was later amended to its current version and presently contains no\n\nreference to “robbery,” the Court determined that, “[b]y retaining the term ‘force’ in the\n\n[current] version of the ACCA[,] . . . Congress made clear that the ‘force’ required for\n\ncommon-law robbery would be sufficient to justify an enhanced sentence under the new\n\n[force] clause.” Id. at 6. Moreover, the Court reasoned that Congress’s amendment of\n\nthe ACCA to its present form was intended to expand the number of “violent felony”\n\npredicate offenses, and that it thus would have been odd for that expansion to leave\n\nrobbery offenses behind. Id.\n\n In addition, the Stokeling Court relied on Johnson I’s definition of “physical\n\nforce” to support its decision. See Stokeling, slip op. at 8-12. The Court concluded that\n\n“the force necessary to overcome a victim’s physical resistance is inherently ‘violent’ in\n\nthe sense contemplated by Johnson [I].” Id. at 9 (quoting Johnson I, 559 U.S. at 139).\n\n 20\n\fThat is, “robbery that must overpower a victim’s will . . . necessarily involves a physical\n\nconfrontation and struggle.” Id.\n\n We are not persuaded that Stokeling supports the Government’s position in this\n\nappeal. The ABWO offense and similar assault crimes do not share the same statutory\n\nhistory or textual connection to the ACCA as robbery offenses. Additionally, Stokeling\n\nreaffirmed Johnson I’s definition of physical force, and nothing therein supports the\n\nproposition that an offense that can be committed by an attempt to touch another in a rude\n\nor angry manner, such as spitting at another, categorically involves the use, attempted\n\nuse, or threatened use of violent physical force. See Stokeling, slip op. at 9-10\n\n(reaffirming that force necessary to commit common law battery does not qualify as\n\n“physical force” within meaning of ACCA’s force clause). Consequently, Stokeling does\n\nnot support an affirmance of the district court.\n\n\n\n IV.\n\n Pursuant to the foregoing, we vacate the judgment and remand for such other and\n\nfurther proceedings as may be appropriate.\n\n VACATED AND REMANDED\n\n\n\n\n 21", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364454/", "author_raw": "KING, Circuit Judge:"}]} | KING | NIEMEYER | WYNN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587201/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,587,203 | BOOKING.COM B v. Plaintiff-Appellee, v. the UNITED STATES PATENT AND TRADEMARK OFFICE ; Andrei Iancu, in His Official Capacity as Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Defendants-Appellants. American Intellectual Property Law Association, Amicus Curiae. Booking.com B v. Plaintiff-Appellant, v. the United States Patent and Trademark Office ; Andrei Iancu, in His Official Capacity as Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Defendants-Appellees. American Intellectual Property Law Association, Amicus Curiae. | Booking.com. B v. v. U.S. Patent & Trademark Office | 2019-02-04 | 17-2458; 17-2459 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "King, Duncan, Wynn", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887963/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887964/", "author_raw": ""}, {"author": "DUNCAN, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-2458\n\n\nBOOKING.COM B.V.,\n\n Plaintiff – Appellee,\n\nv.\n\nTHE UNITED STATES PATENT AND TRADEMARK OFFICE; ANDREI\nIANCU, in his official capacity as Under Secretary of Commerce for Intellectual\nProperty and Director of the United States Patent and Trademark Office,\n\n Defendants – Appellants.\n\n------------------------------\n\nAMERICAN INTELLECTUAL PROPERTY LAW ASSOCIATION,\n\n Amicus Curiae.\n\n\n No. 17-2459\n\n\nBOOKING.COM B.V.,\n\n Plaintiff – Appellant,\n\nv.\n\nTHE UNITED STATES PATENT AND TRADEMARK OFFICE; ANDREI\nIANCU, in his official capacity as Under Secretary of Commerce for Intellectual\nProperty and Director of the United States Patent and Trademark Office,\n\n\n Defendants – Appellees.\n\n------------------------------\n\nAMERICAN INTELLECTUAL PROPERTY LAW ASSOCIATION,\n\n Amicus Curiae.\n\n\n\nAppeals from the United States District Court for the Eastern District of Virginia, at\nAlexandria. Leonie M. Brinkema, District Judge. (1:16-cv-425-LMB-IDD)\n\n\nArgued: October 31, 2018 Decided: February 4, 2019\n\n\nBefore KING, DUNCAN, and WYNN, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Duncan wrote the opinion, in which Judge King", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364456/", "author_raw": "DUNCAN, Circuit Judge:"}, {"author": "concurred. Judge Wynn wrote a separate opinion concurring", "type": "concurrence", "text": "concurred. Judge Wynn wrote a separate opinion concurring in part and dissenting in\npart.\n\n\nARGUED: Tyce R. Walters, UNITED STATES DEPARTMENT OF JUSTICE,\nWashington, D.C., for Appellants/Cross-Appellees. Jonathan Ellis Moskin, FOLEY &\nLARDNER LLP, New York, New York, for Appellee/Cross-Appellant. ON BRIEF:\nChad A. Readler, Acting Assistant Attorney General, Nathan K. Kelley, Solicitor,\nThomas W. Krause, Deputy Solicitor, Christina J. Hieber, Senior Counsel for Trademark\nLitigation, Mark R. Freeman, Civil Division, UNITED STATES DEPARTMENT OF\nJUSTICE, Washington, D.C.; Tracy Doherty-McCormick, Acting United States\nAttorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia;\nMary Beth Walker, Associate Solicitor, Molly R. Silfen, Associate Solicitor, Office of\nthe Solicitor, UNITED STATES PATENT & TRADEMARK OFFICE, Alexandria,\nVirginia; for Appellants/Cross-Appellees. Brian Kapatkin, Eoin Connolly, FOLEY &\nLARDNER LLP, Washington, D.C., for Appellee/Cross-Appellant. Myra H.\nMcCormack, President, AMERICAN INTELLECTUAL PROPERTY LAW\nASSOCIATION, Arlington, Virginia; Theodore H. Davis, Jr., Jennifer R. Findley,\nAlexandra N. Martinez, KILPATRICK TOWNSEND & STOCKTON LLP, Atlanta,\nGeorgia, for Amicus Curiae.\n\n\n\n\n 2\n\nDUNCAN, Circuit Judge:\n\n The United States Patent and Trademark Office (the “USPTO”) and Booking.com\n\n(“Booking.com”) both appeal the district court’s summary judgment ruling regarding the\n\nprotectability of the proposed trademark BOOKING.COM. 1 The USPTO appeals on the\n\nground that the district court erred in concluding that BOOKING.COM is a protectable\n\nmark. Booking.com cross appeals, arguing that it should not be required to pay the\n\nUSPTO’s attorneys fees under 15 U.S.C. § 1071(b)(3). For the reasons that follow we\n\naffirm as to both the appeal and the cross-appeal.\n\n\n\n I.\n\n Before we recount the facts of this case, we briefly discuss the legal trademark\n\ncontext in which it arises. Trademark law protects the goodwill represented by particular\n\nmarks and serves the twin objectives of preventing consumer confusion between products\n\nand the sources of those products, on the one hand, and protecting the linguistic commons\n\nby preventing exclusive use of terms that represent their common meaning, on the other.\n\nOBX-Stock, Inc. v. Bicast, Inc., 558 F.3d 334, 339–40 (4th Cir. 2009).\n\n In order to be protectable, marks must be “distinctive.” To determine whether a\n\nproposed mark is protectable, courts ascertain the strength of the mark by placing it into\n\none of four categories of distinctiveness, in ascending order: (1) generic, (2) descriptive,\n\n\n 1\n Throughout this opinion, we use Booking.com to refer to the Plaintiff-Appellant\nand BOOKING.COM to refer to the proposed mark.\n\n\n 3\n\n(3) suggestive, or (4) arbitrary or fanciful. George & Co. v. Imagination Entm’t Ltd., 575\n\nF.3d 383, 393–94 (4th Cir. 2009). Marks falling into the latter two categories are deemed\n\ninherently distinctive and are entitled to protection because their intrinsic nature serves to\n\nidentify the particular source of a product. In contrast, descriptive terms may be\n\ndistinctive only upon certain showings, and generic terms are never distinctive. This\n\ndispute concerns only the first two of these four categories, with Booking.com arguing\n\nthe mark is descriptive and the USPTO arguing it is generic.\n\n A term is generic if it is the “common name of a product” or “the genus of which\n\nthe particular product is a species,” such as LITE BEER for light beer, or CONVENIENT\n\nSTORE for convenience stores. OBX-Stock, Inc., 558 F.3d at 340. Generic terms do not\n\ncontain source-identifying significance--they do not distinguish the particular product or\n\nservice from other products or services on the market. George & Co., 575 F.3d at 394.\n\nAccordingly, generic terms can never obtain trademark protection, as trademarking a\n\ngeneric term effectively grants the owner a monopoly over a term in common coinage. If\n\nprotection were allowed, a competitor could not describe his goods or services as what\n\nthey are. CES Publ’g Corp. v. St. Regis Publ’ns, Inc., 531 F.2d 11, 13 (2d Cir. 1975).\n\n In contrast, descriptive terms, which may be protectable, describe a “function, use,\n\ncharacteristic, size, or intended purpose of the product,” such as 5 MINUTE GLUE or\n\nKING SIZE MEN’S CLOTHING. Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455,\n\n464 (4th Cir. 1996). In order to be protected, a descriptive term must have acquired\n\nsecondary meaning. Hunt Masters, Inc. v. Landry’s Seafood Rest., Inc., 240 F.3d 251,\n\n254 (4th Cir. 2001). Secondary meaning indicates that a term has become sufficiently\n\n 4\n\ndistinctive to establish a mental association in the relevant public’s minds between the\n\nproposed mark and the source of the product or service. George & Co., 575 F.3d at 394.\n\n Against this background, we consider the facts before us.\n\n\n\n II.\n\n Booking.com operates a website on which customers can book travel and hotel\n\naccommodations. It has used the name BOOKING.COM since at least 2006. In 2011\n\nand 2012, Booking.com filed four trademark applications for the use of BOOKING.COM\n\nas a word mark and for stylized versions of the mark with the USPTO. Booking.com\n\nsought registration for, inter alia, Class 43 services, which include online hotel\n\nreservation services. 2\n\n The USPTO examiner rejected Booking.com’s applications, finding that the marks\n\nwere not protectable because BOOKING.COM was generic as applied to the relevant\n\nservices. In the alternative, the USPTO concluded that the marks were merely\n\ndescriptive and that Booking.com had failed to establish that they had acquired secondary\n\nmeaning as required for trademark protection. After the examiner denied Booking.com’s\n\n\n\n\n 2\n The applications also identified Class 39 services, which include “travel and tour\nticket reservation services” and “online travel and tourism services.” Booking.com B.V.\nv. Matal, 278 F. Supp. 3d 891, 896–97 (E.D. Va. 2017). Because the district court found\nthat the marks were only protectable as to Class 43 services and remanded with respect to\nClass 39 services, and Booking.com does not challenge this ruling on appeal, we consider\nonly whether BOOKING.COM is protectable as to Class 43 services.\n\n\n 5\n\nmotion for reconsideration, Booking.com appealed to the Trademark Trial and Appeal\n\nBoard (the “TTAB”).\n\n The TTAB affirmed the USPTO’s four refusals of registration in three separate\n\nopinions. These opinions all concluded that BOOKING.COM was a generic term for the\n\nservices offered, and therefore ineligible for trademark protection, because “booking”\n\ngenerically refers to “a reservation or arrangement to buy a travel ticket or stay in a hotel\n\nroom” or “the act of reserving such travel or accommodation”; “.com” indicates a\n\ncommercial website; and consumers would understand the resulting composite\n\nBOOKING.COM to primarily refer to an online reservation service for travel, tours, and\n\nlodging, which are the services proposed in Booking.com’s applications. Booking.com\n\nB.V. v. Matal, 278 F. Supp. 3d 891, 896 (E.D. Va. 2017) (summarizing the TTAB’s\n\nfindings). In the alternative, the TTAB concluded that BOOKING.COM is merely\n\ndescriptive of Booking.com’s services and that Booking.com had failed to demonstrate\n\nthat the mark had acquired secondary meaning, as required for trademark protection.\n\n Booking.com appealed the TTAB’s decisions by filing this civil action under 15\n\nU.S.C. § 1071(b) against the USPTO and the USPTO’s director in the Eastern District of\n\nVirginia in April 2016. 3 It argued that BOOKING.COM was a descriptive or suggestive\n\nmark eligible for protection. In support of its argument, Booking.com submitted new\n\n\n\n\n 3\n As we discuss further below, Booking.com could have appealed to the Federal\nCircuit but declined to do so.\n\n\n 6\n\nevidence to the district court. This evidence included a “Teflon survey,” 4 indicating that\n\n74.8% of consumers recognized BOOKING.COM as a brand rather than a generic\n\nservice.\n\n The district court held that although “booking” was a generic term for the services\n\nidentified, BOOKING.COM as a whole was nevertheless a descriptive mark. The district\n\ncourt further determined that Booking.com had met its burden of demonstrating that the\n\nproposed mark had acquired secondary meaning, and therefore was protectable, as to the\n\nhotel reservation services described in Class 43. The court therefore partially granted\n\nBooking.com’s motion for summary judgment, ordering the USPTO to register two of the\n\nmarks and remanded for further administrative proceedings as to the other two.\n\n The USPTO subsequently filed two motions. Pursuant to Federal Rule of Civil\n\nProcedure 59(e), the USPTO sought to amend the court’s order requiring the USPTO to\n\nregister the two trademarks, requesting instead that the court remand for further\n\nadministrative proceedings. It also filed a motion for expenses pursuant to 15 U.S.C.\n\n§ 1071(b)(3), which would require Booking.com to pay $76,873.61 of the USPTO’s\n\nexpenses under 15 U.S.C. § 1071(b)(3). These expenses included the salaries of the\n\nPTO’s attorneys and paralegals that worked on the defense action. The district court\n\ndenied the USPTO’s motion to amend as to the two marks, reasoning that they were\n\n\n 4\n Teflon surveys are the “most widely used survey format to resolve a genericness\nchallenge.” 2 McCarthy on Trademarks at § 12:16. These surveys explain the distinction\nbetween generic names and trademark or brand names and then ask survey respondents to\nidentify a series of names as common or brand names.\n\n\n 7\n\nregisterable as trademarks and that no further administrative proceedings were necessary.\n\nHowever, the district court granted the USPTO’s motion for expenses. Both the USPTO\n\nand Booking.com appealed. The USPTO and Booking.com challenge, respectively,\n\nwhether BOOKING.COM is protectable, and whether Booking.com must pay the\n\nUSPTO’s attorneys fees.\n\n\n III.\n\n We turn first to the USPTO’s contention that the district court erred in concluding\n\nthat BOOKING.COM is a protectable trademark. According to the USPTO,\n\nBOOKING.COM is a generic, not a descriptive, term that can never be protected.\n\n We review a district court’s grant of summary judgment based on the conclusion\n\nthat a mark is sufficiently distinctive to warrant trademark protection de novo. Retail\n\nServs. Inc. v. Freebies Publ’g, 364 F.3d 535, 541–42 (4th Cir. 2004). The question of\n\nwhether a proposed mark is generic is a question of fact that is subject to deferential\n\nreview. See Swatch AG v. Beehive Wholesale, LLC, 739 F.3d 150, 155 (4th Cir. 2014)\n\n(citing Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1533 (4th Cir. 1984)).\n\n Critically to our analysis, the USPTO concedes that if BOOKING.COM may\n\nproperly be deemed descriptive, the district court’s finding that it has acquired secondary\n\nmeaning was warranted. Rather, the USPTO only challenges the district court’s\n\ndetermination that BOOKING.COM is not generic. Therefore, the limited question on\n\nappeal is whether the district court erred in finding that BOOKING.COM is not generic.\n\nFor the reasons that follow, we conclude that the district court did not err in finding that\n\n\n 8\n\nthere was no genuine issue of material fact on the issue of genericness and that, on these\n\nfacts, BOOKING.COM is a protectable trademark.\n\n Before undertaking our analysis, two issues pertinent to the genericness inquiry\n\nbear further elaboration: first, who bears the burden of proving genericness, and second,\n\nthe framework for determining whether a proposed mark is generic.\n\n\n\n A.\n\n We have never directly addressed the issue of which party bears the burden of\n\nproving genericness on appeal when registration of a mark is denied. 5 However, the\n\nFederal Circuit has long held, and we agree, that in registration proceedings, the USPTO\n\n“always bears the burden” of establishing that a proposed mark is generic. In re Cordua\n\nRests., Inc., 823 F.3d 594, 600 (Fed. Cir. 2016); see In re Merrill Lynch, Pierce, Fenner,\n\nand Smith, Inc., 828 F.2d 1567, 1571 (Fed. Cir. 1987) (explaining that the burden of\n\nproving genericness “remains with” the PTO) (emphasis added). This is so because\n\nfinding a mark to be generic carries significant consequence, as it forecloses an applicant\n\nfrom any rights over the mark--once a mark is determined to be generic, it can never\n\nreceive trademark protection. See 2 J. Thomas McCarthy, McCarthy on Trademarks and\n\n\n 5\n In trademark infringement proceedings, we have held that the burden of proof\nlies with the party claiming that a previously registered mark is generic because there is a\npresumption of validity. See Glover v. Ampak, Inc., 74 F.3d 57, 59 (4th Cir. 1996).\nWhere a mark is not registered, however, and the alleged infringer asserts genericness as\na defense, the plaintiff bears the burden of proving that the mark is not generic. See Ale\nHouse Mgmt. Inc. v. Raleigh Ale House, Inc., 205 F.3d 137, 140 (4th Cir. 2000).\n\n\n 9\n\nUnfair Competition, § 12:12 (5th ed. 2018) (explaining that finding a mark to be generic\n\nis a “fateful step” as it may result in the “loss of rights which could be valuable\n\nintellectual property”).\n\n We therefore hold here that the USPTO bears the burden of proving that\n\nBOOKING.COM is generic in the instant case.\n\n\n\n B.\n\n We next discuss the framework for determining whether a mark is generic. As we\n\nhave discussed, generic terms are the “common name of a product or service itself.”\n\nSara Lee, 81 F.3d at 464. To determine whether a term is generic, we follow a three-step\n\ntest: (1) identify the class of product or service to which use of the mark is relevant; (2)\n\nidentify the relevant consuming public; and (3) determine whether the primary\n\nsignificance of the mark to the relevant public is as an indication of the nature of the class\n\nof the product or services to which the mark relates, which suggests that it is generic, or\n\nan indication of the source or brand, which suggests that it is not generic. 6 Glover v.\n\nAmpak, Inc., 74 F.3d 57, 59 (4th Cir. 1996).\n\n\n 6\n The Lanham Act codifies the primary significance test as the test for determining\nwhether a registered trademark has become generic in cancellation of registration\nproceedings. 15 U.S.C. § 1064(3) (“The primary significance of the registered mark to\nthe relevant public . . . shall be the test for determining whether the registered mark has\nbecome the generic name of goods or services on or in connection with which it has been\nused.”); see Glover, 74 F.3d at 59. However, we and the Federal Circuit have also\napplied the primary significance test to determine genericness in registration proceedings.\nSee In re 1800Mattress.com IP, LLC, 586 F.3d 1359, 1362–63 (Fed. Cir. 2009) (applying\na two-step genericness inquiry, asking in part whether the term sought to be registered is\n(Continued)\n 10\n\n Once a term is deemed generic, it cannot subsequently become non-generic. A\n\nterm may be generic if, for example, it was previously determined to be generic by a\n\ncourt. Kellogg Co. v. Nat’l Biscuit Co., 305 U.S. 111, 117 (1938) (finding that “shredded\n\nwheat” was generic because a court had already deemed it to be so). A term may also be\n\ndeemed generic where evidence suggests that a term was “commonly used prior to its\n\nassociation with the products [or services] at issue.” Hunt Masters, 240 F.3d at 254–55.\n\nIn such cases of common usage, a court may find that a term is generic even without\n\nlooking to evidence of consumer recognition. Id. For example, in Hunt Masters, we\n\nfound that the term “crab house” was commonly used, as there were many restaurants\n\ncalled “crab houses” across the country, id. at 254 n.1, and concluded, therefore, that the\n\ndistrict court did not err in declining to consider consumer survey evidence.\n\n If a term is deemed generic, subsequent consumer recognition of the term as\n\nbrand-specific cannot change that determination. See Retail Servs., Inc., 364 F.3d at 547.\n\nIndeed, courts have explained that “no matter how much money and effort the user of a\n\ngeneric term has poured into promoting the sale of its merchandise and what success it\n\nhas achieved in securing public identification,” that user cannot claim the exclusive right\n\n\n\n\n“understood by the relevant public to refer to that genus of goods or services”) (citation\nomitted); In re Reed Elsevier Props., Inc., 482 F.3d 1376, 1378 (Fed. Cir. 2007) (same);\nsee also America Online, Inc. v. AT&T Corp., 243 F.3d 812, 822 (4th Cir. 2001)\n(determining that a mark was generic because the evidence “d[id] not reveal that the\nprimary significance of the term” was the source rather than its generic meaning)\n(emphasis added).\n\n\n 11\n\nthrough trademark protection to call the product or service by its common name.\n\nAbercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976).\n\n In this case, neither party disputes the district court’s finding at the first step: that\n\nthe mark is used to identify the class or product to which it belongs--here, making hotel\n\nreservations for others. Nor do they disagree as to step two: that the relevant purchasing\n\npublic consists of consumers who use hotel reservation services offered via the internet or\n\nin person. Instead, the dispute arises at the third step: the public’s understanding of what\n\nthe term BOOKING.COM primarily refers to.\n\n To ascertain the public’s understanding of a term, courts may look to “purchaser\n\ntestimony, consumer surveys, listings and dictionaries, trade journals, newspapers, and\n\nother publications.” Glover, 74 F.3d at 59. For example, in determining that the term\n\n“ale house” was generic for a facility that serves both food and beer, we considered\n\nnewspaper articles and restaurant reviews that referred to such facilities as “ale houses,”\n\nas well as the lack of evidence suggesting that it was not a generic term for such\n\ninstitutions. Ale House Mgmt., Inc. v. Raleigh Ale House, Inc., 205 F.3d 137, 140–41\n\n(4th Cir. 2000).\n\n In assessing whether a term is understood by the relevant public to primarily refer\n\nto the service or the source, we look to the proposed mark as a whole, see Hunt Masters,\n\n240 F.3d at 254 (“[A] mark must be considered as a whole to determine its validity.”).\n\nEven where a proposed mark is a phrase or a compound term, such as “crab house” or\n\n“ale house,” the relevant inquiry is the public’s understanding of the entire mark, not its\n\n\n\n 12\n\nunderstanding of the mark’s separate components independently. Estate of P.D.\n\nBeckwith, Inc. v. Comm’r of Patents, 252 U.S. 538, 545–46 (1920).\n\n With this framework for genericness in mind, we turn to the USPTO’s contention\n\non appeal that the district court erred in finding that BOOKING.COM is a descriptive,\n\nrather than a generic, mark.\n\n\n C.\n\n We hold that the district court, in weighing the evidence before it, did not err in\n\nfinding that the USPTO failed to satisfy its burden of proving that the relevant public\n\nunderstood BOOKING.COM, taken as a whole, to refer to general online hotel\n\nreservation services rather than Booking.com the company. Because the USPTO\n\nconcedes that, if the mark is descriptive, it is protectable, this ends our inquiry. In\n\naffirming the district court’s finding, we reject the USPTO’s contention that adding the\n\ntop-level domain (a “TLD”) .com to a generic second-level domain (an “SLD”) like\n\nbooking can never yield a non-generic mark. We turn first to the district court’s finding\n\non genericness before addressing the USPTO’s proposed rule.\n\n\n\n i.\n\n Genericness is a question of fact to which the district court, as the trier of fact, is\n\naccorded great deference. 7 See Swatch AG, 739 F.3d at 155. Here, in finding that the\n\n\n 7\n Specifically, we defer to the district court’s factual finding regarding the primary\nsignificance of the mark to the public—a finding for which the court applied the proper\n(Continued)\n 13\n\npublic’s understanding of BOOKING.COM, taken as a whole, establishes it as a\n\ndescriptive mark rather than a generic term, the district court relied on two main factors:\n\nthe USPTO’s lack of evidence demonstrating that the public uses “booking.com”\n\ngenerically, and Booking.com’s Teflon survey. We conclude that the district court did\n\nnot err in finding that the evidence weighed in favor of finding BOOKING.COM to be\n\nnon-generic.\n\n First, the district court found “highly relevant” the absence of evidence by the\n\nUSPTO that consumers commonly refer to online hotel reservation services as\n\n“bookings.com.” Booking.com B.V., 278 F. Supp. 3d at 914. Instead, the court\n\ndetermined that the USPTO’s evidence demonstrated that such services are referred to as\n\n“booking website(s),” or “booking site(s).” Id.\n\n While the USPTO identified other domain names that contain “booking.com”--\n\nsuch as “hotelbooking.com” and “ebooking.com”--to support its argument that the\n\nrelevant public understands BOOKING.COM to refer to online hotel booking services,\n\nthe district court did not err in finding this evidence less probative of common usage. It\n\nis true that some courts have found the use of a proposed mark in longer domain names to\n\nbe evidence in support of finding that term generic. See, e.g., Advertise.com, Inc. v. AOL\n\n\n\n\nlegal analysis—and not the court’s determination as to the trademark significance of the\nfact that a domain name like “booking.com” necessarily refers only to a single source. In\nfact, we conclude that the court erred in this latter determination, discussed infra; but\ncontrary to the Dissent’s position, such error does not affect the court’s separate factual\nfinding as to primary significance. See Booking.com B.V., 278 F. Supp. 3d at 913–18.\n\n\n 14\n\nAdvertising, Inc., 616 F.3d 974, 980–81 (9th Cir. 2010) (finding that the way in which\n\nADVERTISING.COM was used in other domain names was evidence of genericness); In\n\nre Hotels.com, L.P., 573 F.3d 1300, 1304 (Fed. Cir. 2009) (same for HOTELS.COM); In\n\nre Reed Elsevier Props., Inc., 482 F.3d 1376, 1380 (Fed. Cir. 2007) (same for\n\nLAWYERS.COM). We note, however, that although those courts recognized that the\n\ninclusion of the proposed mark in longer domain names was strong evidence of\n\ngenericness, they nonetheless remained open to considering consumer surveys to\n\ndetermine the public’s understanding of the proposed mark. See, e.g., In re Hotels.com,\n\n573 F.3d at 1304–05 (finding that the TTAB did not err in determining that the term was\n\ngeneric, citing in part concerns arising from the methodology of the applicant’s consumer\n\nsurvey). Moreover, using the characters “booking.com” or “bookings.com” in a longer\n\ndomain name does not necessarily mean that BOOKING.COM is generic. Unlike\n\n“hotels” or “lawyers,” “booking” is used to describe a plethora of reservation services,\n\nincluding, for example, theatrical or musical engagements. See Booking.com B.V., 278 F.\n\nSupp. 3d at 904 (quoting Random House: Unabridged Dictionary (2d ed. 1993)).\n\nIncluding booking.com in a longer domain name therefore does not necessarily\n\ndemonstrate that consumers would understand BOOKING.COM to identify any website\n\nthat provides hotel reservation services. In fact, the record evidence demonstrates the\n\nopposite.\n\n The USPTO challenges the court’s weighing of this evidence, contending that the\n\ndistrict court erred in emphasizing that the public does not use “booking.com” to refer to\n\nthe relevant services, and instead should have evaluated whether the public would\n\n 15\n\nunderstand the term to refer to those services. We agree with the USPTO that the\n\nultimate inquiry in determining whether a term is generic is what the public understands\n\nthe proposed mark to mean. Glover, 74 F.3d at 59. Nonetheless, courts have considered\n\nusage to be probative of the public’s understanding. Compare In re Dial-A-Mattress, 240\n\nF.3d 1341, 1346 (Fed. Cir. 2001) (finding that a mark was not generic where there was no\n\nevidence that the relevant public referred to the class of shop-at-home mattress retailers\n\nas “1-888-M-A-T-R-E-S-S”), with Frito-Lay N. Am. Inc. v. Princeton Vanguard, LLC,\n\n124 U.S.P.Q.2d 1184 at *6–10 (TTAB 2017) (finding “pretzel crisp” to be generic where\n\nthe record evidence, including newspaper articles and food blogs, used the term to refer\n\nto the genus of snack products rather than a particular brand), and Ale House Mgmt., 205\n\nF.3d at 140–41 (finding “ale house” to be generic for facilities that serve food and beer\n\nwhere newspaper articles and restaurant reviews referred to such facilities as “ale\n\nhouses”). It is therefore not error for a court to consider, as the court did here, evidence\n\nof the public’s use of a term in evaluating its primary significance to the public. 8 And in\n\nany event, as we will discuss, the consumer surveys in this record suggest that the public\n\nprimarily understands BOOKING.COM to indicate the company rather than the service.\n\n Second, the district court also considered Booking.com’s Teflon survey, which\n\ndemonstrates that 74.8% of respondents identified BOOKING.COM as a brand name,\n\n\n 8\n Because the relevant inquiry is what the mark’s primary significance is to the\npublic, we do not consider the district court’s suggestion, relying on Booking.com’s\nlinguistic expert, that “linguistic understanding” cannot be divorced from use.\nBooking.com B.V., 278 F. Supp. 3d at 914 (alteration and citation omitted).\n\n\n 16\n\nrather than as a general reference to hotel reservation websites. Such consumer surveys\n\nare the “preferred method of proving genericness.” Princeton Vanguard, LLC v. Frito-\n\nLay N. Am., Inc., 786 F.3d 960, 970 (Fed. Cir. 2015) (citation omitted). Indeed, courts\n\nhave recognized that “[c]onsumer surveys have become almost de rigueur in litigation\n\nover genericness.” Berner Int’l Corp. v. Mars Sales Co., 987 F.2d 975, 982–83 (3d Cir.\n\n1993) (internal quotation marks and citation omitted). Accordingly, where, as here, the\n\ndistrict court found that the survey was methodologically sound, the survey is strong\n\nevidence that the public does not understand BOOKING.COM to refer to the proposed\n\nmark’s generic meaning.\n\n On appeal, the USPTO does not contest the validity of the survey or its\n\nmethodology. Instead, it relies on dicta in Hunt Masters to argue that the district court\n\nerred in considering the survey at all. 240 F.3d at 254–55. Its reliance is misplaced; our\n\nreasoning in that case does not apply here. In Hunt Masters, we considered whether the\n\nowners of “the Charleston Crab House,” who sought to enjoin a competitor from using\n\nthe name “The Crab House,” had a protected proprietary interest in the term “crab\n\nhouse.” We declined to find such an interest because we determined that “crab house”\n\nwas a generic term referring to a class of restaurants that serve crabs. Id. at 254. In so\n\ndetermining, we held that the district court did not err in declining to consider the\n\nplaintiff’s consumer survey. We explained that there are two ways in which terms may\n\nbe classified as generic--“(1) where the term began life as a ‘coined term’” that had\n\nbecome generic through common usage, and “(2) where the term was commonly used\n\nprior to its association with the products at issue”--and that while consumer surveys are\n\n 17\n\nrelevant to determining whether a term is generic in the former scenario, they are not in\n\nthe latter. Id. at 254–55. Contrary to the USPTO’s contention, Hunt Masters does not\n\ncontrol where, as here, the district court determined based on the dearth of evidence in\n\nthe record that the proposed mark was not commonly used. As such, the proposed mark\n\ndoes not fall within the category of terms for which survey evidence is irrelevant.\n\n Weighing the evidence before it, the district court did not err in finding that the\n\nUSPTO did not satisfy its burden of showing that BOOKING.COM is generic. It is\n\naxiomatic that determinations regarding the relative weight of evidence are left for the\n\ntrier of fact. See In re Hotels.com, 573 F.3d at 1305–06 (finding that the trier of fact, the\n\nTTAB, could reasonably have given controlling weight to dictionary definitions and\n\nsimilar uses of “hotels” with a .com suffix over a consumer survey with questionable\n\nmethodology). Here, the district court, acting as the trier of fact in reviewing\n\nBooking.com’s trademark application de novo, did not err in placing greater weight on\n\nthe consumer survey over other evidence, like dictionary definitions, in assessing the\n\nprimary significance to the public. See Mars Sales Co., 987 F.2d at 982–83 (explaining\n\nthat direct consumer evidence, e.g., consumer surveys and testimony, “is preferable to\n\nindirect forms of evidence” like dictionaries and trade journals).\n\n We therefore conclude that the district court did not err in finding that\n\nBOOKING.COM is a descriptive, rather than generic, mark.\n\n\n\n ii.\n\n\n\n 18\n\n The USPTO nevertheless contends that adding the top-level domain “.com” to a\n\ngeneric second-level domain like “booking” is necessarily generic, and that the district\n\ncourt therefore erred in finding that BOOKING.COM was non-generic. The USPTO\n\nadvances two theories as reasons for adopting a per se rule against protecting terms like\n\nBOOKING.COM. For the reasons that follow, we decline to adopt such an approach\n\nunder either theory.\n\n First, the USPTO relies on an 1888 Supreme Court case to argue that, as a matter\n\nof law, adding .com to a generic SLD like booking can never be nongeneric. In\n\nGoodyear’s Rubber Mfg. Co. v. Goodyear Rubber Co., 128 U.S. 598, 602–03 (1888), the\n\nCourt held that the addition of commercial indicators such as “Company” to terms that\n\nmerely describe classes of goods could not be trademarked, like “Grain Company” or, as\n\nthe Dissent provides, “The Grocery Store.” According to the USPTO, “.com” is\n\nanalytically indistinct from “company,” as it is a generic identifier for an entity operating\n\na commercial website, and therefore its addition to a generic term can never be protected.\n\nHowever, Goodyear was decided almost sixty years before the Lanham Act and,\n\ncrucially, did not apply the primary significance test. No circuit has adopted the bright\n\nline rule for which the USPTO advocates--indeed, sister circuits have found that when\n\n“.com” is added to a generic TLD, the mark may be protectable upon a sufficient\n\nshowing of the public’s understanding through consumer surveys or other evidence. See,\n\ne.g., Advertise.com, Inc., 616 F.3d at 982; In re Hotels.com, 573 F.3d at 1304–05. We\n\nsimilarly decline to do so here.\n\n\n\n 19\n\n Second, the USPTO argues that the proposed mark is per se generic because it is\n\nnothing more than the sum of its component parts. It contends that “booking” is a\n\ngeneric term for hotel reservation services, that “.com” is generic for an online company,\n\nand that when combined the resulting composite is generic for the online booking\n\nservices at issue here because a member of the relevant public would understand\n\nBOOKING.COM to name an online booking website. Therefore, the USPTO contends,\n\nBOOKING.COM is generic. We disagree that it is necessarily so.\n\n We begin by discussing the genericness inquiry as it applies to compound terms.\n\nWhen confronted with a compound term like PRETZEL CRISPS, courts may consider as\n\na first step the meaning of each of the term’s component marks; but as we explained in\n\nHunt Masters, the ultimate inquiry examines what the public primarily perceives the term\n\nas a whole to refer to. 240 F.3d at 254. For example, in determining whether PRETZEL\n\nCRISPS is generic, a court may first determine based on dictionary definitions and other\n\ncompetent sources that PRETZEL is primarily understood to refer to the genus of\n\npretzels, and that CRISPS would be understood as primarily referring to crackers. Frito-\n\nLay N. Am., Inc., 124 U.S.P.Q.2d 1184 at *4, 21. But the court must also consider\n\nevidence--such as use in newspaper articles or food blogs--to determine whether the term\n\nPRETZEL CRISPS is perceived primarily to refer to a crispy pretzel or to a particular\n\nsource. Id. at *22.\n\n Where the proposed mark is a composite that includes .com, we clarify that,\n\ncontrary to the district court’s suggestion, .com does not itself have source-identifying\n\n\n\n 20\n\nsignificance when added to an SLD like booking. 9 See, e.g., In re Hotels.com, 573 F.3d\n\nat 1304 (explaining that the generic term “hotels” did not lose its generic character by\n\nplacement in the domain name HOTELS.COM); McCarthy on Trademarks, § 7:17.50\n\n(explaining that a TLD like .com “has no source indicating significance and cannot serve\n\nany trademark purpose”). Merely appending .com to an SLD does not render the\n\nresulting domain name non-generic because the inquiry is whether the public primarily\n\nunderstands the term as a whole to refer to the source or the proffered service. 10\n\n For the same reason, neither is it the case, as the USPTO would have it, that\n\nassuming booking and .com are each generic terms according to their respective\n\ndictionary definitions, and that together they describe the service provided, this\n\nnecessarily ends the genericness inquiry. Within this inquiry, dictionary definitions,\n\nthough “relevant and sometimes persuasive” to the genericness inquiry based on the\n\nassumption that such definitions generally reflect the public’s perception of a word’s\n\n\n 9\n The district court concluded that a TLD like .com generally has source-\nidentifying significance when added to an SLD like booking, and that a mark composed\nof a generic SLD like booking together with a TLD is usually a descriptive mark eligible\nfor protection upon a showing of secondary meaning. We decline to adopt a rule that\ngoes so far. Such a rule would effectively make any domain name distinctive, which\noversteps the focus of our trademark jurisprudence on a mark’s primary significance to\nthe public. However, because we find other evidentiary bases to affirm the district court,\nas discussed supra, our rejection of this approach does not alter the outcome of our\ninquiry.\n 10\n Because we do not adopt the district court’s approach to the addition of TLDs to\nSLDs, we need not address the USPTO’s contention that the district court impermissibly\nrelied on BOOKING.COM’s functional role as a web address to establish non-\ngenericness, where functional features are precluded from trademark protection.\n\n\n 21\n\nmeaning, are not necessarily dispositive or controlling. Retail Servs., Inc., 364 F.3d at\n\n544–45. Instead, where, as here, the court found that the term was not previously\n\ncommonly used, it may consider additional evidence like consumer surveys in making its\n\ngenericness determination. 11 This is particularly true where the mark involves a domain\n\nname. Unlike general terms such as “crab house,” see Hunt Masters, 240 F.3d at 254–55,\n\nlooking to the component parts of a domain name may not unambiguously represent the\n\nprimary significance of the term as a whole given that the relevant public may recognize\n\ndomain names to indicate specific locations on the internet. See In re Hotels.com, 573\n\nF.3d at 1305 (acknowledging that “consumers may automatically equate a domain name\n\nwith a brand name”) (citation omitted). Thus, even where the domain-name-as-mark\n\ntechnically describes the service provided, it does not necessarily follow that the public\n\ncommonly understands the mark to refer to the service broadly speaking.\n\n We therefore decline to adopt a per se rule and conclude that when “.com” is\n\ncombined with an SLD, even a generic SLD, the resulting composite may be non-generic\n\nwhere evidence demonstrates that the mark’s primary significance to the public as a\n\nwhole is the source, not the product.\n\n\n 11\n As we have discussed, once a term has been deemed generic, consumer\nrecognition will not save it from being generic. See Retail Servs., Inc., 364 F.3d at 547.\nHere, BOOKING.COM was not already deemed generic because it had not been so\ndetermined by a prior court, and the district court expressly found that it was not\ncommonly used. Accordingly, the USPTO’s reliance on cases where terms like “You\nHave Mail” and “Freebies” were found to be commonly used to argue that consumer\nrecognition cannot render BOOKING.COM non-generic, is misplaced. See America\nOnline, 243 F.3d at 822 and Retail Services, Inc., 364 F.3d at 547.\n\n\n 22\n\n This approach comports with that taken by our sister circuits, who have similarly\n\ndeclined to adopt a per se rule against protecting domain names, even where they are\n\nformed by combining generic terms with TLDs. See, e.g., Advertise.com Inc., 616 F.3d\n\nat 978–79; In re Steelbuilding.com, 415 F.3d 1293, 1299 (Fed. Cir. 2005). These courts\n\nhave left open the possibility that in “rare circumstances” a TLD may render a term\n\nsufficiently distinctive to be protected as a trademark. See In re Steelbuilding.com, 415\n\nF.3d at 1299.\n\n Tellingly, even where courts have found that the individual components of a\n\ndomain name mark are independently generic, and that when added together the resulting\n\ncomposite merely describes the genus of the service provided, courts still considered\n\nother evidence such as consumer surveys in determining whether the mark was generic.\n\nFor instance, in determining whether ADVERTISING.COM was generic, the Ninth\n\nCircuit explained that even though both “advertising” and “.com” were generic, and that\n\nADVERTISING.COM conveyed only the genus of the services offered, it was possible\n\n“that consumer surveys or other evidence might ultimately demonstrate that [the] mark is\n\nvalid and protectable.” Advertise.com, Inc., 616 F.3d at 982 (emphasis added); see In re\n\nHotels.com, 573 F.3d at 1304–05 (considering a consumer survey regarding the public’s\n\nunderstanding of HOTELS.COM even though it determined that “hotels” and “.com”\n\nwere independently generic and that the combination did not produce new meaning).\n\nWhile these courts have generally found the resulting composite of adding “.com” to\n\n\n\n\n 23\n\ncertain SLDs to be generic, 12 they have nonetheless acknowledged that on rare occasions\n\nsuch marks may be non-generic. Here, the district court did not err in determining that\n\nthis case presents one such rare occasion where the record evidence supported a finding\n\nthat the USPTO failed to meet its burden of proving that the public primarily understood\n\nBOOKING.COM to refer to the genus of online hotel reservation services, rather than the\n\ncompany or brand itself.\n\n We are not unsympathetic to the USPTO’s concerns that granting trademark\n\nprotection over BOOKING.COM may prevent other companies from using the mark.\n\nSee OBX-Stock, Inc., 558 F.3d at 339–40 (noting trademark law’s twin concerns).\n\nHowever, these concerns are assuaged by two considerations. First, because trademarks\n\nonly protect the relevant service--here, the district court granted protection as to hotel\n\nreservation services but not travel agency services--protection over BOOKING.COM\n\nwould not necessarily preclude another company from using, for example,\n\ncarbooking.com or flightbooking.com. 13 Second, the purported overbreadth of the mark\n\n\n 12\n See, e.g., In re Hotels.com, 573 F.3d at 1304 (HOTELS.COM); In re\n1800Mattress.com IP, LLC, 586 F.3d at 1364 (MATTRESS.COM); In re Reed Elsevier\nProps., Inc., 482 F.3d at 1378 (LAWYERS.COM). We note, however, that on appeal\nfrom the TTAB, the Federal Circuit applies a more deferential standard of review--\nreviewing factual findings for substantial evidence--than that applied by the district court,\nwhich reviews the TTAB’s decision de novo. See Shammas v. Focarino, 784 F.3d 219,\n225 (4th Cir. 2015). Given this deferential standard of review, the Federal Circuit may\naffirm a genericness holding where the district court, reviewing the extant evidence and\nany new evidence de novo, may have reached a different conclusion.\n 13\n As the district court noted, WORKOUT.COM, ENTERTAINMENT.COM, and\nWEATHER.COM are registered marks that have not precluded domain names such as\nMIRACLEWORKOUT.COM, WWW.GOLIVE-ENTERTAINMENT.COM, and\n(Continued)\n 24\n\ncan be addressed in proceedings regarding the scope of the trademark’s protection. To\n\nenforce a mark, a plaintiff must prove in a trademark infringement suit that there is a\n\n“likelihood of confusion”--that is, whether “the defendant’s actual practice is likely to\n\nproduce confusion in the minds of consumers about the origin of the goods or services in\n\nquestion.” George & Co., 575 F.3d at 393 (citation omitted); Pizzeria Uno, 747 F.2d at\n\n1527. Infringement plaintiffs often must show “actual confusion.” George & Co., 575\n\nF.3d at 393. Given that domain names are unique by nature and that the public may\n\nunderstand a domain name as indicating a single site, it may be more difficult for domain\n\nname plaintiffs to demonstrate a likelihood of confusion.\n\n In sum, adding “.com” to an SLD can result in a non-generic, descriptive mark\n\nupon a showing of primary significance to the relevant public. This is one such case.\n\nBased on the record before it, the district court properly found that the USPTO did not\n\nmeet its burden of proving that “booking.com” is generic. We therefore affirm the\n\ncourt’s finding that BOOKING.COM is descriptive. Because the USPTO does not\n\nchallenge the district court’s finding that BOOKING.COM has acquired secondary\n\nmeaning where the mark is deemed descriptive, we affirm the district court’s partial grant\n\nof summary judgment finding that BOOKING.COM is protectable as a trademark.\n\n\n\n IV.\n\n\n\nCAMPERSWEATHER.COM. Booking.com B.V., 278 F. Supp. 3d at 911 & n.6 (taking\njudicial notice of such marks in the public record).\n\n\n 25\n\n We turn now to Booking.com’s contention that it should not be required to pay the\n\nUSPTO’s attorneys fees under 15 U.S.C. § 1071(b)(3). Under the Lanham Act, a\n\ndissatisfied trademark applicant may seek review of an adverse ruling on his trademark\n\napplication either by appealing the USPTO’s ruling to the Federal Circuit, 15 U.S.C.\n\n§ 1071(a)(1), or by commencing a de novo action in a federal district court, id.\n\n§ 1071(b)(1). If the applicant chooses to appeal to the Federal Circuit, the appeal is taken\n\n“on the record” before the USPTO, id. § 1071(a)(4), and the court defers to the USPTO’s\n\nfactual findings unless they are unsupported by substantial evidence. Shammas v.\n\nFocarino, 784 F.3d 219, 225 (4th Cir. 2015). In contrast, if he chooses to appeal in a\n\ndistrict court, the parties may conduct discovery and submit evidence beyond the record\n\nbefore the USPTO, which the district court reviews de novo as the trier of fact. Id.\n\nCrucially, if the applicant decides to challenge the USPTO’s ruling in the district court,\n\nthe applicant must pay “all the expenses of the proceeding . . . whether the final decision\n\nis in favor of such party or not.” 15 U.S.C. § 1071(b)(3) (emphasis added).\n\n Pursuant to this statute, the district court granted the USPTO’s motion requiring\n\nBooking.com to pay $76,873.61 of its expenses, $51,472.53 of which constituted the\n\nprorated salaries of its attorneys and paralegals who worked on the matter. In reaching\n\nthis decision, the district court relied on our precedent in Shammas, which held that “all\n\nthe expenses of the proceeding” under §1071(b)(3) includes attorneys fees. Id. at 224.\n\n In so holding in Shammas, we first concluded that the “American Rule”--the\n\nbedrock principle that each litigant pays his own attorneys fees unless Congress has\n\nspecifically and explicitly provided otherwise--was inapplicable to the provision because\n\n 26\n\nthe rule applies “only where the award of attorneys fees turns on whether a party seeking\n\nfees has prevailed to at least some degree.” 784 F.3d at 223. Accordingly, we interpreted\n\nthe phrase “all the expenses of the proceeding” for “its ordinary meaning without regard\n\nto the American Rule,” and concluded that it included attorneys fees. Id. at 224.\n\n Whether the American Rule applies to § 1071(b)(3), however, has since been\n\ncalled into question. Relying on our decision in Shammas, the Federal Circuit previously\n\nheld that a nearly identical provision of the Patent Act, 35 U.S.C. § 145, included\n\nattorneys fees. Nantkwest, Inc. v. Matal, 860 F.3d 1352, 1355 (Fed. Cir. 2017).\n\nSubsequently, however, the Federal Circuit reversed its decision en banc, squarely\n\nrejecting our reasoning in Shammas; it now holds that attorneys fees are not covered\n\nunder that provision. Nantwest, Inc. v. Iancu, 898 F.3d 1177, 1185 (Fed. Cir. 2018) (en\n\nbanc). Moreover, the year after we decided Shammas, the Supreme Court applied the\n\nAmerican Rule to a bankruptcy statute that did not mention a prevailing party. See Baker\n\nBotts L.L.P. v. ASARCO LLC, 135 S. Ct. 2158, 2165 (2015).\n\n These subsequent developments suggest that the American Rule’s requirement\n\nthat Congress “clearly and directly” express an intent to deviate from that rule may apply\n\nto § 1071(b)(3)--a statute that, if read to include attorneys fees, anomalously requires an\n\nappealing party to pay the prorated salaries of government attorneys.\n\n Nonetheless, Shammas remains the law in this circuit, and as long as we continue\n\nto be bound by that precedent we must affirm the district court’s grant of attorneys fees.\n\n\n\n\n 27\n\n V.\n\n For the foregoing reasons, we affirm the district court’s partial grant of summary\n\njudgment to Booking.com as to the protectability of its trademark applications, and we\n\naffirm the district court’s grant of the USPTO’s motion for expenses.\n\n AFFIRMED\n\n\n\n\n 28", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364456/", "author_raw": "concurred. Judge Wynn wrote a separate opinion concurring"}, {"author": "WYNN, Circuit Judge, concurring", "type": "concurrence", "text": "WYNN, Circuit Judge, concurring in part and dissenting in part:\n\n This case addresses a problem that Booking.com chose to bring upon itself.\n\nBecause trademark law does not protect generic terms, an online business, like\n\nBooking.com, has two options in choosing its domain name. On the one hand, it can\n\nchoose to operate under a generic domain 1 that describes the nature of the services it\n\noffers, and thereby attract the wealth of customers who simply search the web for that\n\nservice. However, in electing that benefit, the entity accepts a trade-off. It must forego\n\nthe ability to exclude competitors from using close variants of its domain name. On the\n\nother hand, the entity can choose to operate under a non-generic domain name—and\n\nthereby potentially limit, at least before it has built consumer awareness of its branding,\n\nthe universe of potential customers who will find its business. Trademark law affords an\n\nentity that selects this latter option a special benefit. It can bar competitors from trading\n\non any goodwill and recognition it generates in its domain name.\n\n Booking.com chose the former approach—to operate under a generic domain\n\nname and forego the ability to exclude competitors from using close variants of its\n\ndomain name. But in the face of recognizing that “booking” is a generic term, the district\n\n\n 1\n A domain name, the string of text used to look up the internet protocol address\nfor a particular internet site, is made up of a Top Level Domain and a Secondary Level\nDomain. The Top Level Domain is the final portion of the web address—such as “.com,”\n“.gov,” or “.edu”—that signifies the category of website: i.e. commercial, government, or\neducational. The Secondary Level Domain is the preceding part of the web address.\nWell-known Secondary Level Domains include “facebook,” “amazon” and “google.”\nThus, in the domain name http://www.booking.com, “.com” is the Top Level Domain,\nwhereas “booking” is the Secondary Level Domain.\n\n\n 29\n\ncourt creatively decided that combining the generic term “booking” with the generic top-\n\nlevel domain “.com” rendered it non-generic. In doing so, the district court’s judgment—\n\nwhich the majority opinion concedes was grounded in legal error, but nonetheless\n\ndeclines to set aside—allows Booking.com to have its cake and eat it too. Booking.com\n\ngets to operate under a domain that merely describes the nature of its business and\n\nexclude its competitors from doing the same.\n\n Booking.com maintains that such a result is warranted to prevent “unscrupulous\n\ncompetitors [from] prey[ing] on its millions of loyal consumers,” Appellee’s Br. at 38.\n\nBut to the extent Booking.com fears that its competitors are using the terms “booking”\n\nand “.com” in ways that might confuse its customers, “this is the peril of attempting to\n\nbuild a brand around a generic term.” Advertise.com, Inc. v. AOL Advert., Inc., 616 F.3d\n\n974, 980 n.6 (9th Cir. 2010). Accordingly, although I agree with much of the analysis in\n\nthe majority opinion, 2 I part ways with my colleagues’ decision to nevertheless affirm the\n\ndistrict court’s judgment that BOOKING.COM is a protectable trademark.\n\n\n 2\n I agree with much of the analysis in the majority opinion. The majority opinion\nis correct that in determining whether a proposed trademark is a generic term not subject\nto protection, courts must “look to the proposed mark as a whole.” Ante at 12, 20\n(emphasis retained). Accordingly, I join my colleagues and our sister circuits in\ndeclining “to adopt a per se rule against protecting domain names, even where they are\nformed by combining generic terms with [Top Level Domains].” Ante at 23. Also like\nmy colleagues, I believe that on only “rare occasion[s]” should the combination of a\ngeneric Secondary Level Domain and a Top Level Domain result in a protectable\ntrademark. Ante at 24 (emphasis added). And like my colleagues, I conclude the district\ncourt committed legal error in holding that “a [Top Level Domain] like .com generally\nhas source-identifying significance when added to a[] [Secondary Level Domain] like\nbooking, and that a mark composed of a generic [Secondary Level Domain] like booking\ntogether with a [Top Level Domain] is usually a descriptive mark eligible for protection\n(Continued)\n 30\n\n That decision rests upon my colleagues’ determination that the district court’s\n\nfactual findings pertaining to genericness should be “accorded great deference,” Ante at\n\n13, regarding whether a proposed mark is generic—i.e., whether a proposed mark is\n\nnothing more than the “common name of a product or service itself,” Sara Lee Corp. v.\n\nKayser-Roth Corp., 81 F.3d 455, 464 (4th Cir. 1996)—which is a question of fact\n\ngenerally subject to clear error review, see Swatch AG v. Beehive Wholesale, LLC, 793\n\nF.3d 150, 155 (4th Cir. 2015). But “we owe no deference to the district court’s findings\n\nif they are derived as a result of the court’s misapplication of the law.” Sara Lee, 81 F.3d\n\nat 464 (citation omitted); Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1526 (4th Cir.\n\n1984) (“[T]he clearly erroneous rule [will not] protect findings which have been made on\n\nthe basis of the application of incorrect legal standards or made in disregard of applicable\n\nlegal standards, such as burden of proof” (citations omitted)). When a finding derives\n\nfrom a district court’s “application of an improper standard to the facts, it may be\n\ncorrected as a matter of law.” United States v. Singer Mfg. Co., 374 U.S. 174, 194 n.9\n\n(1963). In such cases, the clearly erroneous standard is no longer applicable. See United\n\nStates v. Rodriguez-Morales, 929 F.2d 780, 783 (1st Cir. 1991) (“Of course, if the lower\n\n\n\n\nupon a showing of secondary meaning.” Ante at 21 n.9. I also join my colleagues in the\nportion of the majority opinion affirming the district court’s granting of attorneys’ fees to\nthe U.S. Patent & Trademark Office (“PTO”). Ante at 27. In particular, I agree that\nShammas v. Focarino, 784 F.3d 219 (4th Cir. 2015), remains the controlling precedent in\nthis circuit.\n\n\n\n 31\n\ncourt applies the wrong legal standard, no deference attaches, and we must proceed to\n\ncorrect the error.”).\n\n Here, the district court rendered the legal “conclu[sion]” that “when combined\n\nwith a[] [Secondary Level Domain], a [Top Level Domain] generally has source\n\nidentifying significance and the combination of a generic [Secondary Level Domain] and\n\na [Top Level Domain] is generally a descriptive mark that is protectable upon a showing\n\nof acquired distinctiveness.” Booking.com B.V. v. Matal, 278 F. Supp. 3d 891, 909 (E.D.\n\nVa. 2017). Put differently, the district court concluded that, as a matter of law, “the\n\ncombination of a generic [Secondary Level Domain] and a [Top Level Domain]” is\n\npresumptively descriptive and protectable upon a showing of acquired distinctiveness. Id.\n\n Notably, in adopting this presumption, the district court expressly rejected the\n\napproach taken by the Federal Circuit in cases, like the instant case, involving a proposed\n\ntrademark that combines a generic Secondary Level Domain with a Top Level Domain.\n\nSee id. at 908–10. The majority opinion rejects that legal presumption but nevertheless\n\ndefers to the district court’s factual finding that BOOKING.COM is descriptive, and\n\ntherefore protectable, on the theory that that finding was not tainted by the district court’s\n\nlegal error. See Ante at 21 n.9. But a close examination of the district court’s opinion\n\nreveals that the district court’s legal error did play a role in the court’s ultimate\n\ndetermination that BOOKING.COM is descriptive.\n\n In particular, because the district court presumed that “the combination of a\n\ngeneric [Secondary Level Domain] and a [Top Level Domain]” is descriptive,\n\nBooking.com, 278 F. Supp. 3d at 909, it subjected the registrant to a less onerous\n\n 32\n\nevidentiary burden for establishing descriptiveness than the law demands. This is evident\n\nfor two reasons.\n\n First, the district court’s ultimate determination—that the proposed mark\n\nBOOKING.COM is descriptive—conflicts with the determination that every other court\n\nhas reached in cases, like the instant case, involving the registration or enforcement of a\n\nproposed mark composed of a generic Secondary Level Domain and a Top Level\n\nDomain. 3 For instance, the Federal Circuit found that the generic term “hotels” “did not\n\nlose its generic character by placement in the domain name HOTELS.COM.” In re\n\nHotels.com, 573 F.3d 1300, 1304 (Fed. Cir. 2009). Instead, consumers would\n\n“immediately understand that HOTELS.COM identifies a website” that provides\n\n\n 3\n The district court found—and I agree—that “by itself, the word ‘booking’ is\ngeneric for the classes of hotel and travel reservation services recited in plaintiff’s\napplications.” Booking.com, 278 F. Supp. 3d at 905. Likewise, courts and commentators\nhave long stated that a Top Level Domain is not protectable. For instance, the PTO has\nlong stated that Top Level Domains “generally serve no source-identifying function.”\nTMEP § 1209.03(m) (5th ed. 2007). This position has been consistently held in federal\ncourts. See Advertise.com, 616 F.3d at 978 (finding that a Top Level Domain merely\nreflects an online commercial organization). Additionally, the leading treatise on\ntrademark law has stated that a Top Level Domain has no ability to distinguish one\nsource from another. 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair\nCompetition, § 7:17.50 (5th ed. 2018) (“The ‘.com’ portion of the domain name has no\ntrademark significance and is essentially the generic locator for all names in that top level\ndomain.”). In this way, a Top Level Domain is similar to other common web address\ncomponents, such as “http://www.” and “.html.” Id. Because all websites must contain\nsome form of Top Level Domain, such as “.com” or “.gov.,” there is no unique source-\nidentifying information. Similarly, in trademark infringement analyses, Top Level\nDomains have long been considered irrelevant to the strength of one’s mark, as they only\ndemonstrate, inter alia, a website’s commercial, governmental, or organizational nature.\nSee Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1055 (9th Cir.\n1999) (refusing to consider the “.com” portion of the web address when comparing marks\nin a case of potential infringement).\n\n 33\n\n“information about hotels or making reservations at hotels.” Id. The Federal Circuit also\n\naffirmed the finding of the Trademark Trial and Appeal Board (the “Trademark Board”)\n\nthat many other websites that used the word “hotels” in their domain names, such as “all-\n\nhotels.com” and “web-hotels.com,” demonstrated “a competitive need for others to use\n\n[the term] as part of their own domain names.” Id.\n\n Likewise, in In re Reed Elsevier Properties, the Federal Circuit found it to be\n\n“abundantly clear” that the proposed mark in question, “LAWYERS.COM,” was generic\n\nbecause “the relevant public would readily understand the term to identify a commercial\n\nweb site providing access to and information about lawyers.” 482 F.3d 1376, 1379–80\n\n(Fed. Cir. 2007) (internal quotation marks omitted).\n\n Similarly, in In re 1800Mattress.com IP, LLC, the Federal Circuit affirmed the\n\nTrademark Board’s decision that the proposed mark MATTRESS.COM was generic\n\nbecause customers would naturally recognize the mark as referring to a commercial\n\nwebsite providing retail services featuring mattresses. 586 F.3d 1359, 1364 (Fed. Cir.\n\n2009). Notably, the Federal Circuit rejected the applicant’s argument—which\n\nBooking.com also advances in this case and on which the district court relied, see\n\nBooking.com, 278 F. Supp.3d at 914—that the term could not be generic because\n\nconsumers did not refer to the stores as “mattresses.com[s],” id. (quoting In re\n\n1800Mattress.com IP, LLC, 586 F.3d at 1362). Instead, the court agreed with the\n\nTrademark Board that the relevant public would understand MATTRESS.COM to be “no\n\nmore than the sum of its constituent parts”—an online provider of mattresses. Id. at\n\n1363.\n\n 34\n\n Like the Federal Circuit, the Ninth Circuit has found that a generic Secondary\n\nLevel Domain combined with a Top Level Domain does not generally amount to a\n\nprotectable mark. In Advertise.com, the court considered whether AOL’s claimed mark\n\nADVERTISING.COM was protectable. 616 F.3d at 977. The district court below\n\nenjoined Advertise.com, a putative competitor of AOL’s Advertising.com, from using its\n\ntrade name or any other name confusingly similar to ADVERTISING.COM, concluding\n\nthat AOL would likely succeed on its claim that the standard text mark\n\nADVERTISING.COM was descriptive. Id. The Ninth Circuit held that the district court\n\nabused its discretion in entering the injunction because—like in the instant case—the\n\ndistrict court applied an incorrect legal standard in determining whether a mark composed\n\nof a generic Secondary Level Domain and Top Level Domain is enforceable. Id. at 982.\n\nEngaging in its own analysis under the appropriate legal standard, the court held that\n\nAOL was unlikely to succeed on the merits because “ADVERTISING.COM still conveys\n\nonly the generic nature of the services offered.” Id. at 981–82.\n\n Lower courts have followed Hotels.com, Reed-Elsevier Properties,\n\n1800Mattress.com, and Advertising.com and refused to award trademark significance to\n\nproposed marks, like BOOKING.COM, combining a generic Secondary Level Domain\n\nwith a Top Level Domain. See, e.g., Borescopes R U.S. v. 1800Endoscope.com, LLC,\n\n728 F. Supp. 2d 938, 952 (M.D. Tenn. 2010) (finding that the use of the term\n\n“borescopes” in companies’ domain names “generically describes the class of product\n\neach sells”); Image Online Design, Inc. v. Core Ass’n, 120 F. Supp. 2d 870, 878 (C.D.\n\nCal. 2000) (noting that “a [Top Level Domain] and other non-distinctive modifiers of a\n\n 35\n\nURL like ‘http://www’ have no trademark significance”); In Re Eddie Zs Blinds &\n\nDrapery, Inc., 74 U.S.P.Q.2d 1037 at *6 (T.T.A.B. 2005) (determining that\n\nBLINDSANDDRAPERY.COM was not one of the “exceptional circumstances” that\n\nshould forestall a finding of genericness); In Re Martin Container, Inc., 65 U.S.P.Q.2d\n\n1058 at *5 (T.T.A.B. 2002), appeal dismissed, 56 Fed. App’x. 491 (Fed. Cir. 2003)\n\n(finding CONTAINER.COM generic because the combination of “container” and a Top\n\nLevel Domain “does not result in a compound term that has somehow acquired” the\n\nability to function as an indication of source).\n\n A second indication that the district court’s incorrect legal framework tainted its\n\nultimate determination that BOOKING.COM is protectable is that BOOKING.COM is\n\nnot like the types of marks courts have recognized as among the “rare” occasions when\n\nadding a generic Secondary Level Domain to a Top Level Domain does not create a\n\ngeneric mark. Because Top Level Domains generally convey only that a business is web-\n\nbased, it is “only in rare circumstances” that the combination of a generic Secondary\n\nLevel Domain, on its own incapable of source identification, and “.com” will produce a\n\ncomposite mark that “expand[s] the meaning of the mark.” See, e.g., Advertise.com, 616\n\nF.3d at 979 (quoting In re Steelbuilding.com, 415 F.3d 1293, 1299 (Fed. Cir. 2005)).\n\n As an example of the “rare circumstance” in which a Top Level Domain could\n\nprovide additional non-functional information, the Federal Circuit considered the\n\npossibility of a brick-and-mortar company that sold tennis equipment and operated under\n\nthe name “tennis.net.” In re Oppendahl & Larson, LLP, 373 F.3d 1171, 1175 (Fed. Cir.\n\n2004). The court noted the “witty double entendre related to tennis nets” created by the\n\n 36\n\ncombination of “tennis” and “.net” rendered such a usage distinguishable from a standard\n\nproposed mark combining a generic Secondary Level Domain with a Top Level Domain.\n\nId.\n\n Following Oppendahl’s reasoning, if we were presented with a situation in which\n\nthe “.com” was used in a way that played upon or expanded the meaning of its ordinary\n\nuse as a Top Level Domain, registration might be appropriate. For instance, a website\n\ncataloguing and discussing romantic comedy movies of the 1980s, 1990s, and 2000s\n\ncalled “rom.com” might expand upon the ordinary meaning of the Top Level Domain, as\n\nit would both describe the commercial nature of the website, as well as convey the\n\nsubject matter of the website. 4\n\n The tennis.net and rom.com examples are readily distinguishable from the instant\n\ncase. The district court did not find—nor has Booking.com ever argued—that the\n\ncombination of “booking”—a generic term—and “.com” amounts to a “witty double\n\nentendre” that expands the ordinary meanings of the proposed mark’s component parts.\n\nRather, BOOKING.COM is a run-of-the-mill combination of a generic term with a Top\n\nLevel Domain that creates a composite mark concerning the subject or business\n\n\n 4\n “Rom com” is a common abbreviation for the “romantic comedy” genre of\nmovies, whose plots revolve around the humorous developments and lighthearted\ntensions that occur in a romantic couple’s bourgeoning relationship, while typically\nculminating in a happy ending. See https://www.merriam-webster.com/dictionary/rom-\ncom. Although rom.com differs from tennis.net in that the Secondary Level Domain\narguably is not a generic term, as “rom” is a shorthand reference for romantic, the domain\nname rom (dot) com is, as a composite term, both a generic descriptor and a “witty” play\non that descriptor.\n\n\n 37\n\nencompassed by the generic term—precisely the type of mark that the courts in\n\nHotels.com, Reed Elsevier Properties, 1800Mattress.com, and Advertise.com found did\n\nnot amount to the “rare circumstance” that warranted affording the domain name\n\ntrademark protection.\n\n BOOKING.COM’s mark differs substantially from the types of proposed marks\n\nfitting into the “rare circumstances” in which a generic Secondary Level Domain and a\n\nTop Level Domain are protectable. This provides further evidence that the district\n\ncourt’s incorrect legal test tainted its ultimate factual determination. Because the district\n\ncourt erroneously believed that marks combining a generic Secondary Level Domain and\n\nTop Level Domain are presumptively protectable, it never examined—as it should\n\nhave—whether BOOKING.COM amounted to one of the “rare circumstances” when\n\nsuch marks are protectable.\n\n The district court’s incorrect legal test—the application of which my colleagues\n\nleave in place—upsets the careful balance the law has struck between assisting\n\nconsumers to identify the source of goods and preserving the linguistic commons.\n\nPresumptively allowing protection of domain names composed of a generic Secondary\n\nLevel Domain and Top Level Domain conflicts with the law’s longstanding refusal to\n\npermit registration of generic terms as trademarks.\n\n Fundamentally, the proscription against allowing generic terms to be trademarked\n\nstems from considerations regarding the monopolization of language. To permit generic\n\nterms to be trademarked “would grant the owner of the mark a monopoly, since a\n\ncompetitor could not describe his goods as what they are.” CES Publ’g Corp. v. St. Regis\n\n 38\n\nPubl’ns, Inc., 531 F.2d 11, 13 (2d Cir. 1975). This Court has long sought to foreclose\n\nsuch a result, holding that no single competitor has the right to “corner the market” on\n\nordinary words and phrases, thereby enclosing the “public linguistic commons.” Am.\n\nOnline, Inc. v. AT&T Corp., 243 F.3d 812, 821 (4th Cir. 2001); see, e.g., Ashley\n\nFurniture Indus. v. Sangiacomo N.A., 187 F.3d 363, 369 (4th Cir. 1999) (noting that the\n\ntrade name “Pet Store” for a shop that sold pets would be generic).\n\n Importantly, the law forbids trademarking generic terms, even when a putative\n\nmark holder engages in successful efforts to establish consumer recognition of an\n\notherwise generic term. “[N]o matter how much money and effort the user of a generic\n\nterm has poured into promoting the sale of its merchandise and what success it has\n\nachieved in securing public identification, it cannot deprive competing manufacturers of\n\nthe product of the right to call an article by its name.” Abercrombie & Fitch Co. v.\n\nHunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976) (emphasis added). Therefore, even\n\nadvertising, repeated use, and consumer association will not warrant affording trademark\n\nprotection to a generic term. See Am. Online, 243 F.3d at 821 (“[T]he repeated use of\n\nordinary words . . . cannot give [a single company] a proprietary right over those words,\n\neven if an association develops between the words and [that company].”); see also\n\nSurgicenters of Am., Inc. v. Med. Dental Surgeries, Co., 601 F.2d 1011, 1017 (9th Cir.\n\n1979) (finding that even if a generic term becomes identified with a first user, trademark\n\nprotection will not be available in the generic term).\n\n The policy considerations underlying trademark law’s refusal to protect generic\n\nterms apply regardless of whether the putative mark holder is a traditional brick-and-\n\n 39\n\nmortar business or located in cyberspace. As the PTO argues, a grocery business called\n\nThe Grocery Store would—and should—never receive trademark protection because the\n\nname is generic—regardless of whether consumers associated the name with a particular\n\nentity. However, under the district court’s erroneous approach—the consequences of\n\nwhich the majority leaves in place—if enough consumers recognized an online grocery\n\nbusiness called “grocerystore.com,” that business would be entitled to trademark\n\nprotection. There is no basis in law or policy for drawing such a distinction. Just as\n\ncompeting brick-and-mortar grocery stores need to make use of the term “grocery” to\n\ninform customers of the nature of their businesses, so too do competing internet grocery\n\nproviders need to make use of the term “grocery” in their domain names.\n\n The district court’s treatment of marks combining generic Secondary Level\n\nDomains and Top Level Domains as presumptively protectable also conflicts with\n\nprecedent foreclosing protection of marks that combine a generic term with a generic\n\ncommercial designation (e.g., “Company,” “Corp.,” or “Inc.”). More than a hundred\n\nyears ago, the Supreme Court held that the addition of commercial designations like these\n\ndoes not transform otherwise generic terms into protectable marks. See Goodyear’s India\n\nRubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U.S. 598, 602–03 (1888).\n\n Under Goodyear’s, a brick-and-mortar reservation service operating under the\n\nterm The Booking Company would not be able to receive a trademark in that name,\n\nregardless of the degree of brand recognition it generated or the number of consumers\n\nwho identified it as a brand. See Am. Online, 243 F.3d at 821; Abercrombie, 537 F.2d at\n\n9. Yet, under the district court’s approach, the term BOOKING.COM is presumptively\n\n 40\n\nprotectable. Compare Advertise.com, 616 F.3d at 982 (“That ‘.com,’ when added to a\n\ngeneric term, ‘indicates a commercial entity’ does not suffice to establish that the\n\ncomposite is distinctive, much as AOL would not have created a protectable mark by\n\nadopting the designation ‘Advertising Company.’”).\n\n The district court concluded that “Goodyear’s reasoning regarding corporate\n\ndesignators does not apply with equal force to domain names” because “adding a [Top\n\nLevel Domain] such as ‘.com’ to a generic [Secondary Level Domain] does more than\n\nindicate that a company offers services via the internet; it indicates a unique domain\n\nname that can only be owned by one entity.” Booking.com, 278 F. Supp. 3d at 910. But\n\nas the Federal Circuit has explained, “[a]lthough not a perfect analogy, the comparison of\n\n[Top Level Domains] (i.e., ‘.com,’ ‘.org,’ etc.) to entity designations such as ‘Corp.’ and\n\n‘Inc.’ has merit.” Oppedahl, 373 F.3d at 1175. “The commercial impression created by\n\n‘.com’ is similar to the impression created by ‘Corp.’ and ‘Co.’, that is, the association of\n\na commercial entity with the mark.” Id.\n\n Additionally, the difference between an entity designation such as “Corp.” and a\n\nTop Level Domain recognized by the district court is attributable to the functional nature\n\nof the internet. Although most Top Level Domains do suggest a relationship with the\n\ninternet, a domain name “serves the purely technological function of locating a Web site\n\nin cyberspace.” McCarthy on Trademarks, § 7:17.50. Functional features, however,\n\ncannot be the basis for trademark protection: “[E]ven if a functional feature has achieved\n\nconsumer recognition (secondary meaning) of that feature as an indication of origin, the\n\nfeature cannot serve as a legally protectable symbol.” Am. Online, Inc., 243 F.3d at 822–\n\n 41\n\n23. Yet that is precisely what the district court’s legal test—the application of which my\n\ncolleagues in the majority leave in place—does.\n\n It is particularly important that we ensure that the district court’s ultimate finding\n\nthat BOOKING.COM is descriptive, and therefore protectable, was not tainted by its\n\nerroneous legal test because, as the PTO argues, trademark registration will provide\n\nBooking.com with a weapon to freeze out potential competitors. As explained above,\n\ntrademark law’s proscription on the registration of generic terms prevents firms from\n\nmonopolizing language and allows competitors to “describe [their] goods as what they\n\nare.” CES Publ’g, 531 F.2d at 13.\n\n I believe that this Court’s affirmance of the district court’s judgment—even as it\n\nrejects the district court’s legal analysis—unjustifiably empowers Booking.com to\n\nmonopolize language, thereby enclosing the linguistic commons and adversely affecting\n\ncompetitors in precisely the manner that trademark law seeks to forestall. Put simply, the\n\nmajority opinion’s judgment will directly disadvantage Booking.com’s competitors by\n\ntaking away their ability to use the term “booking” in their own website domain names.\n\nIndeed, any competitors that attempt to use the term “booking” will face the risk of a\n\ncostly, protracted, and uncertain infringement lawsuit.\n\n Booking.com and the majority opinion assert that the potential harm to\n\ncompetitors—and therefore consumers—is minimal because: (1) the doctrine of\n\ndescriptive fair use will prevent Booking.com from monopolizing the term; (2) the\n\nprotection of BOOKING.COM extends only to hotel reservations, not to other\n\n\n\n 42\n\nreservation services; and (3) domain names are unique. I find none of these assertions\n\npersuasive.\n\n Descriptive fair use is an affirmative defense that allows a competitor to use words\n\ncontained in a trademark in their ordinary sense to describe the competitor’s own goods\n\nor services to consumers. See KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc.,\n\n543 U.S. 111, 121–22 (2004). According to Booking.com, affording BOOKING.COM\n\ntrademark protection will not adversely affect competition by depriving putative\n\ncompetitors from describing the nature of their business because such protection “will\n\nhave no effect on competitors’ right to make descriptive fair use of the word\n\n‘Booking.com.’” Appellee’s Br. at 38. The district court agreed, noting that even if\n\nBooking.com were to successfully assert a prima facie case of trademark infringement by\n\nshowing a likelihood of confusion between BOOKING.COM and a competitor’s domain,\n\nthe competitor could make use of the descriptive fair use doctrine to avoid liability.\n\n For several reasons, I fear that the doctrine of descriptive fair use will provide\n\nBooking.com’s competitors cold comfort. I am not convinced that the descriptive fair\n\nuse defense will provide significant protection to competitors using the term “booking” in\n\ntheir own domain names. As the Ninth Circuit has explained, “granting trademark rights\n\nover a domain name composed of a generic term and a [Top Level Domain] grants the\n\ntrademark holder rights over far more intellectual property than the domain name itself.”\n\nAdvertise.com, 616 F.3d at 980. Such trademark protection “would potentially reach\n\nalmost any use of the generic term in a domain name.” Id. at 981 (noting that any one of\n\nthe thirty-two other domain names containing some form of the word “advertise” would\n\n 43\n\nbe placed at risk of a lawsuit). Thus, notwithstanding the doctrine of descriptive fair use,\n\na firm that obtains a trademark in a domain name that describes the service the firm\n\nprovides, like Booking.com, may have the power “to foreclose competitors from using a\n\nvast array of simple, easy to remember domain names and designations that describe\n\n[such] services.” Id.\n\n Additionally, descriptive fair use is an affirmative defense, not an immunity from\n\nsuit. Any online reservation business that chooses to include “booking” in its domain\n\nname will face the risk of defending an expensive infringement lawsuit. As a result,\n\ncommercial competitors seeking to avoid litigation risk and expenses—even if they might\n\nultimately prevail on descriptive fair use grounds—will be chilled from using the term.\n\n My colleagues in the majority also emphasize that the district court awarded\n\nBooking.com protection for the mark only for Class 43 hotel services, not Class 39 travel\n\nagency services, meaning that “protection over BOOKING.COM would not necessarily\n\npreclude another company from using, for example, carbooking.com or\n\nflightbooking.com.” Ante at 24 (emphasis added). But even assuming my colleagues’\n\noptimism that Booking.com could not preclude competitors from using domain names\n\ncontaining the word “booking” is well-founded—a decidedly uncertain question, see\n\nAdvertise.com, 616 F.3d at 980–81—I see no reason why Booking.com should be entitled\n\nto monopolize the generic term “booking” in the online hotel reservation industry by\n\nprecluding competitors from using domain names like hotelbooking.com or\n\n\n\n\n 44\n\nehotelbooking.com, 5 which likewise describe such competitors’ services “as what they\n\nare.” CES Publ’g, 531 F.2d at 13. Put simply, there is no reason why monopolization of\n\nlanguage should be allowed in the internet domain name context for any class of services\n\nwhen trademark law has consistently maintained that generic terms such as “booking”\n\nshould be available in the public linguistic commons for all competitors to use.\n\n Finally, my colleagues in the majority seek to assuage concerns that granting\n\ntrademark protection over BOOKING.COM will prevent other companies from using\n\nvariants of the mark by emphasizing that, to enforce the mark, Booking.com will have to\n\nprove that there is a “likelihood of confusion” with the allegedly infringing mark. Ante at\n\n25. According to the majority, “[g]iven that domain names are unique by nature and that\n\nthe public may understand a domain name as indicating a single site, it may be more\n\ndifficult for domain name plaintiffs to demonstrate a likelihood of confusion.” Id. Even\n\naccepting my colleagues’ assumption that Booking.com will have difficulty proving\n\nlikelihood of confusion—again, an uncertain question—affording protection to\n\nBOOKING.COM would still likely chill competition in the online booking space. Put\n\nsimply, putative competitors may—and likely will—choose not to operate under domain\n\nnames that include the word “booking”—even if that term best describes the service they\n\n\n\n\n 5\n Several hotel booking websites have domain names combining, in various ways,\n“booking” with “.com,” including “bookingcenter.com,” “ebookers.com,”\n“bookingwhiz.com,” “hotelbooking.com,” “bookit.com,” and “bookingbuddy.com.” J.A.\n337–39.\n\n\n 45\n\noffer—because they do not want to incur the expense and risk of defending an\n\ninfringement action.\n\n In sum, the district court’s opinion reveals that its incorrect understanding of the\n\ngoverning legal framework likely tainted its finding that BOOKING.COM is distinctive,\n\nand therefore protectable. Because the district court’s erroneous legal test factored into\n\nits ultimate factual determination as to descriptiveness, I cannot concur in my colleagues’\n\ndecision to affirm the district court’s judgment. Accordingly, with great respect for my\n\ngood colleagues in the majority, I dissent.\n\n\n\n\n 46", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364456/", "author_raw": "WYNN, Circuit Judge, concurring"}]} | KING | DUNCAN | WYNN | 1 | {} | 5 | 0 | 0 | 3 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587203/ | Published | 1 | 1 | 0 | 1 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,587,553 | Mountain Valley Pipeline, LLC v. 6.56 Acres of Land | 2019-02-05 | 18-1159 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before GREGORY, Chief Judge, and WYNN and HARRIS, Circuit Judges.", "parties": "", "opinions": [{"author": "PAMELA HARRIS, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1159\n\n\nMOUNTAIN VALLEY PIPELINE, LLC,\n\n Plaintiff - Appellee,\n\n v.\n\n6.56 ACRES OF LAND, OWNED BY SANDRA TOWNES POWELL, Montgomery\nCounty Tax Map Parcel No. 015900 and being MVP Parcel No. VA-MO-3370; 1.81\nACRES OF LAND, OWNED BY ROBERT M. JONES AND DONNA THOMAS\nJONES, Montgomery County Tax Map Parcel No. 024588 and being MVP Parcel No.\nVA-MO-5511; 1.29 ACRES OF LAND, OWNED BY ROBERT M. JONES AND\nDONNA THOMAS JONES, Montgomery County Tax Map Parcel No. 024591 and\nbeing MVP Parcel No. VA-MO-5512; 0.52 ACRES OF LAND, OWNED BY EMILIE\nM. OWEN AND RICHARD CLARK OWEN, Franklin County Tax Map Parcel No.\n0380002204B and being MVP Parcel No. VA-FR-4129 (AR FR-294),\n\n Defendants - Appellants.\n\n\nAppeal from the United States District Court for the Western District of Virginia, at\nRoanoke. Elizabeth Kay Dillon, District Judge. (7:17-cv-00492-EKD)\n\n\n No. 18-1165\n\n\nMOUNTAIN VALLEY PIPELINE, LLC,\n\n Plaintiff - Appellee,\n\n v.\n\nTERESA D. ERICKSON, POA for Gerald Wayne Corder (Parcel ID NO. 20-362-20. An\nEasement to construct, operate and maintain a 42-inch gas transmission line across\n\fproperties in the counties of Braxton, Lewis, Harrison, Webster, and Wetzel, WV;\nLORENA B. KRAFFT, POA for Randall N. Corder (Parcel ID NO. 20-362-21. An\nEasement to construct, operate and maintain a 42-inch gas transmission line across\nproperties in the counties of Braxton, Lewis, Harrison, Webster, and Wetzel, WV,\n\n Defendants - Appellants.\n\n\nAppeal from the United States District Court for the Northern District of West Virginia,\nat Clarksburg. Irene M. Keeley, Senior District Judge. (1:17-cv-00211-IMK)\n\n\n No. 18-1175\n\n\nMOUNTAIN VALLEY PIPELINE, LLC,\n\n Plaintiff - Appellee,\n\n v.\n\n0.335 ACRES OF LAND, OWNED BY GEORGE LEE JONES, Giles County Tax Map\nParcel No. 47-1-1 and being MVP Parcel No. VA-GI-200.044; 0.65 ACRES OF LAND,\nOWNED BY MICHAEL S. HURT AND MARY FRANCES K. HURT, Franklin County\nTax Map Parcel No. 0380002204A and being MVP Parcel No. VA-FR-4130 (AR FR-\n294); 1.52 ACRES OF LAND, OWNED BY VERNON V. BEACHAM, SR. AND\nVERNON V. BEACHAM, II, Giles County Tax Map Parcel No. 44A-1-34 and being\nMVP Parcel No. VA-GI-051; 2.83 ACRES OF LAND, OWNED BY VERNON V.\nBEACHAM, SR. AND VERNON V. BEACHAM, II, Giles County Tax Map Parcel No.\n44A-1-33 and being MVP Parcel VA-GI-052; 4.88 ACRES OF LAND, OWNED BY\nCLARENCE B. GIVENS AND KAROLYN W. GIVENS, Giles County Tax Map Parcel\nNo. 47-9 and being MVP Parcel No. VA-GI-200.041; 2.01 ACRES OF LAND, OWNED\nBY GEORGE LEE JONES, Giles County Tax Map Parcel No. 47-1-2 and being MVP\nParcel No. VA-GI-200.045; 2.09 ACRES OF LAND, OWNED BY STEVEN C.\nHODGES AND JUDY R. HODGES, Craig County Tax Map Parcel No. 120-A-10 and\n120-A-10A and being MVP Parcel No. VA-CR-200.047; 0.66 ACRES OF LAND,\nOWNED BY GORDON WAYNE JONES AND DONNA W. JONES, Craig County Tax\nMap Parcel No. 120-A-13 and being MVP Parcel No. VA-CR-200.049; 0.71 ACRES OF\nLAND, OWNED BY ROANOKE VALLEY 4-WHEELERS ASSOCIATION,\nMontgomery County Tax Map Parcel No. 031198 and being MVP Parcel No. VA-MO-\n4264 (AR-MN-276); 1.53 ACRES OF LAND, OWNED BY ROANOKE VALLEY 4-\nWHEELERS ASSOCIATION, Montgomery County Tax Map Parcel No. 016068 and\nbeing MVP Parcel No. VA-MO-4265 (AR MN-276); 1.53 ACRES OF LAND, OWNED\n\n 2\n\fBY STEPHEN W. BERNARD AND ANNE W. BERNARD, Franklin County Tax Map\nParcel No. 0370001901 and being MVP Parcel No. BVA-FR-13; 5.88 ACRES OF\nLAND, OWNED BY WENDELL WRAY FLORA AND MARY MCNEIL FLORA,\nFranklin County Tax Map Parcel No. 0380002000 and being MVP Parcel No. VA-FR-\n017.21; 3.70 ACRES OF LAND, OWNED BY MICHAEL S. HURT AND MARY\nFRANCES K. HURT, Franklin County Tax Map Parcel No. 0380002204 and being MVP\nParcel No. VA-FR-017.25; 1.97 ACRES OF LAND, OWNED BY KEITH M. WILSON\nAND MARY K. WILSON, Franklin County Tax Map Parcel No. 0370009906 and being\nMVP Parcel No. VA-FR-017.44; 6.50 ACRES OF LAND, MORE OR LESS, OWNED\nBY NEW RIVER CONSERVANCY, INC., Located in Giles County, Virginia being a\nportion of Giles County Tax Map Parcel No. 29-25B and being MVP Parcel No. VA-GI-\n035,\n\n Defendants - Appellants.\n\n\nAppeal from the United States District Court for the Western District of Virginia, at\nRoanoke. Elizabeth Kay Dillon, District Judge. (7:17-cv-00492-EKD)\n\n\n No. 18-1181\n\n\nMOUNTAIN VALLEY PIPELINE, LLC,\n\n Plaintiff - Appellee,\n\n v.\n\n0.01 ACRES OF LAND, OWNED BY BENNY L. HUFFMAN, Giles County Tax Map\nParcel No. 46-25 B and being MVP Parcel No. VA-GI-5779; 0.01 ACRES OF LAND,\nOWNED BY JEREMY JOSEPH RICE AND MICHELLE RENEE RICE, Roanoke\nCounty Tax Map Parcel No. 111.00-01-58.00-0000 and being MVP Parcel No. VA-RO-\n5627; 0.01 ACRES OF LAND, OWNED BY ROY A. STEVENS, Franklin County Tax\nMap Parcel No. 0440018800 and being MVP Parcel No. VA-FR-5496; 0.02 ACRES OF\nLAND, OWNED BY DANIEL G. MYERS AND DEBORAH L. MYERS, Franklin\nCounty Tax Map Parcel No. 0440019801 and being MVP Parcel No. VA-FR-5502; 0.04\nACRES OF LAND, OWNED BY BRUCE M. WOOD AND JENNIFER M. WOOD,\nFranklin County Tax Map Parcel No. 0440200600 and being MVP Parcel No. VA-FR-\n5791; 2.75 ACRES OF LAND, OWNED BY HELENA DELANEY TEEKELL,\nTRUSTEE OF THE HELENA DELANEY TEEKELL TRUST, Craig County Tax Map\nParcel No. 120-A-12 and being MVP Parcel No. VA-CR-200.048; 2.81 ACRES OF\nLAND, OWNED BY ROBERT W. CRAWFORD OR PATRICIA D. CRAWFORD,\n\n 3\n\fTRUSTEES UNDER THE CRAWFORD LIVING TRUST, AND ANITA NEAL\nHUGHES, Craig County Tax Map Parcel No. 121-A-15 and being MVP Parcel No. VA-\nCR-200.053; 2.60 ACRES OF LAND, OWNED BY HELENA DELANEY TEEKELL,\nTRUSTEE OF THE HELENA DELANEY TEEKELL TRUST, Craig County Tax Map\nParcel No. 120-A-14A and being MVP Parcel No. VA-CR-5343; 0.15 ACRES OF\nLAND, OWNED BY DONALD W. LONG AND EVELYN W. LONG, Montgomery\nCounty Tax Map Parcel No. 021560 and being MVP Parcel No. BVMO-25; 0.07 ACRES\nOF LAND, OWNED BY GEORGE A. CRAIGHEAD AND HELEN P. CRAIGHEAD,\nMontgomery County Tax Map Parcel No. 016298 and being MVP Parcel No. VA-MO-\n011; 1.90 ACRES OF LAND, OWNED BY JOSEPH PATRICK TOMELTY,\nMontgomery County Tax Map Parcel No. 013819 and being MVP Parcel No. VA-MO-\n060; 0.89 ACRES OF LAND, OWNED BY DONALD W. LONG AND EVELYN W.\nLONG, Montgomery County Tax Map Parcel No. 021559 and being MVP Parcel No.\nVA-MO-062; 0.392 ACRES OF LAND, OWNED BY TRAVIS SCOTT LANCASTER\nAND TRACY LYNN TAYLOR, Montgomery County Tax Map Parcel No. 033280 and\nbeing MVP Parcel No. VA-MO-064 (AR-MN-271); 23.74 ACRES OF LAND, OWNED\nBY MARK W. CRONK, ALISON G. CRONK AND THE NATURE CONSERVANCY,\nRoanoke County Tax Map Parcel No. 093.00-01-44.00-0000 and being MVP Parcel No.\nVA-RO-038; 1.89 ACRES OF LAND, OWNED BY TRUSTEES OF EVANGEL\nFOURSQUARE CHURCH, Roanoke County Tax Map Parcel No. 093.00-01-47.00-0000\nand being MVP Parcel No. VA-RO-039; 5.38 ACRES OF LAND, OWNED BY LUCY\nA. PRICE, Franklin County Tax Map Parcel No. 0240003400 and being MVP Parcel No.\nVA-FR-008; 3.11 ACRES OF LAND, OWNED BY RUSSELL E. CALLAWAY AND\nHEIDE K. CALLAWAY, Franklin County Tax Map Parcel No. 0240005400 and being\nMVP Parcel No. VA-FR-015.02; 5.93 ACRES OF LAND, OWNED BY CHARLES\nFREDERICK FLORA AND STEPHANIE M. FLORA, Franklin County Tax Map Parcel\nNo. 0380002002 and being MVP Parcel No. VA-FR-017.20; 0.07 ACRES OF LAND,\nOWNED BY DALE E. ANGLE AND MARY A. ANGLE, TRUSTEES OF THE DALE\nE. ANGLE AND MARY A. ANGLE JOINT REVOCABLE TRUST, Franklin County\nTax Map Parcel No. 0440006400 and being MVP Parcel No. VA-FR-077.01; 2.14\nACRES OF LAND, OWNED BY DALE E. ANGLE AND MARY A. ANGLE,\nTRUSTEES UNDER THE DALE E. AND MARY A. ANGLE JOINT REVOCABLE\nTRUST, Franklin County Tax Map Parcel No. 0440006501 and being MVP Parcel No.\nVA-FR-078; 11.86 ACRES OF LAND, OWNED BY DONALD B. BARNHART,\nFranklin County Tax Map Parcel No. 0440007300 and being MVP Parcel No. VA-FR-\n081; 10.21 ACRES OF LAND, OWNED BY WILLIAM DAVID BOARD, JAMES R.\nBOARD, SUSAN BOARD MYERS, NANCY B. FLORA, AND KENNETH CRAIG\nBOARD, Franklin County Tax Map Parcel No. 0450006100 and being MVP Parcel No.\nVA-FR-128; 0.30 ACRES OF LAND, OWNED BY ROBERT ALAN PEGRAM,\nFranklin County Tax Map Parcel No. 0650401600 and being MVP Parcel No. VA-FR-\n155.01; 1.85 ACRES OF LAND, OWNED BY OYLER LAND AND LEASING, LLC,\nFranklin County Tax Map Parcel No. 0240004000 and being MVP Parcel No. VA-FR-\n4126 (AR FR-291); 0.83 ACRES OF LAND, OWNED BY SUSAN BOARD MYERS,\n\n 4\n\fWILLIAM DAVID BOARD, KENNETH CRAIG BOARD, AND NANCY BOARD\nFLORA, a/k/a William D. Board, Franklin County Tax Map Parcel No. 0450012003 and\nbeing MVP Parcel No. VA-FR-4141 (AR FR-313); 0.56 ACRES OF LAND, OWNED\nBY OWNED BY WILLIAM D. BOARD, Franklin County Tax Map Parcel No.\n0450012005 and being MVP Parcel No. VA-FR-4277 (AR FR-313); 0.97 ACRES OF\nLAND, OWNED BY WILLIAM DAVID BOARD, KENNETH CRAIG BOARD,\nSUSAN B. MYERS, NANCY B. FLORA, AND JAMES R. BOARD, Franklin County\nTax Map Parcel No. 0450012001 and being MVP Parcel No. VA-FR-4278 (AR FR-313);\n0.12 ACRES OF LAND, OWNED BY ANGELA L. MCGHEE AND FREDRICK C.\nMCGHEE, Franklin County Tax Map Parcel No. 0370009905 and being MVP Parcel No.\nVA-FR-5411; 0.07 ACRES OF LAND, OWNED BY RUSSELL W. LAWLESS,\nFranklin County Tax Map Parcel No. 0370009907 and being MVP Parcel No. VA-FR-\n5413; 0.04 ACRES OF LAND, OWNED BY RONALD B. EDWARDS, SR., GLORIA\nMARTIN, TERRANCE EDWARDS, LINDA WHITE, RUBY PENN, JANIS E.\nWALLER, CRYSTAL DIANE EDWARDS, AND PENNY EDWARDS BLUE, Franklin\nCounty Tax Map Parcel No. 0660009502 and being MVP Parcel No. VA-FR-5434; 0.44\nACRES OF LAND, OWNED BY SHELBY A. LAW, Franklin County Tax Map Parcel\nNo. 0440200400 and being MVP Parcel No. VA-FR-5492; 3.15 ACRES OF LAND,\nOWNED BY ROBERT WAYNE MORGAN AND PATRICIA ANN MORGAN,\nFranklin County Tax Map Parcel No. 0440018700 and being MVP Parcel No. VA-FR-\n5493; 3.11 ACRES OF LAND, OWNED BY JAMES GLYNWOOD HAYNES, JR.,\nFranklin County Tax Map Parcel No. 0440020001 and being MVP Parcel No. VA-FR-\n5504; 0.95 ACRES OF LAND, OWNED BY JAMES GLYNWOOD HAYNES, JR.,\nFranklin County Tax Map Parcel No. 0440019500 and being MVP Parcel No. VA-FR-\n5505; 0.38 ACRES OF LAND, OWNED BY JAMES GLYNWOOD HAYNES, JR.,\nFranklin County Tax Map Parcel No. 0440019300 and being MVP Parcel No. VA-FR-\n5507,\n\n Defendants - Appellants.\n\n\nAppeal from the United States District Court for the Western District of Virginia, at\nRoanoke. Elizabeth Kay Dillon, District Judge. (7:17-cv-00492-EKD)\n\n\n No. 18-1187\n\n\nMOUNTAIN VALLEY PIPELINE, LLC,\n\n Plaintiff - Appellee,\n\n v.\n\n 5\n\f0.09 ACRES OF LAND, OWNED BY GARY HOLLOPTER AND ALLISON\nHOLLOPTER, Giles County Tax Map Parcel No. 30-4B and being MVP Parcel No. VA-\nGI-5310; 0.18 ACRES OF LAND, OWNED BY GEORGIA LOU HAVERTY, Giles\nCounty Tax Map Parcel No 30-4A and being MVP Parcel No. BVGI-10; 6.50 ACRES\nOF LAND, OWNED BY SIZEMORE INCORPORATED OF VIRGINIA, f/k/a National\nCommittee for the New River, Giles County Tax Map Parcel No. 29-25B and being MVP\nParcel No. VA-GI-035; 1.23 ACRES OF LAND, OWNED BY EAGLE'S NEST\nMINISTRIES, INC., Giles County Tax Map Parcel No. 29-25 and being MVP Parcel No\nVA-GI-035.01; 10.67 ACRES OF LAND, OWNED BY DOE CREEK FARM,\nINCORPORATED, Giles County Tax Map Parcel No.30-4 and being MVP Parcel No.\nVA-GI-049; 2.19 ACRES OF LAND, OWNED BY STEPHEN D. LEGGE, DAVID\nLEGGE, AND PHYLLIS J. LEGGE, Giles County Tax Map Parcel No. 44-3-3A and\nbeing MVP Parcel No. VA-GI-057; 5.25 ACRES OF LAND, OWNED BY MARY\nVIRGINIA REYNOLDS, SAMUEL HALE REYNOLDS, AND MARY SUTTON\nREYNOLDS, Giles County Tax Map Parcel No. 46-1-3 and being MVP Parcel No. VA-\nGI-097.01; 8.60 ACRES OF LAND, OWNED BY DOWDY FARM LLC, Giles County\nTax Map Parcel No. 46-52 and being MVP Parcel No. VA-GI-4250; 0.22 ACRES OF\nLAND, OWNED BY DOWDY FARM, LLC, Giles County Tax Map Parcel No. 46-52\nA. and being MVP Parcel No. VA-GI-5790; 10.26 ACRES OF LAND, OWNED BY\nSAMUEL HALE REYNOLDS AND MARY SUTTON REYNOLDS, Giles County Tax\nMap Parcel No. 46-1-2A and being MVP Parcel No. VA-GI-5922; 7.18 ACRES OF\nLAND, OWNED BY MICHAEL EDWARD SLAYTON, TRUSTEE OR MARGARET\nMCGRAW SLAYTON, TRUSTEE, MARGARET MCGRAW SLAYTON LIVING\nTRUST, Montgomery County Tax Map Parcel No. 024590 and being MVP Parcel No.\nVA-MO-3371; 0.22 ACRES OF LAND, OWNED BY LENORA W. MONTUORI AND\nLENORA MONTUORI AND KRISTINA MONTUORI HILLMAN, TRUSTEES OF\nTHE ANTONIO MONTUORI FAMILY TRUST, Roanoke County Tax Map Parcel No.\n117.00-01-41.00-0000 and being MVP Parcel No. BVRO-12; 0.41 ACRES OF LAND,\nOWNED BY JAMES D. SCOTT AND KAREN B. SCOTT, Roanoke County Tax Map\nParcel No. 093.00-01-34.01-0000 and being MVP Parcel No. VA-RO-030 (AR RO-281);\n2.17 ACRES OF LAND, OWNED BY JAMES D. SCOTT AND KAREN B. SCOTT,\nRoanoke County Tax Map Parcel No. 093.00-01-33.00-0000 and being MVP Parcel No.\nVA-RO-042; 0.341 ACRES OF LAND, OWNED JAMES D. SCOTT AND KAREN B.\nSCOTT, Roanoke County Tax Map Parcel No. 093.00-01-33.01-0000 and being MVP\nParcel No. VA-RO-043; 0.41 ACRES OF LAND, OWNED BY LENORA W.\nMONTUORI, Roanoke County Tax Map Parcel No. 110.00-01-54.00-0000 and being\nMVP Parcel No. VA-RO-058; 4.31 ACRES OF LAND, OWNED BY JAMES T.\nCHANDLER AND KATHY E. CHANDLER, Roanoke County Tax Map Parcel No.\n111.00-01-62.01-0000 and being MVP Parcel No. VA-RO-060; 4.31 ACRES OF LAND,\nOWNED BY JAMES T. CHANDLER AND KATHY E. CHANDLER, Roanoke County\nTax Map Parcel No 117.00-01-38.00-0000 and being MVP Parcel No. VA-RO-061; 1.91\nACRES OF LAND, OWNED BY LENORA W. MONTUORI AND LENORA\n\n 6\n\fMONTUORI AND KRISTIN MONTUORI HILLMAN, TRUSTEES OF THE\nANTONIO MONTUORI FAMILY TRUST, Roanoke County Tax Map Parcel No.\n117.00-01-43.02-0000 and being MVP Parcel No. VA-RO-062; 0.91 ACRES OF LAND,\nOWNED BY LENORA W. MONTUORI AND LENORA MONTUORI AND\nKRISTINA MONTUORI HILLMAN, TRUSTEES OF THE ANTONIO MONTUORI\nFAMILY TRUST, Roanoke County Tax Map Parcel No. 117.00-01-43.00-0000, Being\nMVP Parcel No. VA-RO-063; 2.99 ACRES OF LAND, OWNED BY LENORA W.\nMONTUORI AND LENORA MONTUORI AND KRISTINA MONTUORI HILLMAN,\nTRUSTEES OF THE ANTONIO MONTUORI FAMILY TRUST, Roanoke County Tax\nMap Parcel No. 117.00-01-46.00-0000 and Being Parcel No. VA-RO-064; 0.20 ACRES\nOF LAND, OWNED BY LENORA W. MONTUORI AND LENORA MONTUORI\nAND KRISTINA MONTUORI HILLMAN, TRUSTEES OF THE ANTONIO\nMONTUORI FAMILY TRU, Roanoke County Tax Map Parcel No. 117.00-01-43.01-\n0000 and being MVP Parcel No. VA-RO-065; 0.19 ACRES OF LAND, OWNED BY\nLENORA W. MONTUORI AND LENORA MONTUORI AND KRISTINA\nMONTUORI HILLMAN, TRUSTEES OF THE ANTONIO MONTUORI FAMILY\nTRUST, Roanoke County Tax Map Parcel No. 117.00-01-42.00-0000 and being MVP\nParcel No. VA-RO-066; 2.43 ACRES OF LAND, OWNED BY LENORA W.\nMONTUORI AND LEMORA MONTUORI AND KRISTINA MONTUORI HILLMAN,\nTRUSTEES OF THE ANTONIO MONTUORI FAMILY TRUST, Roanoke County Tax\nMap Parcel No. 117.00-01-45.00-0000 and being MVP Parcel No. VA-RO-067; 0.50\nACRES OF LAND, OWNED BY LENORA W. MONTUORI AND LENORA\nMONTUORI AND KRISTINA MONTUORI HILLMAN, TRUSTEES OF THE\nANTONIO MONTUORI FAMILY TRUST, Roanoke County Tax Map Parcel No.\n117.00-01-41.01-0000 and being MVP Parcel No. VA-RO-4124; 0.33 ACRES OF\nLAND, OWNED BY LENORA W. MONTUORI AND LENORA MONTUORI AND\nKRISTINA MONTUORI HILLMAN, TRUSTEES OF THE ANTONIO MONTUORI\nFAMILY TRUST, Roanoke County Tax Map Parcel No. 117.00-01-41.02-0000 and\nbeing MVP Parcel No. VA-RO-4125; 8.21 ACRES OF LAND, OWNED BY\nOCCANNEECHI, INC., Franklin County Tax Map Parcel No. 0250004100 and being\nMVP Parcel No. VA-FR-017.11; 21.98 ACRES OF LAND, OWNED BY\nOCCANNEECHI, INC., Franklin County Tax Map Parcel No. 0380001501 and being\nMVP Parcel No. VA-FR-017.15; 8.67 ACRES OF LAND, OWNED BY JAMES D.\nSCOTT AND KAREN B. SCOTT, Roanoke County Tax Map Parcel No. 093.00-01-\n34.00-0000 and being MVP Parcel No. VA-RO-040,\n\n Defendants - Appellants.\n\n\nAppeal from the United States District Court for the Western District of Virginia, at\nRoanoke. Elizabeth Kay Dillon, District Judge. (7:17-cv-00492-EKD)\n\n\n\n 7\n\f No. 18-1242\n\n\nMOUNTAIN VALLEY PIPELINE, LLC,\n\n Plaintiff - Appellee,\n\n v.\n\n0.09 ACRES OF LAND, OWNED BY LARRY BERNARD CUNNINGHAM AND\nCAROLYN A. CUNNINGAM, Roanoke County Tax Map Parcel No. 063.00-01-20.03-\n0000 and being MVP Parcel No. VA-RO-5781; 0.11 ACRES OF LAND, OWNED BY\nJUNE SMITH, RAY SMITH, PATRICIA S. DEVECHA, STEPHEN R. SMITH,\nBARRY SCOTT SMITH, DOUGLAS F. SMITH, DAVID L. SMITH, FRED APGAR,\nRUTH APGAR GLOCK, DONALD APGAR, GREGORY M. A, a/k/a Raymond Foster\nSmith, a/k/a Fred I. Apgar, a/k/a Frederick Apgar, a/k/a Gregory M. Apgar, a/k/a Angela\nH. Apgar, Unknown Heirs and Assigns of the Following June Smith, and Ray Smith,\nRoanoke Co. Tax Map Parcel No. 063.00-01-25.00-0000 and being MVP Parcel No. VA-\nRO-033; 0.14 ACRES OF LAND, OWNED BY UNKNOWN HEIRS OR ASSIGNS OF\nANTHONY B. NOVITZKI AND JOANNE A. LOFARO, Franklin County Tax Map\nParcel No. 0440206600 and being MVP Parcel No. VA-FR-5500; 4.90 ACRES OF\nLAND, OWNED BY BRENDA LYNN WILLIAMS, Giles County Tax Map Parcel No.\n46-15 and being MVP Parcel No. VA-GI-200.019; 0.19 ACRES OF LAND, OWNED\nBY CLETUS WOODROW BOHON AND BEVERLY ANN BOHON, Montgomery\nCounty Tax Map Parcel No. 030271 and being MVP Parcel No. VA-MN-5233 (AR MN-\n278.01); 0.39 ACRES OF LAND, OWNED BY JAMES C. LAW AND CAROLYN D.\nLAW, Montgomery County Tax Map Parcel No. 032431 And being MVP Parcel No.\nVA-MN-5234 (AR MN-278.01); 2.08 ACRES OF LAND, OWNED BY DONALD D.\nAPGAR AND MILDRED M. APGAR, Montgomery County Tax Map Parcel No.\n000843 and being MVP Parcel No. VA-MO-012; 2.69 ACRES OF LAND, OWNED BY\nBRIAN DAVID GLOCK AND SUSAN ELIZABETH GLOCK BUCH, Montgomery\nCounty Tax Map Parcel No. 000844 and being MVP Parcel No. VA-MO-013; 2.74\nACRES OF LAND, OWNED BY CLETUS WOODROW BOHON AND BEVERLY\nANN BOHON, Montgomery County Tax Map Parcel No. 017761 and being MVP Parcel\nNo. VA-MO-022; 2.12 ACRES OF LAND, OWNED BY JAMES CABEL LAW AND\nCAROLYN DIANA EANES LAW, Montgomery County Tax Map Parcel No. 018808\nand being MVP Parcel No. VA-MO-024; 4.67 ACRES OF LAND, OWNED BY JAMES\nCABEL LAW AND CAROLYN DIANA EANES LAW, Montgomery County Tax Map\nParcel No. 011673 and being MVP Parcel No. VA-MO-025; 12.20 ACRES OF LAND,\nOWNED BY JUNE SMITH, RAY SMITH, PATRICIA S. DEVECHA, STEPHEN R.\nSMITH, BARRY SCOTT SMITH, DOUGLAS F. SMITH, DAVID L. SMITH, FRED\n\n 8\n\fAPGAR, RUTH APGAR GLOCK, GREGORY M. APGAR, AND ANG, a/k/a Raymond\nFoster Smith, a/k/a Fred I. Apgar, a/k/a Frederick I. Apgar, Unknown Heirs or Assigns of\nthe Following June Smith, and Ray Smith, Montgomery Co. Tax Map Parcel No. 120001\nand MVP Parcel No. VA-MO-084; 3.35 ACRES OF LAND, OWNED BY THOMAS W.\nTRIPLETT AND BONNIE B. TRIPLETT, Montgomery County Tac Map Parcel No.\n024589 and being MVP Parcel No. VA-MO-5514; 2.07 ACRES OF LAND, OWNED\nBY PHYLLIS M. HUTTON, Montgomery County Tax Map Parcel No. 009443 and\nbeing MVP Parcel No. VA-MO-5515; 3.01 ACRES OF LAND, OWNED BY PHYLLIS\nM. HUTTON, Montgomery County Tax Map Parcel No. 026945 and being MVP Parcel\nNo. VA-MO-5516; 6.86 ACRES OF LAND, OWNED BY JULIANA BERNHOLZ\nAND IRINA BERNHOLZ SIEGRIST, Montgomery County Tax Map Parcel No. 015895\nand being MVP Parcel No. VA-MO-5526; 0.38 ACRES OF LAND, OWNED BY\nJAMES C. LAW AND CAROLYN D. LAW, Montgomery County Tax Map Parcel No.\n002833 and being MVP Parcel No. VA-MO-5626; 4.03 ACRES OF LAND, OWNED\nBY MATTHEW D. ROLLIER AND DEANNA D. ROBINSON, Roanoke County Tax\nMap Parcel No. 102.00-01-12.00-0000 and Bring MVP Parcel No. BVRO-04; 0.47\nACRES OF LAND, OWNED BY BRUCE M. COFFEY AND MARY E. COFFEY,\nRoanoke County Tax Map Parcel No. 102.00-01-13.00-0000 and being MVP Parcel No.\nBVRO-05; 13.47 ACRES OF LAND, OWNED BY JOHN COLES TERRY, III,\nRoanoke County Tax Map Parcel No. 102.00-01-08.00-0000 and being MVP Parcel No.\nVA-RO-045; 8.37 ACRES OF LAND, OWNED BY FRANK H. TERRY, JR., JOHN\nCOLES TERRY, III, AND ELIZABETH LEE TERRY, a/k/a Elizabeth Lee Reynolds,\nRoanoke County Tax Map Parcel No. 102.00-01-02.00-0000 and being MVP Parcel No.\nVA-RO-046; 1.40 ACRES OF LAND, OWNED BY MARY ELLEN RIVES, Roanoke\nCounty Tax Map Parcel No. 103.00-02-43.00-0000 and being MVP Parcel No. VA-RO-\n051; 1.85 ACRES OF LAND, OWNED BY JACQULINE J. LUCKI, Roanoke County\nTax Map Parcel No. 102.00-01-14.00-0000 and being MVP Parcel No. VA-RO-052; 9.89\nACRES OF LAND, OWNED BY ELIZABETH LEE TERRY, a/k/a Elizabeth Lee\nReynolds, Roanoke County Tax Map Parcel No. 110.00-01-44.00-0000 and being MVP\nParcel No. VA-RO-054; 4.72 ACRES OF LAND, OWNED BY FRED W. VEST,\nRoanoke County Tax Map Parcel No. 110.00-01-56.00-0000 and being MVP Parcel No.\nVA-RO-056; 2.93 ACRES OF LAND, OWNED BY LOIS KING WALDRON AND\nLOIS MABEL WALDRON MARTIN, Roanoke County Tax Map Parcel No. 110.00-01-\n50.00-0000 and being MVP Parcel No. VA-RO-057; 2.05 ACRES OF LAND, OWNED\nBY HOWARD M. THOMPSON AND CHRISTINE W. THOMPSON, Roanoke County\nTax Map Parcel No. 118.00-01-09.00-0000 and being MVP Parcel No. VA-RO-068; 0.94\nACRES OF LAND, OWNED BY MARTIN G. MORRISON AND PATRICIA A.\nBOYD, Roanoke County Tax Map Parcel No. 063.00-01-20.00-0000 and being MVP\nParcel No. VA-RO-4115; 2.20 ACRES OF LAND, OWNED BY HILAH PARKS\nTERRY, FRANK H. TERRY, JR., ELIZABETH LEE TERRY, JOHN COLES TERRY\nIII, GRACE MINOR TERRY, Unknown Heirs or Assigns of Frank H. Terry, Sr.,\nRoanoke County Tax Map Parcel No. 103.00-02-01.00-0000 and being MVP Parcel No.\nVA-RO-4118 (AR RO-283); 0.28 ACRES OF LAND, OWNED BY JACQULINE J.\n\n 9\n\fLUCKI, Roanoke County Tax Map Parcel No. 102.00-01-13.01-0000 and being MVP\nParcel No. VA-RO-50; 0.32 ACRES OF LAND, OWNED BY GRACE MINOR\nTERRY, Roanoke County Tax Map Parcel No. 102.00-01-01.02-0000 and being MVP\nParcel No. VA-RO-5149 (AR RO-279.01); 0.34 ACRES OF LAND, OWNED BY\nROBIN B. AUSTIN AND ALLEN R. AUSTIN, Roanoke County Tax Map Parcel No.\n110.00-01-45.00-0000 and being MVP Parcel No. VA-RO-5222 (AR RO-285); 0.33\nACRES OF LAND, OWNED BY ELIZABETH LEE TERRY, a/k/a Elizabeth Lee\nReynolds, Roanoke County Tax Map Parcel No. 093.00-01-46.00-0000 and being MVP\nParcel No. VA-RO-5228 (ATWS-1224); 0.31 ACRES OF LAND, OWNED BY\nREBECCA JANE DAMERON, Roanoke County Tax Map Parcel No. 111.00-01-61.00-\n0000 and being MVP Parcel No. VA-RO-5383; 0.15 ACRES OF LAND, OWNED BY\nFRANK W. HALE AND FLOSSIE I. HALE AND ROBERT MATTHEW HAMM AND\nAIMEE CHASE HAMM, Roanoke County Tax Map Parcel No. 110.00-01-56.01-0000\nand being MVP Parcel No. VA-RO-5748; 0.26 ACRES OF LAND, OWNED BY\nLARRY BERNARD CUNNINGHAM AND CAROLYN A. CUNNINGHAM, Roanoke\nCounty Tax Map Parcel No. 063.00-01-21.00-0000 and being MVP Parcel No. VA-RO-\n5785; 1.38 ACRES OF LAND, OWNED BY ALVIN E. WRAY, LINDA L. WRAY, L.\nBENTON WRAY, JR., AND DIANE S. WRAY, Franklin County Tax Map Parcel No.\n250002100 and being MVP Parcel No. VA-FR-017; 11.45 ACRES OF LAND, OWNED\nBYL. BENTON WRAY, JR., DIANE S. WRAY, ALVIN E. WRAY, AND LINDA L.\nWRAY, Franklin County Tax Map Parcel No. 0250002200 and being MVP Parcel No.\nVA-FR-017.02; 2.74 ACRES OF LAND, OWNED BY MARK A. PETTIPIECE AND\nTERESA J. PETTIPIECE, Giles County Tax Map Parcel No. 47-1-3 and being MVP\nParcel No. VA-GI-200.046; 0.87 ACRES OF LAND, OWNED BY BOBBY I. JONES\nAND RICHARD WAYNE JONES REVOCABLE TRUST, RICHARD WAYNE\nJONES, TRUSTEE, Franklin County Tax Map Parcel No. 0430105200 and being MVP\nParcel No. VA-FR-070.01; 1.60 ACRES OF LAND, OWNED BY SANDRA H.\nLANCASTER, Franklin County Tax Map Parcel No. 0430105000 and being MVP Parcel\nNo. VA-FR-073; 3.70 ACRES OF LAND, OWNED BY DAVID J. WERNER, BETTY\nB. WERNER, IAN ELLIOTT REILLY, AND CAROLYN ELIZABETH REILLY,\nFranklin County Tax Map Parcel No. 0440004300 and being MVP Parcel No. VA-FR-\n076.01; 1.72 ACRES OF LAND, OWNED BY GUY W. BUFORD AND MARGARET\nS. BUFORD, Franklin County Tax Map Parcel No. 0440004400 and being MVP Parcel\nNo. VA-FR-077; 0.292 ACRES OF LAND, OWNED BY GAIL DUDLEY SMITHERS\nAND GINGER K. SMITHERS, Franklin County Tax Map Parcel No. 0450008100 and\nbeing MVP Parcel No. VA-FR-113; 8.56 ACRES OF LAND, OWNED BY GAIL\nDUDLEY SMITHERS AND GINGER K. SMITHERS, Franklin County Tax Map Parcel\nNo. 0450000902 and being MVP Parcel No. VA-FR-114; 8.60 ACRES OF LAND,\nOWNED BY GAIL DUDLEY SMITHERS, Franklin County Tax Map Parcel No.\n0450001600 and being MVP Parcel No. VA-FR-117; 3.92 ACRES OF LAND, OWNED\nBY GAIL DUDLEY SMITHERS AND GINGER K. SMITHERS, Franklin County Tax\nMap Parcel No. 0450006800 and being MVP Parcel No. VA-FR-119; 0.32 ACRES OF\nLAND, OWNED BY GAIL DUDLEY SMITHERS, Franklin County Tax Map Parcel\n\n 10\n\fNo. 0450001500 and being MVP Parcel No. VA-FR-5151 (ATWS-1266); 0.15 ACRES\nOF LAND, OWNED BY RUSSELL R. BARKSDALE, JR., Franklin County Tax Map\nParcel No. 0370009904 and being MVP Parcel No. VA-FR-5415; 4.14 ACRES OF\nLAND, OWNED BY MARK E. DANIEL AND ANGELA D. DANIEL, Franklin\nCounty Tax Map Parcel No. 0440011600 and being MVP Parcel No. VA-FR-5476; 7.82\nACRES OF LAND, OWNED BY THOMAS O. WHITE, JR., TRUSTEE OF THE\nBEVERLY A. MCLAUGHLIN TESTAMENTARY TRUST, Pittsylvania County Tax\nMap Parcel No. 1489-86-7542 and being MVP Parcel No. VA-PI-029.05; 1.23 ACRES\nOF LAND, OWNED BY JAMES M. GRUBBS, EVELENA GRUBBS ROUSE, AND\nENZY GRUBBS ANDERSON, UNKNOWN HEIRS OR ASSIGNS OF JAMES M.\nGRUBB, a/k/a Evelyn Rouse, Pittsylvania County Tax Map Parcel Nos. 2436-05-4452\nand 2436-05-2564 and being MVP Parcel No. VA-PI-104; 3.42 ACRES OF LAND,\nOWNED BY HENRY COX AND JANET DEGROFF, Montgomery County Tax Map\nParcel No. 032870 and being MVP Parcel No. VA-MO-5520; 3.74 ACRES OF LAND,\nOWNED BY JEROME DAVID HENRY AND DORIS MARIE HENRY, Roanoke\nCounty Tax Map Parcel No. 110.00-01-46.00-0000 and being MVP Parcel No. VA-RO-\n055,\n\n Defendants - Appellants.\n\n\nAppeal from the United States District Court for the Western District of Virginia, at\nRoanoke. Elizabeth Kay Dillon, District Judge. (7:17-cv-00492-EKD)\n\n\n No. 18-1300\n\n\nMOUNTAIN VALLEY PIPELINE, LLC,\n\n Plaintiff - Appellee,\n\n v.\n\nCHERYL L. BOONE, Parcel ID No. 7-7-27.2; KERRY N. BOONE, Parcel ID No. 7-7-\n27.2; ORUS ASHBY BERKLEY, Parcel ID No. 7-15A-13, 7-15A-13.1; TAMMY A.\nCAPALDO, Parcel ID No. 7-15-125; CARLA D. FOUNTAIN, Parcel ID No. 05-19-36,\n05-19-24; DENNIS F. FOUNTAIN, Parcel ID No. 05-19-36, 05-19-24; ROBERT M.\nJARRELL, Parcel ID No. 7-11-15; DAVID ALLEN JOHNSON, Parcel ID No. 05-19-9;\nEVERETT JOHNSON, JR., Parcel ID No. 05-19-9; WAYNE JOHNSON, Parcel ID No.\n05-19-9; MAURY JOHNSON, Parcel ID No. 05-19-9; ELISABETH TOBEY, Parcel ID\nNo. 11-84-10; RONALD TOBEY, Parcel ID No. 11-84-10; PATRICIA J. WILLIAMS,\nParcel ID No. 05-25-1.13,\n\n 11\n\f Defendants - Appellants.\n\n\nAppeal from the United States District Court for the Southern District of West Virginia,\nat Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:17-cv-04214)\n\n\nArgued: September 25, 2018 Decided: February 5, 2019\n\n\nBefore GREGORY, Chief Judge, and WYNN and HARRIS, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Harris wrote the opinion, in which Chief Judge\nGregory and Judge Wynn joined.\n\n\nARGUED: Derek Owen Teaney, APPALACHIAN MOUNTAIN ADVOCATES, INC.,\nLewisburg, West Virginia; Christopher Stephen Johns, JOHNS & COUNSEL PLLC,\nAustin, Texas, for Appellants. Wade Wallihan Massie, PENN, STUART & ESKRIDGE,\nAbingdon, Virginia; Nicolle Renee Snyder Bagnell, REED SMITH, LLP, Pittsburgh,\nPennsylvania, for Appellee. ON BRIEF: Jeremy Hopkins, CRANFILL SUMNER &\nHARTZOG LLP, Raleigh, North Carolina, for Appellants in 18-1159 and 18-1242.\nCharles M. Lollar, LOLLAR LAW, PLLC, Norfolk, Virginia, for Appellants in 18-1159,\n18-1242, and 18-1300. Isak J. Howell, LAW OFFICE OF ISAK HOWELL, Roanoke,\nVirginia, for Appellants in 18-1165, 18-1175, and 18-1300. Kevin DeTurris,\nBLANKINGSHIP & KEITH, P.C., Fairfax, Virginia, for Appellants in 18-1181. Stephen\nJ. Clarke, WALDO & LYLE, P.C., Norfolk, Virginia, for Appellants in 18-1187. Mark\nE. Frye, Seth M. Land, PENN, STUART & ESKRIDGE, Abingdon, Virginia; Colin E.\nWrabley, REED SMITH LLP, Pittsburgh, Pennsylvania, for Appellee.\n\n\n\n\n 12\n\fPAMELA HARRIS, Circuit Judge:\n\n In October 2017, the Federal Energy Regulatory Commission approved the\n\napplication of Mountain Valley Pipeline, LLC, to construct a natural gas pipeline through\n\nWest Virginia and Virginia. Building and maintaining that pipeline would require access\n\nto thousands of private properties, under which the pipeline would be buried.\n\nAccordingly, the Commission’s approval permits Mountain Valley to obtain easements\n\nalong the pipeline route through eminent domain where it cannot do so through private\n\nagreements.\n\n Mountain Valley successfully negotiated easements allowing access onto the land\n\nof most of the affected landowners. To obtain the rest of the required easements, it\n\ninitiated condemnation proceedings. Three district courts granted partial summary\n\njudgment to Mountain Valley, recognizing its right to take the easements. And because\n\nthe eminent domain proceedings – including multiple trials to determine the amount of\n\njust compensation for each easement – would take years to complete, the courts also\n\nissued preliminary injunctions granting Mountain Valley immediate possession of the\n\neasements, so that it could begin construction without delay. To ensure that the\n\nlandowners would be compensated fully, the district courts required Mountain Valley to\n\npost deposits, which the landowners could draw upon while the proceedings continued.\n\n On appeal, the landowners do not dispute the grant of partial summary judgment\n\nto Mountain Valley, conceding that Mountain Valley has the substantive right to take\n\neasements by eminent domain. Thus, the only question before us is whether Mountain\n\nValley may gain access to those easements now, or whether it must wait to start\n\n 13\n\fconstruction until the district courts can sort out just compensation. We hold that the\n\ndistrict courts did not abuse their discretion in allowing Mountain Valley immediate\n\npossession, and therefore affirm the injunction orders.\n\n\n\n I.\n\n A.\n\n In October 2015, Mountain Valley applied to the Federal Energy Regulatory\n\nCommission (“FERC” or the “Commission”) for authorization to construct a 303.5-mile-\n\nlong, 42-inch-diameter pipeline from Wetzel County, West Virginia, to Pittsylvania\n\nCounty, Virginia. When complete, the pipeline would transport up to two million\n\ndekatherms of natural gas per day, enabling shippers to access markets in the Northeast,\n\nMid-Atlantic, and Southeast. Close to 300 parties, including residents and environmental\n\ngroups, intervened in the Commission’s process, and FERC received more than 2,000\n\nwritten and oral comments during its review.\n\n On October 13, 2017, the Commission issued a “certificate of public convenience\n\nand necessity” (the “Certificate”) under the Natural Gas Act, 15 U.S.C. § 717f(e). The\n\nCommission found that the proposed pipeline is in the public interest, would meet a\n\nmarket demand, and is “environmentally acceptable.” J.A. 2853. The Certificate\n\nauthorized Mountain Valley to construct and operate the proposed pipeline, contingent on\n\nnumerous conditions. Most significant for this appeal, the Certificate requires that the\n\npipeline be complete and available for service within three years – that is, by October\n\n2020.\n\n 14\n\f Under the Natural Gas Act, legal challenges to a Commission certificate and its\n\nunderlying public-interest determination may proceed only through specified routes. A\n\nparty wishing to contest a certificate first must apply for rehearing before the\n\nCommission. 15 U.S.C. § 717r(a). After that, review may be had in the United States\n\nCourt of Appeals for the District of Columbia or another federal circuit court with\n\njurisdiction. Id. § 717r(b). Here, though numerous parties have challenged the\n\nCertificate, their efforts thus far have been unsuccessful. In November 2017, various\n\nintervenors applied to the Commission for rehearing and a stay of the Certificate, which\n\nultimately was denied. While that request was pending, at least three petitions for review\n\nand for stay pending review were filed with the D.C. Circuit, which denied the stay\n\nrequests. 1 Appalachian Voices v. Fed. Energy Reg. Comm’n, No. 17-1271, 2018 U.S.\n\nApp. LEXIS 2924 (D.C. Cir. Feb. 2, 2018). Importantly, the Certificate remains effective\n\nwhile these legal challenges proceed. See 15 U.S.C. § 717r(c) (neither the filing of an\n\napplication for rehearing nor commencement of judicial proceedings stays a FERC\n\norder).\n\n\n\n\n 1\n The Commission denied the request for rehearing and to stay the Certificate in\nJune 2018, several months after the issuance of the district court orders challenged in this\nappeal. Mountain Valley Pipeline, LLC, Equitrans, L.P., 163 FERC ¶ 61,197 (June 15,\n2018). This prompted the filing of at least five new petitions for review of the Certificate\nand for stay pending review in the Court of Appeals for the District of Columbia. The\nD.C. Circuit denied those additional stay requests, as well, and those cases are ongoing.\nSee Appalachian Voices v. Fed. Energy Reg. Comm’n, No. 17-1271, 2018 WL 4600685\n(D.C. Cir. Aug. 30, 2018).\n\n\n 15\n\f By late November 2017, within weeks of obtaining the Certificate, Mountain\n\nValley had entered into three master construction services agreements to lay the pipeline.\n\nMountain Valley sought to commence construction by February 2018 with completion\n\nanticipated for December 2018, well before the Commission’s deadline of October 2020.\n\nBecause tree-clearing in areas with protected bats must be completed during the winter\n\nseason (between mid-November and March), even a brief delay would have postponed\n\nthe project’s start date until November 2018. However, Mountain Valley had developed\n\na schedule to proceed in the event of that contingency, under which it still expected to\n\nmeet the Commission’s in-service deadline.\n\n Mountain Valley acquired rights-of-way to portions of approximately 85 percent\n\nof the properties along the approved pipeline route in anticipation of construction. These\n\ninclude both permanent easements along the pipeline route, allowing its pipeline to lie\n\nunderneath the land, and temporary easements for construction. However, Mountain\n\nValley was unable to reach agreement with the hundreds of landowners who are now\n\nparties to this litigation (the “Landowners” 2).\n\n B.\n\n Under the Natural Gas Act, Mountain Valley’s certificate entitles it to exercise the\n\npower of eminent domain to obtain any rights-of-way it cannot otherwise acquire, as\n\nnecessary to construct, operate, or maintain the planned pipeline. See 15 U.S.C. §\n\n 2\n This opinion typically uses the term “Landowners” to refer to all of the\nlandowners in this consolidated appeal. When used in the context of a particular district\ncourt case, however, it refers only to the defendant landowners in that proceeding.\n\n\n 16\n\f717f(h). In other words, where Mountain Valley is unable to negotiate an easement with\n\na landowner along the pipeline route, it may obtain a condemnation order granting an\n\neasement for a fair price set by the court.\n\n Between receiving its Certificate in October 2017 and early December of that\n\nyear, Mountain Valley commenced proceedings in three different district courts to\n\ncondemn a 50-foot-wide path along the pipeline route in each jurisdiction. Within days\n\nof commencing each proceeding, Mountain Valley moved for partial summary judgment\n\non its substantive right to take the easements by eminent domain. In the same motions,\n\nthe company sought preliminary injunctions granting immediate access and possession\n\nduring the pendency of the proceedings, in order to prevent construction delays.\n\n Each of the district courts granted Mountain Valley’s motion in full. 3 As to partial\n\nsummary judgment, the district courts each held that Mountain Valley was entitled, as a\n\nmatter of law, to acquire the necessary easements along the pipeline route by eminent\n\n\n\n 3\n Of the three district court opinions, one is published and two are unpublished.\nThe opinion of the Northern District of West Virginia is published at Mountain Valley\nPipeline, LLC v. Simmons, 307 F. Supp. 3d 506 (N.D.W. Va. 2018). The unpublished\nopinion of the Western District of Virginia can be located at Mountain Valley Pipeline,\nLLC v. Easements to Construct, Operate, & Maintain a Nat. Gas Pipeline, No. 7:17-cv-\n00492, 2018 WL 648376 (W.D. Va. Jan. 31, 2018). The unpublished opinion of the\nSouthern District of West Virginia can be located at Mountain Valley Pipeline, LLC v. An\nEasement to Construct, Operate & Maintain a 42-Inch Gas Transmission Line, No. 2:17-\ncv-04214, 2018 WL 1004745 (S.D.W. Va. Feb. 21, 2018). For ease of reference, we will\nrefer to these opinions as the “N.D.W. Va. Opinion,” the “W.D. Va. Opinion,” and the\n“S.D.W. Va. Opinion.” Citations to the N.D.W. Va. Opinion refer to its published\nversion, and citations to the other two opinions refer to the Joint Appendix filed by the\nparties on appeal.\n\n\n 17\n\fdomain. Under 15 U.S.C. § 717f(h), the courts explained, the holder of a duly issued\n\nCommission certificate has the right to condemn property if it is necessary for pipeline\n\nconstruction and operation and cannot be acquired by private agreement. And that is so,\n\nthey continued, regardless of pending legal challenges to that certificate or related\n\nlitigation; only FERC itself or the appropriate court of appeals may stay enforcement of a\n\nCommission certificate while other legal proceedings are resolved. Because there was no\n\nfactual dispute as to satisfaction of the necessary conditions, the courts concluded,\n\nMountain Valley was entitled to exercise eminent domain and condemn the specified\n\nportions of the Landowners’ properties.\n\n But that eminent domain process, one district court estimated, could take more\n\nthan three years to complete – bringing it outside FERC’s in-service deadline of October\n\n2020 – as the courts conducted proceedings to determine the amount of just\n\ncompensation for each of the hundreds of easements in question. Accordingly, the courts\n\nturned to Mountain Valley’s motions for preliminary injunctions, which sought\n\nimmediate access while those proceedings were ongoing. Applying the four-pronged test\n\nfor a preliminary injunction set out in Winter v. Natural Resources Defense Council, Inc.,\n\n555 U.S. 7, 20 (2008), which requires the movant to establish “that he is likely to succeed\n\non the merits, that he is likely to suffer irreparable harm in the absence of preliminary\n\nrelief, that the balance of equities tips in his favor, and that an injunction is in the public\n\ninterest,” each district court granted Mountain Valley’s request for immediate possession\n\nof the easements.\n\n\n\n 18\n\f The first element of the Winter test – likelihood of success on the merits – was\n\neasily satisfied, as the courts “ha[d] already determined on the merits that Mountain\n\nValley has the right to condemn the landowners’ property interests.” S.D.W. Va.\n\nOpinion, at J.A. 2715. On the second element – irreparable harm – the district courts\n\nheld that Mountain Valley would suffer various forms of irreparable injury if it were\n\nrequired to delay construction until after completion of the eminent domain proceedings.\n\nMost important, without a preliminary injunction, Mountain Valley would be unable to\n\nmeet the Commission’s October 2020 in-service deadline, which could come and go\n\nbefore the courts had finally determined due compensation for the hundreds of easements\n\nat issue.\n\n In response, the Landowners proposed that any injunctive relief be delayed until\n\nNovember 2018, when bat-conservation regulations again would permit seasonal tree-\n\nclearing and, according to its own contingency schedule, Mountain Valley could\n\ncommence construction and still expect to meet the Commission’s deadline. But that\n\ndelay itself, the district courts found, would impose substantial economic losses on\n\nMountain Valley, in the form of lost revenues, carrying costs, and contractual fees that\n\nMountain Valley would not be able to recover “in this or any other litigation.” N.D.W.\n\nVa. Opinion, 307 F. Supp. 3d at 526. The district courts carefully considered Mountain\n\nValley’s evidence on this issue, questioning whether Mountain Valley’s losses might be\n\nmitigated. All concluded, however, that on the facts presented, Mountain Valley had\n\nsatisfied its burden of establishing irreparable harm.\n\n\n\n 19\n\f The district courts further held that Mountain Valley’s losses would exceed any\n\nharms a preliminary injunction might cause the Landowners, and that the balance of the\n\nequities – the third Winter factor – therefore favored preliminary relief. The key finding\n\nhere, as one court explained it, was that virtually all harms identified by the Landowners\n\nwould be inflicted as a result of the exercise of eminent domain itself, and not because of\n\nthe preliminary injunction: Completion of the pipeline “will have the same impact on\n\n[Landowners’] property whether [Mountain Valley] is granted immediate access or\n\ncommences construction only after [L]andowners have received just compensation.”\n\nN.D.W. Va. Opinion, 307 F. Supp. 3d at 530.\n\n On the fourth element – the public interest – the district courts relied heavily on\n\nthe Certificate itself, which was predicated on the Commission’s finding that construction\n\nof the pipeline is in the public interest. The Landowners disagreed with that assessment,\n\nciting the dissenting opinion of one of the FERC commissioners and arguing that pipeline\n\nconstruction in fact would have negative effects on the environment and areas of\n\nhistorical and cultural importance. As the district courts explained, however, challenges\n\nto a FERC certificate must follow the prescribed statutory route, and condemnation\n\nproceedings may not be used to mount a collateral attack. “The Court will not second-\n\nguess FERC’s determination that [Mountain Valley’s] project will benefit the public need\n\nfor natural gas as the [Landowners] request; FERC possesses the expertise necessary to\n\nmake that determination.” Id. at 531.\n\n Accordingly, the district courts all found that Mountain Valley satisfied the Winter\n\npreliminary injunction standard and should be granted immediate possession. At the\n\n 20\n\fsame time, the courts recognized that the Landowners were entitled to a “reasonable,\n\ncertain, and adequate provision” for obtaining just compensation at the end of the\n\ncondemnation proceedings. See, e.g., W.D. Va. Opinion, at J.A. 1432 (quoting Cherokee\n\nNation v. S. Kan. Ry. Co., 135 U.S. 641, 659 (1890)). The courts thus required that\n\nMountain Valley make a deposit in an amount several times the estimated value of each\n\neasement. 4 During the pendency of the proceedings, each Landowner would be entitled\n\nto draw on that fund, up to the estimated value of the easement across its property. The\n\ndistrict courts also required Mountain Valley to post a surety bond in an amount double\n\neach easement’s estimated value, conditioned on its payment of just compensation at the\n\nconclusion of proceedings.\n\n\n\n II.\n\n The Landowners have not appealed the entry of partial summary judgment against\n\nthem, nor the merits determination on which it rests: that under 15 U.S.C. § 717f(h),\n\nMountain Valley currently has the right to exercise eminent domain and take easements\n\non their property to build and operate the FERC-approved pipeline. But they do dispute\n\nthe appropriateness of preliminary relief, and timely appealed the issuance of the three\n\n\n\n\n 4\n Appraisal values ranged from $3,001 for many of the easements to six figures for\nsome. The $3,001 estimate tracks the jurisdictional provision of the National Gas Act,\nlimiting federal jurisdiction to those cases in which “the amount claimed by the owner of\nthe property to be condemned exceeds $3,000.” 15 U.S.C. § 717f(h).\n\n\n 21\n\fpreliminary injunctions awarding Mountain Valley immediate possession of the\n\neasements while just compensation is determined.\n\n We “review the decision to grant or deny a preliminary injunction for an abuse of\n\ndiscretion.” Safety-Kleen, Inc. v. Wyche, 274 F.3d 846, 859 (4th Cir. 2001). A clear\n\nerror in factual findings or a mistake of law is grounds for reversal. WV Ass’n of Club\n\nOwners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir. 2009). But\n\nabuse of discretion is a deferential standard, and so long as “the district court’s account of\n\nthe evidence is plausible in light of the record viewed in its entirety, [we] may not\n\nreverse,” even if we are “convinced that . . . [we] would have weighed the evidence\n\ndifferently.” Walton v. Johnson, 440 F.3d 160, 173 (4th Cir. 2006) (en banc) (quoting\n\nAnderson v. Bessemer City, 470 U.S. 564, 573–74 (1985)).\n\n The Landowners advance two principal arguments against the preliminary\n\ninjunctions. First, they argue that federal courts lack authority to grant immediate\n\npossession – that is, possession prior to the determination and payment of just\n\ncompensation – and that the injunctions therefore are legally infirm. And in the\n\nalternative, they argue that the district courts improperly applied the Winter factors and\n\nabused their discretion in awarding preliminary relief here. For the reasons given below,\n\nwe disagree on both counts.\n\n A.\n\n We begin with the Landowners’ threshold argument: that district courts may not\n\norder immediate possession of condemned property under 15 U.S.C. § 717f(h). Instead,\n\nthe Landowners contend, the district courts were authorized to grant Mountain Valley\n\n 22\n\faccess to the easements in question only after eminent domain proceedings were\n\ncompleted, with just compensation for each individual easement calculated and paid.\n\n We note at the outset that this is a statutory argument, not a constitutional one.\n\nThe Landowners concede, as they must, that the Constitution does not prohibit\n\ncondemnations in which possession comes before compensation. The Supreme Court\n\nsettled that question nearly 130 years ago in Cherokee Nation, holding that the\n\nConstitution “does not provide or require that compensation shall be actually paid in\n\nadvance of the occupancy of the land to be taken.” 135 U.S. at 659. So long as the\n\nowner is assured through “reasonable, certain, and adequate” means that he ultimately\n\nwill be compensated fairly, constitutional requirements are met. Id. The district courts in\n\nthis case carefully followed Cherokee Nation, insisting on “adequate protections to [the\n\nLandowners] to ensure that they will receive just compensation,” W.D. Va. Opinion, at\n\nJ.A. 1432, and the Landowners do not dispute that the required deposits and bonds satisfy\n\nthis standard.\n\n Instead, the Landowners argue that there was no statutory authority for what they\n\ncall “take-first, pay-later” condemnations. Under the Natural Gas Act, they insist, the\n\ndistrict courts were permitted to grant possession only after the determination and\n\npayment of just compensation. This is so, they contend, because the Act does not\n\nexpressly allow for immediate possession, and thus implicitly forecloses the courts from\n\ngranting that possession through the equitable remedy of a preliminary injunction.\n\n But as the Landowners recognize, our court has rejected precisely this argument\n\nbefore, holding in East Tennessee Natural Gas Co. v. Sage, 361 F.3d 808 (4th Cir. 2004)\n\n 23\n\fthat a federal court indeed may grant a gas company immediate possession of private\n\nproperty along an approved pipeline route, with payment of just compensation to follow.\n\nIn Sage, as in this case, a gas company filed condemnation proceedings to access\n\nnumerous properties along the route of a Commission-approved pipeline. 361 F.3d at\n\n819–20. The district court first concluded that the gas company had a substantive right to\n\nexercise eminent domain over the easements sought. Id. at 820, 823. It then invoked its\n\ntraditional equitable authority to grant a preliminary injunction allowing immediate\n\npossession, in order to avoid construction delays. Id. at 820. The landowners appealed to\n\nthis court, arguing that the district court lacked “equitable power to order immediate\n\npossession in a condemnation case,” given the absence of any express authorization in the\n\nNatural Gas Act. Id. at 820.\n\n We disagreed. What the landowners’ argument “overlook[ed],” we explained,\n\nwas “the preliminary injunction remedy provided in the Federal Rules of Civil Procedure\n\nthat were adopted with the tacit approval of Congress.” Id. at 824. Once a gas company\n\nhad established its substantive right to eminent domain under the National Gas Act, we\n\nconcluded, it was entitled to apply under Rule 65(a) for a preliminary injunction, subject\n\nto the normal rules governing the availability of equitable relief. Id. And contrary to the\n\nlandowners’ argument, we found ample “safeguards in place to protect the landowner.”\n\nId. at 826. The district court’s requirement that the gas company deposit with the court\n\nan amount equal to the appraised value of the easements satisfied the Cherokee Nation\n\nstandard. Id. at 824. And if the deposit turned out to be less than the final compensation\n\nawarded, we noted, the landowners would remain protected: When immediate\n\n 24\n\fpossession is granted through a preliminary injunction, title itself does not pass until\n\ncompensation is ascertained and paid, so the landowners could proceed with a trespass\n\naction if the company did not promptly make up the difference. Id. at 825–26 (citing\n\nCherokee Nation, 135 U.S. at 660).\n\n This case is on all fours with Sage. As in Sage, there already has been a finding\n\nthat the gas company has a substantive right to condemn the easements in question, here\n\nin the form of partial summary judgment rulings that are unchallenged on appeal. And\n\nthe district courts adequately safeguarded the Landowners’ interests with a deposit\n\nprovision that is similar to but more protective than the one we approved in Sage, in that\n\nit requires Mountain Valley to deposit with the court an amount that is several times\n\nlarger than the estimated value of the condemned easements 5 – making it exceedingly\n\nunlikely that resort to the trespass actions envisioned in Sage ever could be required.\n\n The Landowners do not dispute that Sage, by its terms, governs this case.\n\nInstead, they argue that Sage was wrongly decided, and to give the court an opportunity\n\nto correct what they see as an important misstep, they moved for an initial hearing of this\n\nappeal en banc. 6 Our court denied that motion. Order, Mountain Valley Pipeline, LLC v.\n\n\n 5\n Two of the district courts required each deposit to be three times the respective\neasement’s appraisal value, while the third district court required the deposit to be four\ntimes the appraisal value.\n 6\n Among other contentions, the Landowners argue that Sage created a circuit split\nwith Northern Border Pipeline Co. v. 86.72 Acres, 144 F.3d 469 (7th Cir. 1998), which\nheld that the district court lacked authority to issue a preliminary injunction ordering\nlandowners to grant the pipeline company immediate possession of land. However, as\nwe expressly recognized in Sage, the pipeline company in Northern Border had not yet\n(Continued)\n 25\n\f6.56 Acres of Land, No. 18-1159 (4th Cir. May 25, 2018). Accordingly, we remain\n\nbound to follow Sage. See United States v. Collins, 415 F.3d 304, 311 (4th Cir.\n\n2005) (“A decision of a panel of this court becomes the law of the circuit and is binding\n\non other panels unless it is overruled by a subsequent en banc opinion of this court or a\n\nsuperseding contrary decision of the Supreme Court.” (internal quotation marks\n\nomitted)). And as we have explained, Sage squarely forecloses the Landowners’\n\nargument that the district courts lacked the authority to grant immediate possession in a\n\nNatural Gas Act condemnation.\n\n B.\n\n The only remaining question for this panel is whether the district courts abused\n\ntheir discretion in issuing preliminary injunctions under the Winter standard. On this\n\nquestion, too, Sage is highly instructive. In Sage, after holding that district courts may\n\ngrant immediate possession to a gas company with a valid FERC certificate, we went on\n\nto consider whether the gas company could satisfy the standard conditions for\n\n\n\n\nobtained a district court order finding that it was entitled to the land; accordingly, it had\nno equitable right to seek a preliminary injunction granting immediate possession. Sage,\n361 F.3d at 828; see also Transwestern Pipeline Co., LLC v. 17.19 Acres of Prop., 550\nF.3d 770, 777 (9th Cir. 2008) (distinguishing Sage from Northern Border on this basis).\nIn this case, however, unlike Northern Border, Mountain Valley has obtained such orders\nof condemnation.\n\n\n 26\n\fpreliminary relief. 361 F.3d at 828–30. 7 It could, we concluded, and we affirmed the\n\ndistrict court’s preliminary injunction as within its discretion. Id. at 830.\n\n Success on the merits was not only likely but guaranteed, we held, given the\n\ndistrict court’s determination – uncontested on appeal – that the gas company had the\n\nright to condemn the landowners’ property. Id. at 829–30. We sustained as amply\n\nsupported by the record the district court’s finding that the gas company would suffer\n\nirreparable harm in the absence of preliminary relief, both because it would be forced to\n\nbreach contracts it already had entered into and absorb the financial consequences, and\n\nbecause the “extended period of time” necessary to hold multiple compensation hearings\n\nwould make it impossible for the company to meet its FERC deadline. Id. at 828–29.\n\nThe landowners, by contrast, had identified no cognizable harm flowing from preliminary\n\nrelief rather than condemnation itself; any interference with the “productive capacity of\n\ntheir land” would be the same even if compensation was paid and determined before\n\naccess was granted. Id. at 829. Finally, FERC’s issuance of a certificate was enough to\n\nestablish that the pipeline project would serve the public interest, and a “delay in\n\nconstruction would postpone” the benefits identified by FERC. Id. at 830.\n\n\n\n 7\n At the time Sage was decided, we analyzed preliminary injunctions under the\nbalance-of-hardship approach set out in Blackwelder Furniture Co. of Statesville, Inc. v.\nSelig Mfg. Co., 550 F.2d 189, 195 (4th Cir. 1977). We “recalibrated” that approach after\nWinter, which requires a party seeking preliminary relief to satisfy all four prongs of the\npreliminary-injunction standard, and does not employ a sliding scale. See Pashby v.\nDelia, 709 F.3d 307, 320 (4th Cir. 2013); Winter, 555 U.S. at 20. But because Sage\nseparately analyzed each of the four Winter prongs, it remains directly on point.\n\n\n 27\n\f Since Sage was decided in 2004, many courts, both within and outside this circuit,\n\nhave issued preliminary injunctions granting immediate possession to gas companies\n\nunder closely analogous circumstances. See, e.g., S.D.W. Va. Opinion, at J.A. 2713–14\n\n(collecting district court cases); Columbia Gas Transmission, LLC v. 1.01 Acres, 768\n\nF.3d 300, 314–16 (3d Cir. 2014); All. Pipeline L.P. v. 4.360 Acres of Land, 746 F.3d 362,\n\n368–69 (8th Cir. 2014); cf. Transwestern Pipeline Co. v. 17.19 Acres of Prop., 550 F.3d\n\n770, 775–78 (9th Cir. 2008) (holding that immediate possession is appropriate once the\n\ncourt has determined that the gas company has a right to condemn).\n\n It is with Sage and this body of authority in mind that we review the district\n\ncourts’ preliminary injunctions for abuse of discretion, applying Winter’s four-pronged\n\ntest. For the reasons given below, we find no abuse of discretion and affirm the entry of\n\npreliminary relief.\n\n 1.\n\n The first Winter prong – likelihood of success on the merits – is uncontested, and\n\nfor good reason. Mountain Valley has done more than establish a likelihood of success\n\non the merits; it already has succeeded on the merits. The district courts granted partial\n\nsummary judgment to Mountain Valley on its claim that it is entitled to exercise the\n\npower of eminent domain over the Landowners’ property, notwithstanding the pendency\n\nof legal challenges to the Certificate, and the Landowners have not challenged those\n\nrulings on appeal. There is no question, then, that Mountain Valley may take easements\n\n\n\n\n 28\n\facross the properties at issue, making this the rare preliminary-injunction case in which\n\nsuccess on the merits is guaranteed. 8\n\n 2.\n\n We also find no clear error or abuse of discretion in the district courts’ findings\n\nthat Mountain Valley would incur irreparable harm absent preliminary injunctions, in\n\nsatisfaction of Winter’s second element. To establish irreparable harm, the movant must\n\nmake a “clear showing” that it will suffer harm that is “neither remote nor speculative,\n\nbut actual and imminent.” Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802,\n\n812 (4th Cir. 1991) (internal quotation marks omitted). Additionally, the harm must be\n\nirreparable, meaning that it “cannot be fully rectified by the final judgment after trial.”\n\nStuller, Inc. v. Steak N Shake Enters., 695 F.3d 676, 680 (7th Cir. 2012) (internal\n\nquotation marks omitted). The district courts properly applied that standard here, and we\n\nhave no ground for disturbing their conclusions.\n\n First and most important, it is undisputed that without preliminary relief, Mountain\n\nValley almost certainly would be unable to meet FERC’s October 2020 in-service\n\ndeadline. As the court explained in Sage, construction of a pipeline is a lengthy and\n\ncomplex process: “Certain portions of the project have to be completed before\n\n\n 8\n This unusual posture also addresses the Landowners’ argument that mandatory\npreliminary injunctions – those that alter rather than preserve the status quo – are\ndisfavored. See Taylor v. Freeman, 34 F.3d 266, 270 n.2 (4th Cir. 1994). Whatever the\ngeneral force of that observation, where “the applicants’ right to relief [is] indisputably\nclear,” as here, mandatory injunctive relief remains available. See Communist Party of\nInd. v. Whitcomb, 409 U.S. 1235, 1235 (1972).\n\n\n 29\n\fconstruction can begin on other portions,” and “any single parcel has the potential of\n\nholding up the entire project.” 361 F.3d at 829. The district courts found that this case is\n\nno exception, describing the eleven distinct segments of pipeline construction that must\n\nbe sequenced around a limited window during which federal regulations allow for\n\nnecessary tree-clearing. See N.D.W. Va. Opinion, 307 F. Supp. 3d at 527. But at the\n\nsame time, determining just compensation for the multiple tracts of land affected by a\n\npipeline is itself a lengthy and complex process, see Sage, 361 F.3d at 828–29, which in\n\nthis case could extend for three years or more, taking it past the Commission’s deadline\n\nof October 2020. The combined effect is that without a preliminary injunction, Mountain\n\nValley likely would lose the right to construct the pipeline altogether – an outcome that\n\nqualifies as an irreparable injury under Sage. See id. at 829.\n\n In response to that straightforward case for preliminary relief, the Landowners\n\nurged the district courts to adopt a more “narrow[] analy[sis],” focused on whether\n\nMountain Valley “needs access to their properties now or whether it still can meet\n\nFERC’s deadline if granted access later.” N.D.W. Va. Opinion, 307 F. Supp. 3d at 528.\n\nSpecifically, the Landowners argued that entry of any preliminary injunction should be\n\ndelayed for approximately nine months, until November 2018 – when the tree-clearing\n\nwindow would reopen, and Mountain Valley’s own contingency schedule showed that\n\nthe company could begin construction and still expect to finish before the FERC deadline\n\nof October 2020.\n\n The Landowners’ argument assumes that the need to narrowly tailor preliminary\n\nrelief, see PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 128 (4th Cir. 2011),\n\n 30\n\fmeans that preliminary injunctions should issue only at the last minute, and places a great\n\ndeal of confidence in Mountain Valley’s ability to complete the work on an expedited\n\nschedule. Even so, that leads us directly to the second form of irreparable injury found\n\nby the district courts: the significant and unrecoverable financial losses that Mountain\n\nValley would sustain if access were delayed until November 2018, rather than granted\n\nimmediately.\n\n To establish that injury, Mountain Valley presented evidence of three types of\n\nmonetary harm: lost revenues from the delay in pipeline service, estimated at $40 to $50\n\nmillion per month; charges and penalties for the breach of construction contracts, totaling\n\n$200 million; and carrying costs to prolong the project, such as storage and personnel\n\nexpenses, for an additional $40 to $45 million. The district courts closely scrutinized\n\nthose alleged losses, noting testimony suggesting that “some of the claimed damage\n\namounts might be lower,” W.D. Va. Opinion, at J.A. 1423, or be “capable of mitigation,”\n\nN.D.W. Va. Opinion, 307 F. Supp. 3d at 525. But even assuming a “lower amount of loss\n\nthan estimated by [Mountain Valley],” id. at 528, the courts concluded that there still\n\nwould be enough to show irreparable harm under Sage, which credited as irreparable\n\ninjury not only the prospect of missing the FERC deadline but also “increased\n\nconstruction costs and losses” from the breach of service contracts, id. at 526–27 (quoting\n\nSage, 361 F.3d at 830).\n\n On appeal, the Landowners raise two principal challenges to the district courts’\n\nfindings of irreparable injury. Most significantly, they insist that the district courts erred\n\nat the threshold in considering Mountain Valley’s economic losses at all. According to\n\n 31\n\fthe Landowners, prospective financial losses can never qualify as “irreparable injury,” at\n\nleast where they do not “threaten the party’s very existence.” Br. of Appellants at 16.\n\nAll three district courts rejected that argument as inconsistent with our case law, and we\n\nagree.\n\n It is true that when anticipated economic losses will be recoverable at the end of\n\nlitigation, then those losses generally will not qualify as irreparable for purposes of\n\npreliminary relief. See Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017) (citing\n\nSampson v. Murray, 415 U.S. 61, 90 (1974)). That makes perfect sense: By definition, a\n\ntemporary loss is not irreparable. Only when a temporary delay in recovery somehow\n\ntranslates to permanent injury – threatening a party’s very existence by, for instance,\n\ndriving it out of business before litigation concludes – could it qualify as irreparable. See\n\nFed. Leasing, Inc. v. Underwriters at Lloyd’s, 650 F.2d 495, 500 (4th Cir. 1981). But\n\notherwise, financial losses that can be recovered by a prevailing party at the close of\n\nlitigation ordinarily will not justify preliminary relief. See Hughes Network Sys. v.\n\nInterdigital Comms. Corp., 17 F.3d 691, 694 (4th Cir. 1994).\n\n This case is different, because here, Mountain Valley’s economic losses would not\n\nbe recoverable at the end of litigation. “No party contests that, if [Mountain Valley]\n\nsuffers financial losses as the result of its inability to access the condemned easements, it\n\nwill not be able to recover those losses in this or any other litigation.” N.D.W. Va.\n\nOpinion, 307 F. Supp. 3d at 526. As the district courts recognized, that is enough to take\n\nthis case out of the ordinary presumption against treating economic losses as irreparable\n\ninjury. See id. at 525 (“[W]hile it is beyond dispute that economic losses generally do not\n\n 32\n\fconstitute irreparable harm, this general rule rests on the assumption that economic losses\n\nare recoverable.” (internal quotation marks omitted)). In the unusual circumstances\n\npresented here, in which monetary damages will be unavailable to remedy financial\n\nlosses when litigation ends, there is no bar to treating those losses as irreparable injury\n\njustifying preliminary relief. See Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d\n\n1234, 1250 (10th Cir. 2001) (“[I]rreparable harm is often suffered when . . . the district\n\ncourt cannot remedy the injury following a final determination on the merits.” (internal\n\nalterations and quotation marks omitted)); cf. Fed. Leasing, 650 F.2d at 500 (finding\n\nirreparable harm when plaintiff’s injury was not “otherwise compensable in damages”).\n\n Like the district courts, we think all of this is clear enough from our general case\n\nlaw on irreparable injury and preliminary injunctions. But if there were any doubt, it\n\nwould be resolved by Sage – which, as the district courts also recognized, expressly treats\n\nprospective economic injuries flowing from a delay in pipeline construction as a form of\n\nirreparable injury. Indeed, many of the of types of financial injury identified by\n\nMountain Valley in this case – including losses flowing from delays in pipeline service\n\nand contractual breach – are precisely the same as those we credited in Sage as grounds\n\nfor preliminary relief. See 361 F.3d at 828–29. And, as noted above, Sage is not alone\n\non this point; subsequent cases have followed Sage, relying on similar, unrecoverable\n\nfinancial harms to gas companies to find irreparable injury that justifies immediate access\n\nto condemned properties. See, e.g., All. Pipeline L.P. v. 4.500 Acres of Land, 911 F.\n\nSupp. 2d 805, 814–15 (D.N.D. 2012) (finding irreparable harm based in part on carrying\n\ncosts associated with delay in construction); Transcon. Gas Pipe Line Co. v. Permanent\n\n 33\n\fEasement for 0.03 Acres, No. 4:17-cv-00565, 2017 WL 3485752, at *3 (M.D. Pa. Aug.\n\n15, 2017) (finding irreparable harm because gas company would “suffer substantial costs\n\nand loss of profits if it cannot begin the project as soon as possible”); see generally\n\nColumbia Gas Transmission LLC v. 0.85 Acres, No. 1:14-cv-02288, 2014 WL 4471541,\n\nat *6 (D. Md. Sept. 8, 2014) (“Many courts [in similar cases] have held that undue delay\n\n[and] financial burden . . . satisfy the irreparable harm requirement.”).\n\n The Landowners’ second challenge to the district courts’ findings of irreparable\n\ninjury fares no better. According to the Landowners, Mountain Valley’s prospective\n\nfinancial losses flow entirely from the company’s voluntary decision to enter into early\n\nconstruction and service contracts, geared toward starting pipeline service well in\n\nadvance of the FERC deadline. Harms resulting from breaches of those contracts, the\n\nLandowners argue, are thus “self-inflicted,” and cannot be the basis for a preliminary\n\ninjunction. Like the district courts, we disagree.\n\n We do not doubt that some forms of “self-inflicted” harm may be discounted or\n\nignored altogether in the preliminary-injunction analysis. See Di Biase, 872 F.3d at 235\n\n(preliminary injunction not warranted where the “moving parties have not shown that\n\nthey availed themselves of opportunities to avoid the injuries of which they now\n\ncomplain”); Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 725 F.3d\n\n940, 947 (9th Cir. 2013) (“[T]raditional equitable considerations such as . . . unclean\n\nhands may militate against issuing an injunction that otherwise meets Winter’s\n\nrequirements.”). But as the district courts here explained, when a gas company is\n\ngoverned by FERC’s approval process and in-service deadline, early contractual\n\n 34\n\fobligations are not “self-inflicted” in the relevant sense. See N.D.W. Va. Opinion, 307 F.\n\nSupp. 3d at 528 (recognizing that “a FERC-governed, natural-gas company’s self-\n\ninflicted contracts and deadlines are not driven solely by its desire to place the pipeline\n\ninto service as quickly as possible” (internal quotation marks omitted)). Rather, lining up\n\nservice contracts years in advance is “encourage[d], if not require[d]” by a FERC\n\napproval process that treats such contracts as evidence of market demand. See S.D.W.\n\nVa. Opinion, at J.A. 2714. And as Mountain Valley’s witness testified, once a FERC\n\ncertificate issues, meeting FERC’s three-year in-service deadline requires that the gas\n\ncompany have contractors at the ready and proceed expeditiously with construction. See\n\nW.D. Va. Opinion, at J.A. 1427. Under those circumstances, the district courts\n\nconcluded, Mountain Valley’s decision to set its schedule as it did, and contract\n\naccordingly, was “entirely reasonable.” N.D.W. Va. Opinion, 307 F. Supp. 3d at 528.\n\nAnd in light of that judgment, the district courts did not err by including harms associated\n\nwith those contracts in their irreparable injury analyses.\n\n 3.\n\n Under Winter’s third prong, the district courts were required to weigh the equities,\n\nconsidering the harms the Landowners would suffer if preliminary injunctions issued –\n\nthat is, if Mountain Valley were permitted to access the condemned land prior to\n\ndetermination and payment of just compensation. The district courts held that the\n\nbalance of the equities favored Mountain Valley, principally because the Landowners’\n\nharms would be the same whether access was granted prior to or only after just\n\ncompensation was paid. We find no error in the courts’ reasoning.\n\n 35\n\f Before the district courts, the Landowners presented affidavits and testimony\n\nabout injuries to their property – tree-felling, harms to water sources, and the like – that\n\nwould be sustained if Mountain Valley were granted access. As the district courts\n\nexplained, however, those injuries arise not from the grant of preliminary relief – the\n\n“take-first, pay-later” condemnations to which the Landowners object – but from\n\nconstruction of the pipeline itself. Whether the Landowners are compensated before or\n\nafter Mountain Valley takes the easements to which it is legally entitled, the harm to their\n\nproperty will be identical. See N.D.W. Va. Opinion, 307 F. Supp. 3d at 530 (“At bottom,\n\nit is the [Natural Gas Act] and the FERC Certificate that are responsible for the\n\n[Landowners’] injuries, and delaying access until just compensation is paid will do\n\nnothing to alleviate those burdens.” (citing Sage, 361 F.3d at 829)). And either way, the\n\nLandowners will be entitled to the same just compensation for the takings. See S.D.W.\n\nVa. Opinion, at J.A. 2720 (“[J]ust compensation is guaranteed by the Fifth Amendment\n\nwhether property condemned under the [Natural Gas Act] is taken immediately or after a\n\ntrial.” (citing Sage, 361 F.3d at 829)).\n\n It is true, as the Landowners contend, that because the process of determining just\n\ncompensation will be a lengthy one, the grant of preliminary relief means that their\n\nproperty will be disturbed sooner rather than later. But as we held in Sage, that is\n\n“simply a timing argument,” not an independent injury traceable to the “taking [of]\n\nproperty before determining just compensation.” 361 F.3d at 829 (emphasis added).\n\nIndeed, as Sage explains, any harm that otherwise might be experienced because of a gap\n\nin time between possession and compensation is addressed by the right of landowners to\n\n 36\n\fdraw upon court-ordered deposits during the pendency of condemnation proceedings.\n\nId.; see also S.D.W. Va. Opinion, at J.A. 2720 (any injury related to early loss of use is\n\n“blunted by the landowners’ right to draw down the money that Mountain Valley has\n\nindicated it is willing to deposit as assurance for the taking” (internal alterations and\n\nquotation marks omitted)). In any event, while a small group of Landowners testified\n\nthat immediate as opposed to delayed possession would cause them special injury, we\n\ncannot say that the district courts abused their discretion in finding that the balance of the\n\nequities nevertheless favored Mountain Valley. One Landowner, for instance, operates\n\nproperty that serves as a wedding venue and pick-your-own-apples orchard, and testified\n\nthat he would suffer greater harm as a result of construction in the spring and summer\n\nthan if possession were delayed until November 2018. And, to give a second example,\n\nanother Landowner alleged special disturbances to farm animals and timber values that\n\nwould result from immediate possession of her land. The district courts concluded,\n\nhowever, that the potential harms to Mountain Valley from delay outweighed the harms\n\nto the “very few landowners” who had identified a potential injury arising from\n\nimmediate possession, W.D. Va. Opinion, at J.A. 1431, and we think that judgment was\n\nwell within their discretion.\n\n We note that, compared to the Western District of Virginia, the other two district\n\ncourts did not address as directly the potential that immediate rather than postponed\n\npossession might be especially harmful to certain Landowners. In particular, the\n\nSouthern District of West Virginia seems to have misapprehended our holding in Sage as\n\nrequiring a finding in favor of a pipeline in the context of [Natural Gas Act]\n\n 37\n\fcondemnation actions. S.D.W. Va. Opinion, at J.A. 2720 (“In Sage, the Fourth Circuit\n\nconclusively spoke on this issue in the context of [Natural Gas Act] condemnation\n\nactions.”). Given the Supreme Court’s instruction in Winter that a preliminary injunction\n\nmay “never [be] awarded as of right,” the district courts were required to consider the\n\nparticular harms presented by the Landowners in these cases in weighing the balance of\n\nthe equities and were not constrained by our precedent to find in favor of Mountain\n\nValley on this point. See 555 U.S. at 24. To the extent that Sage could be read\n\notherwise, we take this opportunity to clarify that while the balance of equities may often\n\ntip in favor of the pipeline company in the context of Natural Gas Act condemnations,\n\nsuch an outcome is by no means guaranteed or automatic. Thus, a district court must\n\nconsider evidence of harm to the particular landowners in a given condemnation action\n\nwhen determining whether the pipeline has met the third preliminary injunction\n\nrequirement. After thoroughly reviewing the particular evidence presented by the\n\nLandowners in the Northern District of West Virginia and Southern District of West\n\nVirginia, we are confident that there was no evidence presented of harm to the\n\nLandowners resulting from the injunction, as opposed to the pipeline itself, that would\n\noutweigh the harm that Mountain Valley would likely suffer absent an injunction.\n\n Finally, the Landowners point to the possibility that ongoing legal challenges to\n\nthe Certificate will bear fruit – in which case, they argue, the grant of preliminary relief\n\nwill have caused them injury by allowing access that later would prove unjustified. The\n\ndistrict courts declined to credit this argument, and properly so. As they had explained\n\nalready in granting partial summary judgment to Mountain Valley on its substantive right\n\n 38\n\fto exercise eminent domain, only two entities – FERC and a court of appeals with\n\njurisdiction under 15 U.S.C. § 717r(b) – may stay the enforcement of a FERC certificate\n\npending resolution of legal challenges. “District courts in [Natural Gas Act]\n\ncondemnation proceedings,” by contrast, “do not have authority to consider other legal\n\nchallenges to the FERC order, [or] . . . the ability to stay condemnation proceedings to\n\nwait until other legal challenges are resolved.” W.D. Va. Opinion, at J.A. 1415–16. The\n\nLandowners have not challenged that holding on appeal, and it forecloses their argument\n\nhere: Any harms that might arise from the pendency of litigation around the Certificate\n\nare “not harms that would preclude the grant of immediate possession” to Mountain\n\nValley in a condemnation proceeding. Id. at 1429.\n\n 4.\n\n Finally, on the fourth Winter element, the district courts reasonably determined\n\nthat the preliminary injunctions were in the public interest, as they would allow for\n\nexpeditious construction of a FERC-approved pipeline. As we explained in Sage, the\n\nissuance of a FERC certificate signifies that the Commission – the agency charged with\n\nadministering the Natural Gas Act – has determined that pipeline construction will\n\nadvance the congressional purposes behind that Act and “serve the public interest,”\n\nmaking available to consumers an adequate supply of natural gas at reasonable prices.\n\n361 F.3d at 830. It follows, we reasoned, that granting a gas company immediate access\n\nto necessary easements during the pendency of condemnation proceedings likewise\n\nwould advance the public interest, because a “delay in construction would postpone these\n\nbenefits.” Id.\n\n 39\n\f The district courts did not abuse their discretion in applying Sage to the facts of\n\nthese cases. Mountain Valley’s certificate rests on an agency finding that the proposed\n\npipeline will benefit the public by meeting a market need for natural gas, and will do so\n\nin a way that is environmentally acceptable. The Landowners disagree with FERC’s\n\nassessment, and – relying on the opinion of a dissenting FERC commissioner – argued\n\nbefore the district courts that “the public interest in this case does not support allowing\n\nthe construction of the pipeline, due to the environmental hazards or the other possible\n\neffects on historical areas or artifacts as a result of the construction.” W.D. Va. Opinion,\n\nat J.A. 1431. But as the district courts explained, that is a challenge to the Certificate\n\nitself that must be raised before the Commission and then, if necessary, the appropriate\n\ncourt of appeals, not by way of collateral attack in a condemnation proceeding: “[A]s the\n\nCertificate Order itself makes clear, FERC has considered and rejected the very\n\narguments against the [pipeline] raised in the briefing and in court. Those argument[s]\n\nare not properly before the court. They are indirect and collateral attacks on the order\n\nitself.” Id.; accord N.D.W. Va. Opinion, 307 F. Supp. 3d at 531 (“The Court will not\n\nsecond-guess FERC’s determination that [the] project will benefit the public need for\n\nnatural gas as the [Landowners] request.”); S.D.W. Va. Opinion, at J.A. 2721 (“FERC\n\nconducted a careful analysis of the [project] and determined that the project will promote\n\n[the Natural Gas Act’s] goals and serve the public interest.” (quoting Sage, 361 F.3d at\n\n830)).\n\n That is not to say, of course, that a FERC certificate necessarily will be dispositive\n\nof the public interest inquiry under Winter. Apart from setting an in-service deadline, a\n\n 40\n\fFERC certificate does not address timing, and so cannot establish by itself that immediate\n\npossession, as opposed to pipeline construction generally, is in the public interest. But\n\nechoing our reasoning in Sage, the district courts here concluded that because delaying\n\nconstruction would delay – or, if Mountain Valley were unable to meet its FERC\n\ndeadline, frustrate entirely – the public benefits identified by the Commission, the public\n\ninterest factor favored preliminary relief. See N.D.W. Va. Opinion, 307 F. Supp. 3d at\n\n531 (“There can be no dispute that delaying [Mountain Valley’s] completion of the\n\nproject will delay the introduction of the benefits identified by FERC.”); W.D. Va.\n\nOpinion, at J.A. 1432 (“Timely completion of the [p]roject, FERC has expressed, is in the\n\npublic interest.” (emphasis added)). And while there may be cases in which there are\n\npublic-interest arguments against immediate possession that were not considered by the\n\nCommission in reviewing the public benefit of the pipeline project writ large, this is not\n\none of them. As the Landowners’ own brief makes clear, the argument they advanced in\n\nthe district courts and advance now on appeal – that “the public interest favors protection\n\nof their constitutional rights, the environment, and historical resources,” Br. of Appellants\n\nat 46 – is addressed to the pipeline project generally rather than to immediate possession\n\nspecifically, raising the same issues that were considered and rejected by FERC when it\n\nissued the Certificate. 9\n\n\n 9\n We note that the Southern District of West Virginia did not recognize the\ndistinction between the public interest in pipeline construction generally and in\nimmediate access specifically. See Winter, 555 U.S. at 20 (“A plaintiff seeking a\npreliminary injunction must establish . . . that an injunction is in the public interest.”)\n(emphasis added). The district court did, however, incorporate our reasoning under the\n(Continued)\n 41\n\f III.\n\n For the foregoing reasons, we find that the district courts did not abuse their\n\ndiscretion in granting preliminary injunctive relief to Mountain Valley. Accordingly, we\n\naffirm the district courts’ orders.\n\n\n\n AFFIRMED\n\n\n\n\npublic-interest prong in Sage, which does address that issue and finished with the\ncommon-sense observation that a construction delay would postpone the benefits relied\non by FERC in issuing its certificate. See S.D.W. Va. Opinion, at J.A. 2721 (citing Sage,\n361 F.3d at 830). It also cited the first two district court opinions approvingly, and\nrecognized that it was faced with “virtually identical circumstances.” Id. at 2713. Under\nthese circumstances, the absence of additional analysis of the public-interest prong does\nnot amount to an abuse of discretion.\n\n\n 42", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364806/", "author_raw": "PAMELA HARRIS, Circuit Judge:"}]} | GREGORY | WYNN | HARRIS | 1 | {"GREGORY": ", Chief", "WYNN": ", Circuit", "HARRIS": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587553/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,587,555 | Charles Williams v. Bryan Stirling | 2019-02-05 | 18-2 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before NIEMEYER, AGEE and DIAZ, Circuit Judges.", "parties": "", "opinions": [{"author": "AGEE, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-2\n\n\nCHARLES CHRISTOPHER WILLIAMS,\n\n Petitioner – Appellee,\n\n v.\n\nBRYAN P. STIRLING, Director, South Carolina Department of Corrections;\nWILLIE D. DAVIS, Warden of Kirkland Correctional Institution,\n\n Respondents – Appellants,\n\nand\n\nJOSEPH MCFADDEN, Warden of Lieber Correctional Institution,\n\n Respondent.\n\n_____________________________\n\n\nFEDERAL REPUBLIC OF GERMANY,\n\n Amicus Supporting Appellee.\n\n\nAppeal from the United States District Court for the District of South Carolina, at\nGreenville. J. Michelle Childs, District Judge. (6:16-cv-01655-JMC)\n\n\nArgued: October 31, 2018 Decided: January 28, 2019\n Amended: February 5, 2019\n\n\nBefore NIEMEYER, AGEE and DIAZ, Circuit Judges.\n\fAffirmed by published opinion. Judge Agee wrote the opinion, in which Judge Niemeyer\nand Judge Diaz joined.\n\n\nARGUED: Melody Jane Brown, OFFICE OF THE ATTORNEY GENERAL OF\nSOUTH CAROLINA, Columbia, South Carolina, for Appellants. Seth C. Farber,\nWINSTON & STRAWN LLP, New York, New York, for Appellee. Alice Tsier, WHITE\n& CASE LLP, New York, New York, for Amicus Curiae. ON BRIEF: Alan Wilson,\nAttorney General, Donald J. Zelenka, Deputy Attorney General, Alphonso Simon Jr.,\nSenior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF\nSOUTH CAROLINA, Columbia, South Carolina, for Appellants. William Harry Ehlies,\nII, Greenville, South Carolina; Teresa L. Norris, Charleston, South Carolina, for\nAppellee. Owen C. Pell, Amity Boye, WHITE & CASE LLP, New York, New York, for\nAmicus Curiae.\n\n\n\n\n 2\n\fAGEE, Circuit Judge:\n\n After shooting and killing his former girlfriend, Charles Christopher Williams was\n\nconvicted by a South Carolina jury of kidnapping, murder, and possession of a firearm\n\nduring a violent crime. He was sentenced to death for the murder. After exhausting state\n\nremedies, Williams petitioned the United States District Court for the District of South\n\nCarolina for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court\n\ndenied or stayed all of Williams’ claims, except Ground Six, which asserted a claim of\n\nineffective assistance of counsel resulting from trial counsel’s failure to investigate\n\npotentially mitigating evidence of Fetal Alcohol Syndrome (“FAS”). On this ground, the\n\ndistrict court granted Williams’ petition and the State now appeals. For the reasons that\n\nfollow, we affirm the judgment of the district court.\n\n\n\n I.\n\n On the morning of September 3, 2003, Williams entered a Greenville, South\n\nCarolina grocery store where his former girlfriend, Maranda Williams, worked. He\n\nconfronted her, then forced her into a store office, where he held her at gunpoint for\n\napproximately 90 minutes. During this period she called 911 and hostage negotiators\n\ntried to convince Williams to release her. She eventually attempted to escape, but\n\nWilliams pursued her, shooting her four times and killing her. Upon hearing the shots,\n\nlaw enforcement officers entered the store and apprehended Williams. Following his\n\narrest, Williams gave a statement in which he confessed to the crimes for which he was\n\n\n\n 3\n\flater charged. In February 2005, a Greenville County, South Carolina, jury convicted\n\nWilliams of kidnapping, murder, and possession of a firearm during a violent crime.\n\n At trial, Williams was represented by attorneys William Nettles and John Mauldin,\n\nboth of whom were experienced in capital cases. Nettles had handled approximately five\n\ndeath penalty cases through trial and sentencing, as well as a handful of post-conviction\n\nrelief cases. Mauldin had overseen “close to a dozen [capital cases] to verdict” and\n\nworked on nearly three times as many cases after a death notice had been filed. J.A. 493–\n\n94.\n\n In preparation for the penalty phase, Nettles and Mauldin assembled a defense\n\nteam that included, among others, social worker Jan Vogelsang, clinical\n\nneuropsychologist Dr. James Evans, clinical psychiatrist Dr. Robert Richards, neurologist\n\nDr. David Griesemer, and forensic psychiatrist Dr. Seymour Halleck. As part of the\n\ninvestigation, Vogelsang gathered information about Williams’ upbringing. She\n\ninterviewed Williams’ father, who told her that he had observed Williams’ mother, Daisy\n\nHuckaby, drinking while pregnant, though he was unable to provide any additional\n\ndetails. Vogelsang also interviewed Williams’ sister, who recalled that Huckaby drank\n\nwhile pregnant with Williams, but could not say how much. (The record indicates that\n\nVogelsang either failed to ask Huckaby about her drinking or that Huckaby denied\n\ndrinking while pregnant.)\n\n The defense team experts assessed Williams for neurological and psychological\n\nissues. Following an evaluation, Dr. Evans concluded that Williams suffered\n\nneurological impairments as the result of frontal lobe damage and, consequently, had\n\n 4\n\flearning difficulties. Dr. Richards examined Williams and diagnosed him with bipolar\n\nand obsessive-compulsive disorder. Finally, following an MRI and neurological exam\n\nthe week prior to the trial, Dr. Griesemer reported that, though there were some cognitive\n\nissues, Williams’ MRI showed a normal brain.\n\n During the penalty phase, 1 defense counsel presented mitigating evidence of\n\nWilliams’ troubled childhood—including his mother’s alcoholism—as well as his mental\n\nillness and difficulties in school. To this end, counsel presented testimony from\n\nWilliams’ father and sister; Williams’ first grade teacher; a co-worker of Daisy Huckaby;\n\nand their experts, including Dr. Richards, who testified about his diagnoses, and Dr.\n\nHalleck, who opined that Williams suffered from major depressive disorder and\n\nobsessive-compulsive disorder but was able to, with difficulty, conform his behavior to\n\n\n 1\n Under South Carolina law, juries in capital cases consider guilt and sentencing in\nseparate proceedings. S.C. Code Ann. § 16–3–20(A), (B). Once a jury has determined a\ndefendant’s guilt, South Carolina law instructs that “the jury . . . shall hear additional\nevidence in extenuation, mitigation, or aggravation of the punishment[.]” Id. § 16–3–\n20(B).\n Jurors face two questions at sentencing. As an initial matter, they must decide\nwhether the State has proven beyond a reasonable doubt the existence of any statutory\naggravating factor. If the jury fails to agree unanimously on this point, it does not make a\nsentencing recommendation. Rather, the trial judge sentences the defendant to either life\nimprisonment or a mandatory minimum term of 30 years’ imprisonment. But if the jury\nunanimously finds a statutory aggravating factor, it must recommend either death or life\nimprisonment without the possibility of parole. Id. § 16–3–20(A)–(C); see also Shafer v.\nSouth Carolina, 532 U.S. 36, 40–41 (2001).\n Mitigating circumstances include “[t]he capacity of the defendant to appreciate the\ncriminality of his conduct” and “subaverage general intellectual functioning existing\nconcurrently with deficits in adaptive behavior.” S.C. Code Ann. § 16–3–20(C)(b)(6),\n(10). Aggravating circumstances include the commission of the murder during the\nperformance of any number of other crimes, including kidnapping. Id. § 16–3–\n20(C)(a)(1)(b).\n\n 5\n\fthe requirements of the law. Moreover, through his cross-examination of the state\n\npsychiatrist, Nettles elicited additional mitigation testimony, including information about\n\nWilliams’ trouble with his parents’ divorce, Huckaby’s alcoholism, Williams’ difficulty\n\nin school, and his untreated attention deficit disorder. In turn, the State alleged a single\n\naggravating factor: “Murder was committed while in the commission of kidnapping.”\n\nJ.A. 809.\n\n On the second day of penalty phase deliberations, the jury sent a note to the trial\n\ncourt stating it was deadlocked nine to three in favor of death. Williams moved for a\n\nmistrial but the trial court denied the motion and instead gave an Allen 2 charge. The jury\n\nresumed its deliberations and, after three hours and 45 minutes, returned a sentence of\n\ndeath. The Supreme Court of South Carolina affirmed Williams’ convictions and death\n\nsentence, State v. Williams, 690 S.E.2d 62 (S.C. 2010), and the United States Supreme\n\nCourt denied his petition for a writ of certiorari, Williams v. South Carolina, 562 U.S.\n\n899 (2010).\n\n In November 2010, Williams filed a petition for post-conviction relief in the\n\nGreenville County, South Carolina Circuit Court (“PCR court”), asserting errors that\n\nincluded trial counsel’s failure to investigate signs that Williams suffered from FAS—\n\nnamely, evidence of Huckaby’s drinking during her pregnancy and Williams’\n\ncorresponding brain damage. In January 2013, the PCR court held an evidentiary hearing\n\nat which three FAS experts testified on Williams’ behalf. Dr. Richard Adler, a forensic\n\n\n 2\n Allen v. United States, 164 U.S. 492 (1896).\n\n 6\n\fpsychiatrist, diagnosed Williams with Partial Fetal Alcohol Syndrome, a form of FAS.\n\nNeuropsychologist Dr. Paul Connor testified that his assessment of Williams indicated\n\nsevere functional impairments and damage to the corpus callosum, all consistent with or\n\nsymptomatic of FAS. Finally, Dr. Natalie Novick Brown, a forensic psychologist,\n\nconcluded that Williams’ executive functions—including “self-regulation” and “behavior\n\ncontrol”—were impaired due to FAS, leading to behavioral difficulties, including\n\nimpulse control problems and coping skills equivalent to those of a nine year old. J.A.\n\n588. All three experts acknowledged that at the time of the trial in 2005, a widely\n\nrecognized protocol to forensically assess FAS in the criminal justice context had not yet\n\nbeen fully developed, but that individual practitioners had been addressing FAS and had\n\ndeveloped a framework for diagnosing the condition and treating its symptoms. 3\n\n Trial counsel also testified, but neither could recall a mitigation investigation into\n\nFAS, or why such an investigation was not conducted. Mauldin testified that although\n\nFAS awareness had become much more prevalent in the years since Williams’ trial, the\n\nissue “certainly existed well before” the 2003 American Bar Association Guidelines for\n\n\n\n\n 3\n Williams is a dual German and U.S. citizen. As the brief of amicus curiae\nFederal Republic of Germany points out, at the time of trial, FAS was a well-defined\nmedical condition. The diagnosis of prenatal alcohol exposure had evolved to\nencompass, by the time of trial, assessing certain facial and neurological abnormalities.\nSuch diagnoses were used to address, among other issues, permanent deficits exhibited\nby FAS patients in socialization, communication, motor, and daily living skills. In 2007,\na protocolized approach for assessing FAS in the criminal justice context was developed.\n\n 7\n\fthe Appointment and Performance of Defense Counsel in Death Penalty Cases. 4 J.A.\n\n500. The commentary in these Guidelines designated FAS as a potentially mitigating\n\nfactor to be investigated by counsel in capital cases. He further acknowledged that, in\n\nhindsight, several issues should have indicated a potential FAS diagnosis for Williams\n\nwhen he was preparing for trial. First, Mauldin testified that he had reports in his files\n\nthat indicated Huckaby drank during her pregnancy. Mauldin acknowledged that at the\n\ntime of the trial, such drinking should have signaled a potential FAS issue for him. With\n\nthis information about Huckaby’s drinking, he should have, as a first step, directed a\n\nneurologist to conduct whatever testing would have been necessary to determine whether\n\nWilliams was affected by FAS. Nonetheless, Mauldin testified, “I honestly cannot say\n\nwhy [Huckaby’s drinking] wasn’t a red flag for me eight years ago.” J.A. 500. “[A]s\n\nextraordinary as that seems,” he continued, “I can’t explain why there was no discussion\n\nor follow-up on that.” J.A. 512. Second, Mauldin testified that the developmental delays\n\nand learning problems exhibited by Williams were issues he should have associated with\n\nFAS. Finally, Mauldin also explained that some of the follow-up information the defense\n\nteam experts were seeking was of the type he should have associated with FAS.\n\nSpecifically, Mauldin testified that at the time of the trial he was aware of the correlation\n\nbetween a significantly smaller head circumference at birth and FAS and knew that Dr.\n\nRichards, as of August 2004, had become interested in potential brain damage and had\n\n\n 4\n ABA Guidelines for the Appointment and Performance of Defense Counsel in\nDeath Penalty Cases (rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 913 (2003) (“ABA\nGuidelines”).\n\n 8\n\frequested records containing the circumference of Williams’ head at birth and\n\nrecommended an MRI of Williams’ brain. Nonetheless, Mauldin was unable to explain\n\nwhy the records were not produced to Dr. Richards, or why an MRI was not conducted\n\nuntil the week prior to the beginning of the trial in February 2005, rather than in August\n\n2004.\n\n Nettles testified that he was aware of the ABA Guidelines mandating investigation\n\nof mitigating evidence, including personal, family, and medical history, as part of penalty\n\nphase preparations. 5 But he could not remember at what point he developed an\n\n“understanding” of FAS. J.A. 465. He did recall that the subject of Huckaby’s drinking\n\ncame up, but testified that he was focused on it as evidence of Williams’ difficult\n\nchildhood, not of FAS. He also recalled some evidence of neurological damage.\n\nNonetheless, he did not recall any discussion about FAS or FAS being considered as a\n\npotentially mitigating factor.\n\n In denying Williams’ petition, the PCR court concluded:\n\n [T]his Court finds that trial counsel had evidence that [Williams’] mother\n drank during pregnancy, and that trial counsel was aware of the resulting\n complications, including brain damage. Trial counsel also had evidence\n that [Williams] possibly suffered brain damage, based on Dr. Evans’\n reports. Trial counsel presented this information, along with other\n mitigation evidence, to the defense experts. Considering all of the\n information it had available and in consultation with its experts, trial\n counsel developed a cogent strategy to present mitigation evidence—\n including evidence of the mother’s alcohol addiction—but also made a\n\n 5\n Specifically, when asked if he was “familiar . . . [with] the American Bar\nAssociation Guidelines for Performance of Defense Counsel in Death Penalty Cases” and\nGuidelines outlining the “need[] to explore medical history, including . . . prenatal and\nbirth trauma,” Nettles responded: “Right.” J.A. 462–63.\n\n 9\n\f strategic decision not to present to the jury evidence of brain damage or a\n diagnosis of Fetal Alcohol Syndrome (though trial counsel was unable to\n articulate the reasons for that strategic decision). Instead, trial counsel’s\n strategy was to present mitigation evidence regarding [Williams’] troubled\n childhood and his [other disorders], as diagnosed by defense experts.\n\nJ.A. 665 (emphases added). Finally, the PCR court also found that, even if Williams had\n\npresented evidence of FAS to the jury, it was unlikely that the jury would have returned a\n\ndifferent sentence. The PCR court based its conclusion in part on a survey of eight jury\n\nverdicts from other jurisdictions demonstrating that defendants are sentenced to death in\n\nspite of mitigating evidence of FAS or organic brain damage. The South Carolina\n\nSupreme Court dismissed Williams’ petition for writ of certiorari, Williams v. South\n\nCarolina, No. 2016-MO-012, 2016 WL 1458174 (S.C. Apr. 13, 2016), as did the United\n\nStates Supreme Court, Williams v. South Carolina, 137 S. Ct. 1812 (2017).\n\n After initiating habeas proceedings in the district court in November 2016,\n\nWilliams filed an amended § 2254 petition in February 2017, asserting 15 grounds for\n\nrelief, of which only the first six are at issue on appeal. Ground One asserted that the\n\ntrial court’s Allen charge was improperly coercive. Ground Two asserted that the State\n\nelicited prejudicial testimony from its forensic psychiatrist by asking her if she became\n\ninvolved only in cases in which “the death penalty may be considered.” Compare J.A.\n\n23–25, with J.A. 276. Grounds Three and Four asserted that trial counsel failed to\n\nproperly object to a series of allegedly prejudicial comments made during the State’s\n\nclosing argument. Ground Five asserted that trial counsel was ineffective for failing to\n\nassert Williams’ right to seek assistance from the German government under the Vienna\n\nConvention on Consular Relations based on his German citizenship. And of particular\n\n 10\n\fimportance to this appeal, Ground Six asserted Williams was denied effective assistance\n\nof counsel after trial counsel failed to investigate evidence of FAS.\n\n The case was referred to a magistrate judge, who recommended the petition be\n\ngranted as to Ground Six, and that Williams’ death sentence be vacated as a result. The\n\nmagistrate judge concluded that the PCR court’s finding that trial counsel “made a\n\nstrategic decision” was unreasonable given that this finding was directly contradicted by\n\ntrial counsel’s PCR testimony. Compare J.A. 885, with J.A. 665. The magistrate judge\n\nalso concluded that Williams established prejudice: because the State put forward only\n\none aggravating factor and “the jury was deprived of powerful [mitigating] evidence,” a\n\nreasonable probability existed that the jury would have returned a life sentence had this\n\nadditional mitigating evidence been presented and credited by the jury. J.A. 888.\n\nFinally, the magistrate judge also recommended granting summary judgment to the State\n\nas to Grounds One through Five and Seven through Ten, and dismissing without\n\nprejudice Grounds Eleven through Fifteen. 6\n\n The district court adopted the magistrate judge’s recommendations as to Grounds\n\nOne through Ten, including granting the petition as to Ground Six. The district court also\n\ngranted Williams a stay as to Grounds Eleven through Fifteen, pending exhaustion of\n\n\n\n\n 6\n Grounds Seven through Ten asserted an assortment of due process and\nineffective assistance of trial and appellate counsel claims. Grounds Eleven through\nFifteen also asserted trial and appellate counsel were ineffective for failing to investigate\nand/or present other mitigating evidence. None of these claims are at issue in this appeal\nand we do not consider them.\n\n 11\n\fthose claims in state court. Consequently, the district court vacated the death sentence\n\nand “suggest[ed]” a resentencing trial. J.A. 959.\n\n The State filed a timely appeal as to Ground Six. 7 This Court has jurisdiction\n\npursuant to 28 U.S.C. §§ 1291 and 2253.\n\n\n\n II.\n\n 28 U.S.C. § 2254(a) provides that a federal district court “shall entertain an\n\napplication for a writ of habeas corpus” filed by a state prisoner “only on the ground that\n\nhe is in custody in violation of the Constitution or laws or treaties of the United States.”\n\nGenerally speaking, before filing a § 2254 petition, a petitioner must exhaust all state\n\ncourt remedies. Id. § 2254(b); see also Jones v. Sussex I State Prison, 591 F.3d 707,\n\n712–13 (4th Cir. 2010) (explaining that § 2254’s exhaustion requirement means that a\n\nstate prisoner must have first presented his claim before every available state court).\n\n Once a state prisoner has exhausted his claims in state court and filed a federal\n\nhabeas petition, “[i]f a state court has already resolved the merits of a claim for post-\n\nconviction relief, a federal court may not grant a writ of habeas corpus [under § 2254]\n\n\n\n 7\n The first five issues are raised in Williams’ response brief as additional grounds\nfor providing relief. Accordingly, Williams was not required to file a cross-appeal on\nthese issues. See Jennings v. Stephens, 135 S. Ct. 793, 798 (2015) (noting, in the context\nof a § 2254 proceeding, “[a]n appellee who does not take a cross-appeal may urge in\nsupport of a decree any matter appearing before the record, although his argument may\ninvolve an attack upon the reasoning of the lower court,” so long as appellee’s theory\ndoes not “enlarge[e] his own rights” or “lessen[] the rights of his adversary”) (internal\nquotation marks omitted)).\n\n 12\n\funless the state court’s decision” meets the requirements of § 2254(d). Byrum v. Ozmint,\n\n339 F.3d 203, 206 (4th Cir. 2003). Specifically, § 2254(d) provides:\n\n An application for a writ of habeas corpus on behalf of a person in\n custody pursuant to the judgment of a State court shall not be granted with\n respect to any claim that was adjudicated on the merits in State court\n proceedings unless the adjudication of the claim—\n (1) resulted in a decision that was contrary to, or involved an\n unreasonable application of, clearly established Federal law, as\n determined by the Supreme Court of the United States; or\n (2) resulted in a decision that was based on an unreasonable\n determination of the facts in light of the evidence presented in the\n State court proceeding.\n\nSection 2254(d) further “require[s] us to limit our analysis” of the state PCR court’s\n\ndecision “to the law as it was ‘clearly established’ by [the Supreme Court] at the time of\n\nthe [PCR] court’s decision.” Wiggins v. Smith, 539 U.S. 510, 520 (2003).\n\n Under § 2254(d)(1), such a decision is “contrary to” Supreme Court precedent “if\n\nthe state court applie[d] a rule that contradicts the governing law set forth in” Supreme\n\nCourt cases, or “confront[ed] a set of facts that are materially indistinguishable from a\n\n[Supreme Court decision] and nevertheless arrive[d] at a result different from [that]\n\nprecedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000). A decision is an\n\n“unreasonable application” of clearly established Supreme Court precedent if the PCR\n\ncourt “correctly identifie[d] the governing legal rule but applie[d] it unreasonably to the\n\nfacts of a particular prisoner’s case.” Id. at 407–08. “In order for a federal court to find a\n\nstate court’s application of [Supreme Court] precedent unreasonable, the state court’s\n\ndecision must have been more than incorrect or erroneous. The state court’s application\n\nmust have been objectively unreasonable.” Wiggins, 539 U.S. at 520–21 (internal\n\n\n 13\n\fcitation and quotation marks omitted); see also Harrington v. Richter, 562 U.S. 86, 103\n\n(2011) (“[A] state prisoner must show that the state court’s ruling on the claim being\n\npresented in federal court was so lacking in justification that there was an error well\n\nunderstood and comprehended in existing law beyond any possibility for fairminded\n\ndisagreement.”).\n\n Alternatively, a state prisoner may be granted relief pursuant to § 2254(d)(2) if the\n\nPCR court decision’s was based on a factual determination “sufficiently against the\n\nweight of the evidence that it is objectively unreasonable.” Winston v. Kelly, 592 F.3d\n\n535, 554 (4th Cir. 2010). As with legal conclusions, “[f]or a state court’s factual\n\ndetermination to be unreasonable under § 2254(d)(2), it must be more than merely\n\nincorrect or erroneous.” Id. (internal citation omitted).\n\n This Court’s review is de novo when a federal district court’s habeas decision is\n\nbased on the state court record. Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008).\n\nState court factual determinations are presumed correct and may be rebutted only by clear\n\nand convincing evidence. 28 U.S.C. § 2254(e)(1). Upon review, we conclude that the\n\nPCR court’s determination of Williams’ Ground Six ineffective assistance claim involved\n\nboth an unreasonable application of federal law clearly established by Supreme Court\n\nprecedent at the time of the PCR hearing, and an unreasonable determination of the facts\n\nin light of the record before it. Consequently, as described in greater detail below, we\n\naffirm the district court’s grant of habeas corpus relief under § 2254.\n\n\n III.\n\n\n 14\n\f In Ground Six of his petition, Williams contends that his attorneys’ performance\n\nduring the penalty phase violated his Sixth Amendment right to effective assistance of\n\ncounsel. A prisoner petitioning for habeas relief based on ineffective assistance of\n\ncounsel must meet two components: “[a] petitioner must show that counsel’s\n\nperformance was deficient, and that the deficiency prejudiced the defense.” Wiggins, 539\n\nU.S. at 521 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). We address\n\neach in turn, mindful that on appeal our inquiry is limited to whether the PCR court’s\n\nineffective assistance determination was contrary to or an unreasonable application of\n\nSupreme Court precedent or an objectively unreasonable factual determination.\n\n A.\n\n 1.\n\n The district court determined that defense counsel were deficient at the sentencing\n\nphase because of their failure to investigate evidence indicating that Williams had FAS.\n\nTo establish deficient performance, a petitioner must demonstrate that counsel’s\n\nrepresentation “fell below an objective standard of reasonableness.” Strickland, 466 U.S.\n\nat 688. The performance inquiry here focuses on the standard of reasonableness related\n\nto counsel’s duty to investigate mitigating evidence for sentencing in a capital case.\n\nStrickland does not require investigation of every conceivable line of mitigating evidence\n\nbut does impose “a duty to make reasonable investigations or to make a reasonable\n\ndecision that makes particular investigations unnecessary.” Id. at 691. “[S]trategic\n\nchoices made after thorough investigation of law and facts relevant to plausible options\n\nare virtually unchallengeable; and strategic choices made after less than complete\n\n 15\n\finvestigation are reasonable precisely to the extent that reasonable professional\n\njudgments support the limitations on investigation.” Id. at 690–91.\n\n Review of trial counsel’s investigation is considered “from counsel’s perspective\n\nat the time,” id., and the professional norms then prevailing. Padilla v. Kentucky, 559\n\nU.S. 356, 366–67 (2010). A “well-defined norm” at the time of Williams’ trial provided\n\n“that investigations into mitigating evidence ‘should comprise efforts to discover all\n\nreasonably available mitigating evidence.’” Wiggins, 539 U.S. at 524 (internal citation\n\nomitted) (applying norm to a trial that occurred in 1989). “[A reviewing] court must\n\nconsider not only the quantum of evidence already known to counsel, but also whether\n\nthe known evidence would lead a reasonable attorney to investigate further.” Id. at 527.\n\n In turn, “[p]revailing norms of practice as reflected in the American Bar\n\nAssociation standards and the like are guides to determining what is reasonable[.]”\n\nStrickland, 466 U.S. at 688. With respect to investigating mitigating evidence in\n\npreparation for the penalty phase of capital proceedings, the ABA Guidelines at the time\n\nof trial noted that a defendant’s psychological history and mental status could “explain or\n\nlessen the client’s culpability for the underlying offense[],” and therefore should be\n\nconsidered as part of the mitigation investigation. ABA Guidelines § 10.11(F)(2),\n\nreprinted in 31 Hofstra L. Rev. at 1056. Commentary to § 10.11 explained that expert\n\ntestimony concerning “the permanent neurological damage caused by fetal alcohol\n\nsyndrome” could “lessen the defendant’s moral culpability for the offense or otherwise\n\nsupport[] a sentence less than death.” Id. at 1060–61; see also id. at 956–57 (noting,\n\nwith respect to § 4.1, that because “the defendant’s psychological and social history and\n\n 16\n\fhis emotional and mental health are often of vital importance to the jury’s decision at the\n\npunishment phase,” the defense team should include at least one person qualified to\n\nscreen for mental or psychological defects so as to “detect the array of conditions (e.g.,\n\npost-traumatic stress disorder, fetal alcohol syndrome, pesticide poisoning, lead\n\npoisoning, schizophrenia, mental retardation) that could be of critical importance”\n\n(emphasis added)). Furthermore, the 2003 Fourth Circuit case Byrum—which was\n\ndecided about 18 months before Williams’ sentencing—also recognized FAS could be a\n\nmitigating factor in a capital case. 339 F.3d at 209–10 (describing that trial counsel’s\n\ninvestigation of potential mitigating evidence indicated that the defendant’s mother had\n\nnot abused alcohol during her pregnancy, which, coupled with “the absence of any\n\nevidence of organic brain dysfunction, [led] trial counsel [to] conclude[] that they did not\n\nhave a sufficient factual basis to present FAS as evidence in mitigation”).\n\n 2.\n\n We note at the outset that most of trial counsels’ decisions and actions on issues\n\nunrelated to FAS did bear the hallmarks of effective assistance: trial counsel had\n\nexperience in capital cases; counsel consulted with numerous experts in developing a\n\nmitigation case; and counsel spent a significant amount of time developing mitigation\n\narguments. See id. at 205–11 (listing similar factors to bolster conclusion that counsel’s\n\nperformance was not deficient). But as Wiggins makes abundantly clear, an inadequate\n\ninvestigation into potentially mitigating evidence can be, by itself, sufficient to establish\n\ndeficient performance. 539 U.S. at 534.\n\n\n\n 17\n\f Here, counsel’s investigation into potentially mitigating evidence of FAS failed to\n\nmeet an objective standard of reasonableness. By counsel’s own PCR-court admission,\n\ntheir failure to further investigate signs of FAS fell below the then-current standard for\n\nmitigation investigations: both attorneys acknowledged they were aware of the mitigating\n\nvalue of neurological defects at the time of Williams’ sentencing—with Mauldin\n\nspecifically testifying that he was aware at the time of the importance of FAS as a\n\npotential mitigating factor—yet they failed to investigate this issue. Mauldin noted that\n\nhe should have been aware of the issue because the evidence of Williams’ brain damage\n\nand Huckaby’s alcohol consumption during her pregnancy, as well as Dr. Richards’\n\nrequest for medical records concerning the circumference of Williams’ head at birth and\n\nan MRI, should have alerted counsel to this issue at the time of sentencing. But, as\n\nMauldin testified, he was unable to explain why this information did not raise a red flag:\n\n“I wish I could say I connected that, but I did not. . . . I really don’t have an explanation\n\nfor why I was missing those kinds of indicators.” J.A. 519. As he further stated, “I am\n\ndumbfounded about why a certain course of action did not occur [as the result of being\n\naware of Huckaby’s drinking during her pregnancy]. . . . [I]t is unexplainable to me.”\n\nJ.A. 525. Mauldin was similarly unable to explain why, despite awareness of Huckaby’s\n\ndrinking, counsel did not even consider whether Williams had FAS. Nettles’ testimony\n\nconfirmed Mauldin’s: despite numerous indicators of FAS, they did not consider whether\n\nto pursue that evidence.\n\n Consequently, because there was no recognition of a potential FAS diagnosis by\n\ntrial counsel, there was no further exploration of FAS as a potential mitigating factor.\n\n 18\n\fAnd because there was no further exploration, there was necessarily no opportunity for\n\ncounsel to make a strategic decision about whether or not to further develop the FAS\n\nevidence or present it in mitigation. Rather, the investigation here was deficient for the\n\nsame reasons that Wiggins found counsel’s investigation to be deficient: the lack of an\n\ninformed decision regarding mitigating evidence. In Wiggins, there was evidence of a\n\nMaryland death row inmate’s alcoholic mother and his problems in foster care. Despite\n\nthis evidence, counsel failed to follow up on these leads for potentially mitigating\n\nevidence. 539 U.S. 525. The Supreme Court concluded that “any reasonably competent\n\nattorney would have realized that pursuing these leads was necessary to making an\n\ninformed choice among possible defenses, particularly given the apparent absence of any\n\naggravating factors in petitioner’s background.” Id.\n\n A comparison to our analysis in Byrum also highlights the deficiencies in trial\n\ncounsel’s investigation here. In Byrum, this Court affirmed a district court’s denial of a\n\n§ 2254 petition, concluding that trial counsel’s failure to present mitigating FAS evidence\n\ndid not amount to deficient performance. 339 F.3d at 211. The Court held that counsel’s\n\nfailure to develop FAS evidence was reasonable in light of two factors: first, there was no\n\nindication that the birth mother drank during her pregnancy (specifically, the birth mother\n\ndenied abusing alcohol during her pregnancy and her records contained no contrary\n\nevidence); and second, there was no evidence of organic brain damage or FAS,\n\nparticularly in the test results evaluated by the defense team. Id. at 210 (“Based upon\n\n[the] investigation and the absence of any evidence of organic brain dysfunction, trial\n\ncounsel concluded that they did not have a sufficient factual basis to present FAS as\n\n 19\n\fevidence in mitigation.”). Consequently, trial counsel did not fall short of “well-defined\n\nnorms requiring the discovery of all reasonably available mitigating evidence,” nor did\n\nthey “abandon their investigation at an unreasonable juncture.” Id. (internal quotation\n\nmarks omitted).\n\n In contrast to Byrum, both of these red flags were present here. First, although\n\nevidence of Huckaby’s drinking during pregnancy was mixed, there was sufficient\n\nevidence of alcohol abuse that Vogelsang flagged it for general concern. Second, there\n\nwas evidence of Williams’ brain damage, including impairment of the front lobe.\n\nFurthermore, even though evidence of brain damage led Dr. Richards to suggest ordering\n\nan MRI of Williams’ brain and to request medical records of Williams’ head\n\ncircumference at birth—information often correlated with a FAS diagnosis—the team\n\nfailed to provide the medical records or to obtain the MRI until the week prior to trial.\n\nConsequently, evidence of FAS was reasonably available, but counsel failed to connect\n\nthe indicators suggesting further investigation. And given that FAS evidence was widely\n\nacknowledged to be a significant mitigating factor that reasonable counsel should have at\n\nleast explored—as outlined in the ABA Guidelines and caselaw at the time, and by\n\ncounsel during their PCR testimony—counsel’s actions were deficient. To the point,\n\nbecause counsel failed to conduct any investigation despite the red flags, their conduct\n\nfell well short of the conduct Byrum concluded would have actually been deficient:\n\nabandoning an investigation into FAS “at an unreasonable juncture.” 339 F.3d at 210;\n\nsee also Wiggins, 539 U.S. at 527–28 (“[C]ounsel chose to abandon their investigation at\n\nan unreasonable juncture, making a fully informed decision with respect to sentencing\n\n 20\n\fstrategy impossible.”); Strickland, 466 U.S. at 690–91 (“[S]trategic choices made after\n\nless than complete investigation are reasonable precisely to the extent that reasonable\n\nprofessional judgments support the limitations on investigation.”).\n\n An investigation into FAS evidence would also have been substantively different\n\nfrom the defense team’s investigation into other mental illnesses and behavioral issues\n\nbecause FAS could have established both cause and effect for Williams’ criminal acts\n\nwhereas the other mitigation evidence went more to effects on behavior. That is, FAS\n\nevidence could have provided to the jury evidence of an overarching neurological defect\n\nthat caused Williams’ criminal behavior. See ABA Guidelines, 31 Hofstra L. Rev. at\n\n1060–61 (“If counsel cannot establish a direct cause and effect relationship between any\n\none mitigating factor and the commission of a capital offense, counsel may wish to show\n\nthe combination of factors that led the client to commit the crime.”); id. at 1061 (“[I]t is\n\ncritically important to construct a persuasive narrative in support of the case for life,\n\nrather than to simply present a catalog of seemingly mitigating factors.”). Without the\n\ninformation on FAS, the jury could have assumed that Williams was an individual who—\n\ndespite a challenging childhood, learning disabilities, and other mental health issues—\n\nwas generally responsible for his actions, and therefore would have assigned greater\n\nmoral culpability to him for his criminal behavior.\n\n Of course, counsel would not have been required to present evidence of FAS.\n\nIndeed, counsel may have concluded, after investigating and considering FAS as a\n\nmitigating factor, that it was an unsound strategy to present this information to the jury\n\nbecause, for example, it could indicate future dangerousness. But that analysis can justify\n\n 21\n\fa decision only after a reasonable investigation into FAS. Here, counsel did not collect\n\nany FAS evidence or consider its resulting import as part of the mitigation strategy.\n\n 3.\n\n But, as noted earlier, it is not enough for us to determine that trial counsel failed to\n\nmeet the Strickland standard for performance. In the § 2254 context, we must also\n\ndetermine whether the district court erred in concluding the PCR court’s determination\n\nwas “contrary to, or involved an unreasonable application of,” Supreme Court caselaw or\n\nwas based on “an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). The\n\nState contends that the district court failed to afford the appropriate deference to the PCR\n\ncourt’s determination—based on “competing evidence of what the defense team knew,\n\nand what the defense team did”—and that counsel made a reasonable strategic decision in\n\npreparing a mitigation case that excluded presentation of a FAS diagnosis. Opening Br.\n\n31.\n\n We disagree. Applying the correct standard here, we conclude that the PCR\n\ncourt’s determination that the investigation was not deficient involved both an\n\nunreasonable application of the law and an unreasonable determination of the facts.\n\n As an initial matter, the PCR court’s application of Strickland and its progeny to\n\nthe present case was objectively unreasonable. 28 U.S.C. § 2254(d)(1). In reaching its\n\nconclusion, the PCR court confused a strategic decision not to further develop FAS\n\nevidence after some investigation into its potential mitigating value—which could have\n\ncomplied with Strickland—with a complete failure to investigate the FAS evidence for\n\nany potential mitigating value, a failure that plainly falls below an objective standard of\n\n 22\n\freasonableness. As Wiggins concluded, even if trial counsel “would not have altered their\n\nchosen strategy” of presenting other mitigating factors, “counsel were not in a position to\n\nmake a reasonable strategic choice . . . because the investigation supporting their choice\n\nwas unreasonable.” 539 U.S. at 536. “[T]his case is therefore distinguishable from our\n\nprecedents in which we have found limited investigations into mitigating evidence to be\n\nreasonable.” Id. at 525. Consequently, even under the highly deferential standard\n\nafforded to the PCR court, that court’s conclusion was unreasonable: “In deferring to\n\ncounsel’s decision not to pursue a mitigation case despite their unreasonable\n\ninvestigation, the [state court] unreasonably applied Strickland.” Id. at 534. In short, the\n\nPCR court could not reasonably find trial counsel made a strategic decision in accord\n\nwith Strickland where counsel was unaware of the decision.\n\n The PCR court’s determination of the facts was also objectively unreasonable. 28\n\nU.S.C. § 2254(d)(2); see also Harrington, 562 U.S. at 100. Specifically, the PCR court\n\nrelied on the factual assumption that trial counsel made a strategic choice not to present\n\nthe FAS evidence. But, as recounted above, it was impossible for trial counsel to have\n\nmade a strategic choice because there was no investigation into FAS. Both Nettles and\n\nMauldin testified repeatedly that FAS was never considered, while Vogelsang also\n\ntestified that nobody ever ruled out FAS. Therefore, counsel could not, as the PCR court\n\nfound, have made a choice between mitigation strategies. Rather, “[t]he record of the\n\nactual sentencing proceedings underscores the unreasonableness of counsel’s conduct by\n\nsuggesting that their failure to investigate thoroughly resulted from inattention, not\n\nreasoned strategic judgment.” Wiggins, 539 U.S. at 526.\n\n 23\n\f Additionally, the PCR court erroneously assumed that a lack of an established\n\nprotocol assessment of FAS in the forensic context meant that FAS was not a widely\n\nunderstood condition at the time of trial; in fact, the ABA Guidelines at the time flagged\n\nFAS as a potentially mitigating factor, and trial counsel testified they were sufficiently\n\naware of FAS such that certain issues that arose during their investigation should have\n\ntriggered an investigation into a possible FAS diagnosis. See also Moore v. Texas, 518\n\nU.S. ___, ___, 137 S. Ct. 1039, 1049 (2017) (“[B]eing informed by the medical\n\ncommunity does not demand adherence to everything stated in the latest medical guide.\n\nBut neither does our precedent license disregard of current medical standards.”). The\n\nPCR court’s reliance on this factual determination to reach the conclusion that trial\n\ncounsel made a strategic decision to exclude FAS evidence underscores the\n\nunreasonableness of the PCR court’s decision.\n\n ****\n\n For these reasons, we agree with the district court that the PCR court erred in\n\nconcluding that Williams had failed to establish deficient performance of counsel.\n\n B.\n\n This does not end our inquiry either, however, because Williams must also\n\nestablish that the PCR court’s prejudice determination was contrary to or an unreasonable\n\napplication of Supreme Court precedent, or an objectively unreasonable factual\n\ndetermination. 28 U.S.C. § 2254(d).\n\n\n\n\n 24\n\f 1.\n\n To establish Strickland prejudice, Williams was required to demonstrate “a\n\nreasonable probability that at least one juror would have struck a different balance.”\n\nWiggins, 539 U.S. at 537. “A reasonable probability is a probability sufficient to\n\nundermine confidence in the outcome.” Strickland, 466 U.S. at 694.\n\n Furthermore, “[i]n assessing prejudice, [the Court] reweigh[s] the evidence in\n\naggravation against the totality of available mitigating evidence.” Wiggins, 539 U.S. at\n\n534. Specifically, the Court evaluates both the evidence adduced at trial and in the state\n\nPCR proceedings.\n\n 2.\n\n The PCR court concluded that no prejudice occurred because the addition of FAS\n\nevidence “would have ‘merely resulted in a ‘fancier’ mitigation case, [with] no effect on\n\nthe outcome of the trial.’” J.A. 667. This conclusion by the PCR court was based in part\n\non a survey of jury verdicts in other jurisdictions demonstrating “that defendants are\n\noften sentenced to death in spite of evidence offered in mitigation that the defendant had\n\nfetal alcohol syndrome or organic brain damage.” J.A. 668. Along the same lines, the\n\nState argues that Williams cannot establish prejudice because a main indicator of FAS\n\n(Huckaby’s drinking), as well as two FAS-related or FAS-like symptoms (Williams’\n\nmental illnesses and learning disabilities) were already before the jury. Consequently, the\n\nState argues, the addition of a diagnosis of FAS would not have changed the outcome.\n\nThe State also contends that even if FAS evidence had been presented, any mitigation\n\nvalue would have been undercut by it simultaneously suggesting future dangerousness to\n\n 25\n\fthe jury. See Brown v. Thaler, 684 F.3d 482, 499 (5th Cir. 2012) (concluding FAS\n\nevidence is “double-edged” because “although it might permit an inference that [a\n\ndefendant] is not as morally culpable for his behavior, it also might suggest that he, as a\n\nproduct of his environment, is likely to continue to be dangerous in the future” (internal\n\nquotation marks and alteration omitted)).\n\n “When a defendant challenges a death sentence such as the one at issue in this\n\ncase, the question is whether there is a reasonable probability that, absent the errors, the\n\nsentencer . . . would have concluded that the balance of aggravating and mitigating\n\ncircumstances did not warrant death.” Strickland, 466 U.S. at 695. We conclude that\n\nWilliams has established prejudice: had the FAS evidence been presented, there was a\n\nreasonable probability that, given the balance of aggravating and mitigating factors, the\n\njury would have returned a different sentence. First, as discussed previously, the FAS\n\nevidence was different from the other evidence of mental illness and behavioral issues\n\nbecause it could have established cause and effect for the jury—specifically, a FAS\n\ndiagnosis could have provided to the jury evidence of a neurological defect that caused\n\nWilliams’ criminal behavior. Without this information, the jury could have assumed that\n\nWilliams was an individual who—despite challenges in his home life, education, and\n\nmental health—was generally responsible for his actions, and therefore would have\n\nassigned greater moral culpability to him for his criminal behavior. 8\n\n\n 8\n Of course, as noted previously, FAS is only one of a number of factors a jury\nmay consider, along with any other mitigating evidence. The presentation of this\nevidence does not predetermine a lesser sentence for Williams. In fact, as the State\n(Continued)\n 26\n\f At the PCR hearing, experts testified that FAS impaired Williams’ judgment, as\n\nwell as his ability to control his impulses and consider the consequences of his actions.\n\nThis could have been persuasive mitigating evidence for a jury—particularly a\n\ndeadlocked one—considering the death penalty, and could have been outcome-\n\ndeterminative because of how it framed a defendant’s culpability, particularly in\n\ncomparison to the other mitigating factors submitted for the jury’s consideration. See\n\nRompilla v. Beard, 545 U.S. 374, 391–93 (2005) (linking brain damage caused by FAS\n\nand petitioner’s capacity to appreciate the criminality of his conduct).\n\n Further, the State only presented one aggravating factor: that the murder occurred\n\nin the commission of a kidnapping. Consequently, had this solitary aggravating evidence\n\nbeen weighed against the totality of the mitigating evidence presented during both the\n\npenalty phase and the PCR proceedings, there is a reasonable probability the jury would\n\nhave determined the balance of factors did not warrant a death sentence.\n\n The district court thus correctly determined that Williams had established\n\nStrickland prejudice.\n\n 3.\n\n\n\n\ncorrectly notes, a FAS diagnosis can be a double-edged sword, given that it may also\nindicate future dangerousness to the jury. Consequently, we also cannot presuppose FAS\nevidence must be presented or will prevail in any further proceedings. We conclude only\nthat if counsel had chosen to present this evidence, the jury may have returned a different\nverdict. Nothing in this opinion should be taken to conclude that counsel, after a proper\ninvestigation, is compelled to present FAS evidence in another sentencing proceeding.\n\n 27\n\f We also agree with the district court’s conclusion that the PCR court’s prejudice\n\ndetermination involved an unreasonable application of clearly-established law. 28 U.S.C.\n\n§ 2254(d)(1). As an initial matter, we note that, by relying on the survey of jury verdicts,\n\nthe PCR court failed to examine the facts of this case in view of the Strickland\n\nrequirements and instead made a generalized assessment unrelated to the case before it.\n\nRelatedly, the PCR court’s failure to reweigh the totality of the available mitigation\n\nevidence against the aggravating evidence in this specific case is evidenced by two\n\nadditional points. See Williams, 529 U.S. at 397–98. First, although the mitigation\n\nevidence may have been mixed, it was error for the state court to fail to “entertain [the]\n\npossibility” that the mitigating FAS evidence could have “alter[ed] the jury’s selection of\n\npenalty” because it “might well have influenced the jury’s appraisal of [the defendant’s]\n\nmoral culpability.” Id. at 398. As discussed above, the mitigating FAS evidence here\n\ncould have been significant for the jury because it could have established cause and\n\neffect, thereby diminishing Williams’ culpability. The evidence’s significance is further\n\nheightened here given that the jury was initially deadlocked on whether to impose the\n\ndeath penalty. Second, as outlined previously, the aggravating evidence was minimal.\n\nWhen compared to the totality of the mitigating evidence, it is clear that the PCR court\n\nassigned unreasonable weight to the sole aggravating factor.\n\n Given the aggravating and mitigating evidence in the context of this particular\n\ncase, it is evident that the presentation of the FAS evidence would have resulted in, at a\n\nminimum, a reasonable probability of a different sentence, even if it did not guarantee\n\n\n\n 28\n\fone. This is all the law requires. As a result, the district court properly found that the\n\nPCR court’s prejudice determination was unreasonable.\n\n\n\n IV.\n\n Finally, Williams argues the district court erred in granting summary judgment to\n\nthe State on Grounds One through Five. Because we affirm the district court’s grant of\n\nsummary judgment to Williams as to Ground Six, we do not address these issues further.\n\n\n\n V.\n\n For the foregoing reasons, we affirm the district court’s judgment.\n\n AFFIRMED\n\n\n\n\n 29", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364808/", "author_raw": "AGEE, Circuit Judge:"}]} | NIEMEYER | AGEE | DIAZ | 1 | {"NIEMEYER": ", Circuit", "AGEE": ", Circuit", "DIAZ": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587555/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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8,443,873 | MOUNTAIN VALLEY PIPELINE, LLC v. 6.56 ACRES OF LAND, OWNED BY SANDRA TOWNES POWELL, Montgomery County Tax Map Parcel No. 015900 and being MVP Parcel No. VA-MO-3370 1.81 Acres of Land, Owned by Robert M. Jones and Donna Thomas Jones, Montgomery County Tax Map Parcel No. 024588 and being MVP Parcel No. VA-MO-5511 1.29 Acres of Land, Owned by Robert M. Jones and Donna Thomas Jones, Montgomery County Tax Map Parcel No. 024591 and being MVP Parcel No. VA-MO-5512 0.52 Acres of Land, Owned by Emilie M. Owen and Richard Clark Owen, Franklin County Tax Map Parcel No. 0380002204B and being MVP Parcel No. VA-FR-4129 (AR FR-294), - Mountain Valley Pipeline, LLC v. Teresa D. Erickson, POA for Gerald Wayne Corder (Parcel ID No. 20-362-20. An Easement to construct, operate and maintain a 42-inch gas transmission line across properties in the counties of Braxton, Lewis, Harrison, Webster, and Wetzel, WV Lorena B. Krafft, POA for Randall N. Corder (Parcel ID No. 20-362-21. An Easement to Construct, Operate and Maintain a 42-inch Gas Transmission Line Across Properties in the Counties of Braxton, Lewis, Harrison, Webster, and Wetzel, WV, - Mountain Valley Pipeline, LLC v. 0.335 Acres of Land, Owned by George Lee Jones, Giles County Tax Map Parcel No. 47-1-1 and being MVP Parcel No. VA-GI-200.044 0.65 Acres of Land, Owned by Michael S. Hurt and Mary Frances K. Hurt, Franklin County Tax Map Parcel No. 0380002204A and being MVP Parcel No. VA-FR-4130 (AR FR-294) 1.52 Acres of Land, Owned by Vernon V. Beacham, Sr. and Vernon V. Beacham, II, Giles County Tax Map Parcel No. 44A-1-34 and being MVP Parcel No. VA-GI-051 2.83 Acres of Land, Owned by Vernon V. Beacham, Sr. and Vernon V. Beacham, II, Giles County Tax Map Parcel No. 44A-1-33 and being MVP Parcel VA-GI-052 4.88 Acres of Land, Owned by Clarence B. Givens and Karolyn W. 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Bernard, Franklin County Tax Map Parcel No. 0370001901 and being MVP Parcel No. BVA-FR-13 5.88 Acres of Land, Owned by Wendell Wray Flora and Mary McNeil Flora, Franklin County Tax Map Parcel No. 0380002000 and being MVP Parcel No. VA-FR-017.21 3.70 Acres of Land, Owned by Michael S. Hurt and Mary Frances K. Hurt, Franklin County Tax Map Parcel No. 0380002204 and being MVP Parcel No. VA-FR-017.25 1.97 Acres of Land, Owned by Keith M. Wilson and Mary K. Wilson, Franklin County Tax Map Parcel No. 0370009906 and Being MVP Parcel No. VA-FR-017.44 6.50 Acres of Land, More or Less, Owned by New River Conservancy, Inc., Located in Giles County, Virginia Being a Portion of Giles County Tax Map Parcel No. 29-25B and being MVP Parcel No. VA-GI-035, - Mountain Valley Pipeline, LLC v. 0.01 Acres of Land, Owned by Benny L. Huffman, Giles County Tax Map Parcel No. 46-25 B and being MVP Parcel No. VA-GI-5779 0.01 Acres of Land, Owned by Jeremy Joseph Rice and Michelle Renee Rice, Roanoke County Tax Map Parcel No. 111.00-01-58.00-0000 and being MVP Parcel No. VA-RO-5627 0.01 Acres of Land, Owned by Roy A. Stevens, Franklin County Tax Map Parcel No. 0440018800 and being MVP Parcel No. VA-FR-5496 0.02 Acres of Land, Owned by Daniel G. Myers and Deborah L. Myers, Franklin County Tax Map Parcel No. 0440019801 and being MVP Parcel No. VA-FR-5502 0.04 Acres of Land, Owned by Bruce M. Wood and Jennifer M. Wood, Franklin County Tax Map Parcel No. 0440200600 and being MVP Parcel No. VA-FR-5791 2.75 Acres of Land, Owned by Helena Delaney Teekell, Trustee of the Helena Delaney Teekell Trust, Craig County Tax Map Parcel No. 120-A-12 and being MVP Parcel No. VA-CR-200.048 2.81 Acres of Land, Owned by Robert W. Crawford or Patricia D. Crawford, Trustees Under the Crawford Living Trust, and Anita Neal Hughes, Craig County Tax Map Parcel No. 121-A-15 and being MVP Parcel No. VA-CR-200.053 2.60 Acres of Land, Owned by Helena Delaney Teekell, Trustee of the Helena Delaney Teekell Trust, Craig County Tax Map Parcel No. 120-A-14A and being MVP Parcel No. VA-CR-5343 0.15 Acres of Land, Owned by Donald W. Long and Evelyn W. Long, Montgomery County Tax Map Parcel No. 021560 and being MVP Parcel No. BVMO-25 0.07 Acres of Land, Owned by George A. Craighead and Helen P. Craighead, Montgomery County Tax Map Parcel No. 016298 and being MVP Parcel No. VA-MO-011 1.90 Acres of Land, Owned by Joseph Patrick Tomelty, Montgomery County Tax Map Parcel No. 013819 and being MVP Parcel No. VA-MO-060 0.89 Acres of Land, Owned by Donald W. Long and Evelyn W. Long, Montgomery County Tax Map Parcel No. 021559 and being MVP Parcel No. VA-MO-062 0.392 Acres of Land, Owned by Travis Scott Lancaster and Tracy Lynn Taylor, Montgomery County Tax Map Parcel No. 033280 and being MVP Parcel No. VA-MO-064 (AR-MN-271) 23.74 Acres of Land, Owned by Mark W. Cronk, Alison G. Cronk and the Nature Conservancy, Roanoke County Tax Map Parcel No. 093.00-01-44.00-0000 and being MVP Parcel No. VA-RO-038 1.89 Acres of Land, Owned by Trustees of Evangel Foursquare Church, Roanoke County Tax Map Parcel No. 093.00-01-47.00-0000 and being MVP Parcel No. VA-RO-039 5.38 Acres of Land, Owned by Lucy A. Price, Franklin County Tax Map Parcel No. 0240003400 and being MVP Parcel No. VA-FR-008 3.11 Acres of Land, Owned by Russell E. Callaway and Heide K. Callaway, Franklin County Tax Map Parcel No. 0240005400 and being MVP Parcel No. VA-FR-015.02 5.93 Acres of Land, Owned by Charles Frederick Flora and Stephanie M. Flora, Franklin County Tax Map Parcel No. 0380002002 and being MVP Parcel No. VA-FR-017.20 0.07 Acres of Land, Owned by Dale E. Angle and Mary A. Angle, Trustees of the Dale E. Angle and Mary A. Angle Joint Revocable Trust, Franklin County Tax Map Parcel No. 0440006400 and being MVP Parcel No. VA-FR-077.01 2.14 Acres of Land, Owned by Dale E. Angle and Mary A. Angle, Trustees Under the Dale E. and Mary A. Angle Joint Revocable Trust, Franklin County Tax Map Parcel No. 0440006501 and being MVP Parcel No. VA-FR-078 11.86 Acres of Land, Owned by Donald B. Barnhart, Franklin County Tax Map Parcel No. 0440007300 and being MVP Parcel No. VA-FR-081 10.21 Acres of Land, Owned by William David Board, James R. Board, Susan Board Myers, Nancy B. Flora, and Kenneth Craig Board, Franklin County Tax Map Parcel No. 0450006100 and being MVP Parcel No. VA-FR-128 0.30 Acres of Land, Owned by Robert Alan Pegram, Franklin County Tax Map Parcel No. 0650401600 and being MVP Parcel No. VA-FR-155.01 1.85 Acres of Land, Owned by Oyler Land and Leasing, LLC, Franklin County Tax Map Parcel No. 0240004000 and being MVP Parcel No. VA-FR-4126 (AR FR-291) 0.83 Acres of Land, Owned by Susan Board Myers, William David Board, Kenneth Craig Board, and Nancy Board Flora, a/k/a William D. Board, Franklin County Tax Map Parcel No. 0450012003 and being MVP Parcel No. VA-FR-4141 (AR FR-313) 0.56 Acres of Land, Owned by Owned by William D. Board, Franklin County Tax Map Parcel No. 0450012005 and being MVP Parcel No. VA-FR-4277 (AR FR-313) 0.97 Acres of Land, Owned by William David Board, Kenneth Craig Board, Susan B. Myers, Nancy B. Flora, and James R. Board, Franklin County Tax Map Parcel No. 0450012001 and being MVP Parcel No. VA-FR-4278 (AR FR-313) 0.12 Acres of Land, Owned by Angela L. McGhee and Fredrick C. McGhee, Franklin County Tax Map Parcel No. 0370009905 and being MVP Parcel No. VA-FR-5411 0.07 Acres of Land, Owned by Russell W. Lawless, Franklin County Tax Map Parcel No. 0370009907 and being MVP Parcel No. VA-FR-5413 0.04 Acres of Land, Owned by Ronald B. Edwards, Sr., Gloria Martin, Terrance Edwards, Linda White, Ruby Penn, Janis E. Waller, Crystal Diane Edwards, and Penny Edwards Blue, Franklin County Tax Map Parcel No. 0660009502 and being MVP Parcel No. VA-FR-5434 0.44 Acres of Land, Owned by Shelby A. Law, Franklin County Tax Map Parcel No. 0440200400 and being MVP Parcel No. VA-FR-5492 3.15 Acres of Land, Owned by Robert Wayne Morgan and Patricia Ann Morgan, Franklin County Tax Map Parcel No. 0440018700 and being MVP Parcel No. VA-FR-5493 3.11 Acres of Land, Owned by James Glynwood Haynes, Jr., Franklin County Tax Map Parcel No. 0440020001 and being MVP Parcel No. VA-FR-5504 0.95 Acres of Land, Owned by James Glynwood Haynes, Jr., Franklin County Tax Map Parcel No. 0440019500 and being MVP Parcel No. VA-FR-5505 0.38 Acres of Land, Owned by James Glynwood Haynes, Jr., Franklin County Tax Map Parcel No. 0440019300 and being MVP Parcel No. VA-FR-5507, - Mountain Valley Pipeline, LLC v. 0.09 Acres of Land, Owned by Gary Hollopter and Allison Hollopter, Giles County Tax Map Parcel No. 30-4B and being MVP Parcel No. VA-GI-5310 0.18 Acres of Land, Owned by Georgia Lou Haverty, Giles County Tax Map Parcel No 30-4A and being MVP Parcel No. BVGI-10 6.50 Acres of Land, Owned by Sizemore Incorporated of Virginia, f/k/a National Committee for the New River, Giles County Tax Map Parcel No. 29-25B and being MVP Parcel No. VA-GI-035 1.23 Acres of Land, Owned by Eagle's Nest Ministries, Inc., Giles County Tax Map Parcel No. 29-25 and being MVP Parcel No VA-GI-035.01 10.67 Acres of Land, Owned by Doe Creek Farm, Incorporated, Giles County Tax Map Parcel No. 30-4 and being MVP Parcel No. VA-GI-049 2.19 Acres of Land, Owned by Stephen D. Legge, David Legge, and Phyllis J. Legge, Giles County Tax Map Parcel No. 44-3-3A and being MVP Parcel No. VA-GI-057 5.25 Acres of Land, Owned by Mary Virginia Reynolds, Samuel Hale Reynolds, and Mary Sutton Reynolds, Giles County Tax Map Parcel No. 46-1-3 and being MVP Parcel No. VA-GI-097.01 8.60 Acres of Land, Owned by Dowdy Farm LLC, Giles County Tax Map Parcel No. 46-52 and being MVP Parcel No. VA-GI-4250 0.22 Acres of Land, Owned by Dowdy Farm, LLC, Giles County Tax Map Parcel No. 46-52 A. and being MVP Parcel No. VA-GI-5790 10.26 Acres of Land, Owned by Samuel Hale Reynolds and Mary Sutton Reynolds, Giles County Tax Map Parcel No. 46-1-2A and being MVP Parcel No. VA-GI-5922 7.18 Acres of Land, Owned by Michael Edward Slayton, Trustee or Margaret McGraw Slayton, Trustee, Margaret McGraw Slayton Living Trust, Montgomery County Tax Map Parcel No. 024590 and being MVP Parcel No. VA-MO-3371 0.22 Acres of Land, Owned by Lenora W. Montuori and Lenora Montuori and Kristina Montuori Hillman, Trustees of the Antonio Montuori Family Trust, Roanoke County Tax Map Parcel No. 117.00-01-41.00-0000 and being MVP Parcel No. BVRO-12 0.41 Acres of Land, Owned by James D. Scott and Karen B. Scott, Roanoke County Tax Map Parcel No. 093.00-01-34.01-0000 and being MVP Parcel No. VA-RO-030 (AR RO-281) 2.17 Acres of Land, Owned by James D. Scott and Karen B. Scott, Roanoke County Tax Map Parcel No. 093.00-01-33.00-0000 and being MVP Parcel No. VA-RO-042 0.341 Acres of Land, Owned James D. Scott and Karen B. Scott, Roanoke County Tax Map Parcel No. 093.00-01-33.01-0000 and being MVP Parcel No. VA-RO-043 0.41 Acres of Land, Owned by Lenora W. Montuori, Roanoke County Tax Map Parcel No. 110.00-01-54.00-0000 and being MVP Parcel No. VA-RO-058 4.31 Acres of Land, Owned by James T. Chandler and Kathy E. Chandler, Roanoke County Tax Map Parcel No. 111.00-01-62.01-0000 and being MVP Parcel No. VA-RO-060 4.31 Acres of Land, Owned by James T. Chandler and Kathy E. Chandler, Roanoke County Tax Map Parcel No 117.00-01-38.00-0000 and being MVP Parcel No. VA-RO-061 1.91 Acres of Land, Owned by Lenora W. Montuori and Lenora Montuori and Kristin Montuori Hillman, Trustees of the Antonio Montuori Family Trust, Roanoke County Tax Map Parcel No. 117.00-01-43.02-0000 and being MVP Parcel No. VA-RO-062 0.91 Acres of Land, Owned by Lenora W. Montuori and Lenora Montuori and Kristina Montuori Hillman, Trustees of the Antonio Montuori Family Trust, Roanoke County Tax Map Parcel No. 117.00-01-43.00-0000, Being MVP Parcel No. VA-RO-063 2.99 Acres of Land, Owned by Lenora W. Montuori and Lenora Montuori and Kristina Montuori Hillman, Trustees of the Antonio Montuori Family Trust, Roanoke County Tax Map Parcel No. 117.00-01-46.00-0000 and Being Parcel No. VA-RO-064 0.20 Acres of Land, Owned by Lenora W. Montuori and Lenora Montuori and Kristina Montuori Hillman, Trustees of the Antonio Montuori Family Tru, Roanoke County Tax Map Parcel No. 117.00-01-43.01-0000 and being MVP Parcel No. VA-RO-065 0.19 Acres of Land, Owned by Lenora W. Montuori and Lenora Montuori and Kristina Montuori Hillman, Trustees of the Antonio Montuori Family Trust, Roanoke County Tax Map Parcel No. 117.00-01-42.00-0000 and being MVP Parcel No. VA-RO-066 2.43 Acres of Land, Owned by Lenora W. Montuori and Lemora Montuori and Kristina Montuori Hillman, Trustees of the Antonio Montuori Family Trust, Roanoke County Tax Map Parcel No. 117.00-01-45.00-0000 and being MVP Parcel No. VA-RO-067 0.50 Acres of Land, Owned by Lenora W. Montuori and Lenora Montuori and Kristina Montuori Hillman, Trustees of the Antonio Montuori Family Trust, Roanoke County Tax Map Parcel No. 117.00-01-41.01-0000 and being MVP Parcel No. VA-RO-4124 0.33 Acres of Land, Owned by Lenora W. Montuori and Lenora Montuori and Kristina Montuori Hillman, Trustees of the Antonio Montuori Family Trust, Roanoke County Tax Map Parcel No. 117.00-01-41.02-0000 and being MVP Parcel No. VA-RO-4125 8.21 Acres of Land, Owned by Occanneechi, Inc., Franklin County Tax Map Parcel No. 0250004100 and being MVP Parcel No. VA-FR-017.11 21.98 Acres of Land, Owned by Occanneechi, Inc., Franklin County Tax Map Parcel No. 0380001501 and being MVP Parcel No. VA-FR-017.15 8.67 Acres of Land, Owned by James D. Scott and Karen B. Scott, Roanoke County Tax Map Parcel No. 093.00-01-34.00-0000 and being MVP Parcel No. VA-RO-040, - Mountain Valley Pipeline, LLC v. 0.09 Acres of Land, Owned by Larry Bernard Cunningham and Carolyn A. Cunningham, Roanoke County Tax Map Parcel No. 063.00-01-20.03-0000 and being MVP Parcel No. VA-RO-5781 0.11 Acres of Land, Owned by June Smith, Ray Smith, Patricia S. Devecha, Stephen R. Smith, Barry Scott Smith, Douglas F. Smith, David L. Smith, Fred Apgar, Ruth Apgar Glock, Donald Apgar, Gregory M. A, a/k/a Raymond Foster Smith, a/k/a Fred I. Apgar, a/k/a Frederick Apgar, a/k/a Gregory M. Apgar, a/k/a Angela H. Apgar, Unknown Heirs and Assigns of the Following June Smith, and Ray Smith, Roanoke Co. Tax Map Parcel No. 063.00-01-25.00-0000 and being MVP Parcel No. VA-RO-033 0.14 Acres of Land, Owned by Unknown Heirs or Assigns of Anthony B. Novitzki and Joanne A. Lofaro, Franklin County Tax Map Parcel No. 0440206600 and being MVP Parcel No. VA-FR-5500 4.90 Acres of Land, Owned by Brenda Lynn Williams, Giles County Tax Map Parcel No. 46-15 and being MVP Parcel No. VA-GI-200.019 0.19 Acres of Land, Owned by Cletus Woodrow Bohon and Beverly Ann Bohon, Montgomery County Tax Map Parcel No. 030271 and being MVP Parcel No. VA-MN-5233 (AR MN-278.01) 0.39 Acres of Land, Owned by James C. Law and Carolyn D. Law, Montgomery County Tax Map Parcel No. 032431 And being MVP Parcel No. VA-MN-5234 (AR MN-278.01) 2.08 Acres of Land, Owned by Donald D. Apgar and Mildred M. Apgar, Montgomery County Tax Map Parcel No. 000843 and being MVP Parcel No. VA-MO-012 2.69 Acres of Land, Owned by Brian David Glock and Susan Elizabeth Glock Buch, Montgomery County Tax Map Parcel No. 000844 and being MVP Parcel No. VA-MO-013 2.74 Acres of Land, Owned by Cletus Woodrow Bohon and Beverly Ann Bohon, Montgomery County Tax Map Parcel No. 017761 and being MVP Parcel No. VA-MO-022 2.12 Acres of Land, Owned by James Cabel Law and Carolyn Diana Eanes Law, Montgomery County Tax Map Parcel No. 018808 and being MVP Parcel No. VA-MO-024 4.67 Acres of Land, Owned by James Cabel Law and Carolyn Diana Eanes Law, Montgomery County Tax Map Parcel No. 011673 and being MVP Parcel No. VA-MO-025 12.20 Acres of Land, Owned by June Smith, Ray Smith, Patricia S. Devecha, Stephen R. Smith, Barry Scott Smith, Douglas F. Smith, David L. Smith, Fred Apgar, Ruth Apgar Glock, Gregory M. Apgar, and Ang, a/k/a Raymond Foster Smith, a/k/a Fred I. Apgar, a/k/a Frederick I. Apgar, Unknown Heirs or Assigns of the Following June Smith, and Ray Smith, Montgomery Co. Tax Map Parcel No. 120001 and MVP Parcel No. VA-MO-084 3.35 Acres of Land, Owned by Thomas W. Triplett and Bonnie B. Triplett, Montgomery County Tac Map Parcel No. 024589 and being MVP Parcel No. VA-MO-5514 2.07 Acres of Land, Owned by Phyllis M. Hutton, Montgomery County Tax Map Parcel No. 009443 and being MVP Parcel No. VA-MO-5515 3.01 Acres of Land, Owned by Phyllis M. Hutton, Montgomery County Tax Map Parcel No. 026945 and being MVP Parcel No. VA-MO-5516 6.86 Acres of Land, Owned by Juliana Bernholz and Irina Bernholz Siegrist, Montgomery County Tax Map Parcel No. 015895 and being MVP Parcel No. VA-MO-5526 0.38 Acres of Land, Owned by James C. Law and Carolyn D. Law, Montgomery County Tax Map Parcel No. 002833 and being MVP Parcel No. VA-MO-5626 4.03 Acres of Land, Owned by Matthew D. Rollier and Deanna D. Robinson, Roanoke County Tax Map Parcel No. 102.00-01-12.00-0000 and Bring MVP Parcel No. BVRO-04 0.47 Acres of Land, Owned by Bruce M. Coffey and Mary E. Coffey, Roanoke County Tax Map Parcel No. 102.00-01-13.00-0000 and being MVP Parcel No. BVRO-05 13.47 Acres of Land, Owned by John Coles Terry, III, Roanoke County Tax Map Parcel No. 102.00-01-08.00-0000 and being MVP Parcel No. VA-RO-045 8.37 Acres of Land, Owned by Frank H. Terry, Jr., John Coles Terry, III, and Elizabeth Lee Terry, a/k/a Elizabeth Lee Reynolds, Roanoke County Tax Map Parcel No. 102.00-01-02.00-0000 and being MVP Parcel No. VA-RO-046 1.40 Acres of Land, Owned by Mary Ellen Rives, Roanoke County Tax Map Parcel No. 103.00-02-43.00-0000 and being MVP Parcel No. VA-RO-051 1.85 Acres of Land, Owned by Jacquline J. Lucki, Roanoke County Tax Map Parcel No. 102.00-01-14.00-0000 and being MVP Parcel No. VA-RO-052 9.89 Acres of Land, Owned by Elizabeth Lee Terry, a/k/a Elizabeth Lee Reynolds, Roanoke County Tax Map Parcel No. 110.00-01-44.00-0000 and being MVP Parcel No. VA-RO-054 4.72 Acres of Land, Owned by Fred W. Vest, Roanoke County Tax Map Parcel No. 110.00-01-56.00-0000 and being MVP Parcel No. VA-RO-056 2.93 Acres of Land, Owned by Lois King Waldron and Lois Mabel Waldron Martin, Roanoke County Tax Map Parcel No. 110.00-01-50.00-0000 and being MVP Parcel No. VA-RO-057 2.05 Acres of Land, Owned by Howard M. Thompson and Christine W. Thompson, Roanoke County Tax Map Parcel No. 118.00-01-09.00-0000 and being MVP Parcel No. VA-RO-068 0.94 Acres of Land, Owned by Martin G. Morrison and Patricia A. Boyd, Roanoke County Tax Map Parcel No. 063.00-01-20.00-0000 and being MVP Parcel No. VA-RO-4115 2.20 Acres of Land, Owned by Hilah Parks Terry, Frank H. Terry, Jr., Elizabeth Lee Terry, John Coles Terry III, Grace Minor Terry, Unknown Heirs or Assigns of Frank H. Terry, Sr., Roanoke County Tax Map Parcel No. 103.00-02-01.00-0000 and being MVP Parcel No. VA-RO-4118 (AR RO-283) 0.28 Acres of Land, Owned by Jacquline J. Lucki, Roanoke County Tax Map Parcel No. 102.00-01-13.01-0000 and being MVP Parcel No. VA-RO-50 0.32 Acres of Land, Owned by Grace Minor Terry, Roanoke County Tax Map Parcel No. 102.00-01-01.02-0000 and being MVP Parcel No. VA-RO-5149 (AR RO-279.01) 0.34 Acres of Land, Owned by Robin B. Austin and Allen R. Austin, Roanoke County Tax Map Parcel No. 110.00-01-45.00-0000 and being MVP Parcel No. VA-RO-5222 (AR RO-285) 0.33 Acres of Land, Owned by Elizabeth Lee Terry, a/k/a Elizabeth Lee Reynolds, Roanoke County Tax Map Parcel No. 093.00-01-46.00-0000 and being MVP Parcel No. VA-RO-5228 (ATWS-1224) 0.31 Acres of Land, Owned by Rebecca Jane Dameron, Roanoke County Tax Map Parcel No. 111.00-01-61.00-0000 and being MVP Parcel No. VA-RO-5383 0.15 Acres of Land, Owned by Frank W. Hale and Flossie I. Hale and Robert Matthew Hamm and Aimee Chase Hamm, Roanoke County Tax Map Parcel No. 110.00-01-56.01-0000 and being MVP Parcel No. VA-RO-5748 0.26 Acres of Land, Owned by Larry Bernard Cunningham and Carolyn A. Cunningham, Roanoke County Tax Map Parcel No. 063.00-01-21.00-0000 and being MVP Parcel No. VA-RO-5785 1.38 Acres of Land, Owned by Alvin E. Wray, Linda L. Wray, L. Benton Wray, Jr., and Diane S. Wray, Franklin County Tax Map Parcel No. 250002100 and being MVP Parcel No. VA-FR-017 11.45 Acres of Land, Owned BYL. Benton Wray, Jr., Diane S. Wray, Alvin E. Wray, and Linda L. Wray, Franklin County Tax Map Parcel No. 0250002200 and being MVP Parcel No. VA-FR-017.02 2.74 Acres of Land, Owned by Mark A. Pettipiece and Teresa J. Pettipiece, Giles County Tax Map Parcel No. 47-1-3 and being MVP Parcel No. VA-GI-200.046 0.87 Acres of Land, Owned by Bobby I. Jones and Richard Wayne Jones Revocable Trust, Richard Wayne Jones, Trustee, Franklin County Tax Map Parcel No. 0430105200 and being MVP Parcel No. VA-FR-070.01 1.60 Acres of Land, Owned by Sandra H. Lancaster, Franklin County Tax Map Parcel No. 0430105000 and being MVP Parcel No. VA-FR-073 3.70 Acres of Land, Owned by David J. Werner, Betty B. Werner, Ian Elliott Reilly, and Carolyn Elizabeth Reilly, Franklin County Tax Map Parcel No. 0440004300 and being MVP Parcel No. VA-FR-076.01 1.72 Acres of Land, Owned by Guy W. Buford and Margaret S. Buford, Franklin County Tax Map Parcel No. 0440004400 and being MVP Parcel No. VA-FR-077 0.292 Acres of Land, Owned by Gail Dudley Smithers and Ginger K. Smithers, Franklin County Tax Map Parcel No. 0450008100 and being MVP Parcel No. VA-FR-113 8.56 Acres of Land, Owned by Gail Dudley Smithers and Ginger K. Smithers, Franklin County Tax Map Parcel No. 0450000902 and being MVP Parcel No. VA-FR-114 8.60 Acres of Land, Owned by Gail Dudley Smithers, Franklin County Tax Map Parcel No. 0450001600 and being MVP Parcel No. VA-FR-117 3.92 Acres of Land, Owned by Gail Dudley Smithers and Ginger K. Smithers, Franklin County Tax Map Parcel No. 0450006800 and being MVP Parcel No. VA-FR-119 0.32 Acres of Land, Owned by Gail Dudley Smithers, Franklin County Tax Map Parcel No. 0450001500 and being MVP Parcel No. VA-FR-5151 (ATWS-1266) 0.15 Acres of Land, Owned by Russell R. Barksdale, Jr., Franklin County Tax Map Parcel No. 0370009904 and being MVP Parcel No. VA-FR-5415 4.14 Acres of Land, Owned by Mark E. Daniel and Angela D. Daniel, Franklin County Tax Map Parcel No. 0440011600 and being MVP Parcel No. VA-FR-5476 7.82 Acres of Land, Owned by Thomas O. White, Jr., Trustee of the Beverly A. McLaughlin Testamentary Trust, Pittsylvania County Tax Map Parcel No. 1489-86-7542 and being MVP Parcel No. VA-PI-029.05 1.23 Acres of Land, Owned by James M. Grubbs, Evelena Grubbs Rouse, and Enzy Grubbs Anderson, Unknown Heirs or Assigns of James M. Grubb, a/k/a Evelyn Rouse, Pittsylvania County Tax Map Parcel Nos. 2436-05-4452 and 2436-05-2564 and being MVP Parcel No. VA-PI-104 3.42 Acres of Land, Owned by Henry Cox and Janet Degroff, Montgomery County Tax Map Parcel No. 032870 and being MVP Parcel No. VA-MO-5520 3.74 Acres of Land, Owned by Jerome David Henry and Doris Marie Henry, Roanoke County Tax Map Parcel No. 110.00-01-46.00-0000 and being MVP Parcel No. VA-RO-055, - Mountain Valley Pipeline, LLC v. Cheryl L. Boone, Parcel ID No. 7-7-27.2 Kerry N. Boone, Parcel ID No. 7-7-27.2 Orus Ashby Berkley, Parcel ID No. 7-15A-13, 7-15A-13.1 Tammy A. Capaldo, Parcel ID No. 7-15-125 Carla D. Fountain, Parcel ID No. 05-19-36, 05-19-24 Dennis F. Fountain, Parcel ID No. 05-19-36, 05-19-24 Robert M. Jarrell, Parcel ID No. 7-11-15 David Allen Johnson, Parcel ID No. 05-19-9 Everett Johnson, Jr., Parcel ID No. 05-19-9 Wayne Johnson, Parcel ID No. 05-19-9 Maury Johnson, Parcel ID No. 05-19-9 Elisabeth Tobey, Parcel ID No. 11-84-10 Ronald Tobey, Parcel ID No. 11-84-10 Patricia J. Williams, Parcel ID No. 05-25-1.13 | Mountain Valley Pipeline, LLC v. 6.56 Acres of Land | 2019-02-05 | No. 18-1159; No. 18-1165; No. 18-1175; No. 18-1181; No. 18-1187; No. 18-1242; No. 18-1300 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, Harris, Wynn", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415302/", "author_raw": ""}]} | GREGORY | HARRIS | WYNN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443873/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,587,974 | UNITED STATES of America, Plaintiff - Appellee, v. Willie JOHNSON, Defendant - Appellant. | United States v. Willie Johnson | 2019-02-06 | 18-4345 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Wilkinson, Harris, Quattlebaum", "parties": "", "opinions": [{"author": "WILKINSON, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4345\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n\n v.\n\nWILLIE JOHNSON,\n\n Defendant – Appellant.\n\n\n\nAppeal from the United States District Court for the Western District of Virginia, at\nCharlottesville. Norman K. Moon, Senior District Judge. (3:02-cr-00015-NKM-RSB-1)\n\n\nArgued: December 13, 2018 Decided: February 6, 2019\n\n\nBefore WILKINSON, HARRIS, and QUATTLEBAUM, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge\nHarris and Judge Quattlebaum joined.\n\n\nARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\nCharlottesville, Virginia, for Appellant. Jennifer R. Bockhorst, OFFICE OF THE\nUNITED STATES ATTORNEY, Abingdon, Virginia. ON BRIEF: Frederick T.\nHeblich, Jr., Interim Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Roanoke, Virginia, for Appellant. Thomas T. Cullen, United States\nAttorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for\nAppellee.\n\fWILKINSON, Circuit Judge:\n\n Defendant Willie Johnson challenges the district court’s order resentencing him\n\nfor armed bank robbery and related crimes following a successful petition vacating his\n\noriginal sentence under 28 U.S.C. § 2255. The district court honored the sentencing\n\nrecommendation in Johnson’s original plea agreement, in which the government agreed\n\nnot to seek a mandatory life sentence under the federal three-strikes law. See 18 U.S.C.\n\n§ 3559(c). Johnson now argues that he received no benefit from the plea agreement\n\nbecause his prior conviction for a New York robbery offense would not have counted as\n\nhis third strike, and he thus would have been ineligible for a mandatory life sentence. We\n\ndisagree. The text and structure of § 3559(c) reveal a congressional intent to encompass\n\nstate laws such as the New York robbery offense here, which shares the essential\n\ncharacteristics of the enumerated robbery offenses under federal law. We therefore affirm\n\nthe district court’s sentencing decision.\n\n I.\n\n The record of the sentencing hearing revealed the following: On February 1, 2002,\n\nWillie Johnson robbed federally insured Farmer and Merchants Bank in Afton, Virginia\n\nalong with his then-girlfriend’s son, Khalid Ahmad. Both men wore ski masks and\n\ncarried firearms—Johnson an AR-15 rifle, Ahmad a .40 caliber pistol. Johnson ordered\n\ncustomers to get on the floor and, when one hesitated, yelled, “I told you to get down, I\n\ndon’t want to have to shoot nobody.” J.A. 219. He then commanded tellers to stuff the\n\nbank’s cash in a pillowcase, this time with less subtlety: “If you don’t hurry up I’ll kill\n\nyou, don’t think I won’t kill you.” Id. After collecting about six-thousand dollars,\n\n 2\n\fJohnson and Ahmad sped away at more than one hundred miles-per-hour in a vehicle\n\nthey had stolen earlier that morning. In the course of the attempted getaway, the men\n\njumped a curb and drove through a school playground. They ditched the car at the edge\n\nof a forested area near the school and ran into the woods. Witnesses heard gunshots.\n\nSchoolchildren were rushed indoors. While the men evaded capture that day, they were\n\napprehended shortly after.\n\n A federal grand jury indicted Johnson for conspiring to commit bank robbery and\n\nconspiring to use and carry a firearm in relation to a crime of violence, in violation of 18\n\nU.S.C. § 371 (Count One); robbing a bank with a deadly weapon, in violation of 18\n\nU.S.C. § 2113(a) and (d) (Count Two); brandishing a semiautomatic assault weapon\n\nduring and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Count\n\nThree); and possessing a firearm as a convicted felon, in violation of 18 U.S.C.\n\n§ 922(g)(1), with three previous convictions for violent felony offenses under 18 U.S.C.\n\n§ 924(e) (the Armed Career Criminal Act, or ACCA) (Collectively, Count Five). 1\n\n The Presentence Investigation Report also revealed the following: Johnson’s\n\ncriminal record, even excluding numerous juvenile adjudications and parole violations,\n\nwas extensive. In 1975, Johnson assaulted a man with a pool cue, and he later pled guilty\n\nto New York assault charges. In 1976, Johnson pled guilty to New York Robbery and\n\nwas sentenced to seven years’ incarceration. He had robbed a man at gunpoint, pistol-\n\nwhipping the man near his eye and causing a concussion. In 1983, Johnson was charged\n\n1\n Count Four related to Johnson’s co-conspirator.\n\n\n 3\n\fwith ten bank robberies in the United States District Court for the Eastern District of New\n\nYork. He pled guilty to two of them and received a sentence of ten years’ imprisonment.\n\nIn 1994, he burglarized at least two homes, crimes for which he subsequently pled guilty\n\nto attempted burglary and was sentenced to 30-60 months’ incarceration. In 1999,\n\nJohnson was convicted of three crimes related to breaking into a residence, for which he\n\nreceived three consecutive one-year terms in jail. The present offenses took place in\n\n2002.\n\n Federal law provides for lengthier sentences for repeat, violent offenders like\n\nJohnson. Most relevant to Johnson’s case was the federal three-strikes law, which\n\nprovides for a mandatory sentence of life in prison after a third conviction for a “serious\n\nviolent felony.” See 18 U.S.C. § 3559(c)(2)(F) (listing “robbery” as a “serious violent\n\nfelony”). Leading up to Johnson’s trial for the instant offenses, the United States filed an\n\nInformation, see 21 U.S.C. § 851(a), a document alerting the court that Johnson had two\n\nprior “serious violent felony” convictions—specifically, Johnson’s 1976 New York\n\nrobbery and 1983 federal bank robbery convictions. A conviction in the 2002 bank\n\nrobbery case, in other words, would have been Johnson’s third strike.\n\n Staring at a mandatory life sentence, Johnson agreed to plead guilty on the third\n\nday of trial. Johnson specified in the plea agreement, “In exchange for my pleas of guilty\n\nto the charges in the Indictment, the United States will move to dismiss the Information\n\nfiled pursuant to 18 U.S.C. § 3559(c) and 21 U.S.C. § 851(a).” J.A. 23. The agreement\n\nalso contained the following sentencing recommendation: “I agree to an upward\n\ndeparture on Count Two [bank robbery] to the maximum statutory sentence for that\n\n 4\n\fcharge [of 300 months]. I agree to this recommendation, in exchange for the United\n\nStates moving to dismiss the Information that would otherwise enhance my sentence to\n\nmandatory life imprisonment.” J.A. 24.\n\n The United States honored its end of the bargain by dismissing the Information.\n\nThe United States District Court for the Western District of Virginia then held Johnson to\n\nhis end of the bargain, imposing concurrent 300-month sentences for bank robbery\n\n(Count Two) and under the Armed Career Criminal Act (Count Five), along with a\n\nconcurrent 60-month sentence for the conspiracy charge (Count One). This sentence fell\n\nwithin Johnson’s then-mandatory guidelines range of 262-327 months. The district court\n\nalso sentenced Johnson to 120 months in prison for brandishing a semiautomatic assault\n\nweapon during and in relation to a crime of violence (Count Three), to be served\n\nconsecutively. Johnson’s effective sentence totaled 420 months in prison.\n\n About a dozen years later, the Supreme Court ruled that ACCA’s residual clause\n\nwas impermissibly vague under the Fifth Amendment’s Due Process Clause. See Johnson\n\nv. United States, 135 S. Ct. 2551, 2563 (2015). The defendant then filed a petition under\n\n28 U.S.C. § 2255, seeking to vacate his 420-month sentence because Count Five had\n\nincluded a charge based on ACCA’s residual clause. See 18 U.S.C. § 924(e)(2)(B). There\n\nremained a dispute whether ACCA still applied to Johnson without the residual clause.\n\nACCA properly applied if Johnson had three previous “violent felony” convictions. Id. A\n\nviolent felony includes a state felony that “has as an element the use, attempted use, or\n\nthreatened use of physical force against the person of another.” 18 U.S.C. § 924(e) (the\n\nforce clause). Johnson effectively conceded that his two 1983 federal bank robbery\n\n 5\n\fconvictions counted as violent felonies. See United States v. McNeal, 818 F.3d 141, 153\n\n(4th Cir. 2016) (18 U.S.C. § 2113 qualifies under ACCA’s force clause). The parties\n\ndisagreed as to whether Johnson’s 1976 New York third-degree robbery conviction\n\nrequired as an element the use of physical force.\n\n The district court ultimately sided with the defendant. Under that ruling, Johnson\n\nno longer qualified as an armed career criminal, and his existing sentence on Count Five\n\ntherefore exceeded the statutory maximum for a felon-in-possession charge without the\n\nACCA enhancement. The court granted Johnson’s § 2255 petition and vacated his\n\nexisting sentence in full under the sentencing package doctrine, which provides that\n\n“when a defendant is found guilty on a multicount indictment, there is a strong likelihood\n\nthat the district court will craft a disposition in which the sentences on the various counts\n\nform part of an overall plan, and that if some counts are vacated,” the judge should revisit\n\nthe sentences on all the remaining counts. United States v. Ventura, 864 F.3d 301, 309\n\n(4th Cir. 2017) (internal quotation marks omitted).\n\n The United States Probation Office prepared a new Presentence Investigation\n\nReport reflecting the district court’s determination that Johnson was not an armed career\n\ncriminal under ACCA, and also not listing him as a career offender under the Sentencing\n\nGuidelines, resulting in an amended guidelines range of 130-162 months. The district\n\ncourt resentenced Johnson to 60 months for possessing a firearm as a convicted felon\n\n(Count Five), instead of the original 300-month sentence that reflected the ACCA\n\nenhancement.\n\n\n\n 6\n\f The sentencing court, however, imposed the same sentences as before on the\n\nremaining counts after considering the original plea agreement and the § 3553(a) factors.\n\nThe court observed “that the offense conduct was very serious, exposing both the\n\nindividuals at the bank as well as those in [the] path of his flight to danger.” J.A. 203. It\n\nalso rejected Johnson’s argument that his sentence should be reduced because of his age.\n\nJohnson’s “extreme criminal history,” coupled with a present offense that was “one of the\n\nworst that ha[d] come before the [c]ourt,” demonstrated that “Johnson is a danger to\n\nsociety whenever he has been out of prison.” Id. 204.\n\n The court found that Johnson agreed to plead guilty and accept the maximum\n\nsentence for bank robbery in exchange for the government’s moving to dismiss the\n\nInformation filed under the three-strikes law. 18 U.S.C. § 3559(c). That law applies\n\nmandatory life sentences to convictions for a serious violent felony for those defendants\n\nwho were previously convicted “on separate prior occasions” of at least two other serious\n\nviolent felonies. Id. The present offense and the two prior offenses together counted as\n\nthe three strikes. Johnson’s 1976 New York robbery conviction, his 1983 federal bank\n\nrobbery conviction, and his federal bank robbery conviction in the present case, in the\n\ndistrict court’s view, each would have counted as a strike. “Because Johnson would still\n\nbe eligible for mandatory life imprisonment [under § 3559(c)], he is still receiving the\n\nbenefit of avoiding a much higher sentence.” J.A. 203. The district court therefore\n\nresentenced Johnson to “the parties’ prior recommended sentence [for] the aggravated\n\nbank robbery charge in the plea agreement” in order to “honor[] the original plan . . .\n\n\n\n 7\n\f[that] the parties agreed to.” J.A. 203. In the end, the reduced sentence on the firearm\n\npossession count did not alter the original effective sentence of 420 months.\n\n II.\n\n Johnson now asks this court to vacate his new sentence. His principal argument is\n\nthat the district court made a legal error in concluding that his New York robbery\n\nconviction would count as a third strike under the federal three-strikes law, which lists\n\nrobbery as a qualifying offense. 18 U.S.C. § 3559(c). We review the sentencing court’s\n\nlegal conclusion interpreting § 3559(c) de novo. United States v. Moore, 666 F.3d 313,\n\n320 (4th Cir. 2012). Because we agree with the district court’s conclusion that New York\n\nrobbery counts as an enumerated robbery offense and that Johnson thus continued to\n\nreceive the benefit of his original bargain, we affirm. 2\n\n A.\n\n The federal three-strikes law provides for mandatory life in prison for criminals\n\nwho are convicted of their third “serious violent felony.” 18 U.S.C. § 3559(c). There is no\n\nquestion that Johnson’s two federal bank robbery convictions under 18 U.S.C. § 2113—\n\nthe 1983 conviction and the 2002 conviction in the instant case—count as two strikes\n\nagainst him. 18 U.S.C. § 3559(c)(2)(F)(i) (listing “robbery []as described in” 18 U.S.C.\n\n2\n Johnson may also have borne the risk that his plea agreement would prevent him from\ntaking advantage of subsequent legal developments. See McMann v. Richardson, 397\nU.S. 759, 774 (1970). Since the district court’s decision rested upon the fact that Johnson\ncontinued to receive the benefit of his plea agreement, we too rest our decision on that\nground. See Hughes v. United States, 138 S. Ct. 1765, 1777 (2018). We thus need not\naddress the question of the extent to which Johnson’s plea agreement assumed the risk of\nforegoing subsequent legal developments in his favor.\n\n\n 8\n\f§ 2113). What remains is whether Johnson’s 1976 New York robbery conviction counts\n\nas strike three.\n\n We begin, as always, with the text of the statute. Congress defined a serious\n\nviolent felony to include:\n\n (i) a Federal or State offense, by whatever designation and wherever\n committed, consisting of murder (as described in section 1111);\n manslaughter other than involuntary manslaughter (as described in section\n 1112); assault with intent to commit murder (as described in section\n 113(a)); assault with intent to commit rape; aggravated sexual abuse and\n sexual abuse (as described in sections 2241 and 2242); abusive sexual\n contact (as described in sections 2244 (a)(1) and (a)(2)); kidnapping;\n aircraft piracy (as described in section 46502 of Title 49); robbery (as\n described in section 2111, 2113, or 2118 [of Title 18]); carjacking (as\n described in section 2119); extortion; arson; firearms use; firearms\n possession (as described in section 924(c)); or attempt, conspiracy, or\n solicitation to commit any of the above offenses; and\n\n (ii) any other offense punishable by a maximum term of imprisonment of\n 10 years or more that has as an element the use, attempted use, or\n threatened use of physical force against the person of another or that, by its\n nature, involves a substantial risk that physical force against the person of\n another may be used in the course of committing the offense[.]\n\n18 U.S.C. § 3559(c)(2)(F). The statutory text includes the familiar three-part structure,\n\nwith an enumerated clause, a force clause, and a residual clause. Johnson argues that\n\n§ 3559(c)’s force clause does not apply to him because his robbery conviction was not\n\n“punishable by a maximum term of imprisonment of 10 years or more . . . .” 18 U.S.C.\n\n§ 3559(c)(2)(F)(ii); see N.Y. Penal Law § 160.05 (“Robbery in the third degree is a class\n\nD felony.”); id. § 70.00(2)(d) (Class D felonies are punishable by a maximum of seven\n\nyears.). As to the residual clause, Johnson argues that it is unconstitutionally vague under\n\nthe Supreme Court’s precedents Johnson, 135 S. Ct. 2551, and Dimaya. Sessions v.\n\n\n 9\n\fDimaya, 138 S. Ct. 1204 (2018). The district court, for its part, rested its case on the\n\nenumerated clause. The question, therefore, boils down to this: Did Congress intend to\n\ninclude New York third degree robbery as a serious violent felony in its listing of specific\n\ncrimes in § 3559(c)?\n\n The answer, unsurprisingly, is yes. Congress, after all, specifically listed robbery\n\nas a qualifying state offense. The statutory language in § 3559(c) asks whether the\n\n“Federal or State offense,” not a defendant’s actions, “consist[s] of” an enumerated\n\noffense. 18 U.S.C. § 3559(c)(2)(F)(i). We will thus apply a “categorical approach,”\n\nmeaning that we will compare the New York robbery statute, rather than the facts\n\nunderlying Johnson’s convictions, to the federal statutes that Congress referenced to\n\ndescribe robbery in the three-strikes law. Id. (describing robbery by reference to 18\n\nU.S.C. §§ 2111, 2113, 2118); see also United States v. McNeal, 818 F.3d 141, 152 (4th\n\nCir. 2016) (describing categorical approaches in general).\n\n Statutes requiring application of a categorical approach may be worded\n\ndifferently, but the ultimate inquiry remains the same: What in fact was the congressional\n\nintent? Congress faced no small task in writing the three-strikes law in a way that would\n\nincorporate the contours and nuances of myriad state criminal codes, especially with the\n\nunderstanding that those codes will develop over time. With that in mind, Congress could\n\nhardly have been clearer in the text of the statute that § 3559(c)’s enumerated clause\n\nshould be understood broadly. It listed more than a dozen distinct types of criminal\n\noffenses. Cf. 18 U.S.C. § 924(e)(2)(B)(ii) (ACCA, listing only three). And the\n\nenumerated clause either directly describes each crime in § 3559(c)(2) (e.g., arson,\n\n 10\n\fextortion, and kidnapping), or, more often, describes that crime by cross reference to\n\nanother federal statute (e.g., robbery, carjacking, and firearms possession).\n\n Moreover, Congress began the definition with prefatory language of greater rather\n\nthan lesser inclusion: a “serious violent felony” includes “a Federal or State offense, by\n\nwhatever designation and wherever committed.” This broad language has no counterpart\n\nin ACCA, and was no doubt meant to capture a wide variety of state and federal offenses.\n\n“It is hard to see why Congress would have used this language, if it had meant that every\n\ndetail of the federal offense, including its jurisdictional elements, had to be replicated in\n\nthe state offense.” United States v. Wicks, 132 F.3d 383, 386-87 (7th Cir. 1997). A\n\nstraightforward interpretation of this language calls upon courts to look to the essential\n\nnature of a crime, not to minor definitional tweaks or wrinkles in individual jurisdictions.\n\n Following that broad prefatory language, § 3559(c) references other federal\n\nrobbery offenses using the words “described in” rather than “defined in.” This is a\n\nmeaningful distinction, since “‘described in’ is the broader of the two terms.” Espinal-\n\nAndrades v. Holder, 777 F.3d 163, 168 (4th Cir. 2015) (discussing identical language in a\n\ndifferent statutory context). The edition of Black’s Law Dictionary at the time of\n\n§ 3559(c)’s passage confirms this understanding. Compare “Define,” Black’s Law\n\nDictionary (5th ed. 1979) (“To explain or state the exact meaning of words and\n\nphrases . . . .”), with “Describe,” Black’s Law Dictionary (5th ed. 1979) (“To narrate,\n\nexpress, explain . . . .”). “Bearing the plain meaning of ‘define’ and ‘describe’ in mind, it\n\nappears as if Congress intended for the [crimes] ‘described in’ the pertinent federal\n\n\n\n 11\n\fstatute to include crimes that are not ‘defined in’—that is, precisely identical to—that\n\nfederal statute.” Espinal-Andrades, 777 F.3d at 168.\n\n Our inquiry, of course, does not end there, for we “interpret the relevant words not\n\nin a vacuum, but with reference to the statutory context.” Torres v. Lynch, 136 S. Ct.\n\n1619, 1626 (2016) (interpreting statute using “described in” as a cross-reference to\n\nanother federal statute). And the statutory context of § 3559(c) points decidedly towards\n\ninclusivity. That is nowhere truer than for robbery. Section 3559(c)(3)(A) exempts\n\nrobberies (but not other enumerated offenses) from counting under the three-strikes law if\n\na defendant can “establish[] by clear and convincing evidence that—(i) no firearm or\n\nother dangerous weapon was used in the offense and no threat of use of a firearm or other\n\ndangerous weapon was involved in the offense; and (ii) the offense did not result in death\n\nor serious bodily injury (as defined in section 1365) to any person.” In other words, if a\n\ndefendant can prove (which Johnson cannot) that his robbery did not involve a dangerous\n\nweapon or a serious injury, then the offense is not a qualifying strike. In light of this\n\nlanguage, courts must be especially cautious in carving exceptions to § 3559(c) for the\n\nvarious state robbery offenses. Congress has already provided a fact-based escape hatch;\n\ncourts are not at liberty to create additional ones.\n\n B.\n\n With those principles in mind, we must now determine whether Congress’s\n\nunderstanding of robbery in § 3559(c) maps on to the elements of New York’s crime of\n\nrobbery in the third degree. See McNeal, 818 F.3d at 152. Johnson’s robbery conviction\n\nmay not qualify as a serious violent felony under § 3559(c)’s enumerated clause if the\n\n 12\n\fNew York statute applies to conduct outside the broad language Congress used to\n\ndescribe the enumerated robbery offense under the three-strikes law.\n\n In New York, “The essence of the crime of robbery is forcible stealing.” People v.\n\nMiller, 661 N.E.2d 1358, 1360 (N.Y. 1995); see also United States v. Hammond, 912\n\nF.3d 658, 661-65 (4th Cir. 2019) (emphasizing the violent nature of the force required by\n\nNew York’s robbery laws). Johnson’s conviction was for third degree robbery. “A person\n\nis guilty of robbery in the third degree when he forcibly steals property.” N.Y. Penal Law\n\n§ 160.05. Forcible stealing means:\n\n [W]hen, in the course of committing a larceny, [a person] uses or threatens\n the immediate use of physical force upon another person for the purpose of:\n\n 1. Preventing or overcoming resistance to the taking of the property or to\n the retention thereof immediately after the taking; or\n\n 2. Compelling the owner of such property or another person to deliver up\n the property or to engage in other conduct which aids in the commission of\n the larceny.\n\nN.Y. Penal Law § 160.00.\n\n New York’s robbery offense reflects the essence of robbery as Congress described\n\nit in § 3559(c). The federal statute defines “serious violent felony” to include “a Federal\n\nor State offense, by whatever designation and wherever committed, consisting of . . .\n\nrobbery (as described in section 2111, 2113, or 2118 [of Title 18]).” 18 U.S.C.\n\n§ 3559(c)(2)(F)(i). The statute references the federal offenses of maritime or territorial\n\nrobbery (§ 2111), bank robbery (§ 2113), and robbery of a controlled substance (§ 2118).\n\nThese references are joined with the disjunctive “or,” meaning that a state crime that\n\nmatches even one of those statutes must count as a strike. The maritime and territorial\n\n 13\n\fstatute provides the cleanest language describing a robbery: “Whoever, within the special\n\nmaritime and territorial jurisdiction of the United States, by force and violence, or by\n\nintimidation, takes or attempts to take from the person or presence of another anything of\n\nvalue, shall be imprisoned not more than fifteen years.” 18 U.S.C. § 2111. The bank\n\nrobbery and controlled substance robbery statutes define robbery in materially the same\n\nway, with the different jurisdictional hooks previewed by their titles. 3\n\n On those definitions, we agree with the district court’s conclusion that “Johnson\n\nwould still be eligible for mandatory life in prison, as a robbery is an enumerated\n\noffense.” J.A. 202. The essence of both the federal and state robbery offenses is a theft or\n\nattempted theft by use of force. Where New York requires a defendant to “use[] or\n\nthreaten[] the immediate use of physical force upon another person,” the federal statutes\n\nrequire that the taking be done “by force and violence, or by intimidation,” 18 U.S.C.\n\n\n3\n The relevant text of those statutes is as follows: 18 U.S.C. § 2113(a) (“Whoever, by\nforce and violence, or by intimidation, takes, or attempts to take, from the person or\npresence of another, or obtains or attempts to obtain by extortion any property or money\nor any other thing of value belonging to, or in the care, custody, control, management, or\npossession of, any bank, credit union, or any savings and loan association . . . .”); 18\nU.S.C. § 2118(a) (“Whoever takes or attempts to take from the person or presence of\nanother by force or violence or by intimidation any material or compound containing any\nquantity of a controlled substance belonging to or in the care, custody, control, or\npossession of a person registered with the Drug Enforcement Administration under\nsection 302 of the Controlled Substances Act (21 U.S.C. 822) shall . . . be fined under\nthis title or imprisoned not more than twenty years, or both, if (1) the replacement cost of\nthe material or compound to the registrant was not less than $500, (2) the person who\nengaged in such taking or attempted such taking traveled in interstate or foreign\ncommerce or used any facility in interstate or foreign commerce to facilitate such taking\nor attempt, or (3) another person was killed or suffered significant bodily injury as a\nresult of such taking or attempt.”).\n\n\n 14\n\f§ 2111. Similarly, where New York requires a larceny, the federal statutes penalize the\n\n“tak[ing of] . . . anything of value,” id. We agree with the Second Circuit that New York\n\nrobbery matches robbery as used in § 3559(c). Since New York robbery’s “statutory\n\nelements parallel those required to establish robbery under 18 U.S.C. §§ 2111, 2113(a),\n\nand 2118(a), there can be no question that New York State convictions for first and\n\nsecond degree robbery by definition qualify as serious violent felonies under\n\n§ 3559(c)(2)(F)(i).” United States v. Snype, 441 F.3d 119, 144 (2d Cir. 2006). This\n\nconclusion is no less true for Johnson’s third-degree robbery conviction, as “the core\n\ncrime of New York robbery, irrespective of degree, is defined as forcibly stealing\n\nproperty.” Hammond, 912 F.3d at 662 (internal quotation marks and alterations omitted). 4\n\n It should go without saying, of course, that New York does not use the exact same\n\nwords to describe robbery as do the federal robbery statutes. Congress could hardly have\n\nexpected the fifty states to cut-and-paste federal verbiage into every state law. Using\n\ndifferent words to prohibit the same conduct, therefore, poses no barrier to a match in the\n\n4\n Johnson encourages us to discount Snype, which interpreted § 3559(c), in favor of a\nrecent Second Circuit decision holding that New York robbery is not “a ‘crime of\nviolence’ under the ‘enumerated offenses’ in application note 1(B)(iii) to Section 2L1.2\nof the 2014 [Sentencing] Guidelines.” United States v. Pereira-Gomez, 903 F.3d 155, 161\n(2018). In that case, the Second Circuit compared New York robbery to the generic\noffense of robbery, finding that the state offense was not a “crime of violence” because it\nlacked a presence requirement. Id. at 161-64. But this is not a case about the Guidelines\nor the generic robbery offense. This is a case about § 3559(c). No matter how New York\nrobbery might or might not compare with the generic robbery offense, we note here that\n§ 3559(c) describes robbery with sufficient breadth to include New York robbery.\nMoreover, Pereira-Gomez did not mention Snype, and we assume the Second Circuit\nwould not overrule sub silentio its prior precedent. And while we are not, of course,\nbound by decisions of other circuits, we find Snype, in all events, to be persuasive.\n\n\n 15\n\f§ 3559(c) context. For example, New York law specifies the ways that force or a threat of\n\nforce could be used in the commission of a robbery, including by “[c]ompelling the\n\nowner of such property or another person to deliver up the property or to engage in other\n\nconduct which aids in the commission of the larceny.” N.Y. Penal Law § 160.00. This\n\nlanguage, however, deviates in no material respect from federal law’s concise force\n\nrequirement, which prohibits those very same types of conduct.\n\n Take, for example, the federal bank robbery statute, which proscribes a taking “by\n\nforce and violence, or by intimidation . . . from the person or presence of another.” 18\n\nU.S.C. § 2113(a). The reference to § 2113(a)’s person or presence requirement, however,\n\nindicates no intention to exclude the New York law. In United States v. Hackett this court\n\n“conclude[d] that property is taken from a bank in the presence of another when bank\n\nofficers are induced by threats of violence to leave the bank’s money at a pre-arranged\n\ndrop site.” 623 F.2d 343, 345 (4th Cir. 1980). The federal bank robbery statute, in other\n\nwords, penalizes robbery through delivery just like the New York statute. N.Y. Penal\n\nLaw § 160.00 (including robbery by “[c]ompelling the owner of such property or another\n\nperson to deliver up the property”).\n\n The New York robbery statute also prohibits robbery by using force to compel\n\nanother person to “aid[] in the commission” of the offense. Id. Federal law, too, covers\n\nrobbery by conscription. For example, when “a robber forces a bank’s customer to\n\nwithdraw money, the customer becomes the unwilling agent of the robber, and the bank\n\nis robbed.” United States v. Durham, 645 F.3d 883, 893 (7th Cir. 2011) (internal\n\nquotation marks and alterations omitted). Section 3559(c) thus concisely describes\n\n 16\n\frobbery in a way that traces New York’s articulation of the same. To rule otherwise\n\nwould assume that Congress, through inclusive language, somehow meant to exclude the\n\nrobbery statutes of almost twenty different states which may not have a presence\n\nrequirement, but which do share with the referenced federal statutes the essential\n\nelements of taking from another by force and violence, or by intimidation. 5\n\n The Supreme Court has repeatedly cautioned against interpreting federal statutes\n\nto exclude state offenses that employ language common among the several states. To take\n\nbut one example, the Court just recently rejected a reading of ACCA that would have\n\nexcluded “many States’ robbery statutes” from qualifying as predicate offenses. Stokeling\n\nv. United States, 139 S. Ct. 544, 552 (2019). “Where, as here, the applicability of a\n\nfederal criminal statute requires a state conviction,” we must follow the Court’s lead in\n\n“declin[ing] to construe the statute in a way that would render it inapplicable in many\n\nStates.” Id.\n\n Despite the congruence between New York’s robbery statute and § 3559(c)’s\n\nrobbery offense, Johnson argues that New York robbery is distinct from the federal\n\n\n5\n At least nineteen states do not include a narrow presence requirement in their definition\nof robbery. Wayne R. LaFave, 3 Subst. Crim. L. § 20.3(c), at n.42 (3d ed. 2018 update)\n(compiling state statutes); see Ala. Code § 13A-8-43; Ark. Code Ann. § 5-12-102; Conn.\nGen. Stat. § 53a-133; Del. Code Ann. tit. 11, § 831; Haw. Rev. Stat. § 708-840; Iowa\nCode § 711.1; Ky. Rev. Stat. Ann. § 515.020; Me. Stat. tit. 17-A, § 651; Mo. Ann. Stat.\n§ 570.023; Mont. Code Ann. § 45-5-401; N.H. Rev. Stat. Ann. § 636:1; N.J. Stat. Ann.\n§ 2C:15-1; N.Y. Penal Law § 160.00; N.D. Cent. Code § 12.1-22-01; Ohio Rev. Code\nAnn. § 2911.02; Or. Rev. Stat. § 164.395; 18 Pa. Cons. Stat. § 3701; Tex. Penal Code\nAnn. § 29.02; Wyo. Stat. § 6-2-401; see also Model Penal Code § 222.1(1) (Am. Law\nInst. 1962) (including no presence requirement).\n\n\n 17\n\frobbery offenses because it need not occur in the special maritime or territorial\n\njurisdiction of the United States (as in § 2111), take place in a bank (§ 2113), or involve a\n\ncontrolled substance (§ 2118). This argument is not persuasive. These jurisdictional\n\nelements are not essential to robbery in § 3559(c). Take § 2111, the maritime and\n\nterritorial robbery statute, for example. Congress surely did not seek to exempt Johnson\n\nfrom the three-strikes law simply because his state robbery conviction did not have an\n\nelement requiring the crime to occur within the federal territorial or maritime jurisdiction\n\nof the United States. That would be quite an odd element to find in a state criminal\n\noffense. Indeed, the Supreme Court has ignored jurisdictional elements of federal crimes\n\nwhen comparing them to state offenses in the context of statutes that, as here, use the\n\n“described in” terminology. See Torres, 136 S. Ct. 1619. Even more clearly,\n\n§ 3559(c)(2)(F) specifically includes a “State offense . . . wherever committed”—i.e., in a\n\nspecial federal jurisdiction or not.\n\n All in all, we are left with the conviction that Congress intended robbery under the\n\nthree-strikes law to encompass New York robbery in the third degree. The statute uses\n\nlanguage of greater inclusion time and time again when describing the variety of state\n\noffenses that qualify under its enumerated clause. And the essence of robbery in New\n\nYork is just the same as that of the federal robbery statutes that § 3559(c) references,\n\nwhich is a taking from another by force and violence, or by intimidation. See Hammond,\n\n912 F.3d at 662-63 (describing New York robbery offense). For these reasons, we affirm\n\nthe district court’s conclusion that Johnson’s New York robbery conviction qualifies as a\n\n“serious violent felony” under the federal three-strikes statute’s enumerated clause.\n\n 18\n\f III.\n\n Johnson also argues that the district court should not have considered his original\n\nplea agreement during his resentencing. That plea agreement, in Johnson’s view, was\n\nbased on mutual mistakes in believing that he was an armed career criminal and career\n\noffender, both of which increased his then-mandatory guidelines range. But at bottom,\n\nJohnson exchanged a guilty plea and sentencing recommendation for the government’s\n\nagreement not to seek a mandatory life sentence under § 3559(c). Johnson has continued\n\nto benefit from the agreement at resentencing by avoiding the mandatory life sentence.\n\nThe district court therefore acted well within its discretion in considering the earlier plea\n\nagreement when imposing a new sentence on Johnson.\n\n The sentencing court’s decision whether to consider certain facts is an element of\n\nprocedural reasonableness, Ventura, 864 F.3d at 311, which we review for an abuse of\n\ndiscretion, United States v. Susi, 674 F.3d 278, 282 (4th Cir. 2012). With respect to plea\n\nagreements, “A plea agreement is ‘essentially a contract between an accused and the\n\ngovernment’ and is therefore subject to interpretation under the principles of contract\n\nlaw.” United States v. Davis, 689 F.3d 349, 353 (4th Cir. 2012) (quoting United States v.\n\nLewis, 633 F.3d 262, 269 (4th Cir. 2011)). As contracts, plea agreements are voidable\n\nwhen both parties make a mistake “as to a basic assumption on which the contract was\n\nmade,” that mistake “has a material effect on the agreed exchange of performances,” and\n\nthe party seeking to void the contract does not “bear[] the risk of the mistake.”\n\nRestatement (Second) of Contracts § 152 (Am. Law Inst. 1981; October 2018 Update).\n\n\n\n 19\n\f The Supreme Court recently affirmed that district courts “can consider the benefits\n\nthe defendant gained by entering a Type–C” plea agreement when reconsidering a\n\nsentence even after the guidelines range has been retroactively lowered. Hughes v. United\n\nStates, 138 S. Ct. 1765, 1777 (2018). The agreed-upon sentence in a Type–C plea\n\nagreement, unlike the sentencing recommendation in Johnson’s plea agreement, is\n\nbinding on the sentencing court. If sentencing courts may consider mandatory plea\n\nagreements that were based on subsequently modified guidelines ranges, then courts may\n\nsurely consider an agreement that merely recommended a sentence to the court. 6\n\n Moreover, Johnson continued to enjoy his benefit from the plea agreement at his\n\nresentencing hearing—namely, he avoided a mandatory life sentence. That was the heart\n\nof his plea agreement. The agreement plainly said as much. J.A. 23 (“In exchange for my\n\npleas of guilty to [all four] charges in the Indictment, the United States will move to\n\ndismiss the Information filed pursuant to 18 U.S.C. § 3559(c) and 21 U.S.C. § 851(a).”).\n\nAnd Johnson agreed to recommend the maximum sentence on the bank robbery count for\n\nthe same reason. J.A. 24 (“I agree to an upward departure on Count Two [bank robbery]\n\nto the maximum statutory sentence for that charge. I agree to this recommendation, in\n\nexchange for the United States moving to dismiss the Information that would otherwise\n\n6\n Indeed, Justice Sotomayor specifically described in her concurrence a situation like\nwhat we have here: “[T]here may be circumstances in which the Government makes\nsubstantial concessions in entering into a Type–C agreement with a defendant—e.g., by\ndeclining to pursue easily proved and weighty sentencing enhancements—such that there\nis a compelling case that the agreed-upon sentence in the Type–C agreement would not\nhave been affected if the subsequently lowered Guidelines range had been in place at the\nrelevant time. If such circumstances exist, I expect that district courts will take that into\naccount . . . .” Id. at 1780 n.2 (Sotomayor, J., concurring).\n\n 20\n\fenhance my sentence to mandatory life imprisonment.”). The mutual mistakes Johnson\n\nalleges (assuming, for present purposes, that they were indeed mistakes) did not\n\nmaterially affect the exchange of performances or deprive Johnson of the benefits for\n\nwhich he bargained. The district court was well within its discretion to provide the United\n\nStates with its benefit from the bargain by resentencing Johnson to the maximum\n\nsentence on the bank robbery count.\n\n It bears mention that the able district judge here conducted Johnson’s sentencing\n\nwith care and patience. He calculated the advisory guidelines range and explained exactly\n\nwhy the sentencing factors of § 3553(a) warranted an upward variance from the range.\n\nJohnson’s chief argument at sentencing was that he had aged out of his prime crime\n\nyears. The district court considered this argument to be outweighed by the violent and\n\nextensive character of his crimes, spread over many decades, and the fact that he had\n\nagreed to the sentence imposed in exchange for the government’s agreement not to\n\npursue a mandatory life sentence. We need not dwell in detail upon the full extent of\n\nJohnson’s daunting criminal record in order to conclude that the sentence was\n\nprocedurally and substantively reasonable and in accord with all requirements of law.\n\nThe district court’s decision resentencing Johnson is therefore\n\n AFFIRMED.\n\n\n\n\n 21", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365227/", "author_raw": "WILKINSON, Circuit Judge:"}]} | WILKINSON | HARRIS | QUATTLEBAUM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587974/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,587,978 | UNITED STATES of America, Petitioner - Appellee, v. Blake CHARBONEAU, Respondent - Appellant. | United States v. Blake Charboneau | 2019-02-06 | 17-7306 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Motz, Duncan, Quattlebaum", "parties": "", "opinions": [{"author": "QUATTLEBAUM, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-7306\n\n\nUNITED STATES OF AMERICA,\n\n Petitioner - Appellee,\n\n v.\n\nBLAKE CHARBONEAU,\n\n Respondent - Appellant.\n\n\nAppeal from the United States District Court for the Eastern District of North Carolina, at\nRaleigh. James C. Dever III, District Judge. (5:15-hc-02287-D)\n\n\nArgued: November 1, 2018 Decided: February 6, 2019\n\n\nBefore MOTZ, DUNCAN, and QUATTLEBAUM, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge\nMotz and Judge Duncan joined.\n\n\nARGUED: Jaclyn Lee DiLauro, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\nRaleigh, North Carolina, for Appellant. Michael Gordon James, OFFICE OF THE\nUNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:\nLouis C. Allen, Acting Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Greensboro, North Carolina, for Appellant. Robert J. Higdon, Jr., United\nStates Attorney, G. Norman Acker III, Civil Chief, Assistant United States Attorney,\nOFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for\nAppellee.\n\fQUATTLEBAUM, Circuit Judge:\n\n The district court found Blake Charboneau to be a “sexually dangerous person”\n\nunder the Adam Walsh Child Protection and Safety Act of 2006 (the “Act”). 1 18 U.S.C.\n\n§ 4247(a)(5). As a result, the district court committed Charboneau to the custody of the\n\nAttorney General. In this appeal, Charboneau challenges the district court’s determination\n\nthat he met the criteria for a sexually dangerous person. In doing so, Charboneau raises a\n\nlegal and a factual question. The legal question is whether Charboneau must be diagnosed\n\nwith a paraphilic disorder 2 to be committed under the Act. The factual question is\n\nwhether the record supported the district court’s findings under the clear error standard of\n\nreview. Finding that the Act does not require a diagnosis with a paraphilic disorder and\n\nthat the district court’s findings were amply supported by the record, we affirm.\n\n I.\n\n Before turning to the facts of this case, we summarize the pertinent provisions of\n\nthe Act. The Government commences a proceeding under the Act by filing a certification\n\nthat an inmate is a sexually dangerous person. 18 U.S.C. § 4248(a). The proceeding is a\n\n\n 1\n The Act is named after Adam Walsh, who was abducted from a Sears department\nstore in Florida in 1981 and brutally murdered.\n 2\n A paraphilic disorder diagnosis is appropriate under the Diagnostic and\nStatistical Manual of Mental Disorders where a person has an “intense and persistent\nsexual interest” that does not involve “physically mature, consenting human partners”\nand “is currently causing distress or impairment to the individual” or “personal harm, or\nrisk of harm, to others.” American Psychiatric Association, Diagnostic and Statistical\nManual of Mental Disorders 685−86 (5th ed. 2013).\n\n\n\n\n 2\n\fcivil, not criminal, proceeding. See id. § 4248. The Government then bears the burden of\n\nproving by clear and convincing evidence that: (1) the individual has previously\n\n“engaged or attempted to engage in sexually violent conduct or child molestation” (the\n\nprior conduct element), id. § 4247(a)(5); (2) the individual currently “suffers from a\n\nserious mental illness, abnormality, or disorder” (the serious mental illness element), id. §\n\n4247(a)(6); and (3) as a result of such condition, the individual “would have serious\n\ndifficulty in refraining from sexually violent conduct or child molestation if released”\n\n(the serious difficulty element), id.\n\n If the Government prevails, the individual is ordered into the custody of the\n\nAttorney General. Id. § 4248(d). The Attorney General must then make reasonable efforts\n\nto transfer the individual to the State in which the person is domiciled or was tried if the\n\nState will assume responsibility for his custody, care and treatment. Id. If the State will\n\nnot assume such responsibility, the Attorney General must place the individual in a\n\nsuitable facility until the State assumes responsibility or the individual’s condition is such\n\nthat he is no longer sexually dangerous. Id. The Act also provides a mechanism for relief\n\nfrom an order of commitment. A respondent may file a motion with the district court\n\nasking for his discharge from commitment at any time 180 days after his original\n\ncommitment. Id. § 4247(h). In addition, the director of the facility must prepare annual\n\nreports concerning the respondent’s mental condition and his need for continued\n\n\n\n\n 3\n\fcommitment. Id. § 4247(e)(1)(B). In sum, an order of commitment means that, even after\n\nan individual has served his entire criminal sentence, he remains in custody. 3\n\n II.\n\n A.\n\n Turning now to the background of this case, Charboneau lived on the Devils Lake\n\nSioux Reservation in Fort Totten, North Dakota 4 his entire life, with the exceptions of\n\nmental health treatment, school and prison placements. Around the time he turned twelve,\n\nCharboneau began abusing alcohol and inhalants. He dropped out of school in the ninth\n\ngrade. Charboneau has had frequent contact with the criminal justice system over the\n\ncourse of his life. Since 1978, law enforcement officers arrested or took Charboneau into\n\ncustody over thirty times for various crimes ranging from disorderly conduct to sexual\n\nassault. Virtually all those offenses occurred while Charboneau was under the influence\n\nof alcohol. Among those crimes were four arrests for sexually violent conduct, all of\n\nwhich occurred while Charboneau was intoxicated. 5\n\n In 1982, Charboneau sexually assaulted his twenty-three-year-old female cousin.\n\nCharboneau claimed to be so intoxicated at the time of the offense that he was unable to\n\n 3\n The Supreme Court upheld the constitutionality of the Act in United States v.\nComstock, 560 U.S. 126, 129 (2010).\n 4\n The Devils Lake Sioux Reservation, established in 1867, is now known as the\nSpirit Lake Reservation. The largest community on the reservation is Fort Totten, where\nCharboneau lived.\n 5\n The details of this conduct, some of which are graphic, are contained in the Joint\nAppendix (“J.A.”).\n\n\n 4\n\fremember the assault when he was questioned by the police the following day.\n\nCharboneau pled guilty for this offense and was sentenced to prison.\n\n In August 1987, Charboneau committed his second sexual offense. Charboneau\n\nentered a woman’s home, forcibly removed her clothes and attempted to have sexual\n\nintercourse with her on the kitchen floor. Law enforcement officials on Charboneau’s\n\nreservation who investigated the matter did not formally charge Charboneau with sexual\n\nassault. However, Charboneau admitted to these actions at the commitment hearing held\n\nbefore the district court.\n\n In July 1988, Charboneau committed his third sexual offense. After a family\n\npicnic, Charboneau, while intoxicated, took his ten-year-old daughter to an area obscured\n\nby bushes and sexually assaulted her. Charboneau was found guilty in federal court of\n\naggravated sexual abuse by force and sentenced to 168 months in prison followed by five\n\nyears of supervised release. Charboneau began his period of supervised release in\n\nOctober 2000.\n\n While on supervised release in 2003, Charboneau committed his fourth sexual\n\noffense. Charboneau, again intoxicated, sexually assaulted his niece. Charboneau pled\n\nguilty in state court to sexual contact with a person incapable of consenting. The state\n\ncourt sentenced him to ten years of imprisonment. In addition, because Charboneau was\n\non supervised release pursuant to his previous federal sentence at the time, the federal\n\ncourt found that Charboneau violated the terms of his supervised release and sentenced\n\nhim to thirty-six months of confinement and twenty-four months of supervised release to\n\ncommence after Charboneau completed his term of imprisonment at the state level.\n\n 5\n\f B.\n\n In December 2015, while Charboneau was in federal prison at Federal\n\nCorrectional Institution (“FCI”) Butner serving his sentence for his 2003 supervised\n\nrelease violation, the Government initiated the civil commitment proceedings by filing a\n\ncertification alleging Charboneau was a sexually dangerous person under the Act. At that\n\ntime, Charboneau’s anticipated date of release was February 21, 2016. On January 27,\n\n2017, the district court held a commitment hearing on the Government’s certification.\n\nBecause of its relevance to our review, we will summarize the testimony at the\n\ncommitment hearing.\n\n The Government called Dr. Kara Holden, a clinical psychologist who works in the\n\nCommitment and Treatment Program at FCI Butner. Dr. Holden testified about her\n\ntreatment of Charboneau. She remarked that Charboneau had cognitive and\n\ncommunication difficulties and initially was very reserved. She reported that Charboneau\n\nblamed the victims for his crimes and even saw himself as a victim. She testified that\n\nalthough Charboneau received treatment for alcohol abuse in the program at FCI Butner,\n\nhe denied that he had an alcohol problem. Dr. Holden also testified that Charboneau\n\nbecame more comfortable communicating with her as treatment progressed. In December\n\n2016, Charboneau admitted to Dr. Holden for the first time that he had a sexual deviance\n\nproblem, needed treatment and felt that he was sexually dangerous.\n\n Next, the Government called Dr. Christopher North, Dr. Heather Ross and Dr.\n\nGary Zinik as expert witnesses. Dr. North is a clinical psychologist appointed by the\n\ndistrict court to conduct an evaluation of Charboneau. Dr. Ross is a sex offender forensic\n\n 6\n\fpsychologist at the Bureau of Prisons. Dr. Zinik is a forensic psychologist with a private\n\npractice in California.\n\n All three of the Government experts opined that Charboneau was a sexually\n\ndangerous person under the Act. As to the prior conduct element of the Act, the\n\nGovernment experts agreed that Charboneau had engaged in sexually violent conduct in\n\nthe past based on his prior sexually violent conduct.\n\n Regarding the serious mental illness element, the Government experts agreed that,\n\nwhile he did not suffer from a paraphilic disorder, Charboneau suffers from alcohol use\n\ndisorder which satisfied the serious mental illness element of the Act. In addition to\n\nalcohol use disorder, Dr. Zinik found that Charboneau suffers from mixed personality\n\ndisorder based on multiple schizotypal and schizoid characteristics.\n\n As to the serious difficulty element, the Government experts all opined that,\n\nbecause of his alcohol use disorder, Charboneau would have serious difficulty refraining\n\nfrom future sexually violent conduct. Dr. Zinik further opined that because of\n\nCharboneau’s mixed personality disorder, combined with his alcohol use disorder,\n\nCharboneau would have serious difficulty refraining from future sexually violent\n\nconduct.\n\n Charboneau also testified at the commitment hearing. Charboneau testified that he\n\nhas difficulty expressing how he feels and that others have difficulty understanding him.\n\nCharboneau maintained that despite the presence of alcohol in prison, he has remained\n\nsober. He testified that he also has not committed any sexually violent acts in jail. He\n\ntestified that he attends weekly Alcoholics Anonymous (“AA”) meetings and was in the\n\n 7\n\fsecond of four phases of the Commitment and Treatment Program at the time of the\n\ncommitment hearing.\n\n Last, Charboneau’s expert forensic psychologist, Dr. Joseph J. Plaud, testified. Dr.\n\nPlaud agreed that Charboneau met the criteria for the prior conduct element of the Act.\n\nAs to the serious mental illness element, Dr. Plaud opined that Charboneau did not have a\n\npersonality or paraphilic disorder. Without one of those two conditions, Dr. Plaud did not\n\nbelieve that Charboneau’s alcohol use disorder met the second requirement under the\n\nAct. Dr. Plaud noted that Charboneau struggled with alcohol use disorder for most of his\n\nadult life. Based on Charboneau’s history, Dr. Plaud testified he would expect more than\n\nfour instances of sexually violent conduct if alcohol use disorder caused Charboneau to\n\nsexually reoffend. Because Charboneau had abused alcohol on many occasions that did\n\nnot result in sexually violent conduct, Dr. Plaud opined that Charboneau’s alcohol use\n\ndisorder did not constitute a serious mental illness under the Act. As for the serious\n\ndifficulty element, Dr. Plaud believed that it is impermissible to assume that Charboneau\n\nwill experience an alcohol relapse and then assume that, if he relapses, he will commit a\n\nsexual offense. Therefore, Dr. Plaud concluded Charboneau did not qualify as a sexually\n\ndangerous person under the Act.\n\n C.\n\n On September 28, 2017, the district court recited its findings of fact and\n\nconclusions of law. The district court correctly set forth the required elements under the\n\nAct and stated that the Government was required to prove those elements by clear and\n\nconvincing evidence. The district court found that Charboneau previously engaged in\n\n 8\n\fsexually violent conduct or child molestation. It further found that Charboneau had a\n\nserious mental illness, abnormality or disorder in the form of a mixed personality disorder\n\nworking in conjunction with alcohol use disorder, as opined by Dr. Zinik and,\n\nalternatively, in the form of alcohol use disorder as opined by the Drs. Zinik, Ross and\n\nNorth. Finally, the district court found that based on his mental illnesses, Charboneau\n\nwould have serious difficulty refraining from sexually violent conduct due to his serious\n\nmental illness, abnormality or disorder.\n\n In summary, based on the facts presented at the commitment hearing, the district\n\ncourt concluded that the Government met its burden to establish by clear and convincing\n\nevidence that Charboneau is a sexually dangerous person within the meaning of the Act.\n\nAs a result, the district court ordered Charboneau committed to the custody of the\n\nAttorney General until he is no longer a sexually dangerous person.\n\n Charboneau filed a timely notice of appeal, and we have jurisdiction of this matter\n\npursuant to 28 U.S.C. § 1291.\n\n III.\n\n Before considering Charboneau’s grounds for appeal, we describe our standard for\n\nreview. “The purpose of standards of review is to focus reviewing courts upon their\n\nproper role when passing on the conduct of other decision-makers.” Evans v. Eaton Corp.\n\nLong Term Disability Plan, 514 F.3d 315, 320 (4th Cir. 2008). “Standards of review are\n\nthus an elemental expression of judicial restraint, which, in their deferential varieties,\n\nsafeguard the superior vantage points of those entrusted with primary decisional\n\nresponsibility.” Id. at 320−21. The key characteristic of standards of review is that they\n\n 9\n\fdesignate a primary decision-maker other than the reviewing court and designate the\n\ninstrument−deference−with which that primacy is to be maintained. Id. at 321.\n\n In this case, we review the district court’s factual findings for clear error and its\n\nlegal conclusions de novo. United States v. Antone, 742 F.3d 151, 158 (4th Cir. 2014).\n\nThe clear error standard serves to protect the district courts’ primacy as triers of fact.\n\nAnderson v. Bessemer City, 470 U.S. 564, 573−575 (1985). A court reviewing for clear\n\nerror may not reverse a lower court’s factual findings simply because it would have\n\nreached a different decision in the case. United States v. Wooden, 693 F.3d 440, 451 (4th\n\nCir. 2012). Instead, a reviewing court must ask whether, based on the entire body of\n\nevidence, “it is left with the definite and firm conviction that a mistake has been\n\ncommitted.” Id. (quoting Easley v. Cromartie, 532 U.S. 234, 242 (2001)) (internal\n\nquotation marks omitted). “If the district court’s account of the evidence is plausible in\n\nlight of the record viewed in its entirety, the court of appeals may not reverse it even\n\nthough convinced that had it been sitting as the trier of fact, it would have weighed the\n\nevidence differently.” Id. (quoting Anderson, 470 U.S. at 573−74) (internal quotation\n\nmarks omitted). Furthermore, when a trial judge makes a finding “based on his decision\n\nto credit the testimony of one of two or more witnesses, each of whom has told a coherent\n\nand facially plausible story that is not contradicted by extrinsic evidence, that finding, if\n\nnot internally inconsistent, can virtually never be clear error.” Anderson, 470 U.S. at 575.\n\n IV.\n\n On appeal, Charboneau does not challenge the district court’s findings on the\n\nprior conduct requirement of the Act. Charboneau raises two challenges to the district\n\n 10\n\fcourt’s finding on the serious mental illness element. First, he claims the district court\n\nerred in concluding the requirement of a serious mental illness, abnormality or disorder\n\ncan be met without a paraphilic disorder. Second, he contends the district court erred in\n\ncrediting Dr. Zinik’s opinion that Charboneau suffered from a mixed personality disorder\n\nwhich, combined with his alcohol use disorder, satisfies the Act’s serious mental illness\n\nrequirement because that opinion was against the weight of the evidence.\n\n Charboneau also makes two challenges to the district court’s findings regarding\n\nthe third requirement under the Act, the serious difficulty element. First, Charboneau\n\nargues the district court erred in concluding that there is an adequate causal connection\n\nbetween any serious mental illness in his case and sexually violent conduct or child\n\nmolestation. Second, Charboneau contends the district court erred in failing to give\n\nadequate credit to the last fifteen years of his life in which he neither consumed alcohol\n\nor committed a sexual offense while incarcerated.\n\n We address each argument in turn.\n\n A.\n\n We first consider whether a paraphilic disorder is required to fulfill the serious\n\nmental illness element. The Act provides that a person is “sexually dangerous to others”\n\nif he or she “suffers from a serious mental illness, abnormality, or disorder as a result of\n\nwhich he would have serious difficulty in refraining from sexually violent conduct or\n\nchild molestation if released.” 18 U.S.C. § 4247(a)(6). Generally, if the statute’s\n\nlanguage is plain, the sole function of the courts is to enforce the statute according to its\n\n\n\n 11\n\fterms, unless the disposition required by the text is absurd. Crespo v. Holder, 631 F.3d\n\n130, 133 (4th Cir. 2011).\n\n The plain language of the statute does not require a respondent to be diagnosed\n\nwith a paraphilic disorder to satisfy the serious mental illness element of the Act.\n\nLikewise, no controlling precedent requires such a diagnosis. Congress could have easily\n\nadded language requiring a paraphilic disorder if that was its intent. But the Act as\n\nwritten does not require any specific mental illness, abnormality or disorder to satisfy the\n\nserious mental illness element. As this Court has observed, “one will search § 4247(a)(6)\n\nin vain for any language purporting to confine the universe of qualifying mental\n\nimpairments within clinical or pedagogical parameters.” United States v. Caporale, 701\n\nF.3d 128, 136 (4th Cir. 2012).\n\n In Caporale, this Court held that the Act’s reference to a serious mental illness,\n\nabnormality, or disorder is not limited to those disorders specifically delineated in the\n\nDiagnostic and Statistical Manual of Mental Disorders. Id. at 136−37. This Court also\n\nnoted that the statute could have been drafted to follow certain clinical norms or\n\ndefinitions, “but inasmuch as Congress chose not to do so, it has been left to the courts to\n\ndevelop the meaning of ‘serious mental illness, abnormality, or disorder’ as a legal term\n\nof art.” Id. at 136.\n\n Consistent with our precedent, we find the Act does not require a diagnosis of a\n\nparaphilic disorder to meet the serious mental illness element of the Act. And contrary to\n\nCharboneau’s assertion, this ruling does not dramatically expand the reach of the Act. In\n\nall cases, the government must also show by clear and convincing evidence that an\n\n 12\n\findividual “would have serious difficulty in refraining from sexually violent conduct or\n\nchild molestation if released.” 18 U.S.C. § 4247(a)(6). In the absence of a paraphilic\n\ndisorder diagnosis, the government surely faces a steeper climb in establishing the causal\n\nlink between an individual’s serious mental illness and their ability to refrain from\n\nsexually violent conduct in the future. We hold only that the Act does not preclude the\n\ngovernment from making this showing.\n\n B.\n\n Having determined that the Act does not require a paraphilic disorder, we turn to\n\nthe district court’s finding on the serious mental illness requirement. As set forth below,\n\nwe conclude that the district court did not clearly err in finding that Charboneau suffers\n\nfrom a serious mental illness.\n\n Charboneau claims that the district court erred in finding that the Government\n\ncarried its burden to establish the serious mental illness element based on Charboneau’s\n\ndiagnosis of mixed personality disorder and alcohol use disorder. Charboneau takes issue\n\nwith this finding because Dr. Zinik was the only expert to conclude that Charboneau\n\nsuffered a mixed personality disorder that, when taken together with his alcohol use\n\ndisorder, met the serious mental illness element of the Act. Charboneau also argues that\n\nDr. Zinik’s opinion that he suffered from mixed personality disorder conflicted with the\n\nother two Government experts that testified at his hearing.\n\n To address this argument on appeal, it is important to remember our standard of\n\nreview. As set forth above, a factfinder is entitled to great deference in judging the\n\ncredibility of witnesses and in weighing the evidence. Anderson, 470 U.S. at 575. We are\n\n 13\n\fespecially reluctant to set aside a finding based on the trial court’s evaluation of\n\nconflicting expert testimony because “[e]valuating the credibility of experts and the value\n\nof their opinions is a function best committed to the district courts, and one to which\n\nappellate courts must defer.” United States v. Bell, 884 F.3d 500, 508 (4th Cir. 2018)\n\n(quoting United States v. Heyer, 740 F.3d 284, 292 (4th Cir. 2014)) (internal quotation\n\nmarks omitted). Accordingly, the question for the district court was not how many expert\n\nwitnesses supported the respective diagnoses. Instead, the question was which witnesses\n\nprovided the most credible and compelling testimony. “[T]he ultimate measure of\n\ntestimonial worth is quality and not quantity.” Carmell v. Texas, 529 U.S. 513, 574−75\n\n(2000) (quoting Weiler v. United States, 323 U.S. 606, 608 (1945)) (internal quotation\n\nmarks omitted).\n\n The district court was in the best position to analyze the expert opinions offered at\n\nthe commitment hearing and, from the record, it is evident that it did. The district court\n\nexplained in detail why it was persuaded by Dr. Zinik’s diagnostic finding that\n\nCharboneau met criteria for a mixed personality disorder with schizotypal and schizoid\n\nfeatures. The district court acknowledged that Dr. Zinik was the only expert to offer that\n\ndiagnosis but found Dr. Zinik’s explanation of Charboneau’s mental condition\n\ncompelling and consistent with the record in Charboneau’s unique case. While the other\n\nwitnesses did not come to the same conclusion, the district court observed that Dr.\n\nZinik’s opinion was consistent with the diagnosis of other medical providers that treated\n\nCharboneau in the past. The district court also noted that Dr. Zinik persuasively\n\n\n\n 14\n\fexplained that Charboneau’s diagnoses with alcohol use disorder and mixed personality\n\ndisorder with schizotypal and schizoid features are interrelated and additive.\n\n The district court based its finding that Charboneau suffered from a mixed\n\npersonality disorder on the facts in the record and careful consideration of the opinion\n\nand reasoning of Dr. Zinik whose credentials are not at issue. We therefore defer to the\n\ndistrict court’s decision to credit Dr. Zinik’s opinion that Charboneau’s mixed personality\n\ndisorder together with his alcohol use disorder satisfies the serious mental illness element\n\nunder the Act.\n\n C.\n\n We now turn to the third element required by the Act–the serious difficulty\n\nelement. Charboneau argues the district court erred in concluding the Government met its\n\nburden to prove, by clear and convincing evidence, that there is an adequate causal\n\nconnection between Charboneau’s serious mental illness and future sexually violent\n\nconduct or child molestation. To address this challenge, we will first examine the district\n\ncourt’s analysis of the serious difficulty element. Second, we will address Charboneau’s\n\nclaims that the district court erred in its analysis.\n\n 1.\n\n On this issue, the district court again found Dr. Zinik’s testimony, which included\n\nhis opinion about Charboneau’s mixed personality disorder, most compelling. As detailed\n\nabove, Dr. Zinik testified that Charboneau would have serious difficulty refraining from\n\nsexually violent conduct due to his mixed personality disorder combined with his alcohol\n\nuse disorder. The district court noted the Dr. Zinik reviewed the pertinent records,\n\n 15\n\finterviewed Charboneau, considered the other expert opinions and synthesized the\n\nevidence in a persuasive manner in his report. The district court considered and found\n\npersuasive Dr. Zinik’s analysis that concluded Charboneau had a high risk of future\n\nsexually violent behavior and found an absence of protective factors 6 against such future\n\nbehavior. The district court found Dr. Zinik’s testimony regarding the serious difficulty\n\nprong to be the most persuasive expert testimony among all the experts.\n\n 2.\n\n Charboneau claims that the district court erred by failing to consider evidence\n\nindicating Charboneau would not have serious difficulty refraining from sexually violent\n\nconduct as well as inconsistencies in the opinions of the Government’s experts. First,\n\nCharboneau claims the district court failed to consider evidence that Charboneau, at the\n\ntime of the commitment hearing, had started participating in sex offender treatment and\n\nAA meetings. However, the record reveals that the district court did consider this\n\nevidence. Specifically, the district court noted that up until the commitment hearing on\n\nthis matter, Charboneau persistently denied that he had any alcohol problem even\n\nconsidering his numerous arrests for alcohol related offenses, both sexual and nonsexual.\n\nThe district court further noted that Charboneau was in sex offender treatment and under\n\nthe close supervision of U.S. Probation officers when he committed his last sexual\n\noffense. The district court also cited its consideration of actuarial risk assessments,\n\n\n\n 6\n Protective factors are considered in a recidivism risk assessment and decrease the\nrisk for future sexual reoffense. J.A. 410.\n\n 16\n\fCharboneau’s impulsiveness when not in a custodial setting and his historical offenses as\n\nsupport for its finding that the serious difficulty element of the Act was met.\n\n Second, Charboneau claims the district court failed to consider Dr. Plaud’s\n\nopinion that if Charboneau lacked volitional control because of his alcohol use disorder,\n\nthen Charboneau would have had many more instances of sexual violence. Once again,\n\nhowever, the district court considered this evidence. The district court found that\n\ntestimony of Dr. Plaud was not as credible as Dr. Zinik’s explanation that Charboneau\n\nwould have serious difficulty refraining from sexual violence based on the risk\n\nassessment Dr. Zinik conducted and the absence of protective factors. Thus, we find no\n\nclear error in the district court’s conclusion that Charboneau’s alcohol use and personality\n\ndisorders were inextricably linked with his acts of sexual violence.\n\n Third, Charboneau argues the district court failed to consider the absence in the\n\nrecord of continued deviant thoughts by Charboneau. But the district court did, in fact,\n\nconsider the testimony of Dr. Plaud and Dr. Zinik on this point. The district court found\n\nDr. Zinik the most compelling in explaining how Charboneau can have serious difficulty\n\nin refraining from further sexually violent conduct in the absence of continued deviant\n\nthoughts. 7\n\n The record reveals that the district court adequately considered Dr. Plaud’s\n\ntestimony and the evidence Charboneau argues merits reversal. While Charboneau claims\n\n 7\n Charboneau also argues the district court erred by failing to adequately consider\nCharboneau’s good behavior while in prison. Because Charboneau raised this issue as a\nseparate ground for appeal, we address it in Section IV., D. below.\n\n\n 17\n\fthe district court overlooked evidence, he does not direct this Court to any evidence that\n\nthe district court failed to consider or any error in the reports or opinions of Dr. Zinik, Dr.\n\nNorth or Dr. Ross that would require reversal. 8 In reality, Charboneau simply argues that\n\nthe district court should have reached a different result. But it is not this Court’s role to\n\nre-weigh the evidence and impose a different result when the district court does not\n\ncommit legal error and bases its decision on evidence in the record. Accordingly, we find\n\nno clear error in the district court’s ruling.\n\n D.\n\n In his final assignment of error, Charboneau contends the district court erred in\n\nfailing to give adequate credit to the last fifteen years of Charboneau’s life in which he\n\nneither consumed alcohol or committed a sexual offense while incarcerated. Charboneau\n\ncontends that our prior opinion in United States v. Antone, 742 F.3d 151 (4th Cir. 2014),\n\nrequires reversal. In Antone, this Court reversed an order of commitment under the Act\n\nbecause the district court failed to adequately consider the recent conduct of the\n\nrespondent while incarcerated. 742 F.3d at 165.\n\n However, while both Antone and Charboneau behaved appropriately in prison,\n\nthis case is factually distinguishable from Antone. Unlike in Antone, the district court\n\nhere specifically acknowledged that it “must fully consider and account for why a\n\n\n 8\n The factors and evidence considered by the district court regarding the serious\ndifficulty prong are consistent with the prior decisions of this Court. See United States v.\nBell, 884 F.3d 500, 508 (4th Cir. 2018); United States v. Wooden, 693 F.3d 440, 462 (4th\nCir. 2012); United States v. Hall, 664 F.3d 456, 464 (4th Cir. 2012).\n\n\n 18\n\fdetainee’s positive incarceration conduct is overshadowed by other factors” that would\n\nwarrant civil commitment. J.A. 301. The district court then proceeded to analyze\n\nCharboneau’s conduct while incarcerated. 9\n\n The district court first acknowledged that all the experts agreed Charboneau had\n\ngenerally acted as a model prisoner while incarcerated. But the district court considered\n\nCharboneau’s behavior during his current prison term along with his behavior during and\n\nafter his incarceration resulting from his 1982 conviction. Then, Charboneau also\n\nbehaved in an exemplary fashion while in prison. However, once released, Charboneau\n\nabused alcohol and reoffended violently and sexually, even after acting as a model\n\nprisoner. Antone had no similar history of violently reoffending upon release. Therefore,\n\nthe district court’s consideration of this evidence distinguishes the current case from\n\nAntone.\n\n Moreover, the district court considered and found persuasive Dr. Zinik’s report\n\nand testimony that “explain[ed] why Charboneau comports himself well in a controlled\n\ninstitutional environment but reverts to drinking alcohol, lawbreaking, and sexual\n\nviolence in the community.” J.A. 302. The district court also acknowledged that Dr.\n\nNorth and Dr. Ross provided persuasive explanations on this point.\n\n\n\n\n 9\n Significantly, this Court recently affirmed a district court’s order of commitment\nunder the Act where there were temporal gaps in the respondent’s sexual offenses. This\nCourt affirmed that such gaps do not preclude a finding that the respondent would have\nserious difficulty refraining from future sexually violent behavior. United States v. Bell,\n884 F.3d 500, 509−10 (4th Cir. 2018).\n\n 19\n\f Further, the district court noted Charboneau’s persistent denial that he has an\n\nalcohol use problem and the results of actuarial risk assessments indicating his difficulty\n\nin refraining from future sexually violent conduct. To the district court, this evidence\n\noutweighed Charboneau’s recent good conduct. Based on this analysis, the district court\n\nfound that the Government met its burden in establishing that Charboneau would have\n\nserious difficulty in refraining, even considering his good behavior while incarcerated.\n\n In summary, the district court adequately considered Charboneau’s conduct while\n\nincarcerated and made the determination that other factors outweighed his good behavior\n\nin prison. Reversal is only appropriate if we are left with a definite and firm conviction\n\nthat a mistake has been made after we review the district court’s mixed findings. Antone,\n\n742 F.3d at 165. Here, we are left with no such definite and firm conviction. Therefore,\n\nwe affirm the district court’s order.\n\n V.\n\n For the reasons set forth above, we conclude that the appellate record supports the\n\ndistrict court’s conclusion that Charboneau is a sexually dangerous person within the\n\nmeaning of 18 U.S.C. § 4247(a)(5). 10 Based on the record before it, the district court did\n\nnot clearly err when it found that the Government established the criteria for commitment\n\n\n\n 10\n Of course, this does not mean that Charboneau will be sexually dangerous\nforever. The Act, as set forth above, provides a path by which Charboneau may seek\ndischarge. 18 U.S.C. §§ 4247(e)(1)(B), 4247(h). In determining whether Charboneau\nshould be released and reintegrated into society in the future, the district court should\nconsider Charboneau’s behavior in prison and his progress in treatment, as well as the\nrest of the record before the district court at the time of any such request for discharge.\n\n 20\n\fby clear and convincing evidence and ordered Charboneau committed to the custody of\n\nthe United States Attorney General. Accordingly, the judgment of the district court is\n\n AFFIRMED.\n\n\n\n\n 21", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365231/", "author_raw": "QUATTLEBAUM, Circuit Judge:"}]} | MOTZ | DUNCAN | QUATTLEBAUM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587978/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,587,983 | Garry CURTIS, Plaintiff - Appellee, v. PROPEL PROPERTY TAX FUNDING, LLC; Propel Financial Services, LLC, Defendants - Appellants. | Garry Curtis v. Propel Property Tax Funding | 2019-02-06 | 17-2114 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Duncan, Keenan, Diaz", "parties": "", "opinions": [{"author": "DUNCAN, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-2114\n\n\nGARRY CURTIS,\n\n Plaintiff – Appellee,\n\nv.\n\nPROPEL PROPERTY TAX FUNDING, LLC; PROPEL FINANCIAL\nSERVICES, LLC,\n\n Defendants – Appellants.\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nRichmond. John A. Gibney, Jr., District Judge. (3:16-cv-00731-JAG)\n\n\nArgued: October 30, 2018 Decided: February 6, 2019\n\n\nBefore DUNCAN, KEENAN, and DIAZ, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Duncan wrote the opinion, in which Judge Diaz", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365236/", "author_raw": "DUNCAN, Circuit Judge:"}, {"author": "joined. Judge Keenan wrote a separate opinion concurring", "type": "concurrence", "text": "joined. Judge Keenan wrote a separate opinion concurring in part and dissenting in part.\n\n\nARGUED: Charles Kalman Seyfarth, O’HAGAN MEYER PLLC, Richmond, Virginia,\nfor Appellants. Thomas Dean Domonoske, CONSUMER LITIGATION ASSOCIATES,\nP.C., Newport News, Virginia, for Appellee. ON BRIEF: Elizabeth Scott Turner,\nO’HAGAN MEYER PLLC, Richmond, Virginia, for Appellants. Dale W. Pittman, THE\nLAW OFFICE OF DALE W. PITTMAN, P.C., Petersburg, Virginia, for Appellee.\n\nDUNCAN, Circuit Judge:\n\n Appellants Propel Property Tax Funding, LLC and Propel Financial Services, LLC\n\n(collectively “Propel”) entered into a Tax Payment Agreement (a “TPA”) with Appellee\n\nGarry Curtis pursuant to Virginia Code section 58.1-3018. Curtis sued Propel on behalf\n\nof himself and other similarly situated individuals, alleging violations of the Truth in\n\nLending Act (the “TILA”), 15 U.S.C. § 1601 et. seq., the Electronic Funds Transfer Act\n\n(the “EFTA”), id. § 1693 et. seq., and the Virginia Consumer Protection Act (the\n\n“VCPA”), Va. Code Ann. § 59.1-196 et. seq. Propel moved to dismiss Curtis’s claims\n\nunder TILA and EFTA, contending that the TPA is not a consumer credit transaction\n\ngoverned by those statutes. The district court denied Propel’s motion and sua sponte\n\ncertified two rulings for interlocutory review pursuant to 28 U.S.C. § 1292(b): (1) its\n\ndetermination that Curtis has standing to proceed on his EFTA claims against Propel and\n\n(2) its decision that these TPAs are consumer credit transactions for purposes of TILA\n\nand EFTA. For the reasons that follow, we affirm the district court on both issues.\n\n\n\n I.\n\n Virginia allows taxpayers to enter into agreements with third parties to finance\n\npayment of local taxes. Va. Code Ann. § 58.1-3018. 1 Under these agreements, a third\n\n\n\n 1\n The statute governs “any agreement whereby a third party contracts with a\ntaxpayer to pay to a county, city or town on behalf of that taxpayer the local taxes,\ncharges, fees or other obligations due and owing to the county, city or town” and states\nthat “[s]uch agreement may have as its subject current taxes, charges, fees and\n(Continued)\n 2\n\nparty agrees to pay taxes owed to a locality on behalf of a taxpayer, and the taxpayer\n\nagrees to repay the third party in installments, with fees and interest. Id. The terms of\n\nthe agreement, including repayment periods, interest rates, and other fees, are prescribed\n\nby statute. Id. For the period during which the taxpayer repays the third party, the\n\nlocality tolls the enforcement period for the taxes owed. Id. § 58.1-3018(E). Nothing in\n\nthe statute indicates that these agreements have any effect on tax liens that may be\n\nimposed by Virginia law. 2 If the taxpayer defaults on the agreement despite the third\n\nparty’s good-faith efforts to collect from him, the third party can ask the locality to\n\nreimburse the third party for any taxes paid and to reinstate the full tax obligation against\n\nthe taxpayer (minus any principal payments made by the taxpayer to the third party). Id.\n\n§ 58.1-3018(C). Upon reimbursement, “[a]ny right of the third party to payment” under\n\nthe agreement terminates. Id. § 58.1-3018(C)(4).\n\n Curtis owed $13,734.43 in residential property taxes to the city of Petersburg,\n\nVirginia and entered into a TPA with Propel to finance payment of them. The parties\n\nagree that the TPA at issue operates in conformity with Virginia’s statutory framework,\n\nid. § 58.1-3018; see J.A. 32 (stating that under the terms of the TPA, “[o]ur financing of\n\ntaxes on your behalf pursuant to this Agreement is made pursuant to Va. Code Section\n\n\nobligations, delinquent taxes, penalties and interest, or any combination of the\nforegoing.” Va. Code Ann. § 58.1-3018(A).\n 2\n For instance, Virginia state law imposes a lien on real property for tax payments\nassociated with that property, Va. Code Ann. § 58.1-3340. Moreover, the TPA between\nCurtis and Propel explicitly disclaims any effect on tax liens. See J.A. 32.\n\n\n 3\n\n58.1-3018”). For instance, the TPA requires Curtis to pay an origination fee equal to ten\n\npercent of his tax obligation, which is the maximum origination fee allowed under the\n\nstatute. See Va. Code Ann. § 58.1-3018(B)(2); J.A. 30. The TPA also sets Curtis’s\n\ninterest rate at 10.95 percent, below the statutory maximum of sixteen percent, and\n\nspecifies that no interest shall accrue during the first six months of the agreement, as the\n\nstatute requires. See Va. Code Ann. § 58.1-3018(B)(2); J.A. 30. The TPA requires\n\nCurtis to repay Propel in monthly installments for ninety-six months, which is the\n\nmaximum period allowed by the statute. See Va. Code Ann. § 58.1-3018(B)(2); J.A. 31.\n\n Curtis nevertheless challenges the TPA and its associated documents as violating\n\nTILA, EFTA, and VCPA on several grounds. For instance, he contends that many of the\n\nterms of the TPA included incorrect amounts, that Propel did not include an itemized list\n\nof closing costs in the documents, and that the TPA was missing certain allegedly\n\nrequired financial disclosures. He also alleges that, as a condition of the TPA, he was\n\nrequired to agree to repay Propel by preauthorized electronic fund transfers (“EFTs”) and\n\nthat the required authorization form does not contain a space that would allow him to\n\nindicate that he declined to do so.\n\n Curtis brought a proposed class action against Propel in federal district court,\n\nalleging violations of TILA, EFTA, and VCPA. 3 Propel moved to dismiss for failure to\n\nstate a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), contending that the\n\nTPA is not subject to TILA or EFTA because it is not a consumer credit transaction and\n\n 3\n Curtis named Propel Property Tax Funding, LLC as the sole defendant in his\nTILA claim. He brought the EFTA and VCPA claims against both Propel entities.\n\n 4\n\nthat the TPA is exempt from the VCPA. The district court granted Propel’s motion to\n\ndismiss as to the VCPA claim but denied its motion as to the TILA and EFTA claims.\n\n The district court determined that Curtis had standing under EFTA because the\n\nharm that he alleged--making the TPA contingent on Curtis agreeing to preauthorized\n\nEFTs--was “exactly the type of harm that Congress sought to prevent when it enacted the\n\nEFTA.” Curtis v. Propel Prop. Tax Funding, LLC, 265 F. Supp. 3d 647, 652 (E.D. Va.\n\n2017). The district court also determined that the TPA is subject to TILA and EFTA\n\nbecause, as “third-party financing of a tax obligation” for “personal, family, or household\n\npurposes,” the TPA is both a credit transaction and a consumer transaction and thus\n\nqualifies as a consumer credit transaction governed by those statutes. Id. at 652–53.\n\nHowever, the court certified for interlocutory review (1) its decision that Curtis has\n\nstanding to proceed on his EFTA claims and (2) its determination that TPAs sanctioned\n\nby Virginia Code section 58.1-3018 are subject to TILA and EFTA as consumer credit\n\ntransactions. This appeal followed.\n\n\n\n II.\n\n Propel makes two arguments on appeal. First, Propel contends that Curtis does\n\nnot have standing to bring a claim under EFTA because he did not adequately allege that\n\nPropel required him to agree to EFTs or that he made or attempted to cancel any EFT\n\npayments. Second, Propel contends that Curtis’s complaint does not state a claim for\n\nrelief under either TILA or EFTA because the TPA is not a consumer credit transaction\n\n\n\n 5\n\nwithin the terms of those statutes. Before considering these issues, we first set forth the\n\nstatutory framework to provide the necessary context for our analysis.\n\n TILA and EFTA are consumer protection statutes that regulate the terms of certain\n\ntransactions. 15 U.S.C. §§ 1601 et. seq., 1693 et. seq. The purpose of TILA is “to assure\n\na meaningful disclosure of credit terms” in order to improve consumer decisionmaking\n\nand “to protect the consumer against inaccurate and unfair” credit practices. Id.\n\n§ 1601(a). Similarly, EFTA was enacted to establish “individual consumer rights” in the\n\ncontext of EFT transactions. Id. § 1693(b). Thus, both TILA and EFTA are “remedial\n\nconsumer protection statute[s]” which we “read liberally to achieve [their] goals” of\n\nprotecting consumers. 4 Phelps v. Robert Woodall Chevrolet, Inc., 306 F. Supp. 2d 593,\n\n596 (W.D. Va. 2003) (citation and internal quotation marks omitted) (referring to TILA);\n\ncf. Hoke v. Retail Credit Corp., 521 F.2d 1079, 1082 n.7 (4th Cir. 1975) (explaining that\n\nwe interpret the Fair Credit Reporting Act liberally in light of “its broad remedial\n\npurposes”). At issue in this appeal are TILA’s requirement that creditors disclose certain\n\ninformation in consumer credit transactions, 15 U.S.C. § 1638, EFTA’s prohibition on\n\n“condition[ing] the extension of credit to a consumer on such consumer’s repayment by\n\nmeans of preauthorized electronic fund transfers,” id. § 1693k, and EFTA’s requirement\n\n 4\n Our sister circuits have also endorsed this remedial approach to construing TILA\nand EFTA. See Krieger v. Bank of Am., N.A., 890 F.3d 429, 438–39 (3d Cir. 2018)\n(TILA); Marais v. Chase Home Fin. LLC, 736 F.3d 711, 714 (6th Cir. 2013) (TILA);\nRosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1179–80 (10th Cir. 2012) (TILA);\nClemmer v. Key Bank Nat’l Ass’n, 539 F.3d 349, 353 (6th Cir. 2008) (EFTA); Bragg v.\nBill Heard Chevrolet, Inc., 374 F.3d 1060, 1065 (11th Cir. 2004) (TILA); Eby v. Reb\nRealty, Inc., 495 F.2d 646, 650 (9th Cir. 1974) (TILA).\n\n\n 6\n\nthat no consumer agreement may operate as a waiver of one of EFTA’s substantive\n\nrights, id. § 1693l. 5\n\n Guided by the applicable statutes, we affirm the district court. First, we hold that\n\nCurtis has standing to bring claims under EFTA because the harm that he alleges is a\n\nsubstantive statutory violation that subjects him to the very risks that EFTA, a consumer\n\nprotection statute, was designed to protect against. Second, we hold that the TPA is\n\nsubject to TILA and EFTA because the TPA is a consumer credit transaction. Because\n\nthe statutes define these terms separately, we consider them as such. We determine that\n\nthe TPA is a credit transaction because it provides for third-party financing of a tax\n\nobligation and that it is a consumer transaction because, as financing of a real property\n\ntax debt, it is a voluntary transaction that Curtis entered into for personal or household\n\npurposes.\n\n\n\n III.\n\n Propel contends that Curtis lacks standing to bring claims under EFTA. “We\n\nreview legal questions regarding standing de novo,” and “[w]hen standing is challenged\n\n\n 5\n The alleged substantive right at issue here is EFTA’s requirement that consumers\n“may stop payment of a preauthorized [EFT]” by notifying the financial institution up to\nthree days prior to a scheduled withdrawal. Id. § 1693e. With respect to EFTA, Curtis’s\ncomplaint alleged violations of both § 1693k and § 1693l, but Propel’s motion to dismiss\nonly addressed § 1693k. The district court ordered supplemental briefing on § 1693l, in\nwhich Propel raised new arguments for dismissal. The district court declined to consider\nPropel’s new merits arguments “because Propel failed to raise [them] in its initial briefs,”\nbut it did consider Propel’s argument that Curtis lacks standing under § 1693l. Curtis,\n265 F. Supp. 3d at 651. We follow the same approach here.\n\n 7\n\non the pleadings, we accept as true all material allegations of the complaint and construe\n\nthe complaint in favor of the complaining party.” David v. Alphin, 704 F.3d 327, 333\n\n(4th Cir. 2013) (emphasis omitted). In a class action case, we look to the standing of the\n\nnamed plaintiff. Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 343 (4th Cir. 2017).\n\n To meet the constitutional minimum requirements for standing to sue, a “plaintiff\n\nmust have . . . suffered an injury in fact, . . . that is fairly traceable to the challenged\n\nconduct of the defendant, and . . . that is likely to be redressed by a favorable judicial\n\ndecision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). On appeal, Propel\n\nchallenges the injury-in-fact requirement. A plaintiff meets this requirement if he alleges\n\nan injury that is “particularized,” “concrete,” and “actual or imminent, not conjectural or\n\nhypothetical.” Id. at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).\n\n First, an injury must be particularized; that is, “it must affect the plaintiff in a\n\npersonal and individual way.” Id. (citation and internal quotation marks omitted). Here,\n\nCurtis’s injury is particularized because it stems from his own TPA with Propel, which\n\nallegedly required him to consent to EFT authorization when he entered into the\n\nagreement and allegedly waived Curtis’s right to cancel preauthorized EFTs as conferred\n\nby EFTA.\n\n Second, an injury is concrete if it is “real, and not abstract.” Id. (citation and\n\ninternal quotation marks omitted). While a bare procedural statutory violation does not\n\ncreate a concrete injury, id. at 1549, the concreteness requirement is met where the\n\nplaintiff can show that the harm that he suffers as a result of a defendant’s statutory\n\nviolation is “the type of harm Congress sought to prevent” when it enacted the statute.\n\n 8\n\nDreher, 856 F.3d at 345–46 (holding that a plaintiff’s injury was not concrete because the\n\nharm he suffered by the defendant’s procedural statutory violation was “not the type of\n\nharm Congress sought to prevent when it enacted” the statute); cf. Fed. Election Comm’n\n\nv. Akins, 524 U.S. 11, 21 (1998) (“[A] plaintiff suffers an ‘injury in fact’ when the\n\nplaintiff fails to obtain information which must be publicly disclosed pursuant to a\n\nstatute.”).\n\n Here, Curtis alleges a sufficiently concrete injury to establish standing. The harm\n\nhe alleges is not a “bare procedural violation,” Spokeo, 136 S. Ct. at 1549, but instead is a\n\nsubstantive violation of the rights conferred by EFTA. Congress enacted EFTA to\n\nprotect “individual consumer rights” in the context of electronic fund transfers.\n\n15 U.S.C. § 1693(b). Among these substantive rights is the right of a consumer to enter\n\ninto a credit agreement without being required to agree to preauthorized EFTs.\n\nId. § 1693k. This is the same right that Curtis alleges that Propel violated in its TPA with\n\nhim. Curtis also alleges that Propel violated another of EFTA’s substantive rights when\n\nit included in the TPA an EFT stop-payment provision that was more restrictive than\n\nwhat EFTA requires. See id. §§ 1693e, 1693l. Thus, the injury he alleges is of “the type\n\nof harm Congress sought to prevent when it enacted” EFTA. See Dreher, 856 F.3d at\n\n346.\n\n Propel contends that Curtis’s injury is not concrete because Curtis did not\n\nadequately allege that Propel required Curtis to agree to EFTs as a condition of the TPA.\n\nBut on appeal, we construe the complaint in favor of Curtis and accept its material\n\nallegations as true. See David, 704 F.3d at 333. In his complaint, Curtis supported his\n\n 9\n\nallegation that Propel provided him with no opportunity to decline EFT preauthorization\n\nand that Propel violated his substantive rights under EFTA with respect to cancellation of\n\nEFTs by pointing to the language and structure of the TPA and its supporting documents.\n\nThis is sufficient to establish standing. See id.; Spokeo, 136 S. Ct. at 1548.\n\n Finally, an injury must be “actual or imminent, not conjectural or hypothetical.”\n\nSpokeo, 136 S. Ct. at 1548 (citation and internal quotation marks omitted). Propel\n\ncontends that Curtis’s injury is hypothetical because Curtis has not yet made an EFT\n\npayment or attempted to retract his EFT authorization. This argument mischaracterizes\n\nthe injury. Curtis satisfies the injury requirement because he alleged that he was required\n\nto agree to EFT authorization as a condition of the TPA and that the TPA contained terms\n\nrequiring him to waive EFTA’s substantive rights regarding EFT withdrawal; whether he\n\nmade EFT payments or attempted to withdraw EFT authorization is irrelevant. And even\n\nif we accept Propel’s premise that Curtis has not yet been injured, Curtis would still have\n\nstanding to challenge the TPA immediately because there is a “realistic danger” that\n\nCurtis will “sustain[] a direct injury” as a result of the terms of the TPA. Babbitt v.\n\nUnited Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979). Specifically, because\n\nPropel allegedly required Curtis to agree to preauthorized EFTs, when the time comes for\n\nCurtis to pay Propel, 6 he will either need to make an EFT payment or attempt to\n\nwithdraw his EFT authorization in response. Therefore, Curtis’s injury is “actual or\n\nimminent” for purposes of standing. Spokeo, 136 S. Ct. at 1548; see Babbitt, 442 U.S. at\n\n 6\n According to the TPA documents, Curtis’s first monthly payment to Propel was\ndue on June 25, 2016.\n\n 10\n\n298 (“[O]ne does not have to await the consummation of threatened injury to obtain\n\npreventative relief. If the injury is certainly impending, that is enough.”) (citation\n\nomitted).\n\n Thus, we affirm the district court’s determination that Curtis has standing to\n\nproceed on his claims under EFTA because, viewing the complaint in the light most\n\nfavorable to Curtis, he has alleged that he suffered an injury in fact.\n\n\n\n IV.\n\n Propel also contends that the TPA as authorized by Virginia Code section 58.1-\n\n3018 is not subject to TILA and EFTA and that, therefore, Curtis’s claims under those\n\nstatutes cannot survive a motion to dismiss under Rule 12(b)(6). On interlocutory\n\nreview, “we employ the usual appellate standard governing motions to\n\ndismiss[,] . . . consider[ing] questions of law de novo and constru[ing] the evidence in the\n\nlight most favorable to the non-movant.” EEOC v. Seafarers Int’l Union, 394 F.3d 197,\n\n200 (4th Cir. 2005).\n\n The provisions of TILA and EFTA at issue on appeal only apply to the TPA if the\n\nTPA is a “consumer credit transaction.” See 15 U.S.C. § 1638(a) (describing TILA’s\n\ndisclosure requirements for consumer credit transactions); id. § 1693k (stating EFTA’s\n\nrule against preauthorized EFTs with respect to “the extension of credit to a consumer”).\n\nBecause TILA and EFTA define the terms “credit” and “consumer” independently, we\n\nfirst consider whether the TPA is a credit transaction and, second, whether it is a\n\nconsumer transaction.\n\n 11\n\n A.\n\n First, the TPA is a credit transaction within the meaning of TILA and EFTA.\n\nTILA defines credit as “the right granted by a creditor to a debtor to defer payment of\n\ndebt or to incur debt and defer its payment.” 15 U.S.C. § 1602(f). 7 While credit has been\n\ndefined to generally exclude tax liens and tax assessments by the official Consumer\n\nFinancial Protection Bureau interpretation of TILA’s implementing regulation (the “Staff\n\nCommentary”), the Staff Commentary, to which we defer, clarifies that “third-party\n\nfinancing of such obligations (for example, a bank loan obtained to pay off a tax lien) is\n\ncredit for the purposes of the regulation.” 12 C.F.R. Pt. 1026, Supp. I, pt. 1, cmt.\n\n2(a)(14); see Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 556 (1980) (explaining\n\nthat the Supreme Court grants a “high degree of deference” to administrative\n\ninterpretations of TILA and its regulations). Accordingly, the question here is whether\n\nthe TPA is a credit transaction on the basis that it involves third-party financing of a tax\n\nobligation.\n\n\n 7\n Similarly, under EFTA, credit is defined as “the right granted by a financial\ninstitution to a consumer to defer payment of debt, incur debt and defer its payment, or\npurchase property or services and defer payment therefor.” 12 C.F.R. § 205.2(f).\nTherefore, if the TPA involves credit under TILA, it also involves credit under EFTA.\nSee Clemmer, 539 F.3d at 353 (explaining that, for questions under TILA and EFTA,\n“courts draw upon case law interpreting one statute for persuasive authority for another\nstatute” because TILA and EFTA have “the common purpose of . . . protect[ing]\nconsumers with respect to financial credit”); Johnson v. W. Suburban Bank, 225 F.3d\n366, 379 (3d Cir. 2000) (finding provisions in TILA and EFTA to have the same meaning\nbecause “Congress would [not] have different intended meanings for identical statutory\nlanguage contained in similar statutes”).\n\n 12\n\n We conclude that the TPA provides for third-party financing of a tax obligation as\n\nset forth in the statute for two reasons. First, it is clear from the terms of the TPA itself,\n\nwhich state that Propel will pay Curtis’s taxes in exchange for installment repayments,\n\ninterest, and fees from Curtis. By entering into that transaction, Curtis “defer[red]\n\npayment” of his property tax obligation by having Propel, a third party, pay it\n\nimmediately in exchange for subsequent installment payments. 8 15 U.S.C. § 1602(f).\n\nThis is financing of a tax obligation, indistinguishable from the type of financing that\n\noccurs when a homebuyer takes out a mortgage with a bank to defer payment of the\n\nlisting price in exchange for regular repayments. In this respect, the TPA thus operates as\n\nany other financing transaction would.\n\n Second, the TPA is a financing transaction because it creates third-party\n\nobligations between Curtis and Propel. Specifically, the TPA requires Curtis to pay\n\nPropel interest and fees--an obligation wholly separate from Curtis’s tax obligation to the\n\nlocality and owed only to Propel. Similarly, when a homebuyer takes out a home\n\nmortgage, she agrees to pay the bank interest and fees--costs which are unrelated to the\n\nhomebuyer’s underlying obligation to pay the listing price to the seller. These\n\ncharacteristics of the TPA--that it allows Curtis to defer payment of his property taxes\n\nand that it creates third-party obligations between Curtis and Propel--align precisely with\n\n\n 8\n To be clear, the TPA itself, and not the Virginia statute authorizing such TPAs, is\nthe mechanism deferring Curtis’s tax obligation--much as is the case with respect to any\nother contract concerning a regulated transaction. For example, Virginia also regulates\nthe terms of payday loans by statute, see, e.g., Va. Code Ann. § 6.2-1817, but we see no\nreason why payday loans would not be considered a form of credit.\n\n 13\n\nthose of third-party financing of a tax obligation as allowed by the statute. To dismiss the\n\nthird-party nature of the relationship between Curtis and Propel here would be to dismiss\n\nthe Staff Commentary, which defines third-party financing of tax obligations as credit,\n\naltogether.\n\n Propel contends that the TPA is not a credit transaction because it is different from\n\na bank loan. While that may be true, it is also irrelevant. In discussing what constitutes\n\nacceptable third-party financing of tax liens and assessments, the Staff Commentary by\n\nits terms used a bank loan as an “example,” not a limitation. 12 C.F.R. Pt. 1026, Supp. I,\n\npt. 1, cmt. 2(a)(14). Whether an agreement is a credit transaction is not determined by\n\nhow closely it resembles a bank loan. The inquiry is whether it provides for “third-party\n\nfinancing” of a tax obligation. Id.\n\n Moreover, differences between the TPA and a bank loan do not transform the TPA\n\ninto something other than third-party financing of a tax obligation. For instance, TILA\n\ndoes not only apply to payments made directly to consumers. We know this because, for\n\nexample, TILA requires creditors to describe how much credit they provide “to [the\n\nconsumer] or on [the consumer’s] behalf.” 12 C.F.R. § 1026.18(b) (emphasis added).\n\nTherefore, the fact that Propel pays the locality directly instead of loaning money to\n\nCurtis as a bank might 9 does not affect whether the transaction falls under TILA’s\n\ndefinition of credit. Nor does the fact that the TPA is different from a bank loan because\n\nit is a regulated transaction that includes protections for both third-party lenders\n\n 9\n We note, however, that we have no reason to suppose that a lending bank might\nnot disburse funds directly to a third party at the direction of a borrower.\n\n 14\n\n(reimbursement if the taxpayer defaults) and taxpayers (limited remedies for the third\n\nparty if the tax obligation is reinstated by the locality upon default) compel a different\n\nresult. See Va. Code Ann. § 58.1-3018(C). These protections do not change the\n\nunderlying nature of the TPA as an agreement that provides a mechanism for taxpayers to\n\nfinance payment of their tax obligations through a third party. Indeed, the TPA here\n\ninvolves third-party financing of a tax obligation on its face, and the plain language of the\n\nstatute, regulations, and Staff Commentary in no way precludes TILA from covering\n\ntransactions like this one.\n\n In support of its view, Propel cites cases from the Third and Fifth Circuits that are\n\nneither binding nor, more importantly, analogous. See Billings v. Propel Fin. Servs.,\n\nLLC, 821 F.3d 608 (5th Cir. 2016); Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379 (3d\n\nCir. 2000), abrogated on other grounds by Tepper v. Amos Fin., LLC, 898 F.3d 364 (3d\n\nCir. 2018). Critically, in those cases, the third-party tax transactions at issue involved\n\ntransfers of a taxpayer’s tax lien from a locality to a third party. See Billings, 821 F.3d at\n\n610; Pollice, 225 F.3d at 385–86. The Fifth Circuit reasoned that because “the tax\n\nobligation [wa]s simply transferred from the taxing authorities to the transferee lending\n\ninstitution, and there [wa]s no independent line of credit extended to the property owner,”\n\nthese arrangements were not third-party financing of a tax obligation subject to TILA.\n\nBillings, 821 F.3d at 613 n.4 (emphasis added) (citing Pollice, 225 F.3d at 409–11).\n\nCentral to the Fifth Circuit’s determination was the fact that the transaction involved a tax\n\nlien transfer, bringing the transaction closer to a direct tax obligation held by a third party\n\nas opposed to third-party financing of a tax obligation.\n\n 15\n\n In stark contrast to those cases, the locality here does not transfer Curtis’s tax lien\n\nto Propel. Instead, the locality retains the tax lien until Curtis has fully repaid Propel.\n\nSee J.A. 32 (explaining as a term of the TPA that the locality will retain any tax liens and\n\nwill not release any judgments until Curtis completely repays his balance to Propel). The\n\ntax obligation here is therefore not “simply transferred” from the locality to the third-\n\nparty lender as it was in the cases on which Propel relies. Billings, 821 F.3d at 613 n.4.\n\nRather, by operation of the TPA, Propel extends a line of credit to Curtis to finance the\n\nreal property taxes that Curtis owes to the locality. The arrangement here thus severs the\n\ndirect linkage to a preexisting tax obligation that has led to the general rule excluding tax\n\nliens from the definition of credit. 10 Instead, like a mortgage or a bank loan, the TPA\n\ninvolves a consumer enlisting a third party to help it defer payment of a debt in exchange\n\nfor interest and fees.\n\n Propel contends that the fact that the locality retains Curtis’s tax lien makes the\n\ntransaction look more like a tax obligation and thus is further evidence that the TPA is\n\nnot a credit transaction. But the fact that a third party has an interest in the thing being\n\nfinanced does not transform a credit transaction into something else. Indeed, this is\n\n\n 10\n In contrast to our analysis, the Third Circuit’s approach appears to do away\naltogether with the distinction that the Staff Commentary carefully draws between the\nlien itself, on one hand, and the third-party financing of that lien, on the other. See\nPollice, 225 F.3d at 409–10 (holding that a tax lien transfer agreement was not a credit\ntransaction under TILA because “the nature of the underlying claim” as a property tax\nhad not “been extinguished”); cf. St. Pierre v. Retrieval-Masters Creditors Bureau, Inc.,\n898 F.3d 351, 361 (3d Cir. 2018) (applying Pollice in the Fair Debt Collection Practices\nAct context to conclude that “the original source of the obligation--not the subsequent\nmethod of collection--determines whether an obligation constitutes ‘debt’”).\n\n 16\n\ncommon in ordinary consumer credit transactions. For example, suppose a consumer\n\npurchases an automobile from a dealership and takes out a bank loan to finance it. Under\n\nthe terms of that loan, the bank places a lien on the automobile until the consumer has\n\npaid off the balance. If the consumer sells the car to a secondhand buyer before she pays\n\noff the balance of her bank loan, the secondhand buyer might take the automobile subject\n\nto the lien. Any bank loan that the secondhand buyer might take out to finance his\n\npurchase of the automobile does not cease to be a credit transaction merely because the\n\nfirst bank still holds a lien over the automobile. Similarly, the TPA here does not lose its\n\ncharacter as a credit transaction just because a third party--here, the locality--retains a lien\n\nrelated to the underlying obligation.\n\n Indeed, straightforward application of the language of TILA, its regulations, and\n\nthe Staff Commentary tells us unambiguously that the TPA is a credit transaction because\n\nit provides for third-party financing of a tax obligation. But even if the plain language\n\nwere ambiguous, policy considerations would counsel us to interpret TILA and EFTA to\n\ncover transactions like the TPA here because “TILA is a remedial consumer protection\n\nstatute that is read liberally to achieve its goals,” and we “construe TILA broadly so that\n\nit will provide protection for the consumer.” Phelps, 306 F. Supp. 2d at 596 (citation and\n\ninternal quotation marks omitted). Under this standard, it would frustrate the purpose of\n\nTILA and EFTA to exclude the TPA here from regulation. Accordingly, we conclude\n\nthat the TPA is a credit transaction under those statutes.\n\n\n\n B.\n\n 17\n\n Having established that the TPA is a credit transaction, we next consider whether\n\nit is also a consumer transaction within the meaning of TILA and EFTA. Under TILA, a\n\nconsumer transaction is “one in which the party to whom credit is offered or extended is a\n\nnatural person, and the money, property, or services which are the subject of the\n\ntransaction are primarily for personal, family, or household purposes.” 11 15 U.S.C.\n\n§ 1602(i). Although “[t]here is no precise test for what constitutes credit offered or\n\nextended for personal, family, or household purposes, nor for what constitutes the\n\nprimary purpose,” 12 C.F.R. Pt. 1026, Supp. I, pt. 1, cmt. 2(a)(12), there are things that\n\nseem, on their face, to qualify. Here, the subject of Curtis’s transaction was his\n\nresidential home, and he sought credit to finance the property taxes he owed on that\n\nhome. It is hard to imagine a transaction more likely to constitute one “primarily for\n\npersonal, family, or household purposes.” Id.\n\n Propel urges us to look to bankruptcy law by analogy, arguing that because tax\n\nobligations are not debt for purposes of bankruptcy, payment of those obligations cannot\n\ninvolve a consumer transaction. This argument is plainly contradicted by the Staff\n\nCommentary. The Commentary anticipates that consumer credit may be used to defer\n\npayment of tax obligations; indeed, it includes third-party financing of tax obligations\n\nwithin its definition of credit transactions covered by the statute. See 12 C.F.R. Pt. 1026,\n\nSupp. I, pt. 1, cmt. 2(a)(14).\n\n\n\n 11\n Under EFTA, a consumer is a “natural person,” 15 U.S.C. § 1693a(6), so there\nis no dispute that Curtis is a consumer for purposes of EFTA.\n\n 18\n\n Notwithstanding the Staff Commentary, however, Propel’s argument fails even\n\nunder bankruptcy law. When bankruptcy courts consider whether debt is consumer debt,\n\nthey look “to the purpose for which the debt was incurred” to determine “whether debt is\n\nfor ‘personal, family, or household purposes.’” In re Runski, 102 F.3d 744, 747 (4th Cir.\n\n1996) (quoting 11 U.S.C. § 101(8)). In that context, a debt that “was not incurred with a\n\nprofit motive or in connection with a business transaction . . . is considered ‘consumer\n\ndebt’ for purposes of [the Bankruptcy Code].” In re Kestell, 99 F.3d 146, 149 (4th Cir.\n\n1996). Thus, under this test, Curtis’s residential property tax obligation as financed by\n\nPropel is consumer debt because it is unconnected with any sort of business transaction or\n\nprofit motive.\n\n Propel nevertheless argues that the TPA is not a consumer transaction because the\n\nimposition of the underlying obligation--property taxes--is motivated by the public\n\nwelfare rather than by personal, family, or household purposes. In support of this\n\nposition, it cites to a non-binding case in which the bankruptcy court held that “a debt for\n\npersonal property tax is not a consumer debt even where the property being taxed is held\n\nfor personal, family, or household use.” In re Stovall, 209 B.R. 849, 854 (Bankr. E.D.\n\nVa. 1997). In so holding, the bankruptcy court explained that “a consumer debt is one\n\nthat is ‘incurred’--implying that some voluntary action is taken before a consumer\n\nbecomes liable on the debt. A tax, however, is not ‘incurred.’” Id. (emphasis added)\n\n(citation omitted). Rather, it is “involuntarily imposed by a government for the public\n\nwelfare.” Id. But Stovall is not analogous. In that case, the debt at issue was the unpaid\n\npersonal property tax itself, not credit obtained to finance the payment of that debt. In\n\n 19\n\ncontrast, the debt at issue here is not the tax that Curtis owes to the locality. Instead, it is\n\none level removed--it is Curtis’s obligation to Propel, a third party, to repay Propel’s\n\nfinancing of Curtis’s tax obligation. 12 Thus, even to the extent that Stovall holds that\n\nproperty taxes are not consumer debts, that holding is inapplicable.\n\n We are therefore constrained to conclude that the TPA entered into pursuant to\n\nVirginia Code section 58.1-3018 at issue here is a consumer credit transaction subject to\n\nTILA and EFTA. We affirm the district court’s denial of Propel’s motion to dismiss for\n\nfailure to state a claim under those statutes.\n\n\n\n V.\n\n We affirm the district court’s decision that Curtis has standing under EFTA\n\nbecause he alleged that he suffered an injury in fact, and we affirm the district court’s\n\ndenial of Propel’s motion to dismiss Curtis’s TILA and EFTA claims because the TPA is\n\na consumer credit transaction subject to those statutes.\n\n AFFIRMED\n\n\n\n\n 12\n Further, the court in Stovall reasoned that personal property taxes are not\nconsumer debts because they are incurred involuntarily, but here, Curtis entered the TPA\nwith Propel voluntarily.\n\n 20", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365236/", "author_raw": "joined. Judge Keenan wrote a separate opinion concurring"}, {"author": "BARBARA MILANO KEENAN, Circuit Judge, concurring", "type": "concurrence", "text": "BARBARA MILANO KEENAN, Circuit Judge, concurring in part and dissenting in\npart:\n\n I concur in Part III of the majority opinion affirming the district court’s ruling that\n\nCurtis has standing to bring claims against Propel under the Electronic Funds Transfer\n\nAct, 15 U.S.C. § 1693 et seq. (EFTA). I write separately with respect to Part IV(A)\n\nbecause I conclude that Curtis’ tax payment agreement with Propel (the TPA) does not\n\nqualify as a “credit transaction” under the Truth in Lending Act, 15 U.S.C. § 1601 et seq.\n\n(TILA). 1\n\n TILA defines “credit” as “the right granted by a creditor to a debtor to defer\n\npayment of debt or to incur debt and defer its payment.” 15 U.S.C. § 1602(f). The\n\nassociated regulation and commentary known as “Regulation Z” clarifies that tax liens,\n\ntax assessments, and court judgments are excluded from the definition of “credit.” 12\n\nC.F.R. Pt. 1026, Supp. I, pt. 1, cmt. 2(a)(14). However, “third-party financing of such\n\nobligations (for example, a bank loan obtained to pay off a tax lien) is ‘credit’ for\n\npurposes of the regulation.” Id. (internal quotation marks added).\n\n In my view, the TPA does not qualify as a “credit” transaction because Virginia\n\nCode § 58.1-3018 (the Virginia statute), rather than a creditor, grants to a taxpayer like\n\nCurtis the right to defer payment of a local tax assessment by entering into a tax-payment\n\nplan with a third-party payor like Propel. Among other things, the statute gives the third-\n\n 1\n EFTA defines “credit” similarly to TILA, as “the right granted by a financial\ninstitution to a consumer to defer payment of a debt . . . and defer its payment.” 12\nC.F.R. § 205.2(f) (regulation implementing EFTA). I agree with the majority that if the\nTPA does not qualify as a credit transaction under TILA, it likewise does not qualify\nunder EFTA.\n\n 21\n\nparty payor a right of recourse against the local government, Va. Code § 58.1-\n\n3018(C)(1), and terminates the TPA as a matter of law once the third-party payor has\n\navailed itself of that statutory remedy, id. § 58.1-3018(C)(4). Given these striking\n\ndifferences, some of which restrict the rights of the third-party payor against the taxpayer,\n\nI am puzzled that the majority opines that a TPA effectively “operates as any other\n\nfinancing transaction would.” Maj. Op. 13. In my view, this simple declaration by the\n\nmajority is factually and legally incorrect.\n\n A TPA is not a “credit transaction,” within the meaning of TILA, because the\n\npreexisting obligation of the taxpayer is not severed by the third-party payor’s payment,\n\nand the third-party payor does not grant any right to the taxpayer that is not conferred\n\nalready by statute. The TPA, a creature of Virginia statute, merely implements those\n\nstatutory rights, with accompanying benefits to both the taxpayer and the third-party\n\npayor. The majority sidesteps this statutory framework and strains to conclude that the\n\nTPA must be a credit transaction under TILA because (1) Propel has advanced payment\n\non behalf of the taxpayer, and (2) the taxpayer is required to pay that sum back to Propel,\n\nunless (3) the taxpayer later defaults on its TPA obligations and Propel obtains repayment\n\nfrom the locality. Any facial appeal of this approach, however, is undermined by the\n\nplain terms of the statute.\n\n Virginia Code § 58.1-3018 authorizes the mechanism of TPAs and exercises\n\nsubstantial control over the formation and termination of such agreements. The statute\n\ndefines TPAs as agreements in which an entity like Propel “contracts with a taxpayer to\n\npay [local taxes] to a county, city or town on behalf of that taxpayer.” Va. Code § 58.1-\n\n 22\n\n3018(A). The statute further requires that the TPA “provide for the reimbursement of the\n\nthird party by the taxpayer” in installment payments. Id. § 58.1-3018(B)(2).\n\n Under this plain language, the Virginia statute authorizes the third-party payor to\n\npay the taxpayer’s outstanding local tax assessment in return for the taxpayer’s promise\n\nto repay the third party in accordance with the TPA payment plan. The material terms of\n\nthat payment plan are regulated by the Virginia statute. See id. (setting forth the\n\nmaximum repayment period, the maximum interest rate, and the maximum origination\n\nfee). The statute also requires the third-party payor to provide monthly status reports to\n\nthe local government regarding the taxpayer’s compliance with the TPA. Id. § 58.1-\n\n3018(B)(4).\n\n The locality’s oversight of the taxpayer’s compliance with the TPA continues\n\nthroughout the repayment process. After the third party pays the locality on behalf of the\n\ntaxpayer, the locality “toll[s]” any enforcement period for the taxes owed. Id. § 58.1-\n\n3018(E). Notably, the locality does not remove the lien or transfer it to the third-party\n\npayor, who lacks recourse against a defaulting taxpayer with respect to the underlying tax\n\nobligation if the third-party payor obtains reimbursement from the locality as permitted\n\nby statute. Id. § 58.1-3018(C)(4). Upon such repayment of principal from the locality,\n\nthe TPA terminates as a matter of law and the locality “reinstates” the full amount of its\n\ntax assessment against the taxpayer, ending the tolling period of enforcement. Id. § 58.1-\n\n3018(C)(2), (4). Thus, the link between the taxpayer and the preexisting tax assessment\n\nis not severed by a TPA as the majority contends, but remains in effect throughout the\n\ncourse of the TPA’s operation.\n\n 23\n\n Contrary to the majority’s conclusion, a TPA cannot realign this statutory\n\nrelationship of the parties and transform the third party’s payment of the tax assessment\n\ninto a “credit transaction” under TILA. The Virginia statute merely invites a third-party\n\npayor to “front” the money for payment of the taxpayer’s obligation, in return for\n\nreceiving fees and interest allowed by the statute, and tolls enforcement of the tax lien\n\nagainst the taxpayer only so long as he complies with the parties’ tax-payment plan. In\n\nother words, the TPA “changes only the entity to which” the taxpayer is “indebted for the\n\ntaxes originally owed, not the nature of the underlying debt.” Billings v. Propel Fin.\n\nServs., LLC, 821 F.3d 608, 613 (5th Cir. 2016) (citation omitted).\n\n Moreover, TPAs authorized by the Virginia statute differ dramatically from\n\ntypical third-party financing of debt, such as “a mortgage or a bank loan,” in which a\n\n“consumer enlist[s] a third party to help” defer payment “in exchange for interest and\n\nfees.” Maj. Op. 16. Although the third-party payor under a TPA collects interest and\n\nfees from the taxpayer, any similarity to a bank loan ends there. A TPA is not an\n\nindependent financial agreement in which a lender or its assignee retains full recourse\n\nagainst the individual receiving the benefit of payment. See Billings, 821 F.3d at 613 &\n\nn.4 (citing Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379, 409-11 (3d Cir. 2000),\n\nabrogated on other grounds by Henson v. Santander Consumer USA Inc., 137 S. Ct.\n\n1718 (2017)). And as noted, under a TPA, the taxpayer has a continuing obligation to the\n\ntaxing locality until the taxpayer has paid the entire amount of the principal due under the\n\nTPA.\n\n\n\n 24\n\n Because the third-party payor under a Virginia TPA cannot enforce the tax lien\n\nupon default by the taxpayer, the TPA bears even less resemblance to a standalone third-\n\nparty financing of a tax obligation than the transactions at issue in Billings and Pollice.\n\nThere, the localities had transferred the tax liens to the third-party payors, who thereby\n\nobtained that additional avenue of recourse against the taxpayers. See Billings, 821 F.3d\n\nat 610; Pollice, 225 F.3d at 385-86. Yet, in holding that these transactions did not qualify\n\nas “credit” under TILA, the Fifth and Third Circuits emphasized that the third parties\n\nnevertheless did not extend a “line of credit” independent from the tax obligation.\n\nBillings, 821 F.3d at 613 n.4; see Pollice, 225 F.3d at 410-11.\n\n The same is true here. The TPA “did not create” a new debt “that would be\n\nsubject to TILA,” Billings 821 F.3d at 613, but instead granted Propel the authority to\n\nimplement a payment plan with Curtis for his existing tax obligation, which is not subject\n\nto TILA.\n\n I wish to emphasize that I appreciate the important purposes of TILA in protecting\n\nconsumers from unfair lending practices. But in my view, any protection for Virginia\n\ntaxpayers entering into TPAs is an issue to be resolved by Virginia, the sovereign entity\n\ncreating this form of tax-payment plan. For these reasons, I would vacate the judgment\n\nof the district court that the TPA qualifies as “credit transaction” under TILA. 2\n\n\n\n\n 2\n Based on this conclusion, I would not reach the question whether the TPA\nqualifies as a “consumer” transaction as addressed by the majority opinion in Part IV(B).\n\n 25", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365236/", "author_raw": "BARBARA MILANO KEENAN, Circuit Judge, concurring"}]} | DUNCAN | KEENAN | DIAZ | 1 | {} | 3 | 0 | 0 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587983/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,588,465 | TRANA DISCOVERY, INC., Plaintiff - Appellant, v. SOUTHERN RESEARCH INSTITUTE, Defendant - Appellee. | Trana Discovery, Inc. v. Southern Research Institute | 2019-02-07 | 17-2136 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "King, Diaz, Richardson", "parties": "", "opinions": [{"author": "RICHARDSON, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-2136\n\n\nTRANA DISCOVERY, INC.,\n\n Plaintiff – Appellant,\n\n v.\n\nSOUTHERN RESEARCH INSTITUTE,\n\n Defendant – Appellee.\n\n\n\nAppeal from the United States District Court for the Eastern District of North Carolina at\nRaleigh. Terrence W. Boyle, Chief District Judge. (5:13-cv-00848-BO)\n\n\nArgued: December 11, 2018 Decided: February 7, 2019\n\n\nBefore KING, DIAZ, and RICHARDSON, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Richardson wrote the opinion, in which Judge\nKing and Judge Diaz concurred.\n\n\nARGUED: Gary K. Shipman, SHIPMAN & WRIGHT, LLP, Wilmington, North\nCarolina, for Appellant. James Conrad Lester, MAYNARD, COOPER & GALE, P.C.,\nBirmingham, Alabama, for Appellee. ON BRIEF: William C. Reiss, SHIPMAN &\nWRIGHT, LLP, Wilmington, North Carolina, for Appellant. Thomas W. Thagard III,\nJohn C. Neiman, Jr., MAYNARD, COOPER & GALE, P.C., Birmingham, Alabama, for\nAppellee.\n\fRICHARDSON, Circuit Judge:\n\n Plaintiff-Appellant Trana Discovery, Inc. has developed a technology that it\n\nbelieves can help find new drugs to treat HIV. It collaborated with Defendant-Appellee\n\nSouthern Research Institute, a contract research organization, to put its technology to\n\nwork by testing chemical compounds for signs that they inhibited the reproduction of\n\nHIV. When the testing yielded inconsistent results, Trana sued Southern for fraud and\n\nnegligent misrepresentation.\n\n In Trana’s view, Southern made two actionable misrepresentations in its research\n\nreports. First, Southern allegedly failed to identify certain promising compounds as\n\npotential HIV treatments. Trana calls these test results “false negatives.” Second,\n\nSouthern falsely identified other compounds as potential treatments when in fact they\n\nwere not. Trana refers to these latter results as “false positives.” After discovery, the\n\ndistrict court granted summary judgment for Southern on both theories. We affirm.\n\n I.\n\n A. Background\n\n Trana was founded in 2000 by scientists with expertise in “transfer RNA” (or\n\n“tRNA”), a molecule in the human body. Some viruses, including HIV, use tRNA to\n\nreproduce. Trana’s scientists developed a proprietary test (in the lingo of biochemists, an\n\n“assay”) that could quickly identify chemical compounds with the potential to inhibit\n\nHIV’s reproduction by targeting the virus’s use of tRNA. The parties refer to the\n\ncompounds identified by Trana’s test as “hits.”\n\n\n\n\n 2\n\f Trana’s proprietary test is a “biochemical” test, meaning that it does not use living\n\ncells. A positive result in this test only shows that a “hit” compound might treat HIV in a\n\nliving person. So it is just a first step in the development of a marketable HIV drug, a\n\nlong process that ultimately includes clinical trials and FDA approval. The virtue of\n\nTrana’s test is that it can winnow down a universe of thousands (or even hundreds of\n\nthousands) of compounds to a much smaller number of “hits” worth pursuing.\n\n The next logical step is to see whether those “hits” also have antiviral activity in a\n\n“biological” test—one that does use living cells. Yet even if a “hit” showed activity in a\n\nbiological test, that would still be only a preliminary step in the drug-development\n\nprocess. Trana’s goal was not to complete that arduous process on its own, but to entice\n\na large pharmaceutical company into a partnership deal that would reward Trana\n\nhandsomely for its intellectual property (the testing technology itself and any promising\n\ncompounds it identified). To do that, Trana had to show that its testing technology could\n\nsuccessfully identify compounds with promise as HIV drugs.\n\n Trana entered into a three-way arrangement with Southern and the National\n\nInstitute of Allergy and Infectious Diseases (“NIAID”), a component of the National\n\nInstitutes of Health (a federal government agency). The arrangement involved three\n\nseparate agreements. The first was between Southern and NIAID. Under the agreement,\n\nNIAID paid Southern to identify “hit” compounds using Trana’s biochemical test;\n\nSouthern would then be paid to use standard biological (i.e., cell-based) tests to follow up\n\non the “hits.” The second agreement, between Southern and Trana, permitted Southern to\n\nuse Trana’s proprietary biochemical test. Under the third agreement, between Trana and\n\n\n 3\n\fNIAID, Trana would retain certain exclusive rights to the “hit” compounds (including the\n\nright to patent them) for a specified time. All sides stood to benefit from the\n\narrangement, in different ways. The public, represented by NIAID, would benefit from\n\nresearch into potential HIV drugs; Southern would be compensated for its work; and\n\nTrana would reap the potential commercial rewards flowing from testing paid for by\n\ntaxpayers.\n\n As the arrangement proceeded, decisions had to be made about what type of cells\n\nto use in the follow-up biological tests Southern performed. Research scientists have\n\ndifferent cell types available to them. One type, known as peripheral blood mononuclear\n\ncells (or “PBMCs,” a kind of white blood cell), must be gathered from human donors;\n\nthese cells are therefore expensive to obtain. Another type is called a “CEM” cell, a kind\n\nof cancer cell. Scientists commonly use cancer cells in biological research, and because\n\ncancer cells tend to reproduce prodigiously, they can be grown cheaply in a lab.\n\n Testing the same compounds in different cell types can yield different results. For\n\nexample, in 2007, Southern performed a PBMC test on 29 compounds for Trana. Two of\n\nthe compounds showed some antiviral activity. Trana then sent the two compounds to a\n\npharmaceutical company, which tested them using cancer cells in 2008. The company\n\nfound no antiviral activity in either compound and explained to Trana that the\n\ninconsistent results might be caused by the use of different types of cells. J.A. 809.\n\n B. “False Negatives”\n\n Trana’s first theory of liability—for “false negatives,” as alluded to above—arose\n\nfrom a decision to use CEM cells instead of PBMCs in testing performed in 2009.\n\n\n 4\n\fShortly before that, Southern had tested 13 “hit” compounds in PBMCs with no positive\n\nresults. Hoping the disappointing results were due to the small sample size, the parties\n\ndecided to perform biological tests on a much larger set of around 150 “hits.” Testing\n\nthat many compounds in PBMCs would have been expensive, costing the government\n\naround $150,000. By contrast, Southern estimated that testing the compounds in CEM\n\ncells would cost as little as $20,000.\n\n NIAID approved Southern’s use of CEM cells in the larger biological test. After\n\nconsulting with Southern, NIAID’s project officer noted that a CEM-cell test would be\n\ncheaper—a trait surely appealing to a budget-conscious government official (although\n\npresumably not to Trana, as it stood to gain the commercial benefit from the testing\n\nwithout paying for it).\n\n This use of CEM cells, in Trana’s view, was negligent: Southern should have\n\nused PBMCs or, at a minimum, advised NIAID and Trana of the benefits of using\n\nPBMCs, which might have led NIAID to select a PBMC test. Instead, Southern\n\napparently told Trana that there was no good reason not to use CEM cells. One of\n\nTrana’s expert witnesses, distinguished HIV scientist Mark Wainberg, opined that using\n\nCEM cells rather than PBMCs, which he described as the “gold standard,” fell short of\n\nthe standard of care for HIV research laboratories. And according to Trana, this\n\nnegligence led to false information in the research report containing Southern’s findings.\n\n Southern issued the research report in June 2009 after using CEM cells to test the\n\nlarger batch of compounds (which ultimately numbered 136). This report identified\n\nseveral compounds that demonstrated antiviral activity and thus showed promise for\n\n\n 5\n\finvestigation as HIV drugs. In most of the tested compounds, however, the CEM-cell\n\ntest revealed no antiviral activity. The June 2009 report listed the compounds in a table\n\ntitled “Antiviral Efficacy of Hit Compounds against HIV-1IIIB in CEM-SS Cells.” J.A.\n\n4577–80.\n\n This same batch of compounds was retested three years later in PBMCs, revealing\n\nsome antiviral activity for two of the compounds the 2009 report identified as inactive.\n\nThese two compounds are Trana’s purported “false negatives.” This inconsistency did\n\nnot result from an error in the 2009 testing: retesting confirmed that these two\n\ncompounds were indeed inactive in CEM cells. Instead, it resulted from the fact that\n\ntesting in different cell types sometimes yields different results.\n\n Trana’s “false negatives” claim is that, had Southern performed a PBMC test in\n\n2009, these two compounds would have exhibited antiviral activity in PBMCs. Armed\n\nwith these additional positive results in 2009, Trana believes it would have been more\n\nlikely to obtain a lucrative partnership with a pharmaceutical company. Another one of\n\nTrana’s expert witnesses offered an opinion estimating the damages Trana suffered by\n\nmissing that opportunity.\n\n C. “False Positives”\n\n Trana’s second theory of liability concerns two “false positives” in a report\n\nSouthern issued in June 2010. This report presented the results of a CEM-cell test\n\nperformed on another batch of “hits” identified by Trana’s proprietary test. That report\n\nidentified seven particular “hit” compounds as exhibiting antiviral activity in CEM cells.\n\nTwo of these compounds in fact had no activity in CEM cells, as retesting in 2012\n\n\n 6\n\fshowed. Southern concedes that these two positive results in the June 2010 report were\n\nincorrect. The error resulted from research misconduct by a Southern employee, who\n\nwas ultimately debarred from federal-government contracting for three years, see\n\nFindings of Research Misconduct, 79 Fed. Reg. 35,546 (June 23, 2014). Trana claims\n\nthat the misstatements in the June 2010 report were both negligent (due to Southern’s\n\ninadequate supervision of its rogue employee) and fraudulent (on the part of the\n\nemployee herself, whose intent, Trana argues, can be imputed to Southern).\n\n Long before the misconduct was revealed, however, it was already apparent that\n\nthese “false positive” compounds were not promising. In November 2010, Southern\n\nreported the results of a PBMC test covering the seven compounds that had tested\n\npositive in CEM cells in the June 2010 report. The two “false positives” showed no\n\nantiviral activity in PBMCs, and Southern concluded generally that “the antiviral activity\n\nof these seven compounds is not high enough to pursue additional development.” J.A.\n\n307. In December 2010, Southern advised Trana that “these compounds will only serve\n\nas possible probes to identify other compounds that may have better specificity and\n\ngreater therapeutic indices,” and that “these specific compounds do not have potential for\n\nfurther development.” J.A. 5061–62.\n\n D. The Lawsuit\n\n In 2013, Trana filed this diversity action against Southern, bringing claims for\n\nnegligent misrepresentation, constructive fraud, negligence, and fraud under North\n\nCarolina law. The district court dismissed Trana’s constructive fraud and negligence\n\n\n\n\n 7\n\fclaims, a decision Trana does not appeal. The remaining fraud and negligent\n\nmisrepresentation claims proceeded to discovery, which lasted just over two years.\n\n After discovery closed, the district court granted summary judgment for Southern.\n\nWhen evaluating Trana’s “false negatives” theory, the district court struck Professor\n\nWainberg’s opinion insofar as it related to the standard of care that applied to Southern in\n\nconducting the biological tests. Without Professor Wainberg’s opinion, the district court\n\nconcluded, there was insufficient evidence to establish the relevant standard of care,\n\ndisposing of the “false negatives” claim. Turning to the “false positives” theory, the\n\ndistrict court found that it too failed, because Trana failed to introduce adequate evidence\n\nof damages. The court also observed that there appeared to be insufficient evidence that\n\nTrana justifiably relied on the “false positive” results.\n\n Trana timely appeals. We review the district court’s grant of summary judgment\n\nde novo. In re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prods. Liab.\n\nLitig. (No II), 892 F.3d 624, 645 (4th Cir. 2018). Summary judgment is appropriate “if\n\nthe movant shows that there is no genuine dispute as to any material fact.” Fed. R. Civ.\n\nP. 56(a). “To survive summary judgment, ‘there must be evidence on which the jury\n\ncould reasonably find for the nonmovant.’” Lee v. Town of Seaboard, 863 F.3d 323, 327\n\n(4th Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).\n\n II.\n\n Based on the record before it, the district court properly granted summary\n\njudgment for Southern on Trana’s two theories of liability.\n\n\n\n\n 8\n\f A. “False Negatives”\n\n We begin with the purported “false negatives” in the June 2009 report. Trana\n\nclaims that report contained errors that were merely negligent, and not fraudulent. In\n\nTrana’s view, Southern mistakenly, but honestly, believed that it was appropriate to use\n\nCEM cells in the testing. In its haste to show negligence, however, Trana has overlooked\n\nthe other basic requirement of a negligent misrepresentation claim: a misrepresentation.\n\nThat is, the defendant must have provided false information. Schlieper v. Johnson, 672\n\nS.E.2d 548, 552–53 (N.C. Ct. App. 2009); Jordan v. Earthgrains Companies, Inc., 576\n\nS.E.2d 336, 339–40 (N.C. Ct. App. 2003); Pinney v. State Farm Mut. Ins. Co., 552\n\nS.E.2d 186, 191–92 (N.C. Ct. App. 2001); Restatement (Second) of Torts § 552(1) (Am.\n\nLaw Inst. 1977). According to Trana, “the CEM data [in the June 2009 report] falsely\n\nidentified the relevant compounds as inactive, and it is that falsity that is the basis of\n\nTrana’s claim.” Reply Brief of Appellant at 10; see also J.A. 122 (alleging that\n\n“Southern’s June 2009 Report was false in that it reported as inactive two compounds\n\nthat were in fact bioactive and potential lead compounds”).\n\n In reality, the information in the June 2009 report was not false. The report\n\naccurately stated the results of the biological test Southern performed: the so-called\n\n“false negative” compounds did not inhibit HIV reproduction in CEM cells. Even\n\nwithout the report’s express caveat, Trana was well aware from earlier discussions that\n\nCEM cells, not PBMCs, would be used. And Trana concedes that these two compounds\n\nwere in fact inactive in CEM cells. The report did not say that these compounds would\n\nalso be inactive in other cell types, such as PBMCs. Nor did the report say that the\n\n\n 9\n\fcompounds lacked potential as HIV drugs. Trana has not explained how the true\n\nstatements in the June 2009 report could have constituted a misrepresentation at all, much\n\nless a negligent one.\n\n When pressed at oral argument to identify the misrepresentation underlying its\n\nclaim, Trana suggested looking to Southern’s alleged promise (in its agreement with\n\nNIAID) to use state-of-the-art testing technology. This claim, assuming it is properly\n\nbefore us, fails as a matter of law. A contractual promise cannot constitute a merely\n\nnegligent misrepresentation. A promise is a statement of intention, not fact, meaning it is\n\nfalse only if the promisor never honestly intended to carry it out. See Gadsden v.\n\nJohnson, 136 S.E.2d 74, 77–78 (N.C. 1964); Restatement (Second) of Torts § 530(1) &\n\ncmt. c. It can be intentionally false, but not negligently so. Nor can a later breach of the\n\npromise transform it into a falsehood. A party’s representation that it is currently in\n\ncompliance with a contractual promise could perhaps be false if the party were actually in\n\nbreach. But the June 2009 report did not contain that representation: it merely said that\n\nthe testing was “conducted under” the NIAID contract, J.A. 4573, which was true.\n\n Stripped to its core, the “false negatives” theory represents an attempt to shoehorn\n\na claim for professional negligence or breach of contract into one for negligent\n\nmisrepresentation. Trana claims that Southern breached a duty (arising perhaps from\n\nindustry standards, perhaps from contract) to use PBMCs, or at least to inform Trana and\n\nNIAID of the benefits of using PBMCs. But Trana has not shown that any breach\n\nintroduced false information into the June 2009 report. Thus, this theory fails.\n\n\n\n\n 10\n\f Trana’s “false negatives” theory appears to suffer from other flaws as well. We\n\nhave particular doubts about the viability of Trana’s expert testimony on damages.\n\nTrana’s damages expert advanced the theory that the later positive PBMC results for\n\nthese two compounds, if obtained in 2009, would have made it more likely that a\n\npharmaceutical company would partner with Trana—a possibility the expert tried to\n\nquantify. But he admitted at deposition that he had not accounted for evidence in the\n\nrecord suggesting that a pharmaceutical company would not be impressed by these\n\ncompounds. An expert must offer an opinion that fits the case at hand, not some other,\n\nhypothetical case, and a damages model that simply ignores key evidence veers into\n\nspeculation. See, e.g., Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1057 (8th\n\nCir. 2000). In light of our holding above, however, we see no need to consider this issue\n\nin detail or to pass on the district court’s decision to exclude Professor Wainberg’s\n\nopinion on the standard of care.\n\n B. “False Positives”\n\n Trana’s “false positives” theory fares no better. It founders on the requirement of\n\n“reasonable” or “justifiable” reliance (North Carolina courts use the term “reasonable”\n\nfor fraud claims and “justifiable” for negligent misrepresentation claims, though the\n\ndifference does not matter for our purposes). Dallaire v. Bank of America, N.A., 760\n\nS.E.2d 263, 267 (N.C. 2014); Marcus Bros. Textiles v. Price Waterhouse, LLP, 513\n\nS.E.2d 320, 327 (N.C. 1999). Trana claims that it relied on the June 2010 report’s\n\nerroneous identification of two compounds as bioactive in filing patent applications.\n\n\n\n\n 11\n\fWhen the truth came out, Trana abandoned those applications, meaning the money spent\n\non them was wasted.\n\n We think it clear that any reliance on the “false positives” for patent purposes\n\nbecame unreasonable in November 2010. At that time, Trana learned the two compounds\n\nshowed no antiviral activity in PBMCs and were not viable candidates for additional\n\ndevelopment. Even more so by December 17, 2010, when Southern’s project manager\n\nadvised Trana directly that these two compounds lacked potential. Trana has not\n\npresented any theory that explains the reasonableness of pursuing patents on compounds\n\nthat it knew had no commercial value.\n\n To even have a shot at establishing reasonable reliance, Trana must therefore show\n\nthat it incurred patent expenses related to the two “false positive” compounds between\n\nthe report dated June 25, 2010, and (at the latest) December 17, 2010. Trana’s best\n\nevidence appears to be an interrogatory response listing the patents it pursued. But none\n\nof the filing dates in that document falls within the relevant window of time. J.A. 5853–\n\n54. And at oral argument, Trana’s counsel could not represent that any relevant patents\n\nwere filed before January 2011. Trana’s failure to address this critical timing issue\n\ndooms its claim.\n\n Trana also suggested at oral argument that it reasonably relied on press releases\n\nreferencing the two “false positive” compounds. The record references two press\n\nreleases from November and December 2010 that touted the results of recent research.\n\nJ.A. 111–12, 5635–36. But these press releases were issued by Trana, not Southern.\n\nThey also summarized the results of the testing generally and do not make separate\n\n\n 12\n\fclaims about these two compounds. And regardless, it would make no sense for Trana to\n\nrely on press releases intended for public consumption when it had privately received\n\nSouthern’s candid advice rejecting the viability of the compounds. On this record, no\n\nreasonable jury could find for Trana on the reliance issue, and so we need not address the\n\nparties’ remaining arguments or the district court’s ruling on damages.\n\n * * *\n\n This case supports the old adage favoring “quality over quantity.” The parties\n\nengaged in over two years of discovery and produced a remarkably voluminous record\n\nfor summary judgment and appeal. Yet the sheer mass of evidence could not make up for\n\nTrana’s inability to establish key elements of its claims. Accordingly, the judgment of\n\nthe district court is\n\n AFFIRMED.\n\n\n\n\n 13", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365718/", "author_raw": "RICHARDSON, Circuit Judge:"}]} | KING | DIAZ | RICHARDSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588465/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,588,467 | JESUS CHRIST IS THE ANSWER MINISTRIES, INC.; Rev. Lucy Ware, Plaintiffs - Appellants, v. BALTIMORE COUNTY, MARYLAND; Board of Appeals of Baltimore County, Maryland, Defendants - Appellees. United States of America, Amicus Supporting Appellants. | Jesus Christ is the Answer Ministries, Inc. v. Balt. Cnty. | 2019-02-07 | 18-1450 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Niemeyer, Agee, Diaz", "parties": "", "opinions": [{"author": "DIAZ, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1450\n\n\nJESUS CHRIST IS THE ANSWER MINISTRIES, INC.; REV. LUCY WARE,\n\n Plaintiffs − Appellants,\n\n v.\n\nBALTIMORE COUNTY, MARYLAND; BOARD OF APPEALS OF\nBALTIMORE COUNTY, MARYLAND,\n\n Defendants – Appellees.\n\n------------------------------\n\nUNITED STATES OF AMERICA,\n\n Amicus Supporting Appellants.\n\n\nAppeal from the United States District Court for the District of Maryland, at Baltimore.\nRichard D. Bennett, District Judge. (1:17-cv-03010-RDB)\n\n\nArgued: October 31, 2018 Decided: February 7, 2019\n\n\nBefore NIEMEYER, AGEE, and DIAZ, Circuit Judges.\n\n\nVacated and remanded by published opinion. Judge Diaz wrote the opinion, in which\nJudge Niemeyer and Judge Agee joined.\n\n\nARGUED: Roman P. Storzer, STORZER & ASSOCIATES, P.C., Washington, D.C.,\nfor Appellants. James Joseph Nolan, Jr., Paul M. Mayhew, BALTIMORE COUNTY\n\fOFFICE OF LAW, Towson, Maryland, for Appellees. John Matthew Gore, UNITED\nSTATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States of\nAmerica. ON BRIEF: Sieglinde K. Rath, STORZER & ASSOCIATES, P.C.,\nWashington, D.C.; Lawrence E. Schmidt, SMITH GILDEA & SCHMIDT LLC, Towson,\nMaryland, for Appellants. Michael E. Field, County Attorney, R. Brady Locher,\nAssistant County Attorney, BALTIMORE COUNTY OFFICE OF LAW, Towson,\nMaryland, for Appellees. Tovah R. Calderon, Katherine E. Lamm, Appellate Section,\nCivil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,\nD.C., for Amicus United States of America.\n\n\n\n\n 2\n\fDIAZ, Circuit Judge:\n\n Jesus Christ Is the Answer Ministries, Inc. (the “Church”) and Reverend Lucy\n\nWare appeal the dismissal of their claims against Baltimore County and the Board of\n\nAppeals of Baltimore County. The district court dismissed Plaintiffs’ suit for failure to\n\nstate a claim under the Religious Land Use and Institutionalized Persons Act\n\n(“RLUIPA”), 42 U.S.C. § 2000cc et seq., the Free Exercise Clause, the Equal Protection\n\nClause, and Article 36 of the Maryland Declaration of Rights. For the reasons that\n\nfollow, we vacate and remand for further proceedings.\n\n\n\n I.\n\n A.\n\n Jesus Christ is the Answer Ministries, Inc. is a nondenominational Christian\n\nchurch founded in Baltimore in 1997 by Reverend Lucy Ware. 1 The Church describes\n\nitself as evangelical and multicultural. It has associated churches in Kenya and the\n\nSeychelles, and many of the Church’s congregants were born in Africa. Reverend Ware\n\nwas born in Kenya, where she was active in her family church until moving to the United\n\nStates.\n\n The Church has struggled to secure an adequate house of worship, and this has\n\nimpeded its religious mission. This lawsuit arises from Ware’s unsuccessful efforts to\n\n 1\n Our recitation of the facts is based on the allegations in Plaintiffs’ complaint,\nwhich we accept as true at the motion to dismiss stage. Edwards v. City of Goldsboro,\n178 F.3d 231, 244 (4th Cir. 1999).\n\n\n 3\n\fobtain County approval to operate a church on property that she purchased for that\n\npurpose in 2012 (the “Property”).\n\n The Property consists of 1.2 acres of land with a building previously used as a\n\ndwelling. It is zoned under the Baltimore County Zoning Regulations (“BCZR”) as\n\n“Density Residential 3.5.”\n\n In this zone, churches are permitted as of right subject to certain conditions,\n\nincluding that parking lots and structures are (1) set back 75 feet from tract boundaries,\n\nand (2) separated from adjacent lots by a 50-foot landscaped buffer. BCZR\n\n§§ 1B01.1.A.3, 1B01.1.B.1.e. These conditions, however, don’t apply to new churches\n\nwhose site plans have been approved after a public hearing finding that compliance with\n\nthe conditions will be maintained “to the extent possible,” and that the plan “can\n\notherwise be expected to be compatible with the character and general welfare of the\n\nsurrounding residential premises.” Id. § 1B01.1.B.1.g.(6).\n\n Before Ware purchased the Property, her realtor advised her that a church was a\n\npermitted use on the Property.\n\n After buying the Property, Ware made improvements to the building and parking\n\nlot and held a church service and cookout. Neighbors complained to the County, and a\n\nCounty inspector notified Ware that she couldn’t use the Property as a church unless she\n\ncomplied with applicable zoning requirements.\n\n Ware filed a petition with the County to approve use of the Property as a church.\n\nThe petition proposed a buffer and setback of zero feet, seeking complete relief from the\n\nzoning requirements. It also sought variances from parking requirements. The County\n\n 4\n\fDirector of the Department of Planning did not oppose the petition, “provided a\n\nlandscape and signage plan is submitted to the department for review and approval.” J.A.\n\n19 ¶ 105. A hearing was held before an Administrative Law Judge (“ALJ”). Neighbors\n\nwho opposed the petition attended and participated.\n\n At the hearing, several neighbors made comments displaying open hostility to\n\nWare and the Church. These comments included: (1) “dancing and hollering like they\n\nback at their home back in Africa somewhere”; (2) “[s]he can come over here from\n\nAfrica . . . branch out from another church and put all of this in our neighborhood”; and\n\n(3) “[t]hey were out here dancing like from Africa. We don’t have that in our block.”\n\nJ.A. 19 ¶ 108. Since the hearing, neighbors have subjected the Church and its members\n\nto a sustained barrage of harassment, including racial slurs. The Property has also been\n\nsubject to vandalism and theft.\n\n The ALJ recommended denying Ware’s petition. Ware appealed this\n\nrecommendation to the Board of Appeals. The Board denied the petition, finding that\n\n“the proposed Church does not even minimally comply” with the applicable zoning\n\nrequirements and that the plan would not be compatible with “the character or general\n\nwelfare of the surrounding homes which homes are occupied by the [neighbors] who\n\ntestified.” J.A. 57. The Board’s decision was affirmed by the Circuit Court for\n\nBaltimore County and the Court of Special Appeals of Maryland. Ware v. People’s\n\nCounsel, 117 A.3d 628 (Md. Ct. Spec. App. 2015).\n\n While the first petition was pending appeal, Ware filed a second petition. This\n\nnew petition included a modified site plan that (1) moved the parking lot to increase the\n\n 5\n\fsetback to 55–72.7 feet and the buffer to 50 feet, and (2) did not seek any parking\n\nvariances. The new petition also differed from its predecessor in that it sought approval\n\nnot only under the zoning provision governing new churches, but also under a separate\n\nprovision governing existing churches.\n\n The People’s Counsel (a county official) initially sought dismissal of the new\n\npetition, on the ground that it sought essentially the same relief as its predecessor. The\n\nneighbors who opposed the first petition adopted the People’s Counsel’s motion to\n\ndismiss. But the People’s Counsel subsequently withdrew his motion based on the\n\ndifferences between the two petitions. Nevertheless, the neighbors continued to pursue\n\ndismissal. The Board granted the motion to dismiss, holding that the new petition was\n\nbarred by res judicata and collateral estoppel.\n\n B.\n\n Ware and the Church then filed suit in federal district court, alleging that the\n\nBoard’s dismissal of the second petition violated RLUIPA’s substantial burden and\n\nnondiscrimination provisions, the First Amendment’s Free Exercise Clause, the\n\nFourteenth Amendment’s Equal Protection Clause, and Article 36 of the Maryland\n\nDeclaration of Rights, which protects freedom of religion at the state level. The district\n\ncourt dismissed the complaint for failure to state a claim. This appeal followed.\n\n\n\n II.\n\n We review the district court’s dismissal order de novo, accepting as true the facts\n\nalleged in the complaint and drawing all reasonable inferences in Plaintiffs’ favor, to\n\n 6\n\fdetermine whether the complaint contains facts sufficient to state a claim that is\n\n“plausible on its face.” Kensington Volunteer Fire Dep’t, Inc. v. Montgomery County,\n\n684 F.3d 462, 467 (4th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570\n\n(2007)).\n\n A.\n\n We begin with Plaintiffs’ claim that Defendants substantially burdened their\n\nreligious exercise, in violation of RLUIPA, by dismissing the second petition. 2 We agree\n\nwith the Plaintiffs that the district court erred in dismissing this claim.\n\n RLUIPA prohibits land use regulations that impose a “substantial burden” on\n\nreligious practice, unless they are the least restrictive means of furthering a compelling\n\ngovernmental interest. 42 U.S.C. § 2000cc(a)(1). A substantial burden exists where a\n\nregulation “puts substantial pressure on [the plaintiff] to modify its behavior.” Bethel\n\nWorld Outreach Ministries v. Montgomery Cty. Council, 706 F.3d 548, 556 (4th Cir.\n\n2013).\n\n As relevant here, land use regulations can substantially burden religious exercise\n\nwhere an organization acquires property expecting to use it for a religious purpose but is\n\n\n 2\n Defendants argue, for the first time on appeal, that the Church can’t bring an\nRLUIPA claim because it doesn’t own the Property (Ware does). This argument doesn’t\nimplicate any jurisdictional issue such as the Church’s constitutional standing. Instead, it\nconcerns whether a regulation affecting the Church fits within RLUIPA’s definition of\n“land use regulation.” See 42 U.S.C. § 2000cc-5(5). Because Defendants’ argument\ndoesn’t call our subject matter jurisdiction into question or implicate “exceptional\ncircumstances,” we decline to consider it for the first time on appeal. Muth v. United\nStates, 1 F.3d 246, 250 (4th Cir. 1993).\n\n\n 7\n\fprevented from doing so by the application of a zoning ordinance. In such a case, two\n\nquestions are usually relevant to determining whether RLUIPA has been violated.\n\n First, is the impediment to the organization’s religious practice substantial? The\n\nanswer will usually be “yes” where use of the property would serve an unmet religious\n\nneed, the restriction on religious use is absolute rather than conditional, and the\n\norganization must acquire a different property as a result. See Bethel, 706 F.3d at 557–\n\n58.\n\n Second, who is responsible for the impediment—the government, or the religious\n\norganization? In answering this question, we have considered whether the organization\n\nhad a “reasonable expectation” of religious land use, see Bethel, 706 F.3d at 558, and\n\nwhether the burden faced by the organization is “self-imposed,” see Andon, LLC v. City\n\nof Newport News, 813 F.3d 510, 515 (4th Cir. 2016).\n\n In this case there is little dispute that the impediment is substantial, since the\n\nChurch is barred from using the Property, so the district court sensibly focused on the\n\nsecond question: Are Plaintiffs responsible for their present inability to use the Property\n\nas a church? But in addressing this question, the court wrongly emphasized Plaintiffs’\n\npurported “failure to exercise due diligence before acquiring and altering the property”\n\nand their “subsequent proposal [in Ware’s first petition] of a site plan that disregarded the\n\nzoning requirements.” Jesus Christ Is the Answer Ministries, Inc. v. Baltimore County,\n\n303 F. Supp. 3d 378, 396 (D. Md. 2018). The first of these supposed failings is irrelevant\n\nto whether the zoning regulations in fact authorize Plaintiffs to use the Property as a\n\nchurch. And the second is irrelevant to whether Plaintiffs were responsible for the\n\n 8\n\fdismissal of Ware’s second petition, which is what now stands in the way of their\n\nreligious practice.\n\n Ware sufficiently alleged that she had a reasonable expectation of using the\n\nProperty as a church. Her realtor told her that such a use was permitted on the Property.\n\nThis advice was of course correct because churches are “permitted as of right,” provided\n\nthat their site plans comply “to the extent possible with [applicable] requirements” and\n\ncan “otherwise be expected to be compatible with the character and general welfare of the\n\nsurrounding residential premises.” BCZR §§ 1B01.1.A.3, 1B01.1.B.1.g.(6). Ware was\n\njustified in believing that she could satisfy these broadly and permissibly phrased\n\nconditions, especially given that the zoning regulations permit churches as of right.\n\n Ware’s efforts to meet the zoning conditions were frustrated, however, when the\n\nBoard dismissed her second petition. As the district court recognized, the second petition\n\nwas based on a site plan that substantially differed from and attempted to address the\n\nshortcomings of its predecessor. The Board failed to recognize these differences when it\n\ndismissed the petition based on res judicata and collateral estoppel, relying on the faulty\n\npremise that the two petitions sought essentially the same relief.\n\n The district court declined to dismiss Plaintiffs’ suit on grounds of res judicata and\n\ncollateral estoppel, but nonetheless determined that the Board correctly dismissed the\n\nsecond petition on these grounds. The court explained this anomaly by noting that Ware\n\nadvanced different bases for distinguishing the two petitions before the Board and the\n\ndistrict court. Specifically, the Board took the “real thrust” of Ware’s argument to be that\n\nthe second petition invoked a different subsection of the zoning regulations than the first.\n\n 9\n\fJ.A. 125. Before the district court, however, Plaintiffs emphasized the differences\n\nbetween the site plans accompanying the two petitions.\n\n We are not persuaded by the district court’s reasoning. First, Ware did highlight\n\nthe differences between the site plans in the administrative proceedings. See J.A. 90,\n\n106–10, 113. It was the Board (not Ware) that decided the “real thrust” of Ware’s\n\nargument was the different zoning provisions invoked by the two petitions. Second, and\n\nmore importantly, the two site plans are in fact markedly different. The second plan\n\naddressed the first one’s main deficiencies by moving the parking lot to the center of the\n\nProperty. This increased the landscaped buffer from zero to 50 feet, which fully\n\ncomplied with the buffer requirements. The second plan also increased the parking lot’s\n\nsetback from zero to between 55 and 72.7 feet, which complied to a much greater extent\n\n(and arguably “to the extent possible”) with the 75-foot setback requirement. In light of\n\nthese substantial changes and improvements, we cannot say that the dismissal of Ware’s\n\nsecond petition was self-imposed.\n\n Plaintiffs have sufficiently alleged that the dismissal of the second petition\n\nimposed a substantial burden on their religious practice. We therefore vacate the district\n\ncourt’s dismissal of Plaintiffs’ substantial burden claim. 3\n\n\n 3\n The district court did not reach RLUIPA’s second prong, which considers\nwhether, despite substantially burdening religious exercise, a government action “is the\nleast restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C.\n§ 2000cc–1. As we discuss, Plaintiffs have sufficiently alleged that dismissal of the\nsecond petition was motivated by religious animus. Such animus is not a permissible\ngovernment interest, much less a compelling one. And the dismissal wasn’t narrowly\ntailored to further the finality interests that are normally served by res judicata and\n(Continued)\n 10\n\f B.\n\n Next, we consider the Church’s claim that Defendants discriminated against it\n\nbased on religion or religious denomination in violation of RLUIPA. 4 The district court\n\ndismissed this claim, concluding that the Church failed to allege that the Board approved\n\nspecial exceptions to the zoning regulations for similarly situated churches or that its\n\ndecision was influenced by discriminatory intent.\n\n The Church argues that the district court erred by ignoring allegations that the\n\n“Board was knowingly responsive to a hostile community” of bigoted neighbors. J.A. 8\n\n¶ 5. Defendants respond that the neighbors’ discriminatory remarks can’t be attributed to\n\nthem, and that the remarks couldn’t have influenced the decision to dismiss the second\n\npetition because they were allegedly made during the hearing on the first petition.\n\n RLUIPA prohibits land use regulations that discriminate “on the basis of religion\n\nor religious denomination.” 42 U.S.C. § 2000cc(b)(2). In applying RLUIPA’s\n\nnondiscrimination provision, courts have looked to equal protection precedent. Chabad\n\nLubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 198\n\n\n\n\ncollateral estoppel because the second petition substantially differed from the first.\nTherefore, RLUIPA’s second prong poses no barrier to Plaintiffs’ substantial burden\nclaim at this stage of the case.\n 4\n The complaint alleges religious discrimination against both the Church and\nWare. J.A. 32 ¶ 203. However, RLUIPA’s nondiscrimination provision applies only to\nregulations that discriminate against “any assembly or institution.” 42 U.S.C.\n§ 2000cc(b)(2). The district court was therefore correct to dismiss Ware’s\nnondiscrimination claim.\n\n\n 11\n\f(2d Cir. 2014) (citing Bethel, 706 F.3d at 559). Under that precedent, a plaintiff must\n\ndemonstrate that the government decision was motivated at least in part by discriminatory\n\nintent, which is evaluated using the “sensitive inquiry” established in Village of Arlington\n\nHeights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266–68 (1977).\n\n One factor which this inquiry recognizes as potentially probative of the\n\ndecisionmaker’s intent is the “specific sequence of events leading up to the challenged\n\ndecision.” Id. at 267. Departures from normal procedures can suggest that the decision\n\nwas based on unlawful motives, as can “[s]ubstantive departures . . . particularly if the\n\nfactors usually considered important by the decisionmaker strongly favor a decision\n\ncontrary to the one reached.” Id. (citing Dailey v. City of Lawton, 425 F.2d 1037, 1040\n\n(10th Cir. 1970) (finding racial motivation where a city refused to rezone a plot despite\n\npresent and former city planning directors’ testimony that there was no reason not to\n\nrezone)).\n\n Particularly relevant to this case, a government decision influenced by community\n\nmembers’ religious bias is unlawful, even if the government decisionmakers display no\n\nbias themselves. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985);\n\nMarks v. City of Chesapeake, 883 F.2d 308, 311–13 (4th Cir. 1989). Such impermissible\n\ninfluence may be inferred where expressions of community bias are followed by\n\nirregularities in government decision-making. See Smith v. Town of Clarkton, 682 F.2d\n\n1055, 1066 (4th Cir. 1982).\n\n Under RLUIPA, a plaintiff need only establish a prima facie claim of religious\n\ndiscrimination, after which the defendant bears the burden of persuasion on all elements\n\n 12\n\fof the claim. 42 U.S.C. § 2000cc-2(b); Chabad Lubavitch, 768 F.3d at 198. And as with\n\nall claims, at the motion to dismiss stage “a plaintiff need not demonstrate that her right\n\nto relief is probable or that alternative explanations are less likely; rather, she must\n\nmerely advance her claim ‘across the line from conceivable to plausible.’” Houck v.\n\nSubstitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015) (quoting Twombly, 550 U.S.\n\nat 570). So long as a plaintiff alleges a plausible prima facie claim of discrimination, a\n\ncourt may not dismiss that claim—even if the defendant advances a nondiscriminatory\n\nalternative explanation for its decision, and even if that alternative appears more\n\nprobable. Id.; see Woods v. City of Greensboro, 855 F.3d 639, 649 (4th Cir. 2017) (“The\n\nquestion is not whether there are more likely explanations for the City’s action . . . but\n\nwhether the City’s impliedly proffered reason . . . is so obviously an irrefutably sound\n\nand unambiguously nondiscriminatory and non-pretextual explanation that it renders [the\n\nplaintiff’s] claim of pretext implausible.”).\n\n The district court reasoned that the complaint failed to allege disparate treatment\n\nbecause other churches that ultimately received approval are situated on larger lots and\n\nhave sufficient space for parking. However, RLUIPA’s nondiscrimination provision\n\ndoesn’t require a comparison to similarly situated entities. Chabad Lubavitch, 768 F.3d\n\nat 199. The Church has alleged that the Board’s dismissal of Ware’s second petition was\n\nmotivated by religious discrimination. This is enough to make out a prima facie claim of\n\nreligious discrimination, provided that the Church can establish discriminatory intent.\n\n In this case, the alleged sequence of events leading to the challenged decision is\n\nhighly probative of Defendants’ motives. It is especially significant that irregularities in\n\n 13\n\fDefendants’ decision-making process followed the neighbors’ expressions of animus.\n\nSee Town of Clarkton, 682 F.2d at 1066 (describing a town’s unprecedented use of an\n\nopinion poll following expressions of racial opposition to a public housing project as a\n\n“significant” and “suspect” deviation from the procedural norm).\n\n The first irregularity occurred when the Board denied Ware’s first petition even\n\nthough the County Director of the Department of Planning didn’t oppose it. The\n\nneighbors who opposed the first petition allegedly made bigoted remarks in the hearing\n\nbefore the ALJ, and seven neighbors also testified during the Board’s hearing on the first\n\npetition.\n\n In our view, the neighbors’ remarks clearly display ethnic bias, and they can\n\nplausibly be understood as displaying religious bias too. We recognize that RLUIPA by\n\nits terms prohibits discrimination “on the basis of religion or religious denomination.” 42\n\nU.S.C. § 2000cc(b)(2). But we do not attempt to disentangle Plaintiffs’ allegations of\n\nreligious and ethnic bias, at least at the motion to dismiss stage where we must view the\n\nalleged facts in Plaintiffs’ favor.\n\n The remarks targeted (1) Ware’s African heritage and that of other congregants,\n\n(2) a Church gathering that (according to the neighbors) involved “dancing” and\n\n“hollering,” and (3) the fact that the Church “branch[ed] out from another church.” J.A.\n\n19 ¶ 108. The first of these topics targets the Church’s multicultural identity. The\n\nsecond targets activities conducted at Church gatherings, which we may infer involved\n\nreligious exercise as defined in RLUIPA. See 42 U.S.C. § 2000cc-5(7). The third targets\n\n\n\n 14\n\fthe Church’s connection to other churches and denominations—a paradigm example of\n\nreligious bias.\n\n Plaintiffs also alleged that they “have faced tremendous opposition based on the\n\nnature of their ministry and the ethnic background of Reverend Ware and the\n\ncongregation” and “their status as African immigrants.” J.A. 27 ¶ 166–67. Though the\n\nChurch is expressly “nondenominational,” J.A. 9 ¶ 15, and has no religious affiliation\n\nexcept its “associat[ion with] churches in Kenya and the Seychelles,” J.A. 10 ¶ 18,\n\nPlaintiffs’ other allegations are drafted in such a way that we can infer their religious\n\npractice is tied to their ethnicity.\n\n Accordingly, when we draw reasonable inferences in Plaintiffs’ favor and consider\n\nRLUIPA’s “very broad protection for religious liberty,” Holt v. Hobbs, 135 S. Ct. 853,\n\n859 (2015) (internal quotation marks omitted), we are convinced that, as alleged, the\n\nneighbors displayed the behavior Congress sought to eradicate from zoning decisions.\n\nRLUIPA is designed to protect “[c]hurches in general, and new, small, or unfamiliar\n\nchurches in particular, [from being] frequently discriminated against” in land use\n\nregulation, including when “zoning board members or neighborhood residents explicitly\n\noffer race or religion as the reason to exclude a proposed church, especially in cases of\n\nblack churches and Jewish shuls and synagogues.” 146 Cong. Rec. S7774 (July 27,\n\n2000) (joint statement of Sen. Hatch and Sen. Kennedy).\n\n Following the neighbors’ remarks, the Board denied the petition. Although the\n\nCounty Director’s statement that she didn’t oppose the petition doesn’t bind the Board, it\n\nis a “factor[] usually considered important” in zoning proceedings, and it “strongly\n\n 15\n\ffavor[s] a decision contrary to the one reached” by the Board. Arlington Heights, 429\n\nU.S. at 267. And although Plaintiffs didn’t allege how often the Board departs from the\n\nCounty Director’s recommendations, the fact that the Board disagreed with a County\n\nofficial who has relevant expertise and a formal role as the Board’s advisor is enough to\n\nraise a plausible suspicion of improper motive.\n\n As Defendants rightly point out, the neighbors’ remarks before the ALJ and the\n\nBoard’s disagreement with the County Director occurred well before the Board decided\n\nto dismiss the second petition. But these events are part of the sequence that led to the\n\nchallenged decision, and Plaintiffs plausibly alleged that they influenced it. This\n\nconnection is strengthened by the neighbors’ ongoing involvement in the dispute, right up\n\nthrough the dismissal of the second petition.\n\n The second irregularity occurred when the Board granted the neighbors’ motion to\n\ndismiss the second petition, contrary to the position of its own legal expert, the People’s\n\nCounsel. The People’s Counsel initially sought dismissal based on res judicata and\n\ncollateral estoppel, but later abandoned this posture. The neighbors continued to seek\n\ndismissal on these grounds, and the Board adopted their position. This second\n\nirregularity adds further plausibility to the inference that Defendants dismissed the\n\nsecond petition based on improper motives.\n\n We express no opinion on whether the neighbors’ animus ultimately swayed the\n\nBoard’s decision to dismiss the second petition. Rather, we conclude only that the\n\ncomplaint plausibly alleges a prima facie claim of religious discrimination.\n\n\n\n 16\n\f C.\n\n Plaintiffs also appeal the district court’s dismissal of their First Amendment free\n\nexercise claim and their Fourteenth Amendment equal protection claim, in which they\n\nallege (as in their RLUIPA claims) that Defendants substantially burdened their religious\n\nexercise and discriminated against them on the basis of religion.\n\n We first must determine the correct standard of review. Under the Supreme\n\nCourt’s free exercise doctrine, a neutral government decision of general applicability is\n\nsubject to rational basis review, even where it has the incidental effect of burdening\n\nreligious exercise. Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 879 (1990).\n\nHowever, a decision whose object “is to infringe upon or restrict practices because of\n\ntheir religious motivation” is not neutral and is subject to strict scrutiny. Church of the\n\nLukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 546 (1993). As we\n\nexplained in Section II.B, Plaintiffs have alleged that the object of the Board’s decision\n\nwas to restrict their use of the Property in response to community opposition to the\n\nChurch’s religious denomination. This allegedly discriminatory motive triggers strict\n\nscrutiny.\n\n Similarly, we apply strict scrutiny under the Equal Protection Clause where (as\n\nhere) the challenged action interferes with a fundamental right. Bostic v. Schaefer, 760\n\nF.3d 352, 375 (4th Cir. 2014) (citing Zablocki v. Redhail, 434 U.S. 374, 383 (1978)).\n\nAnd “[u]nquestionably, the free exercise of religion is a fundamental constitutional\n\nright.” Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974); see also Reaching Hearts\n\nInt’l, Inc. v. Prince George’s County, 584 F. Supp. 2d 766, 781 n.9 (D. Md. 2008) (citing\n\n 17\n\fJohnson v. Robison in applying strict scrutiny to an equal protection claim based on\n\nreligious discrimination).\n\n A government decision fails strict scrutiny if it is not narrowly tailored to advance\n\na compelling state interest. Lukumi Babalu Aye, 508 U.S. at 546. While Baltimore\n\nCounty may have a significant interest in finality and economy that would ordinarily be\n\nserved by the doctrines of res judicata and collateral estoppel, the dismissal of Ware’s\n\nsecond petition isn’t narrowly tailored to serve that interest because the second petition\n\ndidn’t seek to revisit the Board’s decision about the first petition. We therefore vacate\n\nthe dismissal of their free exercise and equal protection claims.\n\n D.\n\n Finally, Plaintiffs brought a claim under Article 36 of the Maryland Declaration of\n\nRights, which protects freedom of religion at the state level. The district court had\n\nsupplemental jurisdiction over this state constitutional claim under 28 U.S.C. § 1367(a)\n\nbecause it formed part of the same case or controversy as Plaintiffs’ federal claims.\n\nHowever, after dismissing the federal claims, the district court exercised its discretion\n\nunder 28 U.S.C. § 1367(c)(3) to dismiss the state constitutional claim. 5 Given our\n\ndecision on Plaintiffs’ federal claims, § 1367(c)(3) no longer provides a basis for\n\ndismissing the state constitutional claim. We therefore vacate the dismissal of the state\n\n 5\n The district court also noted that Maryland state law is unsettled regarding\nwhether Article 36 provides a private cause of action. However, the court didn’t\nexpressly invoke 28 U.S.C. § 1367(c)(1), which authorizes it to decline to exercise\nsupplemental jurisdiction over claims that raise novel or complex issues of state law. We\nexpress no opinion about whether dismissal under § 1367(c)(1) is appropriate on remand.\n\n\n 18\n\fconstitutional claim and remand so that the district court may decide whether to retain\n\nsupplemental jurisdiction over it.\n\n\n\n III.\n\n For the foregoing reasons, we vacate the district court’s judgment and remand for\n\nfurther proceedings consistent with this opinion.\n\n VACATED AND REMANDED\n\n\n\n\n 19", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365720/", "author_raw": "DIAZ, Circuit Judge:"}]} | NIEMEYER | AGEE | DIAZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588467/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,588,872 | UNITED STATES of America, Plaintiff - Appellee, v. Samuel PRATT, A/K/A Promise, Defendant - Appellant. | United States v. Samuel Pratt | 2019-02-08 | 17-4489 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Motz, Agee, Diaz", "parties": "", "opinions": [{"author": "DIAZ, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-4489\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff − Appellee,\n\n v.\n\nSAMUEL PRATT, a/k/a Promise,\n\n Defendant – Appellant.\n\n\nAppeal from the United States District Court for the District of South Carolina, at\nColumbia. Terry L. Wooten, Chief District Judge. (3:16-cr-00207-TLW-1)\n\n\nArgued: September 28, 2018 Decided: February 8, 2019\n\n\nBefore MOTZ, AGEE, and DIAZ, Circuit Judges.\n\n\nAffirmed in part, vacated in part, and remanded by published opinion. Judge Diaz wrote\nthe opinion, in which Judge Motz and Judge Agee joined.\n\n\nARGUED: David Bruce Betts, LAW OFFICES OF DAVID B. BETTS, Columbia,\nSouth Carolina, for Appellant. James Hunter May, OFFICE OF THE UNITED STATES\nATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Beth Drake,\nUnited States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,\nSouth Carolina, for Appellee.\n\fDIAZ, Circuit Judge:\n\n Samuel Pratt was convicted of eight counts related to sex trafficking and child\n\npornography. He appeals on two grounds. On the first ground, we hold that the district\n\ncourt should have suppressed evidence from Pratt’s cellphone. That error was not\n\nharmless because the remaining evidence does not satisfy the elements of the two child\n\npornography counts. On the second ground, we hold that the district court did not err in\n\nadmitting hearsay statements. Accordingly, we vacate Pratt’s convictions on the two\n\nchild pornography counts, affirm his other six convictions, vacate his sentence, and\n\nremand to the district court.\n\n\n\n I.\n\n FBI agents in the Carolinas investigated Samuel Pratt for running a prostitution\n\nring that included juveniles. The agents found a post on Backpage.com in which Pratt\n\nadvertised the sexual services of seventeen-year-old “RM” 1 at a hotel in Columbia, South\n\nCarolina. An agent scheduled a “date” with RM at the hotel for February 3, 2016. When\n\nthe agent entered the hotel room, he identified himself to RM as law enforcement. She\n\nagreed to speak with several agents. RM told them she was seventeen and working as a\n\nprostitute at the hotel. She said her “boyfriend” Pratt brought her across state lines from\n\nNorth Carolina. J.A. 66. Responding to an agent’s question, she said she had texted\n\n\n\n 1\n We refer to minor victims solely by their initials.\n\n\n 2\n\fnude photographs of herself to Pratt’s phone. RM allowed FBI agents to take her\n\ncellphone.\n\n At the same time, two FBI agents spoke to Pratt in the hotel parking lot. Agent\n\nStansbury, who had spoken with RM, joined them. Stansbury confronted Pratt, who was\n\nholding an iPhone. Pratt told Stansbury the phone was his. Stansbury asked if Pratt had\n\nnude photos of RM on the phone. Pratt responded “yes, I’ve got pictures of her on the\n\nphone.” J.A. 67.\n\n Stansbury then seized the phone, telling Pratt the FBI would get a search warrant.\n\nPratt refused to consent to the seizure or disclose the phone’s passcode. And the FBI\n\ndidn’t get a warrant to search the phone until March 4, 2016—a full 31 days after seizing\n\nit. When agents finally searched the phone, they found nude images of RM and\n\nincriminating text conversations with RM and others.\n\n Soon after, a federal grand jury indicted Pratt. 2 At Pratt’s initial appearance, the\n\nmagistrate judge ordered him to have no contact with anyone “who is a witness, or may\n\nbe a witness, or a victim.” J.A. 524. Despite that order, Pratt repeatedly called his\n\nmother from prison to coordinate continued prostitution operations. In several calls, he\n\nhad his mother put RM on the phone. He repeatedly told RM not to testify or cooperate.\n\n\n\n 2\n The nine counts were: (1) conspiracy to commit sex trafficking, (2) producing\nchild pornography, (3) sex trafficking of a minor, (4) attempt to commit sex trafficking,\n(5) possession of child pornography, (6) coercion or enticement of a minor, (7) felon in\npossession of a firearm, (8) obstruction of justice, and (9) interstate travel to carry on an\nunlawful activity. The government dismissed count nine before trial.\n\n\n 3\n\f Before trial, Pratt moved to suppress evidence from his phone. In his written\n\npleadings, Pratt only contended that the seizure of the phone was unconstitutional. But at\n\nthe suppression hearing, he also argued that the delay between the seizure and obtaining\n\nthe search warrant was unconstitutional. The government explained that the delay came\n\nfrom the need to decide whether to seek a warrant in North Carolina or South Carolina.\n\nRuling from the bench, the district court denied the suppression motion, finding the\n\nseizure justified and the delay reasonable.\n\n The government tried to get RM to testify. Several months after Pratt’s calls from\n\njail, the FBI served her with a subpoena. When agents later spoke to her, she refused to\n\ntestify. The FBI obtained a material witness warrant for her, but the U.S. Marshals\n\ncouldn’t find her. Several other women would testify at trial that Pratt would beat any\n\nprostitute—including RM—whom he considered disobedient.\n\n With RM unavailable, the government sought to introduce her statements to FBI\n\nagents about the prostitution ring and about the nude images she sent Pratt. The district\n\ncourt overruled Pratt’s hearsay and confrontation objections, ruling that Pratt forfeited\n\nthose objections by intimidating RM into refusing to testify. An agent then recounted\n\nRM’s statements.\n\n In addition, the government introduced evidence from Pratt’s cellphone. That\n\nevidence included 28 images alleged to be child pornography, metadata for the images,\n\ntext message conversations, and advertisements Pratt placed for prostitution. The\n\n\n\n\n 4\n\fgovernment also introduced an “extraction report” on data from RM’s phone. It included\n\ntext messages but didn’t include photos or videos. 3\n\n The jury convicted Pratt on all eight counts. The district court imposed life\n\nsentences on four counts and concurrent time on the other four. Pratt appeals the denial\n\nof his suppression motion and the admission of RM’s prior statements.\n\n\n\n II.\n\n Pratt contends that the district court should have suppressed information from his\n\ncellphone because the FBI unreasonably delayed getting a search warrant. He does not\n\ncontend that the seizure of the phone itself was unconstitutional. To justify the delay, the\n\ngovernment points to the difficulty of coordinating the various law enforcement agencies\n\ninvolved in the Pratt investigation and deciding where to seek a search warrant for the\n\nphone. In the alternative, the government argues that it could keep the phone indefinitely\n\nbecause it was an instrumentality of Pratt’s crimes.\n\n We review the factual findings in a suppression motion for clear error and the\n\nlegal conclusions de novo. 4 See United States v. Kehoe, 893 F.3d 232, 237 (4th Cir.\n\n\n 3\n An agent testified that the extraction report is “just like the call logs, the text\nmessages . . . I don’t think this has the videos, or any videos or pictures.” J.A. 187. The\nprosecutor asked, “So, just to be clear, Exhibit 21, forensic download, absent videos and\nphotographs?” Id. The agent responded, “Correct.” Id.\n 4\n The government contends that we should apply plain error review because Pratt\ndidn’t mention unreasonable delay in his motion papers. We disagree. Pratt pressed the\nargument at the suppression hearing and the district court expressly ruled from the bench\non the claim of delay in obtaining the search warrant. See United States v. Williams, 504\n(Continued)\n 5\n\f2018). If the district court erred, we must assess whether any such error was harmless.\n\nSee Fed. R. Crim. P. 52(a); United States v. Abu Ali, 528 F.3d 210, 231 (4th Cir. 2008).\n\n We hold that the district court erred by denying the suppression motion and that\n\nthe error was not harmless regarding the child pornography counts.\n\n A.\n\n The constitutional question is whether the extended seizure of Pratt’s phone was\n\nreasonable. A seizure that is “lawful at its inception can nevertheless violate the Fourth\n\nAmendment because its manner of execution unreasonably infringes possessory\n\ninterests.” United States v. Jacobsen, 466 U.S. 109, 124 (1984) (citing United States v.\n\nPlace, 462 U.S. 696 (1983)). To determine if an extended seizure violates the Fourth\n\nAmendment, we balance the government’s interest in the seizure against the individual’s\n\npossessory interest in the object seized. See Place, 462 U.S. at 703; United States v. Van\n\nLeeuwen, 397 U.S. 249, 252–53 (1970).\n\n A strong government interest can justify an extended seizure. See, e.g., Illinois v.\n\nMcArthur, 531 U.S. 326, 332–33 (2001) (suspect prevented from entering home for two\n\nhours while officers obtained a warrant); United States v. Montoya de Hernandez, 473\n\nU.S. 531, 541–44 (1985) (suspected alimentary canal smuggler detained for 16 hours);\n\nVan Leeuwen, 397 U.S. at 252–53 (package detained for 29 hours while seeking a\n\nwarrant). But if the individual’s interest outweighs the government’s, an extended\n\n\n\nU.S. 36, 41 (1992) (argument is preserved if pressed or passed upon). Pratt therefore\npreserved this argument and the plain error standard does not apply.\n\n\n 6\n\fseizure may be unreasonable. See Rodriguez v. United States, 135 S. Ct. 1609, 1615–16\n\n(2015) (traffic stop extended for dog sniff without reasonable suspicion); Place, 462 U.S.\n\nat 698–99 (traveler’s luggage detained at airport for 90 minutes to conduct dog sniff). An\n\nindividual diminishes his interest if he consents to the seizure or voluntarily shares the\n\nseized object’s contents. See, e.g., United States v. Christie, 717 F.3d 1156, 1162–63\n\n(10th Cir. 2013).\n\n Here, Pratt didn’t diminish his possessory interest in the phone. He didn’t consent\n\nto its seizure or voluntarily share the phone’s contents. The government’s only\n\nexplanation for the 31-day delay in obtaining a warrant was that Pratt committed crimes\n\nin both North Carolina and South Carolina and agents had to decide where to seek a\n\nwarrant. We find this explanation insufficient to justify the extended seizure of Pratt’s\n\nphone.\n\n Pratt’s case parallels United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009).\n\nThere, an agent seized a computer but failed to obtain a search warrant for 21 days. Id. at\n\n1351. The agent explained that he left town for a lengthy training and didn’t think the\n\nwarrant was urgent. Id. The Eleventh Circuit considered the seizure unreasonable\n\nbecause the agent could have applied for a warrant before he left or passed the case to\n\nsomeone else. Id. at 1351–52. But the court cautioned that overwhelmed police\n\nresources or other “overriding circumstances” could justify extended delays. Id. at 1353.\n\n The Eleventh Circuit has applied this standard in two later cases. In United States\n\nv. Vallimont, 378 F. App’x 972, 975–76 (11th Cir. 2010), it upheld a 45-day delay in\n\ngetting a search warrant for a seized computer. The delay was reasonable because the\n\n 7\n\finvestigator was diverted to other cases, the county’s resources were overwhelmed, and\n\nthe defendant diminished his privacy interest by giving another person access to the\n\ncomputer. Id. And in United States v. Laist, 702 F.3d 608, 616–17 (11th Cir. 2012), the\n\ncourt upheld a 25-day delay in getting a search warrant for a seized computer. The delay\n\nwas reasonable because the agents worked diligently on the affidavit; they were\n\nresponsible for investigations in ten counties; and the defendant consented to the seizure\n\nand had been allowed to keep certain files, diminishing his privacy interest. Id. Other\n\ncircuits have upheld equivalent delays where the government could justify them. 5\n\n Pratt’s case is closest to Mitchell because the government has no persuasive\n\njustification for the delay in obtaining a search warrant for Pratt’s phone. Unlike the\n\nagencies in Vallimont and Laist, the FBI’s resources were not overwhelmed. Simply put,\n\nthe agents here failed to exercise diligence by spending a whole month debating where to\n\nget a warrant. See United States v. Burgard, 675 F.3d 1029, 1033–34 (7th Cir. 2012)\n\n(describing diligence as an important factor). That decision shouldn’t have taken a\n\nmonth. It is unlikely that the forum for a warrant would affect a later prosecution: a point\n\nthe government conceded at oral argument. 6 And unlike in Vallimont and Laist, Pratt had\n\n\n 5\n See, e.g., United States v. Gill, 280 F.3d 923, 929 (9th Cir. 2002) (magistrate\nunavailable); United States v. Martin, 157 F.3d 46, 54 (2d Cir. 1998) (delay fell over\nweekends and Christmas); United States v. Aldaz, 921 F.2d 227, 230–31 (9th Cir. 1990)\n(delay to transport package for dog sniff); United States v. Mayomi, 873 F.2d 1049, 1050,\n1054 (7th Cir. 1989) (delay over weekend to corroborate tip and procure drug-sniffing\ndog).\n 6\n The Seventh Circuit did accept a six-day delay for an officer to seek a warrant\nfor a cellphone where he needed to consult with prosecutors and with the officer who\n(Continued)\n 8\n\fan undiminished possessory interest in the cellphone—he didn’t consent to the seizure\n\nand he wasn’t allowed to retain any of the phone’s files. Cf. Riley v. California, 134 S.\n\nCt. 2473, 2494–95 (2014) (describing the strong privacy interest in a cellphone). Given\n\nPratt’s undiminished interest, a 31-day delay violates the Fourth Amendment where the\n\ngovernment neither proceeds diligently nor presents an overriding reason for the delay.\n\n We decline to affirm on the government’s alternative argument that it could retain\n\nthe phone indefinitely because it had independent evidentiary value, like a murder\n\nweapon. Only the phone’s files had evidentiary value. The agents could have removed\n\nor copied incriminating files and returned the phone. Pratt’s phone is thus distinct from\n\nthe suitcase in United States v. Carter, 139 F.3d 424, 426 (4th Cir. 1998) (en banc). In\n\nCarter, the police arrested a man at an airport for stealing another traveler’s bag. Id. We\n\naffirmed that the police could retain the man’s own suitcase as evidence he didn’t take\n\nthe other bag by mistake. Id. But here, the phone itself is evidence of nothing.\n\nWe hold that the delay in obtaining a search warrant was unreasonable. The district court\n\ntherefore erred in denying Pratt’s motion to suppress.\n\n B.\n\n\n\n\nseized the phone. See Burgard, 675 F.3d at 1033–34. But the Seventh Circuit criticized\nthat delay, and Pratt’s delay was more than five times as long. See id.\n\n\n 9\n\f But even though the district court should have suppressed evidence from Pratt’s\n\ncellphone, we must examine whether the error was harmless. 7 See Abu Ali, 528 F.3d at\n\n231. On appeal, “[a]ny error, defect, irregularity, or variance that does not affect\n\nsubstantial rights must be disregarded.” Fed. R. Crim. P. 52(a). The essential question is\n\nwhether “it [is] clear beyond a reasonable doubt that a rational jury would have found the\n\ndefendant guilty absent the error.” United States v. Garcia-Lagunas, 835 F.3d 479, 488\n\n(4th Cir. 2016) (quoting Neder v. United States, 527 U.S. 1, 18 (1999)).\n\n To answer that question, we look to the strength of the government’s remaining\n\nevidence, the centrality of the issue, steps taken to mitigate any error, and the closeness of\n\nthe case. See United States v. Recio, 884 F.3d 230, 238 (4th Cir. 2018); United States v.\n\nInce, 21 F.3d 576, 583 (4th Cir. 1994). The government bears the burden of establishing\n\nharmlessness. See Ince, 21 F.3d at 582.\n\n After examining the trial evidence, we are not satisfied that the government met its\n\nburden for counts two and five. Count two charges Pratt with producing images\n\ncontaining child pornography, 18 U.S.C. § 2251(a); count five charges him with\n\npossessing images containing child pornography, id. § 2252A(a)(5)(B). Both charges\n\n\n 7\n The following harmless error discussion only applies to count two (producing\nchild pornography) and count five (possessing child pornography). Pratt’s phone is\nirrelevant to counts seven (felon in possession) and eight (obstruction of justice). The\nerror does affect the sex trafficking and enticement charges (counts one, three, four, and\nsix), for which text messages from Pratt’s phone were evidence. But the error was\nharmless for those four counts because the government introduced duplicates of many of\nthose text messages from RM’s phone and elicited extensive testimony about the\nprostitution operation.\n\n\n 10\n\frequire the government to prove that the images depict a minor engaging in “sexually\n\nexplicit conduct.” See id. §§ 2251(a), 2252A(a)(5)(B). The two offenses include slightly\n\ndifferent categories of conduct. See id. §§ 2251(a), 2256(2)(A) (count two); id.\n\n§§ 2252A(a)(5)(B), 2256(2)(B), 2256(8)(B) (count five). But under both definitions, the\n\nonly relevant category is “lascivious exhibition of the genitals or pubic area.” 8 Id.\n\n§ 2256(2)(A), (2)(B). Thus, if the trial evidence that did not come from Pratt’s phone is\n\ninsufficient to find that the images fit into this category, the error cannot be harmless.\n\n Beyond Pratt’s phone, the government introduced insufficient evidence that the\n\nimages meet the statutory requirements. As evidence for the child pornography counts,\n\nthe government introduced Agent Stansbury’s recollection of statements RM and Pratt\n\nmade at the hotel. Those statements were admissible under the hearsay exception for\n\nforfeiture by wrongdoing, as discussed in Part III below. Stansbury recounted RM’s\n\nstatements about the photos twice. First, he recounted her saying “he did have naked\n\nphotos of her, that they sent each other naked photos . . . . [H]e’s got naked photos of me\n\non his cell phone.” J.A. 66. Second, he recounted her saying she “sent him nude\n\nphotographs of herself and that he had nude photographs of her on his phone . . . . [H]e\n\nhas naked pictures of me on his cell phone.” J.A. 66–67. 9 And Stansbury said he asked\n\n\n\n 8\n From the trial testimony, we can’t infer that the images contained any of the\nother categories of conduct—sexual intercourse, masturbation, bestiality, or sadistic or\nmasochistic abuse. See 18 U.S.C. § 2256(2)(A), (2)(B).\n 9\n Another agent said RM suggested that “there was child pornography” on Pratt’s\nphone. J.A. 57. But the agent appears to have used “child pornography” colloquially, not\n(Continued)\n 11\n\fPratt “[D]o you have naked pictures of [RM] . . . on the phone?” to which he says Pratt\n\nresponded “yes, I’ve got pictures of her on the phone.” J.A. 67. 10\n\n In each statement, the photos are described solely with the generic terms “naked”\n\nor “nude.” Some “naked” or “nude” photos are lascivious and display the genitals or\n\npubic area. But many photos an ordinary viewer would describe as “naked” or “nude”\n\nare not lascivious or do not depict the genitals or pubic area. Thus, without more, we\n\ncan’t infer that the photos contain sexually explicit conduct as defined by statute.\n\n Considering all the trial testimony, there was insufficient evidence for a “rational\n\ntrier of fact” to find the “essential element[]” that the photos contained sexually explicit\n\nconduct. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Given this failure of proof, the\n\nerror was not harmless regarding counts two and five. We therefore vacate Pratt’s\n\nconvictions for the two child pornography offenses. 11\n\n C.\n\n\n\nas a legal conclusion. No witness testified that the photos depicted the genitals or pubic\narea.\n 10\n At trial, FBI agents described the images from Pratt’s phone as “nude” photos of\nRM. J.A. 174, 359. At least one of those descriptions derived from viewing the photos.\nJ.A. 174. That description should have been suppressed. See Wong Sun v. United States,\n371 U.S. 471, 485 (1963) (“[T]estimony as to matters observed during an unlawful\ninvasion” is also subject to exclusion.). In any event, the agents’ generic description of\nthe photos adds nothing new.\n 11\n When the government addressed harmless error at oral argument, it incorrectly\nstated that it had introduced copies of pornographic images from RM’s phone. In a post-\nargument submission, the government conceded that no such images had been\nintroduced.\n\n\n 12\n\f We must also decide whether to vacate Pratt’s entire sentence in light of this error.\n\n“[A]n appellate court when reversing one part of a defendant’s sentence ‘may vacate the\n\nentire sentence . . . so that, on remand the trial court can reconfigure the sentencing\n\nplan.’” Pepper v. United States, 562 U.S. 476, 507 (2011) (quoting Greenlaw v. United\n\nStates, 554 U.S. 237, 253 (2008)). This court has recognized that district courts consider\n\nall counts when crafting sentencing packages. See United States v. Smith, 115 F.3d 241,\n\n246 (4th Cir. 1997). We do have discretion to vacate only the sentences for vacated\n\nconvictions. See, e.g., United States v. Hurwitz, 459 F.3d 463, 482–83 (4th Cir. 2006);\n\nUnited States v. Berry, 369 F. App’x 500, 502–03 (4th Cir. 2010). But because sentences\n\nare often interconnected, a full resentencing is typically appropriate when we vacate one\n\nor more convictions. See United States v. Ventura, 864 F.3d 301, 309 (4th Cir. 2017).\n\n Here, the district court likely crafted a sentencing package with all eight\n\nconvictions in mind. A resentencing might not change how long Pratt stays in prison,\n\ngiven that the district court imposed multiple life sentences. But “there may be some\n\nchance that other parts of [Pratt’s] sentence may be affected by” vacating the child\n\npornography counts. United States v. Jones, No. 95-5370, 1998 WL 19620, at *7 (4th\n\nCir. Apr. 22, 1998). The district court is in the best position to make that judgment. We\n\ntherefore vacate Pratt’s entire sentence. On remand, the government may retry Pratt for\n\nthe child pornography counts. Once the government has retried him or declined to do so,\n\nthe district court shall resentence Pratt and “make any correction to his sentence it deems\n\nappropriate.” Id. We express no opinion on whether the district court should modify his\n\nsentence.\n\n 13\n\f III.\n\n In addition to his Fourth Amendment argument, Pratt contends that the district\n\ncourt erred by admitting an FBI agent’s recollection of RM’s statements about the\n\nprostitution business and the nude images she sent him. Unlike most evidentiary issues,\n\nwe review this ruling de novo because it implicates the Confrontation Clause. See United\n\nStates v. Summers, 666 F.3d 192, 197 (4th Cir. 2011). We see no error.\n\n The district court admitted RM’s statements under the “forfeiture by wrongdoing”\n\nexception to the hearsay rule. Under this exception, a district court may admit hearsay\n\nstatements “offered against a party that wrongfully caused—or acquiesced in wrongfully\n\ncausing—the declarant’s unavailability as a witness, and did so intending that result.”\n\nFed. R. Evid. 804(b)(6). The elements are (1) wrongful conduct, (2) intended to cause\n\nthe witness’s unavailability, and (3) actually causing the witness’s unavailability. See\n\nUnited States v. Jackson, 706 F.3d 264, 267–69 (4th Cir. 2013). The Constitution\n\nnormally forbids testimonial statements from an unavailable witness whom the defendant\n\nhad no previous chance to cross-examine. See U.S. Const. amend. VI; Crawford v.\n\nWashington, 541 U.S. 36, 68–69 (2004). But the Supreme Court has recognized that\n\nwrongfully and intentionally causing a witness’s unavailability estops a defendant from\n\nasserting confrontation rights. See Giles v. California, 554 U.S. 353, 359 (2008);\n\nCrawford, 541 U.S. at 62.\n\n Several times, Pratt called his mother from jail and had her put RM on the phone.\n\nThe government contends that Pratt threatened RM in these calls. Those calls plus Pratt’s\n\n\n\n 14\n\fhistory of violence against women caused RM not to testify, in the government’s view.\n\nPratt denies that he intended to threaten RM and that his calls caused her unavailability.\n\n There is no question Pratt engaged in wrongful conduct when he violated the\n\nmagistrate judge’s order and contacted a potential witness (and victim) from jail. See\n\nUnited States v. Montague, 421 F.3d 1099, 1103–04 (10th Cir. 2005) (violating order not\n\nto contact witness is wrongful). Thus, the only questions are intent and causation.\n\n In his phone conversations with RM from jail, Pratt’s intent to make RM\n\nunavailable is plain. As an ineffective ruse, Pratt would pretend to be talking to someone\n\nother than RM. In the first call he said, speaking of RM, “[f]or some reason they saying\n\nthat she’s a witness . . like she cooperating or something . . . I’m saying don’t even try\n\nand speak to her or nothing because even if . . . anybody tries to speak to her I’m gone get\n\nin trouble understand.” J.A. 676. He followed up with, “I hope you don’t think she’s\n\ncooperating right.” Id. RM said she was not cooperating. Id. Pratt then said, “I hope if\n\n[RM] is talking to [“AM” (another minor victim)] . . . I hope she can find out if [AM is]\n\ncooperating too.” Id. “I just hope neither one of them is cooperating,” he continued. Id.\n\nOver and over, Pratt tried to dissuade RM from testifying.\n\n In a second call, he told her “[RM] and [AM] need to speak cause . . . that’s the\n\ntwo pieces to the puzzle that . . . get me out of here don’t you talk to them.” J.A. 677\n\n(emphasis added). In a third call, he urged her to deny that he used the alias “Promise,”\n\nwith which some witnesses would identify him at trial. J.A. 679. Pretending that he was\n\nspeaking to RM’s cousin, he told her the government was calling RM a “witness” and\n\n\n\n 15\n\fwould question her. Id. He urged her to deny any knowledge. J.A. 680. In all three\n\ncalls, Pratt tried to get RM not to testify or not to testify honestly.\n\n Those calls caused RM’s unavailability. Standing alone, the calls sound like\n\nveiled threats. But the threats become obvious against the backdrop of the graphic\n\ntestimony of several women at trial who detailed how Pratt would beat prostitutes—\n\nincluding RM—whom he considered disobedient. See Montague, 421 F.3d at 1102–04\n\n(recognizing forfeiture from wrongdoing through threatening phone calls and history of\n\nabuse); State v. Maestas, 412 P.3d 79, 90–91 (N.M. 2018) (same). RM would have\n\nreceived the message that Pratt would hurt her in the future if she disobeyed Pratt and\n\ntestified against him.\n\n Pratt contends that the time lapse between the phone calls and the trial reduced the\n\nsalience of any threat. But given Pratt’s history of abusing RM, we think it unlikely that\n\ntime eroded the sense of threat. That threat caused RM not to testify. Her personal\n\nfeelings for Pratt—whom she considered her boyfriend—may have played a role too.\n\nBut those feelings were tied up in the same abusive relationship.\n\n The district court did not err by admitting an agent’s recollection of RM’s\n\nstatements.\n\n\n\n IV.\n\n In sum, the district court erred by refusing to suppress information from Pratt’s\n\ncellphone. The error was not harmless because the government’s other evidence could\n\nnot establish the statutory elements of counts two and five. On the evidentiary issue, the\n\n 16\n\fdistrict court did not err by admitting RM’s hearsay statements under Federal Rule of\n\nEvidence 804(b)(6). Accordingly, we vacate Pratt’s convictions for counts two and five\n\nand affirm the remaining convictions. We also vacate Pratt’s sentence and remand to the\n\ndistrict court for further proceedings consistent with this opinion.\n\n\n\n AFFIRMED IN PART, VACATED IN PART, AND REMANDED\n\n\n\n\n 17", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366125/", "author_raw": "DIAZ, Circuit Judge:"}]} | MOTZ | AGEE | DIAZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588872/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,588,877 | UNITED STATES DEPARTMENT OF LABOR; R. Alexander Acosta, Secretary of Labor, Plaintiffs - Appellees, v. FIRE & SAFETY INVESTIGATION CONSULTING SERVICES, LLC; Christopher Harris, Individually and as Owner of Fire & Safety Investigation Consulting Services LLC, Defendants - Appellants. | U.S. Dep't of Labor v. Fire & Safety Investigation Consulting Servs., LLC | 2019-02-08 | 18-1632 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, Wynn, Thacker", "parties": "", "opinions": [{"author": "WYNN, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1632\n\n\nUNITED STATES DEPARTMENT OF LABOR; R. ALEXANDER ACOSTA,\nSecretary of Labor,\n\n Plaintiffs - Appellees,\n\n v.\n\nFIRE & SAFETY INVESTIGATION CONSULTING SERVICES, LLC;\nCHRISTOPHER HARRIS, Individually and as Owner of Fire & Safety\nInvestigation Consulting Services LLC,\n\n Defendants - Appellants.\n\n\nAppeal from the United States District Court for the Northern District of West Virginia,\nat Clarksburg. Irene M. Keeley, District Judge. (1:17-cv-00025-IMK)\n\n\nArgued: December 12, 2018 Decided: February 8, 2019\n\n\nBefore GREGORY, Chief Judge, WYNN and THACKER, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Wynn wrote the opinion, in which Chief Judge\nGregory and Judge Thacker joined.\n\n\nARGUED: Joseph Lawrence Amos, Jr., MILLER & AMOS ATTORNEYS AT LAW,\nCharleston, West Virginia, for Appellants. Rachel Goldberg, UNITED STATES\nDEPARTMENT OF LABOR, Washington, D.C., for Appellees. ON BRIEF: Karen H.\nMiller, MILLER & AMOS ATTORNEYS AT LAW, Charleston, West Virginia, for\nAppellants. Kate S. O’Scannlain, Solicitor of Labor, Jennifer S. Brand, Associate\n\fSolicitor, Paul L. Frieden, Counsel for Appellate Litigation, Office of the Solicitor,\nUNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Appellees.\n\n\n\n\n 2\n\fWYNN, Circuit Judge:\n\n Fire & Safety Investigation Consulting Services, LLC, (“Fire & Safety”) and\n\nChristopher Harris (“Harris”), the owner of Fire & Safety, appeal the district court’s\n\ndetermination that Fire & Safety violated the Fair Labor Standards Act (“FLSA”) by\n\nfailing to pay certain employees proper overtime compensation. At issue is whether Fire\n\n& Safety’s payment system violated the FLSA by failing to pay for overtime. The\n\ndistrict court held that the payment system violated the FLSA because it used a blended\n\nrate that functioned as the actual hourly rate for all hours worked, regardless of whether\n\nthose hours were overtime or non-overtime. We agree and therefore, affirm.\n\n I.\n\n In 2008, Harris founded Fire & Safety, 1 which provides fire investigation and\n\nsecurity guard services to the company’s clients in the oil and gas industry. In 2013, Fire\n\n& Safety began employing individuals (“Consultants”) to provide onsite safety and\n\nenvironmental consulting services in West Virginia and Pennsylvania. Between\n\nDecember 23, 2014, and December 6, 2016, Consultants were regularly scheduled to\n\nwork what is known in the industry as a “hitch.” J.A. 1266. Consultants assigned to a\n\n“hitch” worked 12 hours per day for 14 consecutive days, followed by 14 consecutive\n\ndays off, resulting in a total of 168 hours worked during a full “hitch.” Consultants\n\nsometimes worked a full, 168-hour hitch, and sometimes fewer than the full 168 hours.\n\n\n\n\n 1\n We collectively refer to Harris and Fire & Safety as “Fire & Safety.”\n\n 3\n\f Fire & Safety initially paid the Consultants on an hourly basis—a regular rate for\n\nthe first 40 hours worked in a workweek, and then overtime at one and one-half times\n\ntheir regular rate for hours worked over 40 per workweek. Fire & Safety later\n\ntransitioned to a different payment system based on a “hitch rate.” Under that system, if\n\nthe Consultants worked the full two-week hitch of 168 hours, or 84 hours per workweek,\n\nFire & Safety paid a fixed sum that allegedly reflected a regular rate and an overtime\n\nrate—i.e., the regular rate for the first 40 hours a Consultant worked in a particular week\n\nand one-and-a-half times the regular rate for the next 44 hours the Consultant worked\n\nduring the week. If the Consultants worked less than a full 168-hour hitch over the two-\n\nweek period, Fire & Safety adjusted the employee’s pay using a “blended rate.” Fire &\n\nSafety calculated the blended rate by dividing the Consultant’s fixed hitch rate by 168\n\n(the total number of hours worked in a normal hitch) and then multiplying that hourly\n\nblended rate by the number of hours actually worked by the Consultant to obtain the\n\nConsultant’s pay for that two-week period.\n\n A hypothetical example of a Consultant working at a purported regular rate of\n\n$10/hour illustrates this payment scheme. Under Fire & Safety’s description of the hitch\n\npayment structure, the Consultant’s fixed rate for a full 168-hour hitch would allegedly\n\nbe based on 80 hours of non-overtime (at $10/hour), for a total of $800, and 88 hours of\n\novertime (at $15/hour), for a total of $1,320, for a combined total of $2,120. If the\n\nConsultant worked the full two-week, 168-hour hitch, he was paid $2,120—his hitch rate.\n\nHowever, if the Consultant worked, say, only 48 hours of the hitch, he was paid using the\n\nblended rate, obtained by dividing $2,120 by 168 hours; in our example, that results in a\n\n 4\n\fblended rate of $12.62 (rounded to the nearest cent). For 48 hours of work, the\n\nConsultant would then be paid $12.62 times 48, for a total of $605.76.\n\n In October 2015, an anonymous Consultant complained to the Department of\n\nLabor’s Wage & Hour Division that Fire & Safety was violating the FLSA by failing to\n\npay overtime. A Wage & Hour Investigator assigned to the case ultimately determined\n\nthat Fire & Safety had failed to pay proper overtime and keep accurate records and\n\ncalculated that Fire & Safety owed significant back wages. At the end of the\n\ninvestigation, Fire & Safety, without admitting liability or agreeing to pay damages,\n\nceased use of the hitch rate payment scheme.\n\n On February 22, 2017, the Department of Labor filed a complaint against Fire &\n\nSafety, alleging that Fire & Safety violated the FLSA by employing the Consultants for\n\nworkweeks longer than 40 hours per week without overtime compensation. The\n\nDepartment of Labor also alleged that Fire & Safety violated the FLSA by failing to\n\nmake and maintain adequate and accurate records of hours worked by the Consultants.\n\nThe Department of Labor sought back wages, liquidated damages, and an injunction.\n\n Following discovery, both parties filed motions for summary judgment. On May\n\n3, 2018, the district court granted in part and denied in part the Department of Labor’s\n\nmotion for summary judgment and denied Fire & Safety’s motion for summary\n\njudgment. The district court concluded that Fire & Safety violated the FLSA’s overtime\n\nrequirement by failing to pay the Consultants an overtime premium for their overtime\n\nhours. The district court also concluded that Fire & Safety failed to keep proper records,\n\nincluding records of the hours worked by each Consultant each day, in violation of the\n\n 5\n\fFLSA. The district court denied the Department of Labor’s request for injunctive relief\n\nbut granted $817,902.11 in back wages and $817,902.11 in liquidated damages, for a\n\ntotal damages amount of $1,635,804.22. Fire & Safety timely appealed the district\n\ncourt’s decision.\n\n II.\n\n We “review the district court’s grant of summary judgment de novo.” Morrison v.\n\nCty. of Fairfax, 826 F.3d 758, 765 (4th Cir. 2016) (citation omitted). A court may award\n\nsummary judgment only when “the movant shows that there is no genuine dispute as to\n\nany material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.\n\nP. 56(a).\n\n A.\n\n The FLSA is “best understood as the ‘minimum wage/maximum hour law.’”\n\nTrejo v. Ryman Hosp. Props., Inc., 795 F.3d 442, 446 (4th Cir. 2015). Congress enacted\n\nthe FLSA “to protect all covered workers from substandard wages and oppressive\n\nworking hours.” Id. (quoting Barrentine v. Arkansas–Best Freight Sys., Inc., 450 U.S.\n\n728, 739 (1981)).\n\n As part of its overtime protections, the FLSA requires that covered employers pay\n\ntheir employees “at a rate not less than one and one-half times the regular rate at which\n\n[they are] employed” for any hours worked in excess of 40 hours per workweek. 29\n\nU.S.C. § 207(a)(1). The “regular rate” includes “all remuneration for employment paid\n\nto” the employee, apart from eight categories of payment not at issue here. 29 U.S.C. §\n\n207(e); see also Flood v. New Hanover Cty., 125 F.3d 249, 251 (4th Cir. 1997) (“The\n\n 6\n\femployee’s ‘regular rate’ is the hourly rate that the employer pays the employee for the\n\nnormal, nonovertime forty-hour workweek.”) (quoting Walling v. Helmerich & Payne,\n\nInc., 323 U.S. 37, 40 (1944)). The FLSA’s overtime requirement “was intended to spread\n\nemployment by placing financial pressure on the employer and to compensate employees\n\nfor the burden of a workweek in excess of the hours fixed in the Act.” Calderon v.\n\nGEICO Gen. Ins. Co., 809 F.3d 111, 121 (4th Cir. 2015) (quoting Helmerich & Payne,\n\n323 U.S. at 40) (internal quotation marks omitted).\n\n To determine whether Fire & Safety’s payment scheme violated the FLSA, we\n\nmust first decide what constitutes the “regular rate” of compensation actually paid to the\n\nConsultants, as that rate establishes the proper overtime compensation due. 29 U.S.C. §\n\n207(a)(1); Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945)\n\n(describing the “regular rate” as the “keystone” of Section 207(a)(1)). The regular rate is\n\n“the hourly rate that the employer pays the employee for the normal, non-overtime forty-\n\nhour workweek.” Flood, 125 F.3d at 251 (citation omitted). When determining the\n\nregular rate, courts are “required to look beyond that which the parties have purported to\n\ndo,” as the regular rate is an “actual fact.” 149 Madison Ave. Corp. v. Asselta, 331 U.S.\n\n199, 204 (1947); see also 29 C.F.R. § 778.108 (stating that the regular rate “must be\n\ndrawn from what happens under the employment contract”).\n\n The Supreme Court’s ruling in Asselta guides our analysis. In that case, a\n\ncollective bargaining agreement provided for a fixed weekly payment for regular\n\n\n\n\n 7\n\femployees working 46 hours per week and watchmen working 54 hours per week. 2\n\nAsselta, 331 U.S. at 202. The employer in Asselta claimed that the fixed weekly payment\n\nreflected both non-overtime and overtime compensation; instead of determining an\n\nhourly rate of pay upon which the fixed weekly amount was based, the agreement\n\nincluded a formula that derived the regular rate for non-overtime hours from the fixed\n\nweekly amount and the employee’s scheduled hours. Id. at 202–03. However, the\n\nevidence in Asselta established that the regular rate was in fact obtained by dividing the\n\nweekly wage for the scheduled workweek by the number of hours in that scheduled\n\nworkweek. Id. at 204–05. Therefore, the agreement “made no adequate provision for\n\novertime.” Id. In other words, the hourly rate of pay at issue in Asselta remained the\n\nsame irrespective of whether an employee worked more than, less than, or exactly 46\n\nhours.\n\n Crucially, the Supreme Court pointed out that even employees working fewer than\n\n40 hours a week—or no overtime hours—were still paid using the same hourly rate of\n\npay that supposedly factored in overtime. Id. at 205. The Supreme Court found that such\n\ncompensation “considerably in excess of the formula rate” violated the FLSA, because\n\nthe “payment of ‘overtime’ compensation for non-overtime work raises strong doubt as to\n\nthe integrity of the hourly rate upon the basis of which the ‘overtime’ compensation is\n\ncalculated,” and is “evidence of an attempt to pay a pro-rata share of the weekly wage.”\n\n\n 2\n We describe Asselta with reference to only the employees working 46 hours per\nweek, but the Supreme Court held that the same analysis applies to the watchmen\nworking 54 hours per week.\n\n 8\n\fId. Accordingly, the Supreme Court concluded that for purposes of the FLSA, the\n\nregular rate was the hourly rate the employer actually paid (the fixed weekly salary\n\ndivided by the 46 scheduled hours).\n\n Asselta establishes that in determining the regular hourly rate for purposes of the\n\nFLSA, courts must look beyond the contractual agreement to actual pay practices. When\n\ndetermining the regular hourly rate, courts examine whether the blended rate consistently\n\napplies across the board, regardless of the number of hours actually worked in a week.\n\nEspecially significant is whether such a blended rate—which supposedly factors in\n\novertime compensation—is paid even when an employee does not work overtime hours.\n\nSuch schemes cast doubt on the “integrity of the hourly rate” upon which overtime\n\ncompensation is calculated and indicate that the blended rate actually serves as the\n\nregular rate. Asselta, 331 U.S. at 205. Ultimately, “blended pay schemes that fail to\n\naccount for the actual number of regular and overtime hours that an employee works are\n\nimpermissible replacements for traditional overtime pay rates under the FLSA.” Lopez v.\n\nGenter’s Detailing, Inc., 511 Fed. App’x 374, 375 (5th Cir. 2013).\n\n Turning to this case, we hold that the district court correctly concluded that Fire &\n\nSafety’s use of the blended rate possesses the same defects as the impermissible payment\n\nstructure at issue in Asselta. In particular, the district court properly determined that in\n\npractice, Fire & Safety’s blended rate operated as the regular rate for the purposes of\n\ndetermining Consultants’ overtime compensation.\n\n To better demonstrate this conclusion, we turn to an example of the “actual\n\nfact[s]” of Fire & Safety’s pay practices. Asselta, 331 U.S. at 204. According to Fire &\n\n 9\n\fSafety’s 2015 payroll records, one Consultant had an hourly regular rate of $23.58, and\n\nhis hitch rate was $5,000 per hitch. Fire & Safety argues that the hitch rate incorporated\n\nboth straight-time and overtime rates, pursuant to 29 C.F.R. § 778.309. Therefore, when\n\nthe Consultant worked a full hitch, as he did on the pay period ending January 23, 2015,\n\nhe was allegedly compensated for 80 non-overtime hours at $23.58/hour, and 88 overtime\n\nhours at $35.37/hour (his overtime rate of $23.58 x 1.5).\n\n\n 80 non-overtime hours x $23.58/hour = $1,886.40\n\n 88 overtime hours x $35.37/hour = $3,112.56\n\n TOTAL = $4,998.96 (rounded up to $5,000)\n\n\n We note that there are two ways to reach this $5,000 figure. First, it can be\n\nobtained using Fire & Safety’s calculation that allegedly incorporates 80 non-overtime\n\nhours at the Consultant’s regular rate and 88 hours at his overtime rate. However, the\n\n$5,000 sum can also be reached if the Consultant’s blended rate of $29.76/hour—$5,000\n\ndivided by 168—actually operated as the regular rate. 3\n\n If we examine the Consultant’s compensation when he worked less than a full\n\nhitch, it becomes clear that his blended rate of $29.76/hour actually operated as the\n\nregular rate. For example, on the pay period ending January 9, 2015, the Consultant\n\nworked only six 12-hour days (or 72 hours), rather than a full hitch. Had the Consultant\n\n\n 3\n For ease of description, we have rounded this Consultant’s blended rate to the\nnearest cent. But for purposes of calculating the owed back wages, see infra Part II.B,\nthe Department of Labor properly utilized rates with their full decimals.\n\n 10\n\fbeen compensated per his alleged regular rate of $23.58/hour, he would have received the\n\nfollowing for his 72-hour workweek:\n\n\n 40 non-overtime hours x $23.58/hour = $943.20\n\n 32 overtime hours x $35.37/hour = $1,131.84\n\n TOTAL = $2,075.04\n\n\nIn fact, however, he received $2,142.86 for that six-day work period, which is his\n\nblended rate ($29.76/hour) multiplied by 72 hours worked.\n\n Tellingly, the blended rate was also used when a Consultant worked fewer than 40\n\nhours, in other words, when he worked no overtime at all. Consider another Consultant,\n\nwhose regular rate, as listed on Fire & Safety’s 2015 payroll, was $21.44/hour, with a\n\nhitch rate of $4,545/hitch. Accordingly, his blended rate was $27.05 ($4,545 divided by\n\n168 hours). 4 On the pay date ending September 18, 2015, that Consultant worked a\n\nthree-day period, or 36 hours. Had he been compensated using his purported regular rate,\n\nhe should have received the following for his 36-hour workweek:\n\n\n 36 non-overtime hours x $21.44/hour = $771.84\n\n\nIn fact, he was paid $973.93, which represents his blended rate:\n\n 36 non-overtime hours x $27.05/hour = $973.93\n\n\n\n4\n Again, we note that the $27.05 blended rate is rounded to the nearest cent, but all\ncalculations were completed with the figure with all its decimals.\n\n 11\n\f As the Supreme Court has noted, determining the regular rate is “a matter of\n\nmathematical computation, the result of which is unaffected by any designation of a\n\ncontrary ‘regular rate’ in the wage contracts.” Youngerman-Reynolds Hardwood Co.,\n\n325 U.S. at 424–25. Further, under Asselta’s guidance, the payment of supposed\n\n“overtime” compensation for non-overtime work evidences an impermissible attempt to\n\npay a “pro-rata share of the weekly wage.” Asselta, 331 U.S. at 205. This series of\n\ncalculations demonstrates that under Asselta, Fire & Safety’s blended rate in fact served\n\nas the regular rate. Otherwise, when Consultants like those above worked less than a full\n\nhitch, their wages would have properly accounted for their non-overtime and overtime\n\nhours using their purported regular hourly rates, instead of their blended rates.\n\n B.\n\n Fire & Safety principally argues that its hitch rate compensation system complied\n\nwith the FLSA because the Department of Labor’s implementing regulations for the\n\nFLSA, which post-date the Supreme Court’s decision in Asselta, expressly authorize\n\nfixed sum payments for overtime work. Fire & Safety is correct that the Department of\n\nLabor’s implementing regulations for the FLSA provide that when an employee works a\n\nfixed number of overtime hours, the employer may pay the employee a fixed sum each\n\nweek. In particular, “where an employee works a regular fixed number of hours in\n\nexcess of the statutory maximum each workweek, it is, of course, proper to pay him, in\n\naddition to his compensation for nonovertime hours, a fixed sum in any such week for his\n\novertime work, determined by multiplying his overtime rate by the number of overtime\n\nhours regularly worked.” 29 C.F.R. § 778.309.\n\n 12\n\f However, Section 778.309 applies only when an employee works a fixed number\n\nof overtime and non-overtime hours, and therefore does not address the issue raised in the\n\ninstant case: whether the FLSA permits an alternative means of compensation, here, the\n\nblended rate, when an employee works fewer than a fixed number of overtime hours. 5\n\n Significantly, in decisions post-dating the Department of Labor’s promulgation of\n\nSection 778.309, the Second and Fifth Circuits have applied Asselta in holding unlawful\n\npayment schemes similar to the one employed by Fire & Safety. In Adams v. Department\n\nof Juvenile Justice, 143 F.3d 61 (2d Cir. 1998), the Second Circuit examined a pay\n\nstructure in which employees were paid a fixed salary for a 60-hour workweek. The\n\nrecord included evidence that when an employee worked fewer than 60 hours, the\n\nemployee was compensated not by his regular hourly rate, but rather by a pro rata rate\n\nderived from dividing the fixed salary for the 60-hour workweek by the number of hours\n\nthe employee worked. Id. at 69.\n\n For example, if an employee’s rate was $10/hour, the weekly salary for an\n\nemployee working a scheduled 60-hour workweek was $700 (($10 x 40 straight-time\n\nhours) + ($15 x 20 overtime hours)). Id. at 70. However, the record appeared to indicate\n\nthat if an employee worked 59 hours, he was docked a pro rata rate of $11.67 ($700\n\n 5\n Fire & Safety also argues that its payment structure comports with a provision in\nthe Department of Labor’s Field Operations Handbook (“FOH”), which permits lump-\nsum overtime payments. FOH, Ch. 32, ¶ 32j06, available at\nhttps://www.dol.gov/whd/FOH/FOH_Ch32.pdf. However, that provision solely applies\nfor “limited period[s],” where employers compensate employees with a lump sum for a\n“special job” for an estimated number of overtime hours. Id. This provision is\ninapplicable for regularized work schedules that purportedly include overtime\ncompensation.\n\n 13\n\fdivided by 60 hours), rather than one overtime hour’s worth of $15.00. Id. The Second\n\nCircuit concluded that this discrepancy indicated that the employer did not “adhere\n\nstrictly to the formula rate.” Id.\n\n The Second Circuit ultimately remanded the case for further record development\n\non the employer’s pay docking practices. However, appealing to Asselta, the court stated\n\nthat the payment scheme would violate the FLSA if employees working fewer than 60\n\nhours were docked “a pro rata share of their weekly wage,” instead of a “straightforward\n\ncalculation of hours worked multiplied by the formula hourly rate.” Id. at 69. Further,\n\nthe Second Circuit noted that even though this particular pro rata docking practice\n\nappeared, at least on its face, to be more favorable to the employees, this did not prevent\n\nthe practice from being relevant in determining if the employer’s payment scheme\n\ncomplied with the FLSA. Id. at 69 n.9.\n\n The Fifth Circuit similarly rejected an analogous pay scheme in Lopez v. Genter’s\n\nDetailing, Inc., No: 3:09-CV-0553, 2011 WL 5855269 (N.D. Tex. Nov. 21, 2011), aff’d,\n\n511 F. App’x 374 (5th Cir. 2013) (unpublished decision). In that case, the court\n\nconsidered whether the blended rate on the employee’s pay stubs—a fixed hourly rate for\n\nboth regular and overtime hours for a 96-hour, two-week period—complied with the\n\nFLSA. Id. Because the employer never compensated the employee using the purported\n\nregular rate when the employee worked fewer or greater than 40 hours per week, the\n\ndistrict court applied Asselta and concluded that the employer “never paid any amount to\n\nany employee using the alleged real regular rate.” Id. at *4. Of particular importance,\n\n\n\n 14\n\fthe employer paid the blended rate, which purportedly reflected overtime payments, even\n\nwhen the employee failed to work any overtime hours. Id. at *3.\n\n Adams and Lopez stand in line with Asselta and our resolution of this case. Just as\n\nin Adams and Lopez, Fire & Safety impermissibly paid its Consultants a uniform rate that\n\nfailed to properly account for the actual number of non-overtime or overtime hours.\n\nAccordingly, Fire & Safety never paid its Consultants during the time period in question\n\nusing the purported regular rate. 6\n\n Fire & Safety contends that Asselta, Lopez, and Adams are inapposite because\n\nunlike those cases, the “hitch” pay structure “was not designed to pay employees less\n\nthan they were entitled to receive.” Appellant’s Br. at 25. But such alleged lack of bad\n\nfaith cannot excuse a violation of the FLSA. The good-faith nature of an employer’s\n\naction is relevant in a court’s determination of whether to award liquidated damages\n\nunder the FLSA, not in determining whether it violated the FLSA in the first place. See\n\nPerez v. Mountaire Farms, Inc., 650 F.3d 350, 375 (4th Cir. 2011) (“[A] district court, in\n\nits sound discretion, may refuse to award liquidated damages if ‘the employer shows to\n\nthe satisfaction of the court that the act or omission giving rise to such action was in good\n\nfaith and that he had reasonable grounds for believing that his act or omission was not a\n\n 6\n Fire & Safety’s reliance on this Court’s unpublished opinion in Smith v.\nAssociation of Maryland Pilots, 89 F.3d 829 (4th Cir. 1996) (per curiam) (unpublished\ndecision) is misplaced. In that case, an agreement between the employer and employees\nshowed an understanding that the monthly wage included overtime compensation, and\nthe actual payment practices reflected payment of that overtime compensation. Id.\nHowever, here, unlike Smith, undisputed facts indicate that Fire & Safety’s actual\npractice did not conform to its alleged agreement because Consultants’ pay did not\ninclude overtime.\n\n 15\n\fviolation of the [FLSA].’”) (quoting 29 U.S.C. § 260). Fire & Safety has not appealed\n\nthe district court’s award of liquidated damages, so any invocation of its good faith is\n\nirrelevant to our discussion. Moreover, Asselta, Adams, and Lopez did not rely on\n\nemployers’ good faith—rather, they squarely rejected pay schemes analogous to the one\n\nat issue here, wherein employers pay the same rate regardless of straight and overtime\n\nhours.\n\n Because the “blended rate” operated as the regular rate within the FLSA, the\n\ndistrict court correctly concluded that Fire & Safety did not properly compensate its\n\nConsultants for overtime. This is so despite the blended rate’s apparent\n\n“overcompensation” of the Consultants. Fire & Safety emphasizes that when the\n\nConsultants worked less than a full hitch, they received more under a blended rate than\n\nthey would have otherwise received had their purported regular rates been used.\n\nHowever, this purported “overcompensation” is illusory. The Consultants were\n\novercompensated only if we accept Fire & Safety’s fiction—that the blended rate did not\n\noperate as the regular rate. Because the blended rate did in fact function as the regular\n\nrate, and therefore should have been the baseline in calculating the overtime rate, it\n\nbecomes plain that Consultants should have received greater compensation than what\n\nthey received under Fire & Safety’s payment scheme.\n\n Consider again the Consultant working the 6-day, 72-hour shift described above.\n\nBecause that Consultant’s blended rate of $29.76/hour (rounded to the nearest cent) was\n\nhis regular rate, for the shift in question he should have received:\n\n\n\n 16\n\f 40 non-overtime hours x $29.76/hour = $1,190.48\n\n 32 overtime hours x $44.64/hour = $1,428.57\n\n TOTAL = $2,619.05 7\n\n\nInstead, he was paid $2,142.86. Accordingly, for the pay period ending on January 9,\n\n2015, that Consultant was undercompensated by $476.19. Such undercompensation\n\noccurred with respect to 70 Consultants in total. When employees already have received\n\nnon-overtime pay for all hours worked, as is the case here, “unpaid overtime\n\ncompensation” is due under the FLSA at 50% of the regular rate for the overtime hours\n\nworked. Desmond v. PNGI Charles Town Gaming, LLC, 630 F.3d 351, 354–57 (4th Cir.\n\n2011). For instance, regarding his example 72-hour shift, that Consultant would be owed\n\n$14.88 (the blended rate of $29.76 multiplied by 0.5) x 32 (the number of overtime\n\nhours), equaling $476.19, which matches the above figure determining his\n\nundercompensation.\n\n Our holding guards against creative payment schemes in which employers\n\nretroactively divide a fixed payment into non-overtime and overtime components to\n\ndemonstrate supposed compliance with the FLSA. As the Department of Labor\n\nregulations emphasize, the “Congressional purpose to effectuate a maximum hours\n\nstandard by placing a penalty upon the performance of excessive overtime work” would\n\nbe “defeated” if an employer “could merely label as overtime pay a fixed portion of such\n\n 7\n Again, for ease of illustration, we have listed this Consultant’s blended rate as\n$29.76, but we, like the Department of Labor, have done this calculation using the\nblended rate with all its decimals.\n\n 17\n\fsalary sufficient to take care of compensation for the maximum number of hours that\n\nwould be worked.” 29 C.F.R. § 778.310. To rule otherwise would permit employers to\n\ninvent payment schemes that fail to pay proper overtime and then post-hoc attempt to\n\nreverse-engineer compliance with the FLSA. Cf. Acosta v. Min & Kim Inc., No. 15-CV-\n\n14310, 2018 WL 500333, at *10 (E.D. Mich. Jan. 22, 2018) (noting that defendants’\n\n“post-hoc reconstructions . . . do not evidence compliance with the FLSA”). Such\n\n“hypothetical retrospective construction” of a rate structure that supposedly includes\n\novertime thwarts “the goals of the [FLSA].” Brennan v. Valley Towing Co., 515 F.2d\n\n100, 106 (9th Cir. 1975). Although the FLSA does not “impose upon the almost infinite\n\nvariety of employment situations a single, rigid form of wage agreement,” employers\n\nmust properly pay overtime compensation, no matter their chosen pay structure. Asselta,\n\n331 U.S. at 203–04. Fire & Safety failed to do so.\n\n Finally, Fire & Safety attempts a last-ditch effort to save its payment scheme by\n\narguing that Consultants worked a full 168-hour hitch the majority of the time. But Fire\n\n& Safety did not violate the FLSA solely on those occasions that the Consultants worked\n\nless than a full hitch. Because the “blended rate” actually operated as the regular rate, the\n\nConsultants are owed back wages for even those overtime hours worked during a full\n\n168-hour hitch. And at any rate, we reiterate that violating the FLSA on a minority of\n\noccasions does not excuse that violation. Tellingly, Fire & Safety does not—and\n\n\n\n\n 18\n\fcannot—cite to a single case supporting its theory supposedly excusing “de minimis”\n\nFLSA violations. 8\n\n In sum, because the record indicates that Fire & Safety improperly paid its\n\nConsultants a uniform single rate for all hours worked, we affirm the district court’s\n\nruling that Fire & Safety violated the FLSA by failing to pay the Consultants overtime\n\ncompensation.\n\n III.\n\n We next turn to whether Fire & Safety complied with the FLSA’s recordkeeping\n\nrequirements. 9 The FLSA requires employers to “make, keep, and preserve” employee\n\nrecords, as well as “the wages, hours, and other conditions and practices of employment”\n\nfor a time period outlined in the regulations. 29 U.S.C. § 211(c). The regulations require\n\nthat employers “maintain and preserve payroll or other records” of “[h]ours worked each\n\nworkday and total hours worked each workweek.” 29 C.F.R. § 516.2(a)(7). The\n\nFLSA’s recordkeeping provisions are vital in ensuring employer compliance with the\n\n 8\n Under the FLSA, the “de minimis” principle only comes into play when\ndetermining whether an employee’s time worked is de minimis such that an employer\nneed not compensate her. See Perez, 650 F.3d at 375 (concluding that roughly 10\nminutes per work shift spent donning protective gear are not de minimis and employees\nare entitled to compensation).\n 9\n We reject the Department of Labor’s position that Fire & Safety waived this\nargument. In its response to the Department’s motion for summary judgment, Fire &\nSafety argued that “there can be no claim that the Defendants failed to maintain proper\nrecords in violation of the Act.” J.A. 1101. Although it did not cite the specific\nregulation it now invokes on appeal, its argument is preserved. See Volvo Const. Equip.\nN. Am., Inc. v. CLM Equip. Co., Inc., 386 F.3d 581, 604 (4th Cir. 2004) (“In assessing\nwhether an issue was properly raised in the district court, we are obliged on appeal to\nconsider any theory plainly encompassed by the submissions in the underlying litigation.”\n(citation omitted)).\n\n 19\n\fstatute. See McFeeley v. Jackson St. Entm’t, LLC, 825 F.3d 235, 246 (4th Cir. 2016).\n\nThe district court concluded that Fire & Safety failed to maintain appropriate records\n\nunder the FLSA. For the following reasons, we agree.\n\n Fire & Safety contends that its records satisfied 29 C.F.R. § 516.2(c), which\n\nprovides that with respect to employees working on fixed schedules, employers may\n\nmaintain records that show the schedule of daily and weekly hours worked by the\n\nemployee, instead of the hours worked each day and workweek. In weeks in which an\n\nemployee adheres to the fixed schedule, the employer may indicate “by check mark,\n\nstatement or other method” that such hours were in fact actually worked. 29 C.F.R.\n\n516.2(c)(1). However, the regulation also provides that “in weeks in which more or less\n\nthan the scheduled hours are worked,” the employer must show the “exact number of\n\nhours worked each day and each week.” 29 C.F.R. § 516.2(c)(2) (emphasis added).\n\n The record demonstrates that when Consultants did not work the “fixed\n\nschedule”—a full 168-hour hitch—Fire & Safety did not show the exact number of hours\n\nworked each day and each week for every employee. Fire & Safety provides evidence\n\nthat they did so on three occasions—when three Consultants worked fewer than 168\n\nhours, those hours were recorded. However, those examples do not show the exact\n\nnumber of hours worked each day in the two-week period, as required by Section\n\n516.2(c)(2), but rather that the Consultants worked fewer hours than 168 hours. And, for\n\nthe vast majority of Consultants, no hours at all were recorded when they worked less\n\nthan a full hitch. Indeed, a declaration from the Department of Labor’s Assistant District\n\nDirector overseeing the Wage & Hour Investigator in this case also indicates that Fire &\n\n 20\n\fSafety did not have records of the hours worked by each employee during each workday.\n\nApart from the three examples cited, Fire & Safety does not seriously dispute its\n\ninadequate recordkeeping, and therefore this does not constitute a genuine dispute of\n\nmaterial fact warranting remand.\n\n Accordingly, Fire & Safety’s reference to the specific hours worked by employees\n\non three isolated occasions does not demonstrate compliance with the FLSA’s stringent\n\nrecordkeeping requirements. Therefore, we agree with the district court and hold that\n\nFire & Safety failed to make and maintain proper records under the FLSA.\n\n IV.\n\n The FLSA shields employees from precisely the type of payment scheme utilized\n\nby Fire & Safety—one that appears to compensate employees for both non-overtime and\n\novertime but in reality, uses a single rate for all hours worked, regardless of whether they\n\nare non-overtime or overtime hours. Upholding such a scheme and accepting Fire &\n\nSafety’s retroactive justifications would undercut one of the fundamental purposes of the\n\nFLSA: ensuring that employees are adequately paid for all overtime hours. Therefore,\n\nfor the foregoing reasons, we affirm the district court’s decision granting summary\n\njudgment to the Department of Labor.\n\n AFFIRMED\n\n\n\n\n 21", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366130/", "author_raw": "WYNN, Circuit Judge:"}]} | GREGORY | WYNN | THACKER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588877/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,588,878 | SUMMITBRIDGE NATIONAL INVESTMENTS III, LLC, Creditor - Appellant, v. Ollie William FAISON, Debtor - Appellee. | Summitbridge Nat'l Invs. III, LLC v. Faison | 2019-02-08 | 17-2441 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Floyd, Harris, Coggins", "parties": "", "opinions": [{"author": "PAMELA HARRIS, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-2441\n\n\nSUMMITBRIDGE NATIONAL INVESTMENTS III, LLC,\n\n Creditor - Appellant,\n\n v.\n\nOLLIE WILLIAM FAISON,\n\n Debtor - Appellee.\n\n\nAppeal from the United States District Court for the Eastern District of North Carolina, at\nRaleigh. Terrence W. Boyle, Chief District Judge. (5:17-cv-00384-BO)\n\n\nArgued: October 30, 2018 Decided: February 8, 2019\n\n\nBefore FLOYD and HARRIS, Circuit Judges, and Donald C. COGGINS, Jr., United\nStates District Judge for the District of South Carolina, sitting by designation.\n\n\nReversed and remanded by published opinion. Judge Harris wrote the opinion, in which\nJudge Floyd and Judge Coggins joined.\n\n\nARGUED: Christopher Paul Schueller, BUCHANAN INGERSOLL & ROONEY PC,\nPittsburgh, Pennsylvania, for Appellant. John Arlington Northen, NORTHEN BLUE,\nLLP, Chapel Hill, North Carolina, for Appellee. ON BRIEF: Vicki L. Parrott,\nNORTHEN BLUE, LLP, Chapel Hill, North Carolina, for Appellee.\n\fPAMELA HARRIS, Circuit Judge:\n\n The question in this appeal is whether the Bankruptcy Code bars a creditor from\n\nasserting an unsecured claim for attorneys’ fees, if those fees are incurred after the filing\n\nof a bankruptcy petition but guaranteed by a pre-petition contract. We join other federal\n\ncourts of appeals in holding that the Code does not preclude such claims. Accordingly,\n\nwe reverse the contrary determination of the district court and remand for further\n\nproceedings.\n\n\n\n I.\n\n From 2003 through 2012, Branch Banking and Trust Company (“BB&T”) loaned\n\n$2.1 million to Ollie William Faison. To effectuate the loans, Faison signed three\n\npromissory notes secured by deeds of trust for farmland that Faison owned in North\n\nCarolina. Faison agreed that if the notes were placed with an attorney for collection, he\n\nwould pay “all costs of collection, including but not limited to reasonable attorneys’\n\nfees.” J.A. 73, 101, 129.\n\n On January 3, 2014, Faison filed a petition for relief under Chapter 11 of the\n\nBankruptcy Code. During the ensuing bankruptcy proceedings, BB&T filed three proofs\n\nof claims – documents providing proof of a right to payment – for the outstanding\n\nprincipal and interest due on its promissory notes as of the date of Faison’s petition.\n\nThose three claims were entitled to preferential treatment under the Code because the\n\npromissory notes underlying them were secured by collateral – namely, Faison’s\n\nfarmland in North Carolina. See Welzel v. Advocate Realty Invs., LLC (In re Welzel), 275\n\n 2\n\fF.3d 1308, 1318 (11th Cir. 2001) (en banc) (describing the provisions of the Code that\n\ngive preferential treatment to secured claims). That preferential treatment meant that\n\nBB&T’s claims would be satisfied from the value of the farmland before any\n\ndistributions were made to lower-priority unsecured claims. See Stubbs & Perdue v.\n\nAngell (In re Anderson), 811 F.3d 166, 168 (4th Cir. 2016).\n\n BB&T assigned its interest in the promissory notes – and in turn, the three\n\nbankruptcy claims based on those notes – to SummitBridge National Investments III,\n\nLLC (“SummitBridge”) in January 2015. Now holder of the notes, SummitBridge began\n\nto defend the three claims in Faison’s bankruptcy proceedings, incurring attorneys’ fees\n\nin the process.\n\n Almost two years after BB&T assigned its claims to SummitBridge, Faison\n\nproposed a plan for repaying his creditors, ultimately approved by the bankruptcy court.\n\nThe plan treated SummitBridge’s three claims as one aggregate secured claim for\n\n$1,715,000, the value of the farmland securing the three notes. That amount was enough\n\nto cover the outstanding principal and pre-petition interest on the three notes, as well as a\n\nportion of SummitBridge’s post-petition interest and attorneys’ fees. To the extent that\n\nSummitBridge had incurred excess attorneys’ fees not covered by the farmland’s value,\n\nthe plan made clear, SummitBridge could file an unsecured claim to recover those fees.\n\n SummitBridge did just that, filing the claim at issue here: an unsecured claim\n\nagainst Faison’s estate for the remainder of the post-petition attorneys’ fees it had\n\nincurred. Faison objected to SummitBridge’s claim on two alternative grounds. First,\n\nFaison argued that SummitBridge’s underlying contractual claim for attorneys’ fees was\n\n 3\n\funenforceable under North Carolina law because SummitBridge had failed to comply\n\nwith state-law notice requirements. And second, Faison raised the federal-law issue we\n\naddress today, arguing that “the Bankruptcy Code does not provide for allowance of an\n\nunsecured claim for post-petition attorneys’ fees or costs.” J.A. 265.\n\n The bankruptcy court addressed only Faison’s federal-law argument, agreeing\n\nwith him that the Code does not allow creditors like SummitBridge to assert unsecured\n\nclaims for post-petition attorneys’ fees. SummitBridge appealed the bankruptcy court’s\n\norder to the district court, and the district court affirmed.\n\n This timely appeal followed.\n\n\n\n II.\n\n “When considering an appeal from a district court acting in its capacity as a\n\nbankruptcy appellate court,” this court conducts “an independent review of the\n\nbankruptcy court’s decision, reviewing factual findings for clear error and legal\n\nconclusions de novo.” Dep’t of Soc. Servs., Div. of Child Support Enf’t v. Webb, 908\n\nF.3d 941, 945 (4th Cir. 2018) (internal quotation marks omitted). The sole question\n\nbefore us today is one of law: Under the Code, may a creditor assert an unsecured claim\n\nfor post-petition attorneys’ fees based on a pre-petition promissory note?\n\n A.\n\n As the bankruptcy and district courts recognized, we are not the first courts to\n\nconfront this issue. On the contrary: Bankruptcy and district courts long have wrestled\n\nwith this question, disagreeing as to whether creditors may assert unsecured claims for\n\n 4\n\fpost-petition attorneys’ fees based on pre-petition contracts. See In re Augé, 559 B.R.\n\n223, 229 (Bankr. D.N.M. 2016) (citing cases).\n\n In 2007, however, the Supreme Court provided important guidance in Travelers\n\nCasualty & Surety Co. of America v. Pacific Gas & Electric Co., 549 U.S. 443 (2007).\n\nThere, the Court rejected a Ninth Circuit rule disallowing claims for post-petition\n\nattorneys’ fees under one set of circumstances – specifically, where those post-petition\n\nfees were incurred while litigating issues of federal bankruptcy law. 549 U.S. at 445. In\n\npassing on that particular bar on claims for post-petition attorneys’ fees, the Court applied\n\na presumption of broader significance: “[W]e generally presume that claims enforceable\n\nunder applicable state law will be allowed in bankruptcy unless they are expressly\n\ndisallowed.” Id. at 452. Because nothing in the Code disallowed claims for post-petition\n\nattorneys’ fees that are incurred in connection with federal bankruptcy law issues, the\n\nCourt concluded, the Ninth Circuit’s rule was unfounded. Id. at 452–54.\n\n The Travelers Court stopped short of deciding whether the Code might provide\n\nsome different and independent basis for disallowing post-petition attorneys’ fees\n\naltogether. Id. at 456. But as other courts have recognized, the Supreme Court’s\n\n“analysis and rationale” in Travelers is “equally applicable to post-petition costs arising\n\nout of pre-petition contracts more generally.” Ogle v. Fid. & Deposit Co. of Md., 586\n\nF.3d 143, 147 (2d Cir. 2009). And in the years since Travelers was decided, both the\n\nSecond and Ninth Circuits have concluded that there is no basis in the Code for barring\n\nunsecured claims for post-petition attorneys’ fees arising out of pre-petition contracts. Id.\n\n\n\n 5\n\fat 146–49; SNTL Corp. v. Ctr. Ins. Co. (In re SNTL Corp.), 571 F.3d 826, 839–45 (9th\n\nCir. 2009). 1\n\n B.\n\n We turn now to the text of the Code, and – as instructed by Travelers – consider\n\nwhether it expressly disallows unsecured claims for post-petition attorneys’ fees based on\n\nvalid pre-petition contracts. Faison argues, and the bankruptcy and district courts agreed,\n\nthat creditors are barred from asserting such claims by two provisions of the Code:\n\n§ 502(b) and § 506(b). We take those provisions in turn, and like our sister circuits,\n\nconclude that neither expressly disallows a creditor like SummitBridge from asserting an\n\nunsecured claim for post-petition attorneys’ fees based on a valid pre-petition contract.\n\nAccord Ogle, 586 F.3d at 146–49; In re SNTL Corp., 571 F.3d at 839–45.\n\n 1.\n\n We begin with § 502 of the Code, which, as its title explains, governs the\n\n“[a]llowance of claims or interests” in bankruptcy proceedings. When, as here, a party\n\nlike Faison objects to a creditor’s claim, then § 502(b) provides that “the court, after\n\nnotice and a hearing, shall determine the amount of such claim . . . as of the date of the\n\n\n\n 1\n Indeed, even before Travelers, courts of appeals had begun to converge on that\nresult. Both the Eleventh and Ninth Circuits had held that over-secured creditors can\nassert unsecured claims for post-petition attorneys’ fees, and had assumed that unsecured\nand under-secured creditors can do so, as well. In re Welzel, 275 F.3d at 1319; Joseph F.\nSanson Inv. Co. v. 268 Ltd. (In re 268 Ltd.), 789 F.2d 674, 678 (9th Cir. 1986). And the\nSixth Circuit had held that at least where solvent debtors are concerned, the Code permits\nunsecured claims for post-petition attorneys’ fees. Official Comm. of Unsecured\nCreditors v. Dow Corning Corp. (In re Dow Corning Corp.), 456 F.3d 668, 683 (2006).\n\n\n 6\n\ffiling of the petition, and shall allow such claim in such amount” unless one of nine\n\nenumerated exceptions applies. 11 U.S.C. § 502(b). Section 502(b), in other words, does\n\nnot bar SummitBridge from recovering post-petition attorneys’ fees, so long as two\n\nconditions are met: First, SummitBridge must have had a “claim” for those fees as of the\n\npetition date; and second, that claim must not fall within one or more of the nine\n\nenumerated exceptions. Cf. Travelers, 549 U.S. at 449–50 (explaining that a claim within\n\nthe meaning of the Code must be allowed under § 502(b) unless one of the nine\n\nenumerated exceptions applies). Faison does not dispute that none of the nine exceptions\n\nis implicated here. So the only question is whether SummitBridge had a “claim” under\n\nthe Code for post-petition attorneys’ fees as of the petition date.\n\n Faison’s position is that because no attorneys’ fees were incurred until after\n\nbankruptcy proceedings began in this case, SummitBridge could not have had a valid\n\n“claim” for those fees on “the date of the filing of the petition.” We disagree. It is true\n\nthat the right to payment of attorneys’ fees under Faison’s promissory notes was\n\ncontingent on a future, post-petition event – namely, the notes being placed with an\n\nattorney for collection. But the Code defines “claim” broadly, and expressly includes\n\n“right[s] to payment” that are “contingent.” 11 U.S.C. § 101(5)(A) (defining “claim” as\n\n“a right to payment, whether or not such right is reduced to judgment, liquidated,\n\nunliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal,\n\n\n\n\n 7\n\fequitable, secured, or unsecured”). 2 What matters is that the right to those fees arose pre-\n\npetition, when Faison signed the promissory notes in question. That is enough, as the\n\nNinth Circuit has explained, to make the fees “pre[-]petition in nature, constituting a\n\ncontingent pre[-]petition obligation that bec[omes] fixed post[-]petition when the fees\n\n[are] incurred.” In re SNTL Corp., 571 F.3d at 844 (quoting 5 Collier on Bankruptcy\n\n¶ 553.03[1][i] (15th ed. 2007)).\n\n Faison resists this straightforward conclusion by pointing to the § 502(b)\n\nrequirement that a bankruptcy court “determine the amount of [the] claim . . . as of the\n\ndate of the filing of the petition,” and allow the claim “in such amount.” According to\n\nFaison, because post-petition fees, by definition, have not been incurred “as of the date of\n\nthe filing of the petition,” their “amount” cannot be “determine[d]” on that date – unless,\n\nthat is, the “amount” is deemed to be zero. For two reasons, we again must disagree.\n\n First, we think a fair reading of the Supreme Court’s decision in Travelers\n\nprecludes this argument. Like the fees here, the attorneys’ fees at issue in Travelers also\n\nwere incurred post-petition, and, as a result, the amount of those fees also was uncertain\n\nas of the petition date. See 549 U.S. at 446–47. Under Faison’s reading of § 502(b), that\n\n\n 2\n A “right to payment” under this definition “usually refer[s] to a right to payment\nrecognized under state law.” Travelers, 549 U.S. at 451. For purposes of this appeal, the\nparties do not dispute that SummitBridge had a valid and enforceable right to payment of\nattorneys’ fees under North Carolina law: In the promissory notes underlying each loan,\nFaison agreed to “pay, in addition to principal, interest and late fees, if any, all costs of\ncollection, including but not limited to reasonable attorneys’ fees.” J.A. 73, 101, 129.\nOn remand, however, Faison may pursue his argument that SummitBridge’s contractual\nright to attorneys’ fees is unenforceable because SummitBridge failed to satisfy state-law\nnotice requirements.\n\n\n 8\n\fwould be enough to end the Travelers case: Because no “amount” for the purported\n\nclaim – other than zero – could be determined by the bankruptcy court on the date of the\n\npetition, there would be no valid “claim” at all. But the Supreme Court did not resolve\n\nthe case on that ground. Instead, it went on to consider whether any of the nine\n\nenumerated exceptions to § 502(b) applied – an analysis that would be wholly\n\nunnecessary if post-petition fees could not constitute “claims” at all – and, finding that\n\nnone did, held that claims for post-petition attorneys’ fees incurred in connection with\n\nfederal bankruptcy litigation are not disallowed under § 502. See id. at 449–54. As the\n\nSecond Circuit has explained, in rejecting the same argument that Faison raises here,\n\nTravelers “proceeds along lines that, reasonably extended, would suggest . . . that section\n\n502(b)’s requirement – that the court ‘shall determine the amount of such claim . . . as of\n\nthe date of the filing of the petition’ – does not bar recovery of post-petition attorneys’\n\nfees.” Ogle, 586 F.3d at 147.\n\n Second, we think Faison’s argument is inconsistent with the whole of § 502. If it\n\nwere the case, as Faison contends, that a “claim” with no value on the petition date\n\ncannot be allowed under § 502(b) – or may be allowed only in the amount of zero – then\n\nthere would be no need for § 502(b)(2), an enumerated exception to § 502(b) that\n\nspecifically disallows claims for “unmatured interest.” See 11 U.S.C. § 502(b)(2). Nor\n\ncan Faison’s position be squared with § 502(c), which expressly directs bankruptcy\n\ncourts to “estimate[] for purpose of allowance” the value of claims that are contingent or\n\nunliquidated, to avoid undue delay in the administration of a bankruptcy. See id. §\n\n502(c). If, as Faison would have it, the value of a “claim” must be fixed as of the petition\n\n 9\n\fdate, then there would be no need for such estimates. And, indeed, Faison concedes that\n\nthe bankruptcy court could have used that very provision to estimate the attorneys’ fees at\n\nissue in this case.\n\n In sum, like our sister circuits, we can find nothing in § 502(b) that expressly\n\ndisallows unsecured claims for post-petition attorneys’ fees. See Ogle, 586 F.3d at 147;\n\nIn re SNTL Corp., 571 F.3d at 844.\n\n 2.\n\n Faison next contends that a different provision of the Code – § 506(b) – disallows\n\nSummitBridge’s unsecured claim for post-petition attorneys’ fees. Unlike § 502, § 506,\n\ntitled “[d]etermination of secured status,” does not speak directly to the allowance or\n\ndisallowance of claims. But § 506(b) does refer to attorneys’ fees, providing that\n\ncreditors with over-secured claims – that is, creditors with collateral that exceeds the\n\namount of their claims – may add to their secured claims both interest and reasonable\n\nattorneys’ fees:\n\n To the extent that an allowed secured claim is secured by property the value\n of which . . . is greater than the amount of such claim, there shall be\n allowed to the holder of such claim, interest on such claim, and any\n reasonable fees, costs, or charges provided for under the agreement or State\n statute under which such claim arose.\n\n11 U.S.C. § 506(b). That § 506(b) expressly allows creditors with over-secured claims to\n\nadd attorneys’ fees to their claims, Faison argues, implies that creditors who are\n\nunsecured or, as here, under-secured may not assert such claims.\n\n The first problem with Faison’s position is that this kind of argument by negative\n\ninference cannot carry the day under Travelers. The Travelers Court made clear that\n\n 10\n\fclaims enforceable under state law are presumed allowable, and that this presumption\n\nmay be overcome only by an express disallowance. See 549 U.S. at 452 (“[W]e generally\n\npresume that claims enforceable under applicable state law will be allowed in bankruptcy\n\nunless they are expressly disallowed.”). And § 506(b) never mentions, let alone\n\nexpressly disallows, unsecured claims for post-petition attorneys’ fees. See 11 U.S.C.\n\n§ 506(b). 3 A section that is “completely silent with regard to the allowance/disallowance\n\nissue” at hand, In re Welzel, 275 F.3d at 1317, cannot rebut the Travelers presumption. It\n\nwas “decisive in Travelers that the Code says nothing about unsecured claims for\n\ncontractual attorney’s fees incurred while litigating issues of bankruptcy law . . . [and] it\n\nis decisive here that [§ 506(b)] says nothing about such fees incurred litigating things\n\nother than issues of bankruptcy law.” Ogle, 586 F.3d at 148 (internal quotation marks\n\nand citation omitted).\n\n The second problem with Faison’s argument is the reason that § 506(b) is silent on\n\nthis point: Section 506(b) has nothing to do with the allowance or disallowance of\n\nclaims. That function, as described above, is performed by § 502, aptly titled\n\n“[a]llowance of claims or interests.” What § 506 is concerned with, as its title makes\n\nequally clear, is the “secured status” of claims already allowed or presumed allowed. See\n\n\n 3\n Nor, we note, does § 506(b) mention post-petition attorneys’ fees, as opposed to\npre-petition fees. See In re SNTL Corp., 571 F.3d at 841 (citation omitted). Nothing\nabout § 506(b), in other words, can be read to address the distinction between pre- and\npost-petition fees that is at the heart of Faison’s case. Instead, on Faison’s reading of\n§ 506(b), it appears that pre-petition as well as post-petition attorneys’ fees would be\nexcluded from the claims of all but over-secured creditors, see id. – a result that Faison\nneither acknowledges nor defends.\n\n\n 11\n\f11 U.S.C. § 506 (“Determination of secured status”). 4 Section 502, in other words,\n\nanswers “the threshold question of whether a claim should be allowed or disallowed,”\n\nwhile “§ 506 deals with the entirely different, more narrow question of whether certain\n\ntypes of claims should be considered secured or unsecured.” In re Welzel, 275 F.3d at\n\n1318; see also In re SNTL Corp., 571 F.3d at 842. That more narrow question is\n\nimportant, to be sure; in specifying that over-secured creditors may treat as secured their\n\nclaims for reasonable attorneys’ fees, § 506(b) gives those claims priority over other\n\ncreditors’ unsecured claims. See In re Welzel, 275 F.3d at 1318 (describing the Code’s\n\npreferential treatment of secured claims). 5 But § 506(b) does not address baseline\n\nallowability, and Faison’s effort to read into that provision a disallowance of unsecured\n\nclaims for post-petition attorneys’ fees “incorrectly conflate[s]” the functions of § 506\n\nand § 502. In re SNTL Corp., 571 F.3d at 842; see also In re Welzel, 275 F.3d at 1317\n\n(“[Section] 506 is meant to address ‘a number of important rules specifying the\n\n 4\n The text of § 506, like its title, makes clear that the role of § 506 is limited to\nclassifying as secured or unsecured claims that already are presumed allowed. Under\n§ 506(a), “[a]n allowed claim of a creditor secured by a lien on property in which the\nestate has an interest . . . is a secured claim to the extent of the value of such creditor’s\ninterest in the estate’s interest in such property” (emphasis added). And under § 506(b),\nthe provision addressing over-secured claims on which Faison focuses, “[t]o the extent\nthat an allowed secured claim is secured by property the value of which . . . is greater\nthan the amount of such claim,” the secured claim includes “reasonable fees, costs, or\ncharges” (emphasis added).\n 5\n For that reason, we do not think it is the case, as the district court suggested and\nFaison echoes on appeal, that allowing “SummitBridge’s unsecured claim for post-\npetition fees under § 502 arguably renders the language of § 506(b) superfluous.” J.A.\n409. Section 506(b) does not speak to allowability, but it does serve a significant\nfunction by setting out the circumstances under which an allowed claim for attorneys’\nfees may be treated as secured.\n\n\n 12\n\fdetermination of the secured status of a claim, [not] the allowance or disallowance of the\n\nunderlying claim itself.’” (alteration in original) (quoting 4 Collier on Bankruptcy ¶\n\n506.01 (15th ed. 2001))).\n\n It is no surprise, then, that when Congress intends to disallow a claim for\n\nattorneys’ fees, it does so in § 502, not § 506. See In re SNTL Corp., 571 F.3d at 841 (“If\n\nCongress . . . had wanted to disallow claims for post[-]petition attorneys’ fees, the logical\n\nplace for it to have done so was surely in 11 U.S.C. § 502(b).”). Section 502(b), as\n\ndescribed above, provides for the allowance of claims, but also enumerates nine\n\nexceptions. And among those exceptions is one for a “claim . . . for services of an insider\n\nor attorney of the debtor” where the claim “exceeds the reasonable value of such\n\nservices.” 11 U.S.C. § 502(b)(4) (emphasis added). Congress, in other words, knows\n\nhow to draft a provision that expressly disallows a claim for certain attorneys’ fees. And\n\nas the Supreme Court explained in Travelers, the “absence of an analogous provision\n\nexcluding” claims for a different category of fees – in this case, unsecured claims for\n\npost-petition fees – is strong evidence that the Code does not expressly disallow those\n\nclaims. 549 U.S. at 453.\n\n Finally, like other courts to consider this issue, we are unpersuaded by Faison’s\n\ncitation to United Savings Ass’n of Texas v. Timbers of Inwood Forest Associates, Ltd.,\n\n484 U.S. 365, 372 (1988), and its reference to § 506(b) as “denying under[-]secured\n\ncreditors post[-]petition interest on their claims.” As the wording on which Faison relies\n\nmakes clear, the Court in Timbers was addressing the allowability of claims for post-\n\npetition interest, not attorneys’ fees. And that distinction matters, because claims for\n\n 13\n\funmatured interest (unlike attorneys’ fees) are expressly disallowed under § 502(b)(2), so\n\nthat post-petition interest (unlike attorneys’ fees) may be recovered only if § 506(b)\n\ncreates a “limited exception” – for over-secured creditors – to that general rule against\n\nallowance. Ogle, 586 F.3d at 148. As other courts have explained at length, because\n\n§ 502(b) does “not contain a similar prohibition against [allowance of] attorneys’ fees,\n\nthe comparison between the current issue and that presented in Timbers is not\n\npersuasive.” In re SNTL Corp., 571 F.3d at 844; see also Official Comm. of Unsecured\n\nCreditors v. Dow Corning Corp. (In re Dow Corning Corp.), 456 F.3d 668, 682 (6th Cir.\n\n2006).\n\n Again, we emphasize that under Travelers, the question before us is whether there\n\nis anything in § 506(b) that could be deemed an express disallowance of unsecured\n\nclaims for post-petition attorneys’ fees. Like the Second and Ninth Circuits, we think\n\nthere is not. See Ogle, 586 F.3d at 147–48; In re SNTL Corp., 571 F.3d at 841–43.\n\n C.\n\n Faison’s final argument is an appeal to policy considerations. Faison focuses on\n\nSummitBridge’s status as a secured creditor, guaranteed recovery on its principal. It\n\nwould be unfair, Faison argues, to allow SummitBridge also to assert unsecured claims\n\nfor attorneys’ fees, because those claims would reduce the pool of assets available to\n\nwholly unsecured creditors who have yet to recover any principal, let alone fees. And\n\nthat result, Faison finishes, would be inconsistent with a central purpose of the Code,\n\nwhich is to secure equality among similarly situated creditors.\n\n\n\n 14\n\f As a threshold matter, we agree with the courts that have considered similar policy\n\narguments for barring claims for post-petition attorneys’ fees: Because the text of the\n\n“Bankruptcy Code itself provides the answer to this issue (by not specifically disallowing\n\npost[-]petition fees),” we must defer to Congress’s chosen policy, In re SNTL Corp., 571\n\nF.3d at 845, and may not reach “a contrary result based on equitable considerations,” In\n\nre Welzel, 275 F.3d at 1318. We add only that Faison’s particular argument from fairness\n\n– that only unsecured creditors, and not secured (but under-secured) creditors like\n\nSummitBridge, should be allowed to assert unsecured claims for post-petition attorneys’\n\nfees – itself has no basis in the text of the relevant Code provisions. What matters under\n\n§ 502 and § 506(b) is the status of a given claim, not the status of the creditor asserting it:\n\nUnder § 502, it is a “claim” that is allowed or disallowed, see 11 U.S.C. § 502(b)\n\n(directing that a “claim” shall be allowed unless subject to an enumerated exception), and\n\nunder § 506(b), an “allowed secured claim” will include reasonable attorneys’ fees under\n\nspecified circumstances, see id. § 506(b). Faison’s effort to differentiate between types\n\nof creditors, in other words, brings his policy argument not one but two steps away from\n\nthe statutory text.\n\n And in any event, the equitable considerations here are not as one-sided as Faison\n\nsuggests. It is true, as Faison argues, that if otherwise secured creditors recover on\n\nunsecured claims for post-petition attorneys’ fees, those payments may come at the\n\nexpense of unsecured creditors’ ability to recover fully on their claims to principal. But a\n\nbasic tenet of bankruptcy law is that secured creditors are privileged over unsecured\n\ncreditors. See In re Welzel, 275 F.3d at 1319. And Faison’s rule would flip this privilege\n\n 15\n\fon its head: By allowing unsecured but not under-secured creditors to assert claims for\n\npost-petition attorneys’ fees, it would put “unsecured creditors . . . in a more protected\n\nposition than a group of secured creditors.” Id. (emphasis added).\n\n Faison’s policy argument also upsets a second basic principle of federal\n\nbankruptcy law: “that state law governs the substance of claims, Congress having\n\ngenerally left the determination of property rights in the assets of a bankrupt’s estate to\n\nstate law,” Travelers, 549 U.S. at 450–51 (internal quotation marks omitted). Allowing\n\ncreditors, like SummitBridge, who have bargained specifically for attorneys’ fees under\n\nstate law to enforce those rights in bankruptcy is fully consistent with that principle, even\n\nif it reduces the pool of assets otherwise available. Those creditors, it is presumed, “gave\n\nvalue, in the form of a contract term favorable to the debtor . . . in exchange for the\n\n[attorneys’ fees] provision.” Ogle, 586 F.3d at 149 (internal quotation marks omitted).\n\nSo allowing them to assert unsecured claims for those fees, far from “providing an\n\nundeserved bonus for one creditor at the expense of others,” simply “effectuates the\n\nbargained-for terms of the loan contract.” Id. (internal quotation marks omitted). And in\n\nthe end, if there is any tension between this policy of vindicating contract rights\n\nenforceable under state law and other bankruptcy principles, “it is the province of\n\nCongress,” not the courts, to adjust accordingly. In re SNTL Corp., 571 F.3d at 845.\n\n\n\n III.\n\n For the foregoing reasons, we reverse the judgment of the district court and\n\nremand for further proceedings consistent with this opinion.\n\n 16\n\f REVERSED AND REMANDED\n\n\n\n\n17", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366131/", "author_raw": "PAMELA HARRIS, Circuit Judge:"}]} | FLOYD | HARRIS | COGGINS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588878/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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4,588,886 | Evangeline J. PARKER, Plaintiff - Appellant, v. REEMA CONSULTING SERVICES, INC., Defendant - Appellee. Equal Employment Opportunity Commission; National Women's Law Center; A Better Balance; American Federation of State, County & Municipal Employees, AFL-CIO; American Association of University Women; American Sexual Health Association; Black Women's Roundtable; National Coalition on Black Civic Participation ; California Women Lawyers ; Champion Women; District of Columbia Coalition Against Domestic Violence ; End Rape on Campus; Equal Rights Advocates; Family Values @ Work; Feminist Majority Foundation; Gender Justice ; Girls for Gender Equity; Hadassah, the Women's Zionist Organization of America, Inc.; Harvard Law School Gender Violence Program; Lawyers Club of San Diego; League of Women Voters of the United States; Legal Aid at Work ; Legal Momentum, the Women's Legal Defense and Education Fund; Legal Voice; Maine Women's Lobby ; Medical Students for Choice; National Asian Pacific American Women's Forum ; National Alliance to End Sexual Violence; The National Crittenton Foundation; National Employment Law Project; National Employment Lawyers Association; National Organization for Women (Now) Foundation; National Partnership for Women and Families; National Women's Political Caucus; Oklahoma Coalition for Reproductive Justice; People for American Way Foundation; Service Employees International Union; SisterReach ; Southwest Women's Law Center ; Stop Sexual Assault in Schools; The National Urban League; Women's Law Center of Maryland, Inc Orporated; Women Employed ; Women's Bar Association of the District of Columbia; Women's Bar Association of the State of New York; Women's Law Project, Amici Supporting Appellant. | Evangeline Parker v. Reema Consulting Services, Inc | 2019-02-08 | 18-1206 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Niemeyer, Agee, Diaz", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887983/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887984/", "author_raw": ""}, {"author": "NIEMEYER, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1206\n\n\nEVANGELINE J. PARKER,\n\n Plaintiff - Appellant,\n\n v.\n\nREEMA CONSULTING SERVICES, INC.,\n\n Defendant - Appellee.\n\n----------------------------------------------------\n\nEQUAL EMPLOYMENT OPPORTUNITY COMMISSION; NATIONAL\nWOMEN’S LAW CENTER; A BETTER BALANCE; AMERICAN\nFEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES, AFL-CIO;\nAMERICAN ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN\nSEXUAL HEALTH ASSOCIATION; BLACK WOMEN’S ROUNDTABLE;\nNATIONAL COALITION ON BLACK CIVIC PARTICIPATION; CALIFORNIA\nWOMEN LAWYERS; CHAMPION WOMEN; DISTRICT OF COLUMBIA\nCOALITION AGAINST DOMESTIC VIOLENCE; END RAPE ON CAMPUS;\nEQUAL RIGHTS ADVOCATES; FAMILY VALUES @ WORK; FEMINIST\nMAJORITY FOUNDATION; GENDER JUSTICE; GIRLS FOR GENDER\nEQUITY; HADASSAH, THE WOMEN’S ZIONIST ORGANIZATION OF\nAMERICA, INC.; HARVARD LAW SCHOOL GENDER VIOLENCE\nPROGRAM; LAWYERS CLUB OF SAN DIEGO; LEAGUE OF WOMEN\nVOTERS OF THE UNITED STATES; LEGAL AID AT WORK; LEGAL\nMOMENTUM, THE WOMEN’S LEGAL DEFENSE AND EDUCATION FUND;\nLEGAL VOICE; MAINE WOMEN’S LOBBY; MEDICAL STUDENTS FOR\nCHOICE; NATIONAL ASIAN PACIFIC AMERICAN WOMEN’S FORUM;\nNATIONAL ALLIANCE TO END SEXUAL VIOLENCE; THE NATIONAL\nCRITTENTON FOUNDATION; NATIONAL EMPLOYMENT LAW PROJECT;\nNATIONAL EMPLOYMENT LAWYERS ASSOCIATION; NATIONAL\nORGANIZATION FOR WOMEN (NOW) FOUNDATION; NATIONAL\nPARTNERSHIP FOR WOMEN AND FAMILIES; NATIONAL WOMEN’S\n\nPOLITICAL CAUCUS; OKLAHOMA COALITION FOR REPRODUCTIVE\nJUSTICE; PEOPLE FOR AMERICAN WAY FOUNDATION; SERVICE\nEMPLOYEES INTERNATIONAL UNION; SISTERREACH; SOUTHWEST\nWOMEN’S LAW CENTER; STOP SEXUAL ASSAULT IN SCHOOLS; THE\nNATIONAL URBAN LEAGUE; WOMEN’S LAW CENTER OF MARYLAND,\nINCORPORATED; WOMEN EMPLOYED; WOMEN’S BAR ASSOCIATION\nOF THE DISTRICT OF COLUMBIA; WOMEN’S BAR ASSOCIATION OF\nTHE STATE OF NEW YORK; WOMEN’S LAW PROJECT,\n\n Amici Supporting Appellant.\n\n\nAppeal from the United States District Court for the District of Maryland, at Greenbelt.\nRoger W. Titus, Senior District Judge. (8:17-cv-01648-RWT)\n\n\nArgued: October 31, 2018 Decided: February 8, 2019\n\n\nBefore NIEMEYER, AGEE, and DIAZ, Circuit Judges.\n\n\nAffirmed in part, reversed in part by published opinion. Judge Niemeyer wrote the\nopinion, in which Judge Agee joined in full and Judge Diaz joined except as to Part IV.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366139/", "author_raw": "NIEMEYER, Circuit Judge:"}, {"author": "Judge Diaz wrote a separate opinion concurring", "type": "concurrence", "text": "Judge Diaz wrote a separate opinion concurring in part and dissenting in part.\n\n\nARGUED: Dennis A. Corkery, WASHINGTON LAWYERS’ COMMITTEE FOR\nCIVIL RIGHTS AND URBAN AFFAIRS, Washington, D.C., for Appellant. Donald\nJames Walsh, WRIGHT, CONSTABLE & SKEEN, LLP, Baltimore, Maryland, for\nAppellee. Julie Loraine Gantz, UNITED STATES EQUAL EMPLOYMENT\nOPPORTUNITY COMMISSION, Washington, D.C., for Amicus United States Equal\nEmployment Opportunity Commission. ON BRIEF: Andrew R. Kopsidas, Daniel\nTishman, Min Suk Huh, FISH & RICHARDSON, P.C., Washington, D.C.; Tiffany\nYang, WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN\nAFFAIRS, Washington, D.C., for Appellant. Gregory P. Currey, WRIGHT,\nCONSTABLE & SKEEN, LLP, Baltimore, Maryland, for Appellee. James L. Lee,\nDeputy General Counsel, Jennifer S. Goldstein, Associate General Counsel, Anne Noel\nOcchialino, Acting Assistant General Counsel, Office of General Counsel, UNITED\nSTATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington,\nD.C., for Amicus United States Equal Opportunity Commission. Kathleen R. Hartnett,\nAnn O’Leary, Palo Alto, California, Melissa Shube, Brent Nakamura, BOIES,\nSCHILLER, FLEXNER, LLP, Washington, D.C.; Fatima Goss Graves, Emily Martin,\n\n 2\n\nSunu Chandy, Sarah David Heydemann, NATIONAL WOMEN’S LAW CENTER,\nWashington, D.C., for Amici National Women’s Law Center, et al.\n\n\n\n\n 3\n\nNIEMEYER, Circuit Judge:\n\n In this appeal, the central question presented is whether a false rumor that a female\n\nemployee slept with her male boss to obtain promotion can ever give rise to her\n\nemployer’s liability under Title VII for discrimination “because of sex.” We conclude\n\nthat the allegations of the employee’s complaint in this case, where the employer is\n\ncharged with participating in the circulation of the rumor and acting on it by sanctioning\n\nthe employee, do implicate such liability. Therefore, we reverse the district court’s order\n\ndismissing Count I of the complaint, which makes a claim on that basis, as well as\n\nCount II, which alleges retaliation for complaining about such a workplace condition.\n\nWe affirm, however, the court’s dismissal of Count III because the employee failed to\n\nexhaust that claim before the Equal Employment Opportunity Commission.\n\n\n I\n\n The facts before us are those alleged in the complaint. And, in the present\n\nprocedural posture where the district court granted the defendant’s motion to dismiss\n\nunder Federal Rule of Civil Procedure 12(b)(6), we accept those facts as true. See E.I. du\n\nPont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). They\n\nshow the following.\n\n From December 2014 until May 2016, Evangeline Parker worked for Reema\n\nConsulting Services, Inc., (“RCSI”) at its warehouse facility in Sterling, Virginia. While\n\nshe began as a low-level clerk, she was promoted six times, ultimately rising to Assistant\n\nOperations Manager of the Sterling facility in March 2016.\n\n\n 4\n\n About two weeks after Parker assumed that position, she learned that “certain\n\nmale employees were circulating within RCSI” “an unfounded, sexually-explicit rumor\n\nabout her” that “falsely and maliciously portrayed her as having [had] a sexual\n\nrelationship” with a higher-ranking manager, Demarcus Pickett, in order to obtain her\n\nmanagement position. The rumor originated with Donte Jennings, another RCSI\n\nemployee, who began working at RCSI at the same time as Parker and in the same\n\nposition. Because of her promotions, however, Parker soon became Jennings’ superior,\n\nmaking him jealous of and ultimately hostile to her achievement.\n\n The highest-ranking manager at the warehouse facility, Larry Moppins,\n\nparticipated in spreading the rumor. In a conversation with Pickett, Moppins asked, “hey,\n\nyou sure your wife ain’t divorcing you because you’re f--king [Parker]?” As the rumor\n\nspread, Parker “was treated with open resentment and disrespect” from many coworkers,\n\nincluding employees she was responsible for supervising. As she alleged, her “work\n\nenvironment became increasingly hostile.”\n\n In late April 2016, Moppins called a mandatory all-staff meeting. When Parker\n\nand Pickett arrived a few minutes late, Moppins let Pickett enter the room but “slammed\n\nthe door in Ms. Parker’s face and locked her out.” This humiliated Parker in front of all\n\nher coworkers. Parker learned the next day that the false rumor was discussed at the\n\nmeeting.\n\n The following day, Parker arranged a meeting with Moppins to discuss the rumor,\n\nand at that meeting Moppins blamed Parker for “bringing the situation to the workplace.”\n\nHe stated that he had “great things” planned for Parker at RCSI but that “he could no\n\n 5\n\nlonger recommend her for promotions or higher-level tasks because of the rumor.” He\n\nadded that he “would not allow her to advance any further within the company.”\n\n Several days later, Parker and Moppins met again to discuss the rumor. Moppins\n\nagain blamed Parker and said that he should have terminated her when she began\n\n“huffing and puffing about this BS rumor.” During the meeting, Moppins “lost his\n\ntemper and began screaming” at Parker.\n\n Later that same day, Parker filed a sexual harassment complaint against Moppins\n\nand Jennings with RCSI’s Human Resources Manager.\n\n Several weeks later, in mid-May, Jennings submitted a complaint to the Human\n\nResources Manager, alleging that Parker “was creating a hostile work environment\n\nagainst him through inappropriate conduct,” and Parker was then instructed, based on\n\nJennings’ complaint, to have no contact with Jennings. While she asserts that Jennings’\n\ncomplaint was false, she followed the instruction. Supervisors, however, permitted\n\nJennings to spend time in Parker’s work area talking to and distracting employees she\n\nmanaged. On these occasions, Jennings stared at Parker at length and smirked and\n\nlaughed at her. Parker raised this situation with her supervisor and the Human Resources\n\nManager, but neither addressed it, allegedly exacerbating Parker’s experience of a hostile\n\nwork environment.\n\n On May 18, 2016, Parker was called to a meeting with Moppins, the Human\n\nResources Manager, and RCSI’s in-house counsel, and at that meeting, Moppins\n\nsimultaneously issued Parker two written warnings and then fired her. One warning was\n\nbased on Jennings’ complaint against Parker, and the other asserted that Parker had poor\n\n 6\n\nmanagement ability and was insubordinate to Moppins. In her complaint, Parker alleges\n\nthat both warnings were unfounded. She also alleges that RCSI failed to follow its “three\n\nstrikes” rule under which employees are subject to termination only “after receiving three\n\nwritten warnings.” She had received no prior warnings. She alleges further that the rule\n\n“was disparately enforced such that male employees were generally not fired even after\n\nthree or more warnings, while some female employees were terminated without three\n\nwarnings or with all three warnings being issued at once.”\n\n Based on these facts, Parker alleges, in Count I, a hostile work environment claim\n\nfor discrimination because of sex, in violation of 42 U.S.C. § 2000e-2; in Count II, a\n\nretaliatory termination claim under § 2000e-3; and in Count III, a discriminatory\n\ntermination claim alleging that RCSI terminated her employment contrary to its three-\n\nwarnings rule, in violation of § 2000e-2.\n\n By order dated January 19, 2018, the district court granted RCSI’s motion to\n\ndismiss Parker’s complaint for failure to state a claim. The court explained its reasoning\n\nfrom the bench, stating with respect to Count I:\n\n [I]t would be truly offensive to me or anybody else to have someone spread\n a rumor that I or any other person received a promotion because of sexual\n favors or having sexual relations with the person who made the decision.\n That goes right to the core of somebody’s merit as a human being to\n suggest that they were promoted and the promotion was not based upon\n merit, but rather was based upon the giving of sexual favors.\n\n * * *\n\n The problem for Ms. Parker is that her complaint as to the establishment\n and circulation of this rumor is not based upon her gender, but rather based\n upon her alleged conduct, which was defamed by, you know, statements of\n this nature. Clearly, this woman is entitled to the dignity of her merit-based\n\n 7\n\n promotion and not to have it sullied by somebody suggesting that it was\n because she had sexual relations with a supervisor who promoted her. But\n that is not a harassment based upon gender. It’s based upon false\n allegations of conduct by her. And this same type of a rumor could be\n made in a variety of other context[s] involving people of the same gender\n or different genders alleged to have had some kind of sexual activity\n leading to a promotion. But the rumor and the spreading of that kind of a\n rumor is based upon conduct, not gender.\n\nThe court also concluded that the alleged harassment was not severe or pervasive. In\n\ndismissing Count II, the retaliatory termination claim, the court stated that “because the\n\ncomplaint fail[ed] to establish that the matters alleged in Count [I] were discriminatory,\n\n[Parker] has failed to establish, therefore, that her belief was objectively reasonable and,\n\ntherefore, she cannot establish a prima facie case of retaliation.” Finally, in dismissing\n\nCount III, the discriminatory termination claim, the court gave as its reason that Parker\n\nhad not exhausted the claim with the EEOC.\n\n From the district court’s order of dismissal, Parker filed this appeal.\n\n\n II\n\n The core reason given by the district court to dismiss Count I was that the\n\nharassment Parker suffered was “not . . . harassment based upon gender. It [was] based\n\nupon false allegations of conduct by her.” (Emphasis added). In addition, the court\n\nconcluded that the harassment was not sufficiently severe or pervasive to have altered the\n\nconditions of Parker’s employment because “the temporal element here [was] very short\n\nin terms of how long this rumor was in circulation. Just a matter of a few weeks. And a\n\nfew slights that she [has] referenced here do not rise up to the level that would suffice for\n\n\n\n 8\n\nit being severe and pervasive.” For these reasons, the court concluded that Count I failed\n\nto state a claim under Title VII for a hostile work environment based on sex.\n\n Title VII provides that it is an unlawful employment practice “to discharge . . . or\n\notherwise to discriminate” against an employee “with respect to . . . conditions . . . of\n\nemployment, because of such individual’s . . . sex . . .; or to limit, segregate, or classify\n\n[such] employee[] . . . in any way which would deprive or tend to deprive [the employee]\n\nof employment opportunities or otherwise adversely affect [the employee’s] status as an\n\nemployee, because of such [employee’s] . . . sex.” 42 U.S.C. § 2000e-2(a). An employee\n\nclaiming a severe or pervasive hostile work environment because of her sex can obtain\n\nrelief under Title VII. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). To state a\n\nclaim under Title VII for a hostile work environment because of sex, the plaintiff must\n\nallege workplace harassment that (1) was “unwelcome”; (2) was based on the employee’s\n\nsex; (3) was “sufficiently severe or pervasive to alter the conditions of employment and\n\ncreate an abusive atmosphere”; and (4) was, on some basis, imputable to the employer.\n\nBass v. E.I. du Pont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003); see also\n\nEEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 313–14 (4th Cir. 2008).\n\n In this appeal, only the requirements that the harassment be based on sex and that\n\nit be sufficiently severe or pervasive are at issue. We address each in order.\n\n\n A\n\n RCSI contends first, as the district court concluded, that its actions toward Parker\n\nwere taken not because she was a female but rather because of her rumored conduct in\n\n\n 9\n\nsleeping with her boss to obtain promotion. It argues that this rumor was not “gender\n\nspecific” but rather was “solely about [Parker’s] conduct and insufficient to support\n\nclaims of an illegal hostile work environment for women.” Because “[t]here is no dispute\n\nthat Parker believes that the rumor was started ‘by a co-worker who was jealous of her\n\nsuccess at the company’ and not because she was a woman,” it thus contends that because\n\n“there is no doubt that his rumor was solely about her conduct” and could have been\n\nlevelled against a man, it is insufficient to support a claim of discrimination based on sex.\n\n We conclude, however, that RCSI’s argument fails to take into account all of the\n\nallegations of the complaint, particularly those alleging the sex-based nature of the rumor\n\nand its effects, as well as the inferences reasonably taken from those allegations, which\n\nmust be taken in Parker’s favor, as required at this stage of the proceedings. See Nemet\n\nChevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009).\n\n As alleged, the rumor was that Parker, a female subordinate, had sex with her male\n\nsuperior to obtain promotion, implying that Parker used her womanhood, rather than her\n\nmerit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply\n\nrooted perception — one that unfortunately still persists — that generally women, not\n\nmen, use sex to achieve success. And with this double standard, women, but not men, are\n\nsusceptible to being labelled as “sluts” or worse, prostitutes selling their bodies for gain.\n\nSee McDonnell v. Cisneros, 84 F.3d 256, 259–60 (7th Cir. 1996) (concluding that rumors\n\nof a woman’s “sleeping her way to the top” “could constitute a form of sexual\n\nharassment”); Spain v. Gallegos, 26 F.3d 439, 448 (3d Cir. 1994) (concluding that a\n\nrumor that a woman gained influence over the head of the office because she was\n\n 10\n\nengaged in a sexual relationship with him was sufficient to allow a reasonable jury to\n\nconclude the a woman suffered the harassment alleged because she was a woman); see\n\nalso Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51, 258, 272–73 (1989) (plurality\n\nand concurring opinions) (noting that gender stereotypes can give rise to sex\n\ndiscrimination in violation of Title VII).\n\n The complaint not only invokes by inference this sex stereotype, it also explicitly\n\nalleges that males in the RCSI workplace started and circulated the false rumor about\n\nParker; that, despite Parker and Pickett’s shared tardiness, Parker as a female, not Pickett\n\nas a male, was excluded from the all-staff meeting discussing the rumor; that Parker was\n\ninstructed to have no contact with Jennings, her male antagonist, while Jennings was not\n\nremoved from Parker’s workplace, allowing him to jeer and mock her; that only Parker,\n\nwho complained about the rumor, but not Jennings, who also complained of harassment,\n\nwas sanctioned; and that Parker as the female member of the rumored sexual relationship\n\nwas sanctioned, but Pickett as the male member was not.\n\n In short, because “traditional negative stereotypes regarding the relationship\n\nbetween the advancement of women in the workplace and their sexual behavior\n\nstubbornly persist in our society,” and “these stereotypes may cause superiors and\n\ncoworkers to treat women in the workplace differently from men,” it is plausibly alleged\n\nthat Parker suffered harassment because she was a woman. Spain, 26 F.3d at 448; see\n\nalso Price Waterhouse, 490 U.S. at 250–51, 258, 272–73 (plurality and concurring\n\nopinions); McDonnell, 84 F.3d at 259–60; cf. Passananti v. Cook Cty., 689 F.3d 655,\n\n665–66 (7th Cir. 2012) (noting that use of the word “bitch” to demean a female can\n\n 11\n\nsupport a sexual discrimination claim even though the word may sometimes be directed\n\nat men); Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 810 (11th Cir. 2010)\n\n(en banc) (same); Chadwick v. WellPoint, Inc., 561 F.3d 38, 47 (1st Cir. 2009) (finding\n\nactionable the denial of a promotion because the employee was a working mother with\n\nyoung children); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 119–\n\n21 (2d Cir. 2004) (same).\n\n Thus, the dichotomy that RCSI, as well as the district court, purports to create\n\nbetween harassment “based on gender” and harassment based on “conduct” is not\n\nmeaningful in this case because the conduct is also alleged to be gender-based. We\n\nconclude that, in overlooking this, the district court erred.\n\n\n B\n\n RCSI also contends that the harassment Parker alleged in the complaint was not\n\nsufficiently severe or pervasive to create a hostile work environment. And the district\n\ncourt adopted this view, noting that the rumor circulated for only “a few weeks” and\n\ninvolved only “a few slights.” Parker argues, on the other hand, that her complaint\n\nalleges harassment that was severe or pervasive, as it was “frequent,” “maliciously\n\ndesigned,” “humiliating,” “permeated throughout her workplace,” and caused “open\n\nresentment and disrespect” from her coworkers. Indeed, she maintains that her\n\nharassment even had a physical component.\n\n In determining whether the harassment alleged was sufficiently severe or\n\npervasive, we must “look[] at all the circumstances,” including the “frequency of the\n\n\n 12\n\ndiscriminatory conduct; its severity; whether it [was] physically threatening or\n\nhumiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with\n\n[the] employee’s work performance.” Harris, 510 U.S. at 23.\n\n We conclude that the complaint’s allegations and the inferences that may\n\nreasonably be drawn from them support Parker’s claim that the harassment she\n\nexperienced was severe or pervasive such that it altered the conditions of her employment\n\nand created an abusive atmosphere.\n\n The complaint alleges that, over the period from Parker’s promotion to Assistant\n\nOperations Manager in March 2016 until she was fired on May 18, 2016, the rumor and\n\nits adverse effects harmed Parker. The frequency alleged in the complaint was greater\n\nthan what the district court characterized as “a few slights.” Indeed, the harassment was\n\ncontinuous, preoccupying not only Parker, but also management and the employees at the\n\nSterling facility for the entire time of Parker’s employment after her final promotion.\n\n The harassment began with the fabrication of the rumor by a jealous male\n\nworkplace competitor and was then circulated by male employees. Management too\n\ncontributed to the continuing circulation of the rumor. The highest-ranking manager\n\nasked another manager, who was rumored to be having the relationship with Parker,\n\nwhether his wife was divorcing him because he was “f--king” Parker. The same manager\n\ncalled an all-staff meeting, at which the rumor was discussed, and excluded Parker. In\n\nanother meeting, the manager blamed Parker for bringing the rumor into the workplace.\n\nAnd in yet another meeting, the manager harangued Parker about the rumor, stating he\n\nshould have fired her when she began “huffing and puffing” about it. During this period,\n\n 13\n\nParker was also told that because of the rumor, she could receive no further promotions in\n\nthe company. She then faced a false harassment complaint launched by the male\n\nemployee who started the rumor and was sanctioned based on that complaint — first,\n\nwith the instruction to stay away from the rumormonger and second, with the termination\n\nof her employment. If we are to take the allegations from the complaint and the\n\nreasonable inferences therefrom as true, as we must, the harassment related to the rumor\n\nwas all-consuming from the time the rumor was initiated until the time Parker was fired.\n\n The harassment emanating from the rumor also had physically threatening aspects,\n\neven though harassment need not be physically threatening to be actionable. At an all-\n\nstaff meeting at which the rumor was discussed, the warehouse manager slammed the\n\ndoor in Parker’s face, and at another meeting, he screamed at Parker as he lost his temper\n\nwhile blaming Parker for the rumor. That this harassment came from Parker’s supervisor\n\nmade it all the more threatening. See Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 763\n\n(1998) (“[A] supervisor’s power and authority invests his or her harassing conduct with a\n\nparticularly threatening character”).\n\n In addition, the harassment related to the rumor was humiliating. As the district\n\ncourt rightly noted, it “goes right to the core of somebody’s merit as a human being” to\n\nsuggest they were promoted not on worth but for sexual favors. The rumor and its\n\nconsequences thus entailed “open resentment and disrespect from her coworkers,”\n\nincluding those she was responsible for supervising.\n\n Finally, the harassment interfered with Parker’s work. She was blamed for\n\nbringing the controversy to the workplace; she was excluded from an all-staff meeting;\n\n 14\n\nshe was humiliated in front of coworkers; she was adversely affected in her ability to\n\ncarry out management responsibility over her subordinates; she was restrained in where\n\nshe could work, being told to stay away from the rumormonger; and she was told she had\n\nno future at RCSI because of the rumor. In addition, she alleges that her employment\n\nwas terminated because of the rumor and, as stated by management, because of the\n\nrumormonger’s complaint. In short, RCSI’s management’s entire relationship with\n\nParker, as well as Parker’s employment status, was changed substantially for the worse.\n\n Thus, based on the allegations of Parker’s complaint and the reasonable inferences\n\nflowing therefrom, we conclude that Parker adequately alleges the severe or pervasive\n\nelement of illegal harassment. See Harris, 510 U.S. at 22.\n\n Accordingly, because Parker’s complaint plausibly alleges a hostile work\n\nenvironment claim under Title VII for discrimination because of sex, we reverse the\n\ndistrict court’s ruling dismissing Count I.\n\n\n III\n\n The district court also dismissed Parker’s retaliatory termination claim alleged in\n\nCount II, holding that “because the complaint fails to establish that the matters alleged in\n\n[Count I] were discriminatory, [Parker] has failed to establish . . . that her belief [that she\n\nwas subject to gender discrimination] was objectively reasonable and, therefore, she\n\ncannot establish a prima facie case of retaliation.” Because we conclude that the\n\ncomplaint does indeed allege a plausible claim of a hostile work environment based on\n\nsex, in violation of Title VII, we reverse the dismissal of Count II alleging a retaliatory\n\n\n 15\n\ntermination claim. See Boyer-Liberto v. Fountainebleau Corp., 786 F.3d 264, 285 (4th\n\nCir. 2015) (en banc) (holding that because alleged harassment met elements of hostile\n\nwork environment claim, complaining about such harassment was necessarily protected\n\nactivity for purpose of retaliation claim).\n\n\n IV\n\n Finally, the district court dismissed the discriminatory termination claim alleged in\n\nCount III, concluding that Parker had not exhausted this claim with the EEOC.\n\nSpecifically, the district court held that the allegations of RCSI’s disparate enforcement\n\nof its three-strikes policy, as described in Parker’s complaint, were absent in her EEOC\n\ncharging document. We agree with the court.\n\n Parker must exhaust her claims with the EEOC by including them in charges filed\n\nwith the agency. In determining whether she exhausted her claims, we give her credit for\n\ncharges stated in her administrative charging document, as well as “charges that would\n\nnaturally have arisen from an investigation thereof.” Dennis v. County of Fairfax, 55\n\nF.3d 151, 156 (4th Cir. 1995). But when the claims in her court complaint are broader\n\nthan “the allegation of a discrete act or acts in [the] administrative charge,” they are\n\nprocedurally barred. Chacko v. Patuxent Inst., 429 F.3d 505, 508–10 (4th Cir. 2005).\n\n In this case, Parker’s EEOC charge made no reference to the need to receive\n\nwarnings or a violation of RCSI’s three-strikes policy. She did not refer to the policy or\n\nthe allegation that RCSI treated men and women differently in applying the policy. She\n\nmerely asserted sex-based termination based on the facts relating to the rumor and the\n\n\n 16\n\nconduct that followed from it. Accordingly, RCSI was not “afforded ample notice of the\n\nallegations against it” with respect to Count III. Sydnor v. Fairfax County, 681 F.3d 591,\n\n595 (4th Cir. 2012). We thus affirm the dismissal of the discriminatory termination claim\n\nalleged in Count III, as it alleges a broader pattern of misconduct than is stated in the\n\nadministrative charging document.\n\n * * *\n\n In sum, we reverse the district court’s order dismissing Counts I and II and affirm\n\nits order dismissing Count III.\n\n AFFIRMED IN PART, REVERSED IN PART\n\n\n\n\n 17", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366139/", "author_raw": "Judge Diaz wrote a separate opinion concurring"}, {"author": "DIAZ, Circuit Judge, concurring", "type": "concurrence", "text": "DIAZ, Circuit Judge, concurring in part and dissenting in part:\n\n After Evangeline Parker gained six promotions in just over a year, reaching a post\n\nfew women at her company had ever occupied, a false rumor started that she owed her\n\nrise not to hard work and skill, but to a sexual affair. Adding injury to this insult,\n\nParker’s supervisor then disciplined her more harshly than the male coworker who spread\n\nthe rumor and treated her less respectfully than the male manager she supposedly slept\n\nwith. These facts in combination—the spreading of a rumor rooted in base stereotypes\n\nabout female professionals, plus Parker’s disparate treatment compared with members of\n\nthe opposite sex—fairly permit the inference that Parker was treated with less dignity\n\nbecause she is a woman. I am therefore pleased to join the portions of Judge Niemeyer’s\n\nopinion holding that Parker has alleged harassment based on her sex and reversing the\n\ndismissal of Parker’s hostile work environment and retaliation claims.\n\n I write separately, however, because I would also reverse the district court’s\n\ndismissal of Parker’s wrongful termination claim. Respectfully, I cannot agree that\n\nParker’s failure to mention a “three-strikes” policy in her EEOC paperwork bars her from\n\nasserting this claim. The majority’s approach to exhaustion, in my view, demands more\n\nspecificity and foresight from an EEOC claimant than our precedents or good sense\n\nrequire.\n\n In enforcing the requirement that a Title VII plaintiff first file charges with the\n\nEEOC, our cases strike a careful balance between Title VII’s administrative framework\n\nand judicial remedies. See Stewart v. Iancu, 912 F.3d 693, 707 (4th Cir. 2019). On the\n\none hand, we want employers and the EEOC to know about alleged discrimination so that\n\n 18\n\nthey may, if possible, resolve matters before a slow and expensive lawsuit becomes\n\nnecessary. Sydnor v. Fairfax County, 681 F.3d 591, 593 (4th Cir. 2012); Chacko v.\n\nPatuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005). * Allowing plaintiffs to conjure new\n\nclaims and allegations in federal court would undermine this congressionally designed\n\nsystem.\n\n Yet we’ve also been mindful that “laypersons, rather than lawyers,” are expected\n\nto begin this remedial process. Sydnor, 681 F.3d at 594 (quoting Fed. Express Corp. v.\n\nHolowecki, 522 U.S. 389, 402–03 (2008)). Administrative charges typically aren’t\n\ncompleted by lawyers. (Parker, for instance, filled hers out herself.) Courts thus\n\n“construe them liberally,” Chacko, 429 F.3d at 509, lest exhaustion become a “tripwire\n\nfor hapless plaintiffs” or erect “insurmountable barriers to litigation out of overly\n\ntechnical concerns.” Sydnor, 681 F.3d at 594.\n\n Accordingly, an EEOC charge outlines—but does not rigidly fix—the shape of\n\nlitigation. As long as a plaintiff’s claims in her judicial complaint “are reasonably related\n\nto her EEOC charge and can be expected to follow from a reasonable administrative\n\ninvestigation,” she may advance them in court. Id. (quoting Smith v. First Union Nat’l\n\nBank, 202 F.3d 234, 247 (4th Cir. 2000)). This permissive approach reconciles\n\ncompeting concerns about employer notice, agency administration, and fairness to (often\n\npro se) EEOC claimants. It also, not unimportantly, reflects the EEOC’s considered\n\n\n\n\n *\n Sydnor was an Americans with Disabilities Act case, but that statute incorporates\nTitle VII’s enforcement scheme. See Sydnor, 681 F.3d at 593.\n\n 19\n\npolicy that an adequate charge is one precise enough to “identify the parties” and\n\n“describe generally the action or practices complained of.” 29 C.F.R. § 1601.12(b).\n\n Our cases thus tolerate some discrepancy between the EEOC charge and the\n\nformal lawsuit. For instance, in Smith, we held that a Title VII complaint was reasonably\n\nrelated to the plaintiff’s EEOC charge where the legal claim (retaliatory termination)\n\ndidn’t change though the form of alleged retaliation (threatened termination versus\n\nreassignment and withheld job opportunities) varied. 202 F.3d at 248; accord Gregory v.\n\nGa. Dep’t of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004) (“[J]udicial claims are\n\nallowed if they amplify, clarify, or more clearly focus the allegations in the EEOC\n\ncomplaint.” (quotation omitted)). Likewise, in Chisholm v. U.S. Postal Service, we said\n\nthat an EEOC charge generally alleging discrimination in promotions notified the\n\nemployer that “the entire promotional system was being challenged,” not just aspects\n\nspecifically noted in the charge. 665 F.2d 482, 491 (4th Cir. 1981). And in Sydnor, we\n\nagain excused discrepancies between the EEOC document and lawsuit because both\n\n“involved the same place of work and the same actor” and “focused on the same type of\n\ndiscrimination.” 681 F.3d at 594–96; accord Kersting v. Wal-Mart Stores, Inc., 250 F.3d\n\n1109, 1118 (7th Cir. 2001) (“[T]he EEOC charge and the complaint must, at minimum,\n\ndescribe the same conduct and implicate the same individuals.” (citation omitted)).\n\n We should be similarly accommodating in this case. Although Parker’s lawsuit\n\ndiffers from her EEOC charge in mentioning the three-strikes policy, our precedents\n\nsuggest the two are similar enough to be reasonably related. As in Sydnor, Parker’s\n\ncharge and complaint involve the same place and actors (RCSI, Parker, Moppins, and the\n\n 20\n\nrest) and the same type of discrimination (Moppins firing Parker allegedly because of her\n\nsex). And as in Smith, Parker’s complaint alleges the same type of discrimination as her\n\ncharge but adds greater detail: the charge alleges a firing based on the rumor and its\n\naftermath, and the complaint says it also involved a disparately enforced three-strikes\n\npolicy. Both involve the same parties, the same event, and the same type of\n\ndiscrimination.\n\n In contrast, when we have previously dismissed Title VII claims, the plaintiff’s\n\nEEOC papers “reference[d] different time frames, actors, and discriminatory conduct”\n\nthan the judicial complaint. Chacko, 429 F.3d at 506. Parker, however, did not allege\n\ndiscrimination based on a different protected trait or assert a different category of\n\nunlawful conduct. See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132–33 (4th Cir. 2002)\n\n(no exhaustion where charge mentioned only race discrimination, but lawsuit also alleged\n\ndiscrimination based on sex and skin tone); Jones v. Calvert Grp., Ltd., 551 F.3d 297,\n\n301 (4th Cir. 2009) (same when complaint alleged unlawful discrimination, but charge\n\nmentioned only retaliation). She didn’t recast a single gripe about uneven discipline into\n\na full-scale assault on her professional history with her employer. Dennis v. County of\n\nFairfax, 55 F.3d 151, 153, 156 (4th Cir. 1995). Nor did her lawsuit allege a decades-long\n\nsaga of discriminatory harassment when her EEOC charge described only three specific\n\nincidents. Chacko, 429 F.3d at 511.\n\n Instead, Parker’s EEOC charge described her termination by RCSI based on sex,\n\nand her formal complaint just provides a fuller factual story of how and why it came\n\nabout. In my view, the charge gave RCSI ample notice that the circumstances of Parker’s\n\n 21\n\ntermination were under scrutiny. Reasonable investigation of that firing would have\n\nuncovered the facts alleged in her complaint—including the fact that her firing allegedly\n\ninvolved two written warnings instead of three.\n\n I would therefore let Parker seek judicial relief for her allegedly discriminatory\n\ntermination. Accordingly, I join all but Part IV of Judge Niemeyer’s opinion.\n\n\n\n\n 22", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366139/", "author_raw": "DIAZ, Circuit Judge, concurring"}]} | NIEMEYER | AGEE | DIAZ | 1 | {} | 5 | 0 | 0 | 3 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588886/ | Published | 1 | 1 | 0 | 1 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,589,556 | United States v. Samuel Pratt | 2019-02-08 | 17-4489 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before MOTZ, AGEE, and DIAZ, Circuit Judges.", "parties": "", "opinions": [{"author": "DIAZ, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-4489\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff − Appellee,\n\n v.\n\nSAMUEL PRATT, a/k/a Promise,\n\n Defendant – Appellant.\n\n\nAppeal from the United States District Court for the District of South Carolina, at\nColumbia. Terry L. Wooten, Chief District Judge. (3:16-cr-00207-TLW-1)\n\n\nArgued: September 28, 2018 Decided: February 8, 2019\n\n\nBefore MOTZ, AGEE, and DIAZ, Circuit Judges.\n\n\nAffirmed in part, vacated in part, and remanded by published opinion. Judge Diaz wrote\nthe opinion, in which Judge Motz and Judge Agee joined.\n\n\nARGUED: David Bruce Betts, LAW OFFICES OF DAVID B. BETTS, Columbia,\nSouth Carolina, for Appellant. James Hunter May, OFFICE OF THE UNITED STATES\nATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Beth Drake,\nUnited States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,\nSouth Carolina, for Appellee.\n\fDIAZ, Circuit Judge:\n\n Samuel Pratt was convicted of eight counts related to sex trafficking and child\n\npornography. He appeals on two grounds. On the first ground, we hold that the district\n\ncourt should have suppressed evidence from Pratt’s cellphone. That error was not\n\nharmless because the remaining evidence does not satisfy the elements of the two child\n\npornography counts. On the second ground, we hold that the district court did not err in\n\nadmitting hearsay statements. Accordingly, we vacate Pratt’s convictions on the two\n\nchild pornography counts, affirm his other six convictions, vacate his sentence, and\n\nremand to the district court.\n\n\n\n I.\n\n FBI agents in the Carolinas investigated Samuel Pratt for running a prostitution\n\nring that included juveniles. The agents found a post on Backpage.com in which Pratt\n\nadvertised the sexual services of seventeen-year-old “RM” 1 at a hotel in Columbia, South\n\nCarolina. An agent scheduled a “date” with RM at the hotel for February 3, 2016. When\n\nthe agent entered the hotel room, he identified himself to RM as law enforcement. She\n\nagreed to speak with several agents. RM told them she was seventeen and working as a\n\nprostitute at the hotel. She said her “boyfriend” Pratt brought her across state lines from\n\nNorth Carolina. J.A. 66. Responding to an agent’s question, she said she had texted\n\n\n\n 1\n We refer to minor victims solely by their initials.\n\n\n 2\n\fnude photographs of herself to Pratt’s phone. RM allowed FBI agents to take her\n\ncellphone.\n\n At the same time, two FBI agents spoke to Pratt in the hotel parking lot. Agent\n\nStansbury, who had spoken with RM, joined them. Stansbury confronted Pratt, who was\n\nholding an iPhone. Pratt told Stansbury the phone was his. Stansbury asked if Pratt had\n\nnude photos of RM on the phone. Pratt responded “yes, I’ve got pictures of her on the\n\nphone.” J.A. 67.\n\n Stansbury then seized the phone, telling Pratt the FBI would get a search warrant.\n\nPratt refused to consent to the seizure or disclose the phone’s passcode. And the FBI\n\ndidn’t get a warrant to search the phone until March 4, 2016—a full 31 days after seizing\n\nit. When agents finally searched the phone, they found nude images of RM and\n\nincriminating text conversations with RM and others.\n\n Soon after, a federal grand jury indicted Pratt. 2 At Pratt’s initial appearance, the\n\nmagistrate judge ordered him to have no contact with anyone “who is a witness, or may\n\nbe a witness, or a victim.” J.A. 524. Despite that order, Pratt repeatedly called his\n\nmother from prison to coordinate continued prostitution operations. In several calls, he\n\nhad his mother put RM on the phone. He repeatedly told RM not to testify or cooperate.\n\n\n\n 2\n The nine counts were: (1) conspiracy to commit sex trafficking, (2) producing\nchild pornography, (3) sex trafficking of a minor, (4) attempt to commit sex trafficking,\n(5) possession of child pornography, (6) coercion or enticement of a minor, (7) felon in\npossession of a firearm, (8) obstruction of justice, and (9) interstate travel to carry on an\nunlawful activity. The government dismissed count nine before trial.\n\n\n 3\n\f Before trial, Pratt moved to suppress evidence from his phone. In his written\n\npleadings, Pratt only contended that the seizure of the phone was unconstitutional. But at\n\nthe suppression hearing, he also argued that the delay between the seizure and obtaining\n\nthe search warrant was unconstitutional. The government explained that the delay came\n\nfrom the need to decide whether to seek a warrant in North Carolina or South Carolina.\n\nRuling from the bench, the district court denied the suppression motion, finding the\n\nseizure justified and the delay reasonable.\n\n The government tried to get RM to testify. Several months after Pratt’s calls from\n\njail, the FBI served her with a subpoena. When agents later spoke to her, she refused to\n\ntestify. The FBI obtained a material witness warrant for her, but the U.S. Marshals\n\ncouldn’t find her. Several other women would testify at trial that Pratt would beat any\n\nprostitute—including RM—whom he considered disobedient.\n\n With RM unavailable, the government sought to introduce her statements to FBI\n\nagents about the prostitution ring and about the nude images she sent Pratt. The district\n\ncourt overruled Pratt’s hearsay and confrontation objections, ruling that Pratt forfeited\n\nthose objections by intimidating RM into refusing to testify. An agent then recounted\n\nRM’s statements.\n\n In addition, the government introduced evidence from Pratt’s cellphone. That\n\nevidence included 28 images alleged to be child pornography, metadata for the images,\n\ntext message conversations, and advertisements Pratt placed for prostitution. The\n\n\n\n\n 4\n\fgovernment also introduced an “extraction report” on data from RM’s phone. It included\n\ntext messages but didn’t include photos or videos. 3\n\n The jury convicted Pratt on all eight counts. The district court imposed life\n\nsentences on four counts and concurrent time on the other four. Pratt appeals the denial\n\nof his suppression motion and the admission of RM’s prior statements.\n\n\n\n II.\n\n Pratt contends that the district court should have suppressed information from his\n\ncellphone because the FBI unreasonably delayed getting a search warrant. He does not\n\ncontend that the seizure of the phone itself was unconstitutional. To justify the delay, the\n\ngovernment points to the difficulty of coordinating the various law enforcement agencies\n\ninvolved in the Pratt investigation and deciding where to seek a search warrant for the\n\nphone. In the alternative, the government argues that it could keep the phone indefinitely\n\nbecause it was an instrumentality of Pratt’s crimes.\n\n We review the factual findings in a suppression motion for clear error and the\n\nlegal conclusions de novo. 4 See United States v. Kehoe, 893 F.3d 232, 237 (4th Cir.\n\n\n 3\n An agent testified that the extraction report is “just like the call logs, the text\nmessages . . . I don’t think this has the videos, or any videos or pictures.” J.A. 187. The\nprosecutor asked, “So, just to be clear, Exhibit 21, forensic download, absent videos and\nphotographs?” Id. The agent responded, “Correct.” Id.\n 4\n The government contends that we should apply plain error review because Pratt\ndidn’t mention unreasonable delay in his motion papers. We disagree. Pratt pressed the\nargument at the suppression hearing and the district court expressly ruled from the bench\non the claim of delay in obtaining the search warrant. See United States v. Williams, 504\n(Continued)\n 5\n\f2018). If the district court erred, we must assess whether any such error was harmless.\n\nSee Fed. R. Crim. P. 52(a); United States v. Abu Ali, 528 F.3d 210, 231 (4th Cir. 2008).\n\n We hold that the district court erred by denying the suppression motion and that\n\nthe error was not harmless regarding the child pornography counts.\n\n A.\n\n The constitutional question is whether the extended seizure of Pratt’s phone was\n\nreasonable. A seizure that is “lawful at its inception can nevertheless violate the Fourth\n\nAmendment because its manner of execution unreasonably infringes possessory\n\ninterests.” United States v. Jacobsen, 466 U.S. 109, 124 (1984) (citing United States v.\n\nPlace, 462 U.S. 696 (1983)). To determine if an extended seizure violates the Fourth\n\nAmendment, we balance the government’s interest in the seizure against the individual’s\n\npossessory interest in the object seized. See Place, 462 U.S. at 703; United States v. Van\n\nLeeuwen, 397 U.S. 249, 252–53 (1970).\n\n A strong government interest can justify an extended seizure. See, e.g., Illinois v.\n\nMcArthur, 531 U.S. 326, 332–33 (2001) (suspect prevented from entering home for two\n\nhours while officers obtained a warrant); United States v. Montoya de Hernandez, 473\n\nU.S. 531, 541–44 (1985) (suspected alimentary canal smuggler detained for 16 hours);\n\nVan Leeuwen, 397 U.S. at 252–53 (package detained for 29 hours while seeking a\n\nwarrant). But if the individual’s interest outweighs the government’s, an extended\n\n\n\nU.S. 36, 41 (1992) (argument is preserved if pressed or passed upon). Pratt therefore\npreserved this argument and the plain error standard does not apply.\n\n\n 6\n\fseizure may be unreasonable. See Rodriguez v. United States, 135 S. Ct. 1609, 1615–16\n\n(2015) (traffic stop extended for dog sniff without reasonable suspicion); Place, 462 U.S.\n\nat 698–99 (traveler’s luggage detained at airport for 90 minutes to conduct dog sniff). An\n\nindividual diminishes his interest if he consents to the seizure or voluntarily shares the\n\nseized object’s contents. See, e.g., United States v. Christie, 717 F.3d 1156, 1162–63\n\n(10th Cir. 2013).\n\n Here, Pratt didn’t diminish his possessory interest in the phone. He didn’t consent\n\nto its seizure or voluntarily share the phone’s contents. The government’s only\n\nexplanation for the 31-day delay in obtaining a warrant was that Pratt committed crimes\n\nin both North Carolina and South Carolina and agents had to decide where to seek a\n\nwarrant. We find this explanation insufficient to justify the extended seizure of Pratt’s\n\nphone.\n\n Pratt’s case parallels United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009).\n\nThere, an agent seized a computer but failed to obtain a search warrant for 21 days. Id. at\n\n1351. The agent explained that he left town for a lengthy training and didn’t think the\n\nwarrant was urgent. Id. The Eleventh Circuit considered the seizure unreasonable\n\nbecause the agent could have applied for a warrant before he left or passed the case to\n\nsomeone else. Id. at 1351–52. But the court cautioned that overwhelmed police\n\nresources or other “overriding circumstances” could justify extended delays. Id. at 1353.\n\n The Eleventh Circuit has applied this standard in two later cases. In United States\n\nv. Vallimont, 378 F. App’x 972, 975–76 (11th Cir. 2010), it upheld a 45-day delay in\n\ngetting a search warrant for a seized computer. The delay was reasonable because the\n\n 7\n\finvestigator was diverted to other cases, the county’s resources were overwhelmed, and\n\nthe defendant diminished his privacy interest by giving another person access to the\n\ncomputer. Id. And in United States v. Laist, 702 F.3d 608, 616–17 (11th Cir. 2012), the\n\ncourt upheld a 25-day delay in getting a search warrant for a seized computer. The delay\n\nwas reasonable because the agents worked diligently on the affidavit; they were\n\nresponsible for investigations in ten counties; and the defendant consented to the seizure\n\nand had been allowed to keep certain files, diminishing his privacy interest. Id. Other\n\ncircuits have upheld equivalent delays where the government could justify them. 5\n\n Pratt’s case is closest to Mitchell because the government has no persuasive\n\njustification for the delay in obtaining a search warrant for Pratt’s phone. Unlike the\n\nagencies in Vallimont and Laist, the FBI’s resources were not overwhelmed. Simply put,\n\nthe agents here failed to exercise diligence by spending a whole month debating where to\n\nget a warrant. See United States v. Burgard, 675 F.3d 1029, 1033–34 (7th Cir. 2012)\n\n(describing diligence as an important factor). That decision shouldn’t have taken a\n\nmonth. It is unlikely that the forum for a warrant would affect a later prosecution: a point\n\nthe government conceded at oral argument. 6 And unlike in Vallimont and Laist, Pratt had\n\n\n 5\n See, e.g., United States v. Gill, 280 F.3d 923, 929 (9th Cir. 2002) (magistrate\nunavailable); United States v. Martin, 157 F.3d 46, 54 (2d Cir. 1998) (delay fell over\nweekends and Christmas); United States v. Aldaz, 921 F.2d 227, 230–31 (9th Cir. 1990)\n(delay to transport package for dog sniff); United States v. Mayomi, 873 F.2d 1049, 1050,\n1054 (7th Cir. 1989) (delay over weekend to corroborate tip and procure drug-sniffing\ndog).\n 6\n The Seventh Circuit did accept a six-day delay for an officer to seek a warrant\nfor a cellphone where he needed to consult with prosecutors and with the officer who\n(Continued)\n 8\n\fan undiminished possessory interest in the cellphone—he didn’t consent to the seizure\n\nand he wasn’t allowed to retain any of the phone’s files. Cf. Riley v. California, 134 S.\n\nCt. 2473, 2494–95 (2014) (describing the strong privacy interest in a cellphone). Given\n\nPratt’s undiminished interest, a 31-day delay violates the Fourth Amendment where the\n\ngovernment neither proceeds diligently nor presents an overriding reason for the delay.\n\n We decline to affirm on the government’s alternative argument that it could retain\n\nthe phone indefinitely because it had independent evidentiary value, like a murder\n\nweapon. Only the phone’s files had evidentiary value. The agents could have removed\n\nor copied incriminating files and returned the phone. Pratt’s phone is thus distinct from\n\nthe suitcase in United States v. Carter, 139 F.3d 424, 426 (4th Cir. 1998) (en banc). In\n\nCarter, the police arrested a man at an airport for stealing another traveler’s bag. Id. We\n\naffirmed that the police could retain the man’s own suitcase as evidence he didn’t take\n\nthe other bag by mistake. Id. But here, the phone itself is evidence of nothing.\n\n We hold that the delay in obtaining a search warrant was unreasonable. The\n\ndistrict court therefore erred in denying Pratt’s motion to suppress.\n\n B.\n\n\n\n\nseized the phone. See Burgard, 675 F.3d at 1033–34. But the Seventh Circuit criticized\nthat delay, and Pratt’s delay was more than five times as long. See id.\n\n\n 9\n\f But even though the district court should have suppressed evidence from Pratt’s\n\ncellphone, we must examine whether the error was harmless. 7 See Abu Ali, 528 F.3d at\n\n231. On appeal, “[a]ny error, defect, irregularity, or variance that does not affect\n\nsubstantial rights must be disregarded.” Fed. R. Crim. P. 52(a). The essential question is\n\nwhether “it [is] clear beyond a reasonable doubt that a rational jury would have found the\n\ndefendant guilty absent the error.” United States v. Garcia-Lagunas, 835 F.3d 479, 488\n\n(4th Cir. 2016) (quoting Neder v. United States, 527 U.S. 1, 18 (1999)).\n\n To answer that question, we look to the strength of the government’s remaining\n\nevidence, the centrality of the issue, steps taken to mitigate any error, and the closeness of\n\nthe case. See United States v. Recio, 884 F.3d 230, 238 (4th Cir. 2018); United States v.\n\nInce, 21 F.3d 576, 583 (4th Cir. 1994). The government bears the burden of establishing\n\nharmlessness. See Ince, 21 F.3d at 582.\n\n After examining the trial evidence, we are not satisfied that the government met its\n\nburden for counts two and five. Count two charges Pratt with producing images\n\ncontaining child pornography, 18 U.S.C. § 2251(a); count five charges him with\n\npossessing images containing child pornography, id. § 2252A(a)(5)(B). Both charges\n\n\n 7\n The following harmless error discussion only applies to count two (producing\nchild pornography) and count five (possessing child pornography). Pratt’s phone is\nirrelevant to counts seven (felon in possession) and eight (obstruction of justice). The\nerror does affect the sex trafficking and enticement charges (counts one, three, four, and\nsix), for which text messages from Pratt’s phone were evidence. But the error was\nharmless for those four counts because the government introduced duplicates of many of\nthose text messages from RM’s phone and elicited extensive testimony about the\nprostitution operation.\n\n\n 10\n\frequire the government to prove that the images depict a minor engaging in “sexually\n\nexplicit conduct.” See id. §§ 2251(a), 2252A(a)(5)(B). The two offenses include slightly\n\ndifferent categories of conduct. See id. §§ 2251(a), 2256(2)(A) (count two); id.\n\n§§ 2252A(a)(5)(B), 2256(2)(B), 2256(8)(B) (count five). But under both definitions, the\n\nonly relevant category is “lascivious exhibition of the genitals or pubic area.” 8 Id.\n\n§ 2256(2)(A), (2)(B). Thus, if the trial evidence that did not come from Pratt’s phone is\n\ninsufficient to find that the images fit into this category, the error cannot be harmless.\n\n Beyond Pratt’s phone, the government introduced insufficient evidence that the\n\nimages meet the statutory requirements. As evidence for the child pornography counts,\n\nthe government introduced Agent Stansbury’s recollection of statements RM and Pratt\n\nmade at the hotel. Those statements were admissible under the hearsay exception for\n\nforfeiture by wrongdoing, as discussed in Part III below. Stansbury recounted RM’s\n\nstatements about the photos twice. First, he recounted her saying “he did have naked\n\nphotos of her, that they sent each other naked photos . . . . [H]e’s got naked photos of me\n\non his cell phone.” J.A. 66. Second, he recounted her saying she “sent him nude\n\nphotographs of herself and that he had nude photographs of her on his phone . . . . [H]e\n\nhas naked pictures of me on his cell phone.” J.A. 66–67. 9 And Stansbury said he asked\n\n\n\n 8\n From the trial testimony, we can’t infer that the images contained any of the\nother categories of conduct—sexual intercourse, masturbation, bestiality, or sadistic or\nmasochistic abuse. See 18 U.S.C. § 2256(2)(A), (2)(B).\n 9\n Another agent said RM suggested that “there was child pornography” on Pratt’s\nphone. J.A. 57. But the agent appears to have used “child pornography” colloquially, not\n(Continued)\n 11\n\fPratt “[D]o you have naked pictures of [RM] . . . on the phone?” to which he says Pratt\n\nresponded “yes, I’ve got pictures of her on the phone.” J.A. 67. 10\n\n In each statement, the photos are described solely with the generic terms “naked”\n\nor “nude.” Some “naked” or “nude” photos are lascivious and display the genitals or\n\npubic area. But many photos an ordinary viewer would describe as “naked” or “nude”\n\nare not lascivious or do not depict the genitals or pubic area. Thus, without more, we\n\ncan’t infer that the photos contain sexually explicit conduct as defined by statute.\n\n Considering all the trial testimony, there was insufficient evidence for a “rational\n\ntrier of fact” to find the “essential element[]” that the photos contained sexually explicit\n\nconduct. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Given this failure of proof, the\n\nerror was not harmless regarding counts two and five. We therefore vacate Pratt’s\n\nconvictions for the two child pornography offenses. 11\n\n C.\n\n\n\nas a legal conclusion. No witness testified that the photos depicted the genitals or pubic\narea.\n 10\n At trial, FBI agents described the images from Pratt’s phone as “nude” photos of\nRM. J.A. 174, 359. At least one of those descriptions derived from viewing the photos.\nJ.A. 174. That description should have been suppressed. See Wong Sun v. United States,\n371 U.S. 471, 485 (1963) (“[T]estimony as to matters observed during an unlawful\ninvasion” is also subject to exclusion.). In any event, the agents’ generic description of\nthe photos adds nothing new.\n 11\n When the government addressed harmless error at oral argument, it incorrectly\nstated that it had introduced copies of pornographic images from RM’s phone. In a post-\nargument submission, the government conceded that no such images had been\nintroduced.\n\n\n 12\n\f We must also decide whether to vacate Pratt’s entire sentence in light of this error.\n\n“[A]n appellate court when reversing one part of a defendant’s sentence ‘may vacate the\n\nentire sentence . . . so that, on remand the trial court can reconfigure the sentencing\n\nplan.’” Pepper v. United States, 562 U.S. 476, 507 (2011) (quoting Greenlaw v. United\n\nStates, 554 U.S. 237, 253 (2008)). This court has recognized that district courts consider\n\nall counts when crafting sentencing packages. See United States v. Smith, 115 F.3d 241,\n\n246 (4th Cir. 1997). We do have discretion to vacate only the sentences for vacated\n\nconvictions. See, e.g., United States v. Hurwitz, 459 F.3d 463, 482–83 (4th Cir. 2006);\n\nUnited States v. Berry, 369 F. App’x 500, 502–03 (4th Cir. 2010). But because sentences\n\nare often interconnected, a full resentencing is typically appropriate when we vacate one\n\nor more convictions. See United States v. Ventura, 864 F.3d 301, 309 (4th Cir. 2017).\n\n Here, the district court likely crafted a sentencing package with all eight\n\nconvictions in mind. A resentencing might not change how long Pratt stays in prison,\n\ngiven that the district court imposed multiple life sentences. But “there may be some\n\nchance that other parts of [Pratt’s] sentence may be affected by” vacating the child\n\npornography counts. United States v. Jones, No. 95-5370, 1998 WL 19620, at *7 (4th\n\nCir. Apr. 22, 1998). The district court is in the best position to make that judgment. We\n\ntherefore vacate Pratt’s entire sentence. On remand, the government may retry Pratt for\n\nthe child pornography counts. Once the government has retried him or declined to do so,\n\nthe district court shall resentence Pratt and “make any correction to his sentence it deems\n\nappropriate.” Id. We express no opinion on whether the district court should modify his\n\nsentence.\n\n 13\n\f III.\n\n In addition to his Fourth Amendment argument, Pratt contends that the district\n\ncourt erred by admitting an FBI agent’s recollection of RM’s statements about the\n\nprostitution business and the nude images she sent him. Unlike most evidentiary issues,\n\nwe review this ruling de novo because it implicates the Confrontation Clause. See United\n\nStates v. Summers, 666 F.3d 192, 197 (4th Cir. 2011). We see no error.\n\n The district court admitted RM’s statements under the “forfeiture by wrongdoing”\n\nexception to the hearsay rule. Under this exception, a district court may admit hearsay\n\nstatements “offered against a party that wrongfully caused—or acquiesced in wrongfully\n\ncausing—the declarant’s unavailability as a witness, and did so intending that result.”\n\nFed. R. Evid. 804(b)(6). The elements are (1) wrongful conduct, (2) intended to cause\n\nthe witness’s unavailability, and (3) actually causing the witness’s unavailability. See\n\nUnited States v. Jackson, 706 F.3d 264, 267–69 (4th Cir. 2013). The Constitution\n\nnormally forbids testimonial statements from an unavailable witness whom the defendant\n\nhad no previous chance to cross-examine. See U.S. Const. amend. VI; Crawford v.\n\nWashington, 541 U.S. 36, 68–69 (2004). But the Supreme Court has recognized that\n\nwrongfully and intentionally causing a witness’s unavailability estops a defendant from\n\nasserting confrontation rights. See Giles v. California, 554 U.S. 353, 359 (2008);\n\nCrawford, 541 U.S. at 62.\n\n Several times, Pratt called his mother from jail and had her put RM on the phone.\n\nThe government contends that Pratt threatened RM in these calls. Those calls plus Pratt’s\n\n\n\n 14\n\fhistory of violence against women caused RM not to testify, in the government’s view.\n\nPratt denies that he intended to threaten RM and that his calls caused her unavailability.\n\n There is no question Pratt engaged in wrongful conduct when he violated the\n\nmagistrate judge’s order and contacted a potential witness (and victim) from jail. See\n\nUnited States v. Montague, 421 F.3d 1099, 1103–04 (10th Cir. 2005) (violating order not\n\nto contact witness is wrongful). Thus, the only questions are intent and causation.\n\n In his phone conversations with RM from jail, Pratt’s intent to make RM\n\nunavailable is plain. As an ineffective ruse, Pratt would pretend to be talking to someone\n\nother than RM. In the first call he said, speaking of RM, “[f]or some reason they saying\n\nthat she’s a witness . . like she cooperating or something . . . I’m saying don’t even try\n\nand speak to her or nothing because even if . . . anybody tries to speak to her I’m gone get\n\nin trouble understand.” J.A. 676. He followed up with, “I hope you don’t think she’s\n\ncooperating right.” Id. RM said she was not cooperating. Id. Pratt then said, “I hope if\n\n[RM] is talking to [“AM” (another minor victim)] . . . I hope she can find out if [AM is]\n\ncooperating too.” Id. “I just hope neither one of them is cooperating,” he continued. Id.\n\nOver and over, Pratt tried to dissuade RM from testifying.\n\n In a second call, he told her “[RM] and [AM] need to speak cause . . . that’s the\n\ntwo pieces to the puzzle that . . . get me out of here don’t you talk to them.” J.A. 677\n\n(emphasis added). In a third call, he urged her to deny that he used the alias “Promise,”\n\nwith which some witnesses would identify him at trial. J.A. 679. Pretending that he was\n\nspeaking to RM’s cousin, he told her the government was calling RM a “witness” and\n\n\n\n 15\n\fwould question her. Id. He urged her to deny any knowledge. J.A. 680. In all three\n\ncalls, Pratt tried to get RM not to testify or not to testify honestly.\n\n Those calls caused RM’s unavailability. Standing alone, the calls sound like\n\nveiled threats. But the threats become obvious against the backdrop of the graphic\n\ntestimony of several women at trial who detailed how Pratt would beat prostitutes—\n\nincluding RM—whom he considered disobedient. See Montague, 421 F.3d at 1102–04\n\n(recognizing forfeiture from wrongdoing through threatening phone calls and history of\n\nabuse); State v. Maestas, 412 P.3d 79, 90–91 (N.M. 2018) (same). RM would have\n\nreceived the message that Pratt would hurt her in the future if she disobeyed Pratt and\n\ntestified against him.\n\n Pratt contends that the time lapse between the phone calls and the trial reduced the\n\nsalience of any threat. But given Pratt’s history of abusing RM, we think it unlikely that\n\ntime eroded the sense of threat. That threat caused RM not to testify. Her personal\n\nfeelings for Pratt—whom she considered her boyfriend—may have played a role too.\n\nBut those feelings were tied up in the same abusive relationship.\n\n The district court did not err by admitting an agent’s recollection of RM’s\n\nstatements.\n\n\n\n IV.\n\n In sum, the district court erred by refusing to suppress information from Pratt’s\n\ncellphone. The error was not harmless because the government’s other evidence could\n\nnot establish the statutory elements of counts two and five. On the evidentiary issue, the\n\n 16\n\fdistrict court did not err by admitting RM’s hearsay statements under Federal Rule of\n\nEvidence 804(b)(6). Accordingly, we vacate Pratt’s convictions for counts two and five\n\nand affirm the remaining convictions. We also vacate Pratt’s sentence and remand to the\n\ndistrict court for further proceedings consistent with this opinion.\n\n\n\n AFFIRMED IN PART, VACATED IN PART, AND REMANDED\n\n\n\n\n 17", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366809/", "author_raw": "DIAZ, Circuit Judge:"}]} | MOTZ | AGEE | DIAZ | 1 | {"MOTZ": ", Circuit", "AGEE": ", Circuit", "DIAZ": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4589556/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,589,555 | Caleigh WOOD, Plaintiff - Appellant, and John Wood; Melissa Wood, on Behalf of Her Minor Child, C.W., Plaintiffs, v. Evelyn ARNOLD; Shannon Morris, Defendants - Appellees, and Board of Education of Charles County; Charles County Public Schools, Defendants, Christian Action Network, Amicus Supporting Appellant. | Caleigh Wood v. Evelyn Arnold | 2019-02-11 | 18-1430 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Keenan, Wynn, Harris", "parties": "", "opinions": [{"author": "BARBARA MILANO KEENAN, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1430\n\n\nCALEIGH WOOD,\n\n Plaintiff - Appellant,\n\nand\n\nJOHN WOOD; MELISSA WOOD, on behalf of her minor child, C.W.,\n\n Plaintiffs,\n\n v.\n\nEVELYN ARNOLD; SHANNON MORRIS,\n\n Defendants - Appellees,\n\nand\n\nBOARD OF EDUCATION OF CHARLES COUNTY; CHARLES COUNTY\nPUBLIC SCHOOLS,\n\n Defendants,\n\n------------------------------\n\nCHRISTIAN ACTION NETWORK,\n\n Amicus Supporting Appellant.\n\n\nAppeal from the United States District Court for the District of Maryland, at Greenbelt.\nGeorge Jarrod Hazel, District Judge. (8:16-cv-00239-GJH)\n\fArgued: December 11, 2018 Decided: February 11, 2019\n\n\nBefore KEENAN, WYNN, and HARRIS, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Wynn\nand Judge Harris joined.\n\n\nARGUED: Kate Oliveri, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, for\nAppellant. Andrew G. Scott, PESSIN KATZ LAW, P.A., Towson, Maryland, for\nAppellees. ON BRIEF: B. Tyler Brooks, Richard Thompson, THOMAS MORE LAW\nCENTER, Ann Arbor, Michigan, for Appellant. Edmund J. O’Meally, Lisa Y. Settles,\nPESSIN KATZ LAW, P.A., Towson, Maryland, for Appellees. David W.T. Carroll,\nCARROLL, UCKER & HEMMER LLC, Columbus, Ohio, for Amicus Curiae.\n\n\n\n\n 2\n\fBARBARA MILANO KEENAN, Circuit Judge:\n\n In this case, we consider whether two statements concerning Islamic beliefs,\n\npresented as part of a high school world history class, violated a student’s First\n\nAmendment rights under either the Establishment Clause or the Free Speech Clause. The\n\nstudent, Caleigh Wood, contends that school officials Evelyn Arnold and Shannon Morris\n\n(the defendants) used the statements about Islam to endorse that religion over\n\nChristianity, and compelled Wood against her will to profess a belief in Islam.\n\n Upon our review, we conclude that the challenged coursework materials, viewed\n\nin the context in which they were presented, did not violate Wood’s First Amendment\n\nrights, because they did not impermissibly endorse any religion and did not compel Wood\n\nto profess any belief. We therefore affirm the district court’s judgment awarding\n\nsummary judgment in favor of the defendants.\n\n\n\n I.\n\n During the 2014-2015 school year, Wood was an eleventh-grade student at La\n\nPlata High School, a public high school in Charles County, Maryland. Arnold was La\n\nPlata’s principal, and Morris was employed as one of the school’s vice-principals.\n\n As an eleventh-grade student, Wood was required to take a world history course,\n\nwhich was part of the school’s social studies curriculum. The year-long course covered\n\ntime periods from the year “1500 to the [p]resent.” Among the topics covered in the\n\ncourse were the Renaissance and Reformation, the Enlightenment period, the Industrial\n\n\n\n 3\n\fRevolution, and World Wars I and II. The topics were divided into separate units, with\n\neach unit generally being taught over a period of between ten and twenty days.\n\n The smallest unit of the world history course, encompassing five days, was\n\nentitled “The Muslim World.” The unit was “designed to explore, among other things,\n\nformation of Middle Eastern empires including the basic concepts of the Islamic faith and\n\nhow it along with politics, culture, economics, and geography contributed to the\n\ndevelopment of those empires.”\n\n As part of the “Muslim World” unit, Wood’s teacher presented the students with a\n\nPowerPoint slide entitled “Islam Today,” which contrasted “peaceful Islam” with “radical\n\nfundamental Islam.” The slide contained the statement that “Most Muslim’s [sic] faith is\n\nstronger than the average Christian” (the comparative faith statement) (underlining in\n\noriginal). The school’s content specialist, Jack Tuttle, testified that use of the\n\ncomparative faith statement was inappropriate, and that he would have advised a teacher\n\nwho was considering teaching this statement “[n]ot to do that.”\n\n Wood also was required to complete a worksheet summarizing the lesson on\n\nIslam. The worksheet addressed topics such as the growth and expansion of Islam, the\n\n“beliefs and practices” of Islam, and the links between Islam, Judaism, and Christianity.\n\nPart of the worksheet required the students to “fill in the blanks” to complete certain\n\ninformation comprising the “Five Pillars” of Islam. Included in that assignment was the\n\nstatement: “There is no god but Allah and Muhammad is the messenger of Allah[,]” a\n\n\n\n\n 4\n\fportion of a declaration known as the shahada (the shahada assignment). 1 For ease of\n\nreference, we collectively refer to the comparative faith statement and the shahada\n\nassignment as the “challenged materials.”\n\n Wood’s father objected to the use of the challenged materials. He asserted to the\n\ndefendants that Islam should not be taught in the public school and demanded that his\n\ndaughter be given alternative assignments. He directed his daughter to refuse to complete\n\nany assignment associated with Islam on the ground that she was not required to “do\n\nanything that violated [her] Christian beliefs.” Wood’s failure to complete the\n\nassignments that, in her view, “promot[ed] Islam,” resulted in Wood receiving a lower\n\npercentage grade for the course but did not affect her final letter grade.\n\n Wood later sued the defendants, 2 alleging that they violated the Establishment\n\nClause by “impermissibly endors[ing] and advanc[ing] the Islamic religion.” Wood\n\nfurther alleged that the defendants violated the Free Speech Clause of the First\n\nAmendment by requiring her to complete the shahada assignment, thereby “depriv[ing]\n\n[her] of her right to be free from government compelled speech.” 3 The district court\n\ngranted the defendants’ motion for summary judgment. Wood now appeals.\n\n\n 1\n The underlined words reflect the parts of the statement that the students were\nrequired to complete.\n 2\n At the time the complaint was filed, Wood was a minor. Therefore, the suit was\ninitially brought on Wood’s behalf by her parents. The complaint later was amended to\nname Wood as a plaintiff once she reached the age of majority.\n 3\n Wood’s father also asserted separate claims for retaliation under the First\nAmendment and due process violations related to Arnold’s decision to ban him from the\n(Continued)\n 5\n\f II.\n\n We review the district court’s award of summary judgment de novo. See Buxton\n\nv. Kurtinitis, 862 F.3d 423, 427 (4th Cir. 2017). Wood contends that the district court\n\nerred in awarding summary judgment to the defendants on both her Establishment Clause\n\nclaim and her Free Speech Clause claim. We address each claim in turn.\n\n A.\n\n We begin with Wood’s Establishment Clause claim. Wood contends that through\n\nthe comparative faith statement, “Most Muslim’s [sic] faith is stronger than the average\n\nChristian,” the defendants endorsed a view of Islam over Christianity in violation of the\n\nEstablishment Clause. Wood also argues that the assignment requiring students to write a\n\nportion of the shahada impermissibly advanced the Islamic religion and compelled Wood\n\nto “den[y] the very existence of her God.” According to Wood, the challenged materials\n\nlacked any secular purpose and had the “effect of promoting and endorsing Islam.” We\n\ndisagree with Wood’s argument.\n\n The Establishment Clause provides that “Congress shall make no law respecting\n\nan establishment of religion, or prohibiting the free exercise thereof.” U.S. Const.\n\namend. I, cl. 1. In evaluating an Establishment Clause claim, we apply the three-prong\n\ntest set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971). See Mellen v. Bunting, 327\n\n\n\n\nLa Plata High School premises. Those claims were dismissed by the district court, and\nhave not been pursued on appeal.\n\n 6\n\fF.3d 355, 370 (4th Cir. 2003) (“[W]e have emphasized that the Lemon test guides our\n\nanalysis of Establishment Clause challenges.”); Koenick v. Felton, 190 F.3d 259, 264 (4th\n\nCir. 1999) (“[T]his Court must rely on Lemon in evaluating the constitutionality of\n\n[government action] under the Establishment Clause.” (internal quotation marks and\n\ncitation omitted)). Under this test, to withstand First Amendment scrutiny, “government\n\nconduct (1) must be driven in part by a secular purpose; (2) must have a primary effect\n\nthat neither advances nor inhibits religion; and (3) must not excessively entangle church\n\nand State.” Moss v. Spartanburg Cty. Sch. Dist. 7, 683 F.3d 599, 608 (4th Cir. 2012)\n\n(citing Lemon, 403 U.S. at 612-13). The government violates the Establishment Clause if\n\nthe challenged action fails any one of the Lemon factors. Buxton, 862 F.3d at 432\n\n(quoting Edwards v. Aguillard, 482 U.S. 578, 583 (1987)).\n\n 1.\n\n Before applying the Lemon test, we must determine the proper scope of our\n\ninquiry, namely, whether we should examine the challenged materials in isolation or in\n\nthe broader context of the world history curriculum. Wood asserts that we must analyze\n\neach statement on its own, apart from the subject matter of the class. We disagree with\n\nWood’s contention.\n\n The Supreme Court has emphasized that for purposes of an Establishment Clause\n\nanalysis, context is crucial. See County of Allegheny v. ACLU Greater Pittsburgh\n\nChapter, 492 U.S. 573, 597 (1989) (“[T]he effect of the government’s use of religious\n\nsymbolism depends on its context.”), abrogated on other grounds by Town of Greece v.\n\nGalloway, 572 U.S. 565 (2014). To “[f]ocus exclusively on the religious component of\n\n 7\n\fany activity would inevitably lead to [the activity’s] invalidation under the Establishment\n\nClause.” Lynch v. Donnelly, 465 U.S. 668, 679-80 (1984). Thus, when determining the\n\npurpose or primary effect of challenged religious content, courts, including this Circuit,\n\nconsistently have examined the entire context surrounding the challenged practice, rather\n\nthan only reviewing the contested portion. See Lambeth v. Bd. of Comm’rs of Davidson\n\nCty., 407 F.3d 266, 271 (4th Cir. 2005); see also Freedom from Religion Found., Inc. v.\n\nCity of Warren, 707 F.3d 686, 692-93 (6th Cir. 2013); Croft v. Perry, 624 F.3d 157, 168\n\n(5th Cir. 2010); Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680, 688-89 (7th Cir.\n\n1994); Cammack v. Waihee, 932 F.2d 765, 787 (9th Cir. 1991); Smith v. Bd. of Sch.\n\nComm’rs of Mobile Cty., 827 F.2d 684, 692 (11th Cir. 1987).\n\n Indeed, common sense dictates a context-driven approach. Viewing the\n\nchallenged statements in isolation would violate the analysis mandated by the Supreme\n\nCourt in Lemon. As we have stated, Lemon first requires us to consider whether teaching\n\nthe challenged materials had some secular purpose. Moss, 683 F.3d at 608. Such a\n\ndetermination can only be made by considering the academic framework in which those\n\nmaterials were presented. See McCreary County v. ACLU, 545 U.S. 844, 862 (2005);\n\nAdland v. Russ, 307 F.3d 471, 481 (6th Cir. 2002) (“[C]ontext is critically important in\n\nevaluating a state’s proffered secular purpose.”). And in requiring us to determine\n\nwhether the primary effect of the challenged materials was to advance or inhibit religion,\n\nMoss, 683 F.3d at 608, Lemon necessarily requires consideration of the contextual setting\n\nin which those materials were used, see Lambeth, 407 F.3d at 271 (explaining that the\n\n“proper analysis” of Lemon’s second prong requires examining the effect of a religious\n\n 8\n\fdisplay “in its particular setting”). Thus, any attempt on our part to strip statements from\n\ntheir context invariably would lead to confusion and misinterpretation when applying the\n\nLemon test.\n\n Manifestly, if courts were to find an Establishment Clause violation every time\n\nthat a student or parent thought that a single statement by a teacher either advanced or\n\ndisapproved of a religion, instruction in our public schools “would be reduced to the\n\nlowest common denominator.” Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d\n\n1373, 1379 (9th Cir. 1994). Such a focus on isolated statements effectively would\n\ntransform each student, parent, and by extension, the courts, into de facto “curriculum\n\nreview committee[s],” monitoring every sentence for a constitutional violation. Id.\n\n School authorities, not the courts, are charged with the responsibility of deciding\n\nwhat speech is appropriate in the classroom. See Hazelwood Sch. Dist. v. Kuhlmeier, 484\n\nU.S. 260, 267 (1988) (citing Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683\n\n(1986)). Although schools are not “immune from the sweep of the First Amendment,”\n\nacademic freedom is itself a concern of that amendment. Healy v. James, 408 U.S. 169,\n\n180-81 (1972); see also Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226\n\n(1985); Keyishian v. Bd. of Regents of Univ. of the State of N.Y., 385 U.S. 589, 603\n\n(1967). Such academic freedom would not long survive in an environment in which\n\ncourts micromanage school curricula and parse singular statements made by teachers.\n\nBecause the challenged materials were presented as part of Wood’s world history\n\ncurriculum, it is in that context that we examine them.\n\n 2.\n\n 9\n\f The first prong of the Lemon test asks whether the government’s conduct has an\n\n“adequate secular object.” McCreary County, 545 U.S. at 865. This directive requires an\n\n“inquiry into the subjective intentions of the government.” Mellen, 327 F.3d at 372\n\n(emphasis added). This part of the Lemon test imposes a “fairly low hurdle,” requiring\n\nthe government to show that it had a “plausible secular purpose” for its action. Glassman\n\nv. Arlington County, 628 F.3d 140, 146 (4th Cir. 2010). Notably, the government’s\n\npurpose need not be “exclusively secular.” Brown v. Gilmore, 258 F.3d 265, 276 (4th\n\nCir. 2001) (citations omitted). Rather, it is only “[w]hen the government acts with the\n\nostensible and predominant purpose of advancing religion” that it violates the\n\nEstablishment Clause’s “touchstone” principle of religious neutrality. McCreary County,\n\n545 U.S. at 860 (emphasis added). So long as the proffered secular purpose is “genuine,\n\nnot a sham, and not merely secondary to a religious objective,” that purpose will satisfy\n\nLemon’s first prong. Id. at 864; see Lambeth, 407 F.3d at 270 (“A legitimate secular\n\npurpose is . . . sufficient to pass muster under the first prong of the Lemon test, unless the\n\nalleged secular purpose is in fact pretextual.”).\n\n The Supreme Court has recognized the secular value of studying religion on a\n\ncomparative basis. See, e.g., Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 255\n\n(1963) (“[I]t might well be said that one’s education is not complete without a study of\n\ncomparative religion or the history of religion and its relationship to the advancement of\n\ncivilization.”). In this case, the comparative faith statement was part of an academic unit\n\nin which students studied Middle Eastern empires and the role of Islam. The unit did not\n\nfocus exclusively on Islam’s core principles, but explored “among other things, formation\n\n 10\n\fof Middle Eastern empires including the basic concepts of the Islamic faith and how it\n\nalong with politics, culture, economics, and geography contributed to the development of\n\nthose empires.” Nothing in the record indicates that the comparative faith statement was\n\nmade with a subjective purpose of advancing Islam over Christianity, or for any other\n\npredominately religious purpose. Nor does the record show that the proffered secular\n\npurpose of teaching about Muslim empires in the context of world history was pretextual.\n\nSee Lambeth, 407 F.3d at 270. Thus, on its face, the comparative faith statement was\n\nintroduced for a genuine secular purpose.\n\n Similarly, the shahada assignment was a tool designed to assess the students’\n\nunderstanding of the lesson on Islam. In total, the worksheet included 17 questions with\n\n27 blank entries to be completed by the students on the history of Islam, “beliefs and\n\npractices” of Muslims, and links between Islam, Judaism, and Christianity. The students\n\nwere not required to memorize the shahada, to recite it, or even to write the complete\n\nstatement of faith. Instead, the worksheet included a variety of factual information\n\nrelated to Islam and merely asked the students to demonstrate their understanding of the\n\nmaterial by completing the partial sentences. This is precisely the sort of academic\n\nexercise that the Supreme Court has indicated would not run afoul of the Establishment\n\nClause. See Schempp, 374 U.S. at 225 (“Nothing we have said here indicates that such\n\nstudy . . . of religion, when presented objectively as part of a secular program of\n\neducation, may not be effected consistently with the First Amendment.” (emphasis\n\nadded)). Because the school had a predominately secular purpose in teaching world\n\n\n\n 11\n\fhistory, we conclude that both the comparative faith statement and the shahada\n\nassignment satisfy the first prong of Lemon.\n\n 3.\n\n To meet the second prong of Lemon, the challenged government action “must\n\nhave a primary effect that neither advances nor inhibits religion.” Moss, 683 F.3d at 608.\n\nThis requirement sets an objective standard, which “measure[s] whether the principal\n\neffect of government action is to suggest government preference for a particular religious\n\nview or for religion in general.” Mellen, 327 F.3d at 374 (citation omitted). We have\n\n“refine[d]” this analysis by incorporating the Supreme Court’s “endorsement test,” which\n\nasks whether a reasonable, informed observer would conclude that government, by its\n\naction, has endorsed a particular religion or religion generally. See id.; see also County of\n\nAllegheny, 492 U.S. at 592-94 (adopting the endorsement test in the Establishment\n\nClause context). Thus, in this Circuit, the primary effect prong asks whether,\n\n“irrespective of government’s actual purpose,” a reasonable, informed observer would\n\nunderstand that “the practice under review in fact conveys a message of endorsement or\n\ndisapproval” of a religion. Mellen, 327 F.3d at 374 (citation omitted). We presume that a\n\n“reasonable observer in the endorsement inquiry” is “aware of the history and context of\n\nthe . . . forum in which the religious speech takes place.” Good News Club v. Milford\n\nCent. Sch., 533 U.S. 98, 119 (2001) (quoting Capitol Square Review & Advisory Bd. v.\n\nPinette, 515 U.S. 753, 779-80 (1995) (O’Connor, J., concurring in part and concurring in\n\nthe judgment)).\n\n\n\n 12\n\f The use of both the comparative faith statement and the shahada assignment in\n\nWood’s world history class involved no more than having the class read, discuss, and\n\nthink about Islam. The comparative faith statement appeared on a slide under the\n\nheading “Peaceful Islam v. Radical Fundamental Islam.” The slide itself did not\n\nadvocate any belief system but instead focused on the development of Islamic\n\nfundamentalism as a political force. And the shahada assignment appeared on the\n\nstudent worksheet under the heading “Beliefs and Practices: The Five Pillars.” Thus, the\n\nassignment asked the students to identify the tenets of Islam, but did not suggest that a\n\nstudent should adopt those beliefs as her own.\n\n This is not a case in which students were being asked to participate in a daily\n\nreligious exercise, see Lee v. Weisman, 505 U.S. 577, 598-99 (1992) (holding that\n\nrequiring students to stand for graduation prayer constituted compelled participation in\n\nreligious ritual); Engel v. Vitale, 370 U.S. 421, 424-25 (1962) (striking down state-\n\nsponsored prayer due to the inherently religious nature of prayer), or a case in which\n\nIslamic beliefs were posted on a classroom wall without explanation, see Stone v.\n\nGraham, 449 U.S. 39, 41-42 (1980) (holding that posting the Ten Commandments on a\n\npublic school classroom wall violated the Establishment Clause). Rather, the challenged\n\nmaterials were “integrated into the school curriculum” and were directly relevant to the\n\nsecular lessons being taught. Stone, 449 U.S. at 41-42. These types of educational\n\n\n\n\n 13\n\fmaterials, which identify the views of a particular religion, 4 do not amount to an\n\nendorsement of religion. See id.; see also Parker v. Hurley, 514 F.3d 87, 106 (1st Cir.\n\n2008) (“Public schools are not obliged to shield individual students from ideas which\n\npotentially are religiously offensive, particularly when the school imposes no requirement\n\nthat the student agree with or affirm those ideas.”). A reasonable observer, aware of the\n\nworld history curriculum being taught, would not view the challenged materials as\n\ncommunicating a message of endorsement.\n\n Additionally, we note that the challenged materials constituted only a very small\n\npart of the school’s world history curriculum. As we have explained, we must view the\n\neffect of the challenged materials within the context in which they were used. See\n\nLambeth, 407 F.3d at 271 (examining the primary effect of a religious display “in its\n\nparticular setting”). Wood does not argue that the world history class itself advanced any\n\nreligion. Indeed, she readily admits that it is permissible to teach “how the Islamic faith\n\ncontributed to the development of politics, culture, and geography.” As a matter of\n\ncommon sense, an objective observer would not perceive a singular statement such as the\n\n 4\n Although scholars could debate endlessly the content of the comparative faith\nstatement and its suitability for use in an educational context, the “primary effect” prong\nof the Lemon test “must be assessed objectively.” Mellen, 327 F.3d at 374. Thus,\nWood’s argument that the comparative faith statement is a “subjective, biased statement”\nabout Islam is outside the bounds of our consideration whether use of the statement was\nconstitutional. For the same reason, Wood’s contention that she viewed the comparative\nfaith statement as offensive, and that some school officials thought the statement was\ninappropriate, is unavailing. See Lee, 505 U.S. at 597 (“We do not hold that every state\naction implicating religion is invalid if one or a few citizens find it offensive.”); Brown,\n27 F.3d at 1383 (“[A] child’s subjective perception that a state action disapproves of or is\nhostile toward his or her religion is not, by itself, sufficient to establish an Establishment\nClause violation.”).\n\n 14\n\fcomparative faith statement, or a lone question about a religion’s core principle on a fill-\n\nin-the-blank assignment, as an endorsement or disapproval of religion. Therefore, we\n\nconclude that the primary effect of both the comparative faith statement and the shahada\n\nassignment was to teach comparative religion, not to endorse any religious belief.\n\nAccordingly, the use of the challenged materials satisfies Lemon’s second prong.\n\n 4.\n\n The final prong of the Lemon test asks whether the government’s action created\n\n“an excessive entanglement between government and religion,” Lambeth, 407 F.3d at\n\n272-73 (internal quotation marks omitted), which “is a question of kind and degree,”\n\nLynch, 465 U.S. at 684. Excessive entanglement “typically” involves “the government’s\n\n‘invasive monitoring’ of certain activities in order to prevent religious speech,” or the\n\nfunding of religious schools or instruction. Buxton, 862 F.3d at 433; Comm. for Pub. Ed.\n\n& Religious Liberty v. Nyquist, 413 U.S. 756, 770 (1973) (“Primary among those evils\n\n[targeted by the Establishment Clause] have been sponsorship, financial support, and\n\nactive involvement of the sovereign in religious activity.” (citation omitted)). Excessive\n\nentanglement may also be shown when the government’s entanglement has “the effect of\n\nadvancing or inhibiting religion.” See Agostini v. Felton, 521 U.S. 203, 232-33 (1997).\n\n We need not dwell long on the entanglement prong. As already discussed, neither\n\nthe comparative faith statement nor the shahada assignment advanced or inhibited any\n\nreligion. And there is no evidence in the record that these materials were obtained from a\n\nreligious institution or benefited any such institution. Finally, there is no evidence that\n\nuse of the challenged materials resulted in “invasive monitoring” of activities to prevent\n\n 15\n\for advance religious speech. See, e.g., Bd. of Educ. of Westside Cmty. Sch. v. Mergens,\n\n496 U.S. 226, 253 (1990). Under the world history curriculum, it appears that lessons on\n\nthe Muslim world constituted, at most, five days of a year-long course. Thus, we\n\nconclude that neither the comparative faith statement nor the shahada assignment\n\nresulted in an excessive entanglement with religion. Because the challenged materials\n\nsatisfy all three prongs of the Lemon test, we hold that the district court properly granted\n\nsummary judgment to the defendants on Wood’s Establishment Clause claim. 5\n\n B.\n\n We next consider Wood’s Free Speech Clause challenge. Wood argues that the\n\ndefendants violated her free speech rights by requiring her to complete in writing two\n\nmissing words of a portion of the shahada, namely, that “[t]here is no god but Allah and\n\nMuhammad is the messenger of Allah.” In her view, “the curriculum implemented and\n\nsupervised by [d]efendants compelled [Wood] to confess by written word and deed her\n\nfaith in Allah.” We disagree with Wood’s position.\n\n Generally, when a governmental entity requires a person “to utter or distribute\n\nspeech bearing a particular message,” we subject that requirement to “rigorous scrutiny.”\n\nGreater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 879\n\n\n 5\n In Wood’s amended complaint, she objects to other portions of the world history\ncurriculum, such as the fact that that Wood was “instructed from the text of the Qur’an,”\nthat Wood was “instructed . . . that [r]ighteous women are . . . obedient” to men, and that\nthe course devoted only a single day to the study of Christianity while multiple days were\nspent studying Islam. Wood waived these arguments by failing to raise them in her\nopening brief. Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A\nparty waives an argument by failing to present it in its opening brief.”).\n\n 16\n\fF.3d 101, 107 (4th Cir. 2018) (citation omitted). In the public school setting, students do\n\nnot “shed their constitutional rights to freedom of speech or expression at the\n\nschoolhouse gate,” but retain their First Amendment rights “applied in light of the special\n\ncharacteristics of the school environment.” Tinker v. Des Moines Indep. Cmty. Sch. Dist.,\n\n393 U.S. 503, 506 (1969). However, the Supreme Court has emphasized that students’\n\nFirst Amendment rights in public schools “are not automatically coextensive with the\n\nrights of adults in other settings.” Kuhlmeier, 484 U.S. at 266.\n\n In considering the right against compelled speech in the public school context, the\n\nThird Circuit has explained:\n\n First Amendment jurisprudence recognizes that the educational process\n itself may sometimes require a state actor to force a student to speak when\n the student would rather refrain. A student may also be forced to speak or\n write on a particular topic even though the student might prefer a different\n topic. And while a public educational institution may not demand that a\n student profess beliefs or views with which the student does not agree, a\n school may in some circumstances require a student to state the arguments\n that could be made in support of such beliefs or views.\n\nC.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 187 (3d Cir. 2005). We agree with the\n\nThird Circuit’s reasoning. Although a student’s right against compelled speech in a\n\npublic school may be asserted under various circumstances, that right has limited\n\napplication in a classroom setting in which a student is asked to study and discuss\n\nmaterials with which she disagrees.\n\n In the present case, the record is clear that the shahada assignment did not require\n\nWood to profess or accept the tenets of Islam. The students were not asked to recite the\n\nshahada, nor were they required to engage in any devotional practice related to Islam.\n\n\n 17\n\fCf. W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 631-32 (1943) (distinguishing between\n\ncompelling students to declare a belief through mandatory recital of the pledge of\n\nallegiance, and “merely . . . acquaint[ing students] with the flag salute so that they may be\n\ninformed as to what it is or even what it means”). Instead, the shahada assignment\n\nrequired Wood to write only two words of the shahada as an academic exercise to\n\ndemonstrate her understanding of the world history curriculum. On these facts, we\n\nconclude that Wood’s First Amendment right against compelled speech was not violated.\n\n\n\n III.\n\n For these reasons, we affirm the district court’s judgment.\n\n AFFIRMED\n\n\n\n\n 18", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366808/", "author_raw": "BARBARA MILANO KEENAN, Circuit Judge:"}]} | KEENAN | WYNN | HARRIS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4589555/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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4,589,849 | Eduardo Antonio RODRIGUEZ-ARIAS, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent. | Eduardo Rodriguez-Arias v. Matthew Whitaker | 2019-02-12 | 17-2211 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before FLOYD and HARRIS, Circuit Judges, and Donald C. COGGINS, United States District Judge for the District of South Carolina, sitting by designation.", "parties": "", "opinions": [{"author": "FLOYD, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-2211\n\n\nEDUARDO ANTONIO RODRIGUEZ-ARIAS,\n\n Petitioner,\n\n v.\n\nMATTHEW G. WHITAKER, Acting Attorney General,\n\n Respondent.\n\n\nOn Petition for Review of an Order of the Board of Immigration Appeals.\n\n\nArgued: October 30, 2018 Decided: February 12, 2019\n\n\nBefore FLOYD and HARRIS, Circuit Judges, and Donald C. COGGINS, United States\nDistrict Judge for the District of South Carolina, sitting by designation.\n\n\nPetition for review granted; vacated and remanded by published opinion. Judge Floyd\nwrote the opinion, in which Judge Harris and Judge Coggins joined.\n\n\nARGUED: James Feroli, CATHOLIC CHARITIES IMMIGRATION LEGAL\nSERVICES, Washington, D.C., for Petitioner. Margot Lynne Carter, UNITED STATES\nDEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Jennifer\nBibby-Gerth, CATHOLIC CHARITIES IMMIGRATION LEGAL SERVICES,\nWashington, D.C., for Petitioner. Chad A. Readler, Acting Assistant Attorney General,\nTerri J. Scadron, Assistant Director, Leslie McKay, Senior Litigation Counsel, Office of\nImmigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,\nWashington, D.C., for Respondent.\n\fFLOYD, Circuit Judge:\n\n Eduardo Rodriguez-Arias (Rodriguez), a native of El Salvador, petitions for review\n\nof the final order of the Board of Immigration Appeals (BIA) affirming the denial of his\n\nclaim for protection under the United Nations Convention Against Torture and Other Cruel,\n\nInhuman or Degrading Treatment or Punishment (CAT). We grant his petition for review\n\nof his CAT claim, vacate the BIA’s order with respect to that claim, and remand for further\n\nproceedings consistent with this opinion.\n\n\n\n I.\n\n Rodriguez fled El Salvador’s rampant gang-related violence and crime in 2005,\n\nwhen he unlawfully entered the United States as a twelve-year-old. At that time, his\n\ngrandparents were being extorted by the gangs, he himself had been robbed twice by them,\n\nand his teenage cousin had been killed after refusing to join them. The cause of\n\nRodriguez’s flight now forms part of the basis for his claim for relief: Rodriguez fears\n\nbeing returned to El Salvador due to the country’s continued high rate of gang-perpetrated\n\nviolence. But what’s more, he now also fears violence at the hands of anti-gang vigilante\n\ngroups and the state police because today he bears the insignia of gang affiliation on his\n\nbody—gang-related tattoos.\n\n After he arrived in the United States, Rodriguez moved to Maryland and joined\n\nSureños 13, a United States-based gang with no presence in El Salvador. Due to his\n\naffiliation with Sureños 13, Rodriguez obtained multiple tattoos that identify him as a gang\n\nmember. These include the word “Sureños” on his chest, the phrase “Brown Pride” on his\n\n 2\n\fstomach, “BPS” and “13” on his left hand, the letter “S” above each of his knees, and\n\n“BPS” on his back. A.R. 951–56. Although Rodriguez left Sureños 13 in 2011 or 2012,\n\nand has had a face tattoo removed, his other explicitly gang-related tattoos remain.\n\n After he was placed in removal proceedings, Rodriguez sought relief from removal\n\nunder the CAT. 1 He received an evidentiary hearing before an Immigration Judge (IJ) on\n\nMay 16, 2016. At the hearing, Rodriguez testified that he fears returning to El Salvador.\n\nBecause of his tattoos, he expects to be targeted by the violent gangs that plague the\n\ncountry, who will see him as a rival; by anti-gang vigilante groups, who engage in\n\nextrajudicial killings of gang members to protect their communities; and by the police, who\n\nuse extreme violence in their anti-gang efforts. Rodriguez explained in his testimony that\n\nin El Salvador, having tattoos is seen as an automatic sign of gang membership and people\n\ndo not bother investigating whether you are still an active gang member before harming\n\nyou. Confirming his fears, a friend of his who, like Rodriguez, had once belonged to\n\nSureños 13 was killed within a week after being deported to El Salvador.\n\n Indeed, Rodriguez testified that even after he left Sureños 13, his tattoos have made\n\nhim a target of violence at the hands of Salvadoran gangs operating in the United States.\n\nOn one occasion, he was chased by ten to twenty men dressed in blue, the color worn by\n\nthe notorious Mara Salvatrucha or MS-13 gang. On another occasion he was walking near\n\nhis home when an MS-13 member struck him with a bat, and on still another occasion\n\n\n\n 1\n Rodriguez also applied for asylum and for withholding of removal but did not\nappeal the denial of those forms of relief.\n\n 3\n\fsomeone hit him with a chair when he visited a restaurant frequented by MS-13 members.\n\nRodriguez has also been threatened by rival gangs while in immigration detention. An\n\nMS-13 member in detention told Rodriguez that as soon as he arrives in El Salvador, MS-\n\n13 will find him and kill him. Two members of the 18th Street gang told him that in El\n\nSalvador, 18th Street will look for him and will “have fun with” his body. A.R. 440.\n\n In addition to his own testimony, Rodriguez provided evidence from five expert\n\nwitnesses about how gang members or suspected gang members routinely experience\n\nextreme violence in El Salvador at the hands of other gangs, numerous vigilante groups,\n\nand police forces. He also produced the U.S. Department of State 2015 and 2014 Country\n\nReports on El Salvador, the asylum eligibility guidelines for El Salvador from the United\n\nNations High Commissioner for Refugees, and approximately thirty articles from various\n\nscholarly and news sources describing the appallingly violent conditions in El Salvador.\n\nIn all, he provided over 300 pages of documentation.\n\n The IJ denied Rodriguez’s application for relief. She devoted less than one page of\n\nher opinion to the CAT claim and limited her risk-of-torture analysis to the risks that\n\nRodriguez faced from gangs and the police. On appeal, the BIA remanded the case so that\n\nthe IJ could address Rodriguez’s risk of torture from vigilante groups as well. Nowhere in\n\nthe two-page remand order did the BIA state that the IJ’s original opinion had been vacated\n\nor reversed.\n\n On remand, Rodriguez provided additional country-conditions evidence relating to\n\nhis risk of torture in El Salvador. The IJ then issued a supplemental opinion, which\n\nincorporated her first opinion by reference and provided new analysis on only those topics\n\n 4\n\fthat the BIA had ordered addressed. The IJ again denied CAT relief, this time devoting\n\nthree pages to the topic. On Rodriguez’s second appeal, the BIA reviewed the IJ opinions\n\ntogether, adopted both, and supplemented them with additional reasoning. In the BIA’s\n\ntwo pages of CAT analysis, it did not refer specifically to any of the evidence provided by\n\nRodriguez. This petition for review timely followed.\n\n\n\n II.\n\n When making a CAT claim, the alien seeking relief has the burden to show that “it\n\nis more likely than not that he or she would be tortured” in the country of removal. 8 C.F.R.\n\n§ 1208.16(c)(2) (2012). Torture is defined as (1) “any act by which severe pain or\n\nsuffering, whether physical or mental, is intentionally inflicted on a person” in a manner\n\nthat is (2) “by or at the instigation of or with the consent or acquiescence of a public official\n\nor other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1) (2012). Public\n\nofficials acquiesce to torture when, “prior to the activity constituting torture, [they] have\n\nawareness of such activity and thereafter breach [their] legal responsibility to intervene to\n\nprevent such activity.” 8 C.F.R. § 1208.18(a)(7). Public officials breach their\n\nresponsibility to intervene when they engage in “willful blindness” or “turn a blind eye to\n\ntorture.” Suarez-Valenzuela v. Holder, 714 F.3d 241, 245 (4th Cir. 2013) (quoting\n\nOntunez–Tursios v. Ashcroft, 303 F.3d 341, 355 (5th Cir. 2002)). Public officials need not\n\nhave actual knowledge of torture to have engaged in willful blindness. Id. When\n\ndetermining whether the willful-blindness standard has been met, “immigration judges\n\nshould consider evidence of past torture, evidence of ‘gross, flagrant or mass violations of\n\n 5\n\fhuman rights,’ the country’s conditions, and whether the applicant could relocate to a part\n\nof the country where he or she is unlikely to be tortured.” Id. (quoting 8 C.F.R.\n\n§ 1208.16(c)(3) (2012)).\n\n In reviewing the denial of a CAT claim, we review the agency’s finding of fact for\n\nsubstantial evidence. See Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010). In the\n\nimmigration context, this standard means that “administrative findings of fact are\n\nconclusive unless any reasonable adjudicator would be compelled to conclude to the\n\ncontrary.” 8 U.S.C. § 1252(b)(4)(B) (2012); Suarez-Valenzuela, 714 F.3d at 245. Legal\n\ndeterminations, however, are reviewed de novo. Hui Zheng v. Holder, 562 F.3d 647, 651\n\n(4th Cir. 2009). Although the BIA may be granted Chevron deference when it decides\n\nmatters of statutory interpretation, such deference is not granted where, as here, the BIA\n\nissued a nonprecedential opinion authored by a single member. Martinez v. Holder, 740\n\nF.3d 902, 909 (4th Cir. 2014); Turkson, 667 F.3d at 527; see Chevron, U.S.A., Inc. v.\n\nNatural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).\n\n We may also overturn the BIA’s determinations if we conclude that the BIA abused\n\nits discretion. Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). “The BIA may be held\n\nto have abused its discretion if it failed to offer a reasoned explanation for its decision, or\n\nif it distorted or disregarded important aspects of the applicant’s claim.” Id. Finally,\n\nbecause the BIA here “adopted and supplemented an IJ decision, we are obliged to review\n\nboth rulings.” Id.\n\n\n\n III.\n\n 6\n\f In his petition for review, Rodriguez first argues that the BIA made a legal error\n\nwhen it denied him CAT relief because it failed to aggregate his risk of torture from all\n\nthree of the entities that he fears: gangs, vigilante groups, and the police. We agree.\n\n The CAT implementing regulations provide that when “assessing whether it is more\n\nlikely than not that an applicant would be tortured in the proposed country of removal, all\n\nevidence relevant to the possibility of future torture shall be considered.” 8 C.F.R.\n\n§ 1208.16(c)(3) (2012) (emphasis added). The Ninth Circuit has read this requirement to\n\nmean that “CAT claims must be considered in terms of the aggregate risk of torture from\n\nall sources, and not as separate, divisible CAT claims.” Quijada-Aguilar v. Lynch, 799\n\nF.3d 1303, 1308 (9th Cir. 2015). The Third Circuit agrees. In a case where the CAT\n\napplicant feared torture from two different entities, the Third Circuit explained that “[a]\n\nproper application of the regulations . . . merely requires [the applicant] to establish that it\n\nis more likely than not that he faces torture . . . when the two entities are considered\n\ntogether”—in other words, when “the cumulative probability of torture by the two entities\n\nexceeds 50%.” Kamara v. Attorney General, 420 F.3d 202, 213–14 (3d Cir. 2005)\n\n(demonstrating the aggregation analysis by adding a 27% likelihood of torture from one\n\nentity to a 28% of torture from another entity for a combined risk of torture of 55%, which\n\nmerited CAT relief); see also Matter of G-A-, 23 I. & N. Dec. 366, 366, 368 (BIA 2002)\n\n(en banc) (explaining in a case where the CAT applicant feared that he would be tortured\n\nbased on several factors, including “his religion, his ethnicity, the duration of his residence\n\nin the United States, and his drug-related convictions,” that “the evidence of record, when\n\nconsidered in the aggregate, supports the respondent’s contention that he would more\n\n 7\n\flikely than not be tortured upon his return to Iran” (emphasis added)). No other U.S. Courts\n\nof Appeals have disagreed with this analysis.\n\n We now join our sister circuits and hold that the risks of torture from all sources\n\nshould be combined when determining whether a CAT applicant is more likely than not to\n\nbe tortured in a particular country. That interpretation is most consistent with both the\n\nimplementing regulations and our treaty obligations not to return individuals to a country\n\nwhere they face a substantial risk of torture. See United States v. Belfast, 611 F.3d 783,\n\n806–07 (11th Cir. 2010) (explaining that “settled rules of treaty interpretation require that\n\nwe construe the CAT generously”); see also Pierre v. Gonzales, 502 F.3d 109, 114–16 (2d\n\nCir. 2007) (explaining that courts owe deference to the executive branch’s treaty\n\ninterpretation as expressed through implementing regulations). We therefore confirm that\n\nthe aggregation analysis described by the Ninth and Third Circuits is required when\n\nassessing an applicant’s risk of torture.\n\n While the government concedes that the BIA should have aggregated the risk of\n\ntorture that Rodriguez faces in El Salvador, it nevertheless argues that there was no error\n\nbelow because both the BIA and IJ did “consider Rodriguez’s claim for relief\n\ncumulatively.” Appellee Br. at 26. We disagree. In her first order, the IJ addressed only\n\nthe risks that Rodriguez faced from gangs and the police, with no mention of vigilante\n\ngroups. In her second order, the IJ simply stated: “Respondent has failed to demonstrate\n\nthat it is more likely than not that he would be tortured by vigilante groups[.]” A.R. 124.\n\nAt no point did she consider the aggregated risk caused by all three entities in unison by\n\n\n\n 8\n\fadding the probability of torture from each entity and determining whether that sum\n\nexceeded 50%.\n\n The BIA, in turn, devoted no space in its final order to aggregating risk. Instead, it\n\nasserted the rule that “[a]n alien’s eligibility for [CAT] protection cannot be established by\n\nstringing together a series of suppositions to show that it is more likely than not that torture\n\nwill result,” unless the evidence “establish[es] that each step in the hypothetical chain of\n\nevents is more likely than not to happen,” citing a BIA opinion as support. A.R. 007. Then,\n\nwithout citing to or describing any of Rodriguez’s evidence, the BIA simply stated:\n\n“[Rodriguez] has not shown that his hypothetical chain of events is more likely than not to\n\nhappen.” A.R. 008. But Rodriguez never attempted to prove a string of events. Instead,\n\nhe has consistently asserted that due to his tattoos, he fears torture from three separate\n\nentities: police, gangs, and vigilante groups. The proper response to Rodriguez’s fears is\n\nto add the amount of risk that each group poses to him and then determine whether that\n\nsum is greater than 50%. The BIA failed to do that analysis here, necessitating remand. 2\n\n\n 2\n The BIA also cited two cases to support its determination that Rodriguez’s tattoos\nwould not put him at substantial risk of torture in El Salvador. The Court is not persuaded\nby these cases for several reasons. First, CAT claims are highly fact specific, which means\nthat one applicant may be able to show a substantial risk of torture in El Salvador due to\nhis tattoos while another may not. Huang v. Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2004).\nSecond, the cases cited by the BIA are readily distinguishable. In Castillo-Pena v. Holder,\n482 F. App’x 847 (4th Cir. 2012), the Court found that an unrepresented applicant had\nfailed to show that it was more likely than not that he would be tortured by Salvadoran\npolice because of his tattoos. The case did not address the combined risks posed by police,\nvigilante groups, and gangs in El Salvador. Id. at 848. In the second, Andrade v. Lynch,\n798 F.3d 1242 (9th Cir. 2015), the Ninth Circuit affirmed the BIA’s denial of CAT relief\nto a Salvadoran applicant who had two discreet non-gang-related tattoos. Id. at 1245.\nHowever, those tattoos—which were merely his and his girlfriend’s initials—do not pose\n(Continued)\n 9\n\f IV.\n\n Rodriguez also argues that the BIA and IJ erred by (1) failing to meaningfully\n\nengage with the live testimony and over 300 pages of documentary evidence that he\n\noriginally produced in support of his claim, and (2) failing to meaningfully consider the\n\nadditional evidence that he submitted on remand about the risk of torture that he faces in\n\nEl Salvador. We agree.\n\n It is an abuse of discretion for the BIA or IJ to arbitrarily ignore relevant evidence.\n\nBaharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009); Tassi, 660 F.3d at 719. “Those who\n\nflee persecution and seek refuge under our laws have the right to know that the evidence\n\nthey present of mistreatment in their home country will be fairly considered and weighed\n\nby those who decide their fate.” Baharon, 588 F.3d at 233. Therefore, it is this Court’s\n\nresponsibility to “ensure that unrebutted, legally significant evidence is not arbitrarily\n\nignored by the factfinder.” Id. Moreover, the BIA’s or IJ’s failure to engage with an\n\napplicant’s evidence hampers our ability to meaningfully review what was decided below.\n\nZelaya v. Holder, 668 F.3d 159, 168 (4th Cir. 2012). Hence, a wholesale “failure [by] the\n\n\n\nthe same level of risk as the plentiful and conspicuous gang tattoos on Rodriguez. Indeed,\nthe case most similar to the one at bar was not even cited by the BIA and supports\nRodriguez’s CAT claim here. In Cole v. Holder, 659 F.3d 762 (9th Cir. 2011), a former\ngang member with conspicuous gang tattoos on his face, calves, arms, and back sought\nCAT relief because he feared that he would be tortured by the gangs, police forces, and\nanti-gang death squads in his native Honduras. Id. at 765. The Ninth Circuit vacated and\nremanded the BIA’s denial of CAT relief because it determined that the BIA had failed to\naggregate the risk of torture that these three entities posed to an individual with multiple\nand conspicuous gang tattoos. Id. at 775.\n\n 10\n\fIJ and BIA to consider evidence of country conditions constitutes reversible error.”\n\nAguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010); see also Ai Hua Chen v.\n\nHolder, 742 F.3d 171, 179 (4th Cir. 2014) (explaining that the IJ and BIA must “offer a\n\nspecific, cogent reason for rejecting evidence”).\n\n The IJ did not meaningfully address the evidence that Rodriguez provided about\n\ncountry conditions in El Salvador, especially the Salvadoran government’s behavior\n\ntowards gang members and suspected gang members. In her first opinion, she\n\nacknowledged that there are “some instances of torture of gang members and former gang\n\nmembers by the police in El Salvador,” but then asserted that the “evidence does not\n\nsupport” the likelihood that the harm inflicted on Rodriguez would be with the\n\ngovernment’s acquiescence. A.R. 372. There was no other analysis. In her second\n\nopinion, the IJ admitted that “[t]he evidence does indicate that Salvadoran authorities have\n\nrecently failed to address many instances of vigilante violence.” A.R. 125. But she again\n\nfound that Rodriguez’s evidence was insufficient, this time because Salvadoran law\n\n“prohibits extrajudicial killings and violence” and there have been some efforts by the\n\ngovernment to investigate extrajudicial killings. A.R. 125. The IJ did not address\n\nRodriguez’s extensive evidence about the government’s willingness to use torture on\n\nsuspected gang members or its willingness to turn a blind eye to the extreme violence\n\nbetween rival gangs and between gangs and vigilante groups. This evidence included:\n\n 1) El Salvador passed a law in November 2013 that protects police officers who\n kill in the line of duty, which resulted in a spike of extrajudicial killings, A.R.\n 536;\n 2) Salvadoran police officers routinely drop off suspected gang members in a rival\n gang’s territory so that they will be tortured or killed by the rival gang, A.R. 536;\n\n 11\n\f 3) While El Salvador has announced investigations of several extrajudicial killings,\n the 2015 Country Report stated that these investigations have not resulted in any\n convictions, A.R. 605;\n 4) In January 2016, there were 738 murders in El Salvador, of which 28.6% were\n of alleged gang members, despite the fact that less than 2% of Salvadorans are\n in gangs, A.R. 567.\n\n The IJ’s failure to meaningfully engage with Rodriguez’s evidence was not\n\nremedied on appeal. In its review, both originally and after remand, the BIA did not engage\n\nwith Rodriguez’s evidence at all.\n\n This wholesale failure to fully consider Rodriguez’s country-conditions evidence\n\nconstitutes reversible error. Denying Rodriguez’s claim for CAT relief required more—\n\nmuch more—from both the BIA and the IJ. On remand, the BIA must interact seriously\n\nwith the full panoply of the risk-of-torture evidence submitted by Rodriguez, recognizing\n\nthat “country conditions alone can play a decisive role in granting relief under the [CAT].”\n\nKamalthus v. I.N.S., 251 F.3d 1279, 1280 (9th Cir. 2001); Aguilar-Ramos v. Holder, 594\n\nF.3d 701, 705 (9th Cir. 2010) (“[A] CAT applicant may satisfy his burden with evidence\n\nof country conditions alone.”). When a man’s life is on the line, he is entitled to know that\n\nthe court deciding his claim reviewed all his evidence, understood it, and had a cogent,\n\narticulable basis for its determination that his evidence was insufficient. The BIA and IJ\n\nboth failed to provide such a cogent, articulable basis here.\n\n\n\n\n 12\n\f V.\n\n In conclusion, we grant Rodriguez’s petition for review of his CAT claim, vacate\n\nthe BIA’s decision with respect to that claim, and remand for further proceedings consistent\n\nwith this opinion.\n\n\n\n PETITION FOR REVIEW GRANTED; VACATED AND REMANDED\n\n\n\n\n 13", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367102/", "author_raw": "FLOYD, Circuit Judge:"}]} | FLOYD | HARRIS | DONALD C COGGINS | 1 | {"FLOYD": ", Circuit", "HARRIS": ", Circuit", "C COGGINS": ", United States District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4589849/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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4,591,332 | NORFOLK SOUTHERN RAILWAY COMPANY, Plaintiff - Appellant, v. CITY OF ROANOKE, a Virginia Municipality, Defendant - Appellee, and Chesapeake Bay Foundation, Intervenor/Defendant - Appellee. | Norfolk Southern Railway v. City of Roanoke | 2019-02-15 | 18-1060 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Wilkinson, Wynn, Diaz", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888025/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888026/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888027/", "author_raw": ""}, {"author": "DIAZ, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1060\n\n\nNORFOLK SOUTHERN RAILWAY COMPANY,\n\n Plaintiff − Appellant,\n\n v.\n\nCITY OF ROANOKE, a Virginia Municipality,\n\n Defendant – Appellee,\n\n and\n\nCHESAPEAKE BAY FOUNDATION,\n\n Intervenor/Defendant − Appellee.\n\n\nAppeal from the United States District Court for the Western District of Virginia, at\nRoanoke. Glen E. Conrad, District Judge. (7:16-cv-00176-GEC)\n\n\nArgued: November 1, 2018 Decided: February 15, 2019\n\n\nBefore WILKINSON, WYNN, and DIAZ, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Wilkinson\nand Judge Wynn joined. Judge Wilkinson and Judge Wynn wrote separate concurring\nopinions.\n\n\nARGUED: Gary A. Bryant, WILLCOX & SAVAGE, P.C., Norfolk, Virginia, for\nAppellant. Monica Taylor Monday, GENTRY LOCKE, Roanoke, Virginia; Jon Alan\n\nMueller, CHESAPEAKE BAY FOUNDATION, Annapolis, Maryland, for Appellees.\nON BRIEF: Gregory J. Haley, Scott A. Stephenson, GENTRY LOCKE, Roanoke,\nVirginia; Daniel J. Callaghan, OFFICE OF THE CITY ATTORNEY FOR THE CITY\nOF ROANOKE, Roanoke, Virginia, for Appellee City of Roanoke. Alayna Chuney,\nBrittany Wright, CHESAPEAKE BAY FOUNDATION, INC., Annapolis, Maryland, for\nAppellee Chesapeake Bay Foundation, Inc.\n\n\n\n\n 2\n\nDIAZ, Circuit Judge:\n\n Plaintiff Norfolk Southern Railway appeals the district court’s order granting\n\nsummary judgment for Defendant City of Roanoke, Virginia and Defendant-Intervenor\n\nChesapeake Bay Foundation in this lawsuit alleging discriminatory taxation in violation\n\nof the Railroad Revitalization and Regulatory Reform Act of 1976. The district court\n\nconcluded that the City’s stormwater management charge is a fee, rather than a tax. This\n\ndistinction matters because only taxes are subject to challenge under the Act. For the\n\nreasons that follow, we affirm.\n\n\n\n I.\n\n A.\n\n The City of Roanoke operates a stormwater management system that includes\n\ngutters, storm drains, channels, retention basins, and other infrastructure. The system\n\ncollects stormwater and diverts it into the Roanoke River or one of its thirteen tributaries\n\nin the City.\n\n To operate its system, the City must hold a permit issued by Virginia’s\n\nDepartment of Environmental Quality pursuant to the federal Clean Water Act and\n\nEnvironmental Protection Agency regulations. Such permits “require controls to reduce\n\nthe discharge of pollutants to the maximum extent practicable, including management\n\npractices, control techniques and system, design and engineering methods, and such other\n\nprovisions as the [EPA] or the State determines appropriate for the control of such\n\npollutants.” 33 U.S.C. § 1342(p)(3)(B)(iii). The City’s permit requires it to implement\n\n\n 3\n\nsix “minimum control measures” and meet Total Maximum Daily Load (“TMDL”)\n\nlimits, among other requirements. 1\n\n To facilitate compliance with applicable state and federal stormwater regulations,\n\nVirginia law authorizes municipalities to establish stormwater utilities and enact\n\nstormwater management charges. Va. Code Ann. § 15.2.2114. These charges must be\n\nenacted “by ordinance,” and must “be based upon an analysis that demonstrates the\n\nrational relationship between the amount charged and the services provided.” Id.\n\n§ 15.2.2144(A), (B). Localities must also provide for full or partial waivers of charges to\n\nproperty owners who engage in certain stormwater management practices. Id. § 15.2-\n\n2114(D). Income from the charges “shall be dedicated special revenue . . . and may be\n\nused only to pay or recover costs for” seven purposes related to stormwater management.\n\nId. § 15.2-2114(A).\n\n In 2013, the Roanoke City Council enacted an ordinance establishing a\n\nStormwater Management Utility and a stormwater utility charge. The City Council found\n\nthat “an adequate, sustainable source of revenue for stormwater management activities is\n\nnecessary to protect the general health, safety, and welfare of the residents of the city.”\n\nRoanoke, Va., Code § 11.5-2. The Council also found that “parcels . . . with higher\n\namounts of impervious surfaces contribute greater amounts of stormwater and pollutants\n\n 1\n Minimum control measures include various means of reducing pollutants to\ncomply with the Clean Water Act, from public outreach and participation to system\noperation and maintenance. EPA, National Pollutant Discharge Elimination System—\nRegulations for Revision of the Water Pollution Control Program Addressing Storm\nWater Discharges, 64 Fed. Reg. 68,722, 68,752 (Dec. 8, 1999). TMDLs limit total\ndischarges of specified pollutants based on water quality criteria. 33 U.S.C. § 1313(d).\n\n\n 4\n\nto the city’s stormwater management system and that the owners of such parcels should\n\ncarry a proportionate burden of the cost of such system.” Id. Therefore, the Council\n\nchose to base the charge on “a parcel’s impervious surface cover.” Id.\n\n The ordinance imposes the stormwater management charge on all “improved\n\nparcels,” id. § 11.5-3(a), meaning all parcels with 250 square feet or more of impervious\n\nsurface, id. § 11.5-10(e). An impervious surface is one that significantly impedes or\n\nprevents “the natural infiltration of water into the soil.” Id. § 11.5-10(d). Approximately\n\n86% of the parcels in the City are considered improved parcels subject to the charge.\n\nJ.A. 57.\n\n Owners of improved parcels may apply for credits against the charge imposed\n\nupon them. Roanoke, Va., Code § 11.5-7. Credits are available for various stormwater\n\nmanagement activities that reduce, control, or treat stormwater runoff from improved\n\nparcels, such as installing rain gardens or pervious asphalt. Id.; see J.A. 135–36. The\n\nmaximum credit allowed for a given parcel is 50% of the total charge. Id. § 11.5-7(b)(1).\n\n All revenue from the charge is deposited into a stormwater utility enterprise fund,\n\nwhich is separate from the City’s general fund. The enterprise fund may only be used for\n\nsix stormwater management-related purposes listed in Va. Code Ann. § 15.2-2114(A).\n\nSince it was established, the Utility has used all revenue from the charge for stormwater\n\nmanagement.\n\n B.\n\n Norfolk Southern is one of the City’s largest property owners, and it holds one of\n\nthe City’s largest improved parcels. In 2017, it was assessed a stormwater charge of\n\n\n 5\n\n$416,748.28 for that parcel. Much of Norfolk Southern’s property is covered by railroad\n\ntrack and ballast. Ballast is the crushed stone surface beneath railroad tracks that\n\nstabilizes the tracks and drains stormwater away from them.\n\n Norfolk Southern claims that its ballasted property should be exempt from the\n\ncharge. It contends that ballast is at least as pervious to stormwater runoff as lawns,\n\nwhich are not considered impervious surfaces and are not subject to the charge.\n\n C.\n\n Following unsuccessful attempts to exempt the ballasted property from the charge,\n\nNorfolk Southern sued the City, alleging that the stormwater management charge is a\n\ndiscriminatory tax in violation of the Railroad Revitalization and Regulatory Reform Act\n\nof 1976 (the “4-R Act”), 49 U.S.C. § 11501. Under the 4-R Act, states and localities may\n\nnot impose any “tax that discriminates against a rail carrier.” Id. § 11501(b)(4). Norfolk\n\nSouthern alleges that the City’s stormwater management charge does just that because it\n\ntreats ballasted property differently from lawns, even though the two are, in the railroad’s\n\nview, equally pervious to stormwater.\n\n Following a period of discovery, the district court granted Defendants’ motion for\n\nsummary judgment, concluding that although it is “admittedly a close question,” the\n\ncharge is not subject to the 4-R Act’s requirements because it is a fee rather than a tax.\n\nNorfolk S. Railway Co. v. City of Roanoke, No. 7:16 CV 00176, 2017 WL 6599008, at\n\n*8–9 (W.D. Va. Dec. 26, 2017). We review the district court’s decision de novo. Valero\n\nTerrestrial Corp. v. Caffrey, 205 F.3d 130, 133 (4th Cir. 2000).\n\n\n\n\n 6\n\n II.\n\n Because the 4-R Act applies only to taxes, not fees, we must determine whether\n\nthe charge in this case is closer to (1) a paradigmatic tax, which “is imposed by a\n\nlegislature upon many, or all, citizens” and “raises money, contributed to a general fund,\n\nand spent for the benefit of the entire community,” or (2) a paradigmatic regulatory fee,\n\nwhich “is imposed by an agency upon those subject to its regulation,” and serves\n\nregulatory purposes by disincentivizing conduct or raising money to defray regulatory\n\nexpenses. San Juan Cellular Tel. Co. v. Pub. Serv. Comm’n, 967 F.2d 683, 685 (1st Cir.\n\n1992). In answering this question, we are aided by the three-part framework suggested in\n\nSan Juan Cellular and adopted by this court in Valero, 205 F.3d at 134. 2 This framework\n\nfocuses on “(1) what entity imposes the charge; (2) what population is subject to the\n\ncharge; and (3) what purposes are served by the use of the monies obtained by the\n\ncharge.” Id. If the charge falls “somewhere in the middle” between a classic tax and a\n\nclassic fee, the most important of these considerations is the charge’s purpose. Id.\n\n\n\n\n 2\n Defendants urge us not to apply the San Juan Cellular framework to this 4-R Act\ncase because it was developed in cases that concerned different statutes. Nothing about\nthe framework, however, is statute-specific. As Judge Wynn aptly notes in his\nconcurring opinion, it merely provides flexible and versatile guidance in assessing where\na particular charge sits on the tax-fee continuum. Indeed, San Juan Cellular aimed to\nsynthesize the general approach that courts had taken to distinguish taxes from fees “in a\nvariety of statutory contexts.” 967 F.2d at 685.\n\n\n\n 7\n\n A.\n\n We first consider who sets the charge. A charge is more likely to be a tax if it’s\n\nimposed by the legislature, rather than an administrative agency. Valero, 205 F.3d at\n\n134. Here, this factor suggests that the charge is a tax because it’s imposed by Roanoke’s\n\nlegislative body, the City Council. 3\n\n B.\n\n Under the second San Juan Cellular factor, a charge is more likely to be a tax if it\n\nis imposed on a broad segment of the public. GenOn Mid-Atl., LLC v. Montgomery\n\nCounty, 650 F.3d 1021, 1024 (4th Cir. 2011). And assessment of a tax is often based\n\n“solely on ability to pay,” as measured by a payor’s property or income, rather than tied\n\nto the receipt of a particular benefit or the imposition of a regulatory burden. Nat’l Cable\n\nTelevision Ass’n, Inc v. United States, 415 U.S. 336, 341 (1974); see DIRECTV, Inc. v.\n\nTolson, 513 F.3d 119, 126 n.3 (4th Cir. 2008) (discussing the significance of whether an\n\nassessment is tied to income). By contrast, the classic fee is imposed only upon persons\n\nsubject to regulation by a particular agency. Valero, 205 F.3d at 134.\n\n\n\n 3\n As Defendants point out, the Virginia statute authorizing the charge requires that\nit be passed through ordinance by the City Council. This makes the Council somewhat\nless like an autonomous legislature and somewhat more like an administrative agency\nimplementing the state statute, which itself forms a part of the Clean Water Act’s\ncomprehensive regulatory scheme. But the authorizing statute still requires legislative\ndecision-making through passage of an ordinance. The Council’s decision acts as a\ncheck on the regulatory program, in much the same way that legislatures’ appropriations\ndecisions can check agencies’ regulatory programs. Thus, we consider the Council to\nhave acted in a predominantly legislative capacity for purposes of the first factor.\n\n\n\n 8\n\n This factor suggested that the charge was a tax in Valero, where it was imposed\n\nupon persons disposing waste at landfills, who in turn passed the cost on to their\n\ncustomers, thereby spreading it “to a significantly wider portion of the population.” Id.;\n\naccord DIRECTV, 513 F.3d at 125–26. In GenOn, however, we concluded that a carbon\n\nemission charge was a fee rather than a tax primarily because the charge applied to only\n\none entity. 650 F.3d at 1024. 4\n\n Here, the second factor is largely inconclusive. On the one hand, the stormwater\n\nmanagement charge applies to a broad class of property owners, suggesting that it is a\n\ntax. But on the other hand, it isn’t assessed solely on the basis of property ownership.\n\nRather, the amount assessed is proportional to the amount of impervious surface on an\n\nowner’s property. And property owners may receive credits against the assessment if\n\nthey engage in certain stormwater management practices. These features suggest that the\n\ncharge is a measure of the stormwater management obligations that each parcel imposes\n\nupon the City, rather than a measure of ability to pay. And this makes the charge more\n\nlike a fee. These features also distinguish the stormwater management charge from the\n\ncharge in Valero, which applied to all waste disposers regardless of their contribution to\n\n\n\n\n 4\n Courts have differed as to how the second factor applies to stormwater\nmanagement charges. Compare DeKalb County v. United States, 108 Fed. Cl. 681, 700–\n01 (2013) (concluding that the second factor suggested a stormwater management charge\nwas a tax), and McLeod v. Columbia County, 254 F. Supp. 2d 1340, 1346 (S.D. Ga.\n2003) (same), with Homewood Vill., LLC v. Unified Gov’t of Athens-Clarke County, 132\nF. Supp. 3d 1376, 1381 (M.D. Ga. 2015) (reaching the opposite conclusion).\n\n\n\n 9\n\nthe burden that the charge was designed to address—closing underfunded landfills. On\n\nbalance then, this second factor is effectively a wash as to the nature of the charge.\n\n C.\n\n Under the third San Juan Cellular factor—which is the most important one in\n\nclose cases—a charge is more likely to be a tax if its primary purpose is to raise revenue\n\nfor general government activity that benefits the entire community. 967 F.2d at 685–86.\n\nThis is true even if the revenue is placed into a special fund and segregated from general\n\nrevenue, as long as “the special fund is used to benefit the population at large.” Valero,\n\n205 F.3d at 135. Conversely, a charge is more likely to be a fee if it’s used to provide\n\nindividualized benefits or to defray an agency’s costs of regulating. San Juan Cellular,\n\n967 F.2d at 685–86. A charge will also be considered a fee if its primary purpose is to\n\nregulate conduct by making it more expensive (even if the charge also raises revenue).\n\nS.C. ex rel. Tindal v. Block, 717 F.2d 874, 887 (4th Cir. 1983).\n\n The third factor pointed to the charge being a tax in Valero, where the funds\n\ncollected were used to support the closure of underfunded landfills in an environmentally\n\nsound manner that complied with EPA regulations. 205 F.3d at 134–35. The charge’s\n\npurpose was to protect the state’s groundwater, which benefitted the general public. Id.\n\nAnd in United States v. City of Huntington, the charge’s purpose suggested it was a tax\n\nwhere the charge paid for “core government services” including fire and flood protection\n\nand street maintenance. 999 F.2d 71, 73 (4th Cir. 1993).\n\n On the other hand, the charge’s purpose suggested it was a fee in San Juan\n\nCellular, where the funds were used to regulate cell phone providers. 967 F.2d at 686.\n\n\n 10\n\nThe court noted that there need not be an exact match between the charge assessed and\n\nthe agency’s expenditures on a particular regulated firm. Id. at 686–87. In GenOn, we\n\nfound that a carbon emission charge was “plainly regulatory,” just like a classic fee,\n\nbecause it “create[d] disincentives for GenOn to continue polluting and provide[d] funds\n\nfor others to reduce their carbon dioxide emissions.” 650 F.3d at 1025.\n\n Courts have reached different results in applying the third factor to stormwater\n\nmanagement charges. In DeKalb County, the court concluded that the third factor\n\nsuggested the charge was a tax because the benefits of stormwater management—flood\n\nprevention and abatement of water pollution—were shared broadly by the general public.\n\n108 Fed. Cl. at 701. The court also noted that the assessment of a stormwater charge is\n\nbased “not on the benefits derived by the payor, but by the anticipated burden that its\n\nproperty imposes on the stormwater system.” Id. at 703. And the charge couldn’t be\n\nconsidered a voluntary user fee because property owners couldn’t decline stormwater\n\nservices. Id. at 704–06. The McLeod court reached a similar result, noting that “[s]torm\n\nwater management was and is the type of service that is often funded through general tax\n\nrevenue.” 254 F. Supp. 2d at 1347–48. The Homewood Village court, however, reached\n\nthe opposite conclusion, noting that although all residents receive a benefit from\n\nstormwater management, “those paying the charge receive a special benefit” because the\n\ncounty treats polluted water on their properties, facilitating compliance with state and\n\nfederal requirements. 132 F. Supp. 3d at 1381 (citing Homewood Vill., LLC v. Unified\n\nGov’t of Athens-Clarke County, 739 S.E.2d 316, 318 (Ga. 2013)).\n\n\n\n\n 11\n\n Norfolk Southern argues that Roanoke’s stormwater management charge serves\n\ntwo purposes that both benefit the general public: reducing water pollution and improving\n\nflood control. It analogizes these purposes to maintaining the safety of the state’s\n\ngroundwater, which we held to be a public benefit in Valero. Defendants respond that\n\nthey are obligated by law to operate a stormwater management system and to use all\n\nrevenue generated from the charge for specific stormwater management activities. Thus,\n\nalthough the charge may benefit the public, its primary purpose is to satisfy regulatory\n\nrequirements. 5 Norfolk Southern’s rejoinder is that the charge isn’t regulatory in the\n\nsense recognized by San Juan Cellular because the City is a regulated entity, rather than\n\na regulator. The railroad notes that the stormwater Utility doesn’t directly regulate its\n\nactivity or issue any permit for its stormwater discharges.\n\n We think the charge’s purpose is more consistent with that of a fee than a tax,\n\nbecause the charge forms part of a comprehensive regulatory scheme. Although\n\nmunicipalities may have traditionally provided stormwater management as a public\n\nbenefit at the discretion of their legislatures, the Clean Water Act’s regulatory scheme\n\nnow requires the City to take myriad concrete actions to reduce discharges and pollutant\n\nconcentrations—many of them relating directly to runoff from Norfolk Southern’s\n\n\n\n\n 5\n Defendants also note that all revenue from the charge is placed into a segregated\nenterprise fund, rather than the City’s general fund. But standing alone, the fact that\nrevenue from the charge is placed in a special fund is “immaterial.” Valero, 205 F.3d at\n135.\n\n\n\n 12\n\nproperty and the waters that receive it. See, e.g., J.A. 140–44, 169–80, 262, 284–86,\n\n554–58.\n\n What’s more, if the City elects to assess a charge to offset the costs of complying\n\nwith these regulatory obligations, it must do so consistent with the state authorizing\n\nstatute, Va. Code Ann. § 15.2-2114. This statute restricts the funds to specific uses\n\nrelated to stormwater management, and it requires that the charge incentivize stormwater\n\nmanagement practices by crediting property owners who adopt them. Id. § 15.2-2114(D).\n\nThese requirements have removed much of the legislative discretion that was\n\ntraditionally associated with stormwater management. The City is now a participant in a\n\ncomprehensive scheme regulating stormwater management and the assessment of charges\n\nto pay for it.\n\n Of course, the City doesn’t directly regulate Norfolk Southern or other stormwater\n\ndischargers, nor does it issue permits for their discharges. Thus, rather than defraying the\n\nCity’s costs of regulating, the charge primarily defrays the City’s costs of complying with\n\nregulations imposed upon it. At bottom, however, a classic regulatory fee is designed to\n\naddress harmful impacts of otherwise permissible activities, and to ensure that the actors\n\nresponsible for those impacts bear the costs of addressing them. That is exactly the\n\nfunction served by Roanoke’s stormwater management charge, which ensures that\n\nowners of impervious surfaces bear the cost of managing stormwater runoff.\n\n In sum, the charge is part of a regulatory scheme, rooted in the Clean Water Act,\n\nwhose purpose is to remedy the environmental harms associated with stormwater runoff\n\nand to hold stormwater dischargers responsible for footing the bill. EPA’s regulations\n\n\n 13\n\nensure that the harms of stormwater discharge are addressed, and the City levies a charge\n\n(as directed by the state) upon those whose activity creates the need for regulation. The\n\ncharge also serves the regulatory function of incentivizing property owners to reduce the\n\namount of impervious surface on their land and engage in stormwater management\n\npractices that qualify them for credits.\n\n As a result, the third San Juan Cellular factor suggests that the charge is a fee.\n\n D.\n\n Finally, we consider the three San Juan Cellular factors collectively, in light of all\n\nthe relevant circumstances, to decide whether the City’s stormwater management charge\n\nis a tax subject to the 4-R Act’s requirements, or a fee beyond the reach of those\n\nrequirements. As the district court acknowledged, this is a “close question.” Norfolk S.,\n\n2017 WL 6599008, at *8. The first factor suggests that the charge is a tax because it’s\n\nimposed by the legislature. The second factor is largely inconclusive because the charge\n\nis levied upon most properties but based on contributions to stormwater runoff rather than\n\nability to pay. The third factor suggests that the charge is a fee because it forms part of a\n\ncomprehensive regulatory scheme.\n\n Applying the principle we articulated in Valero, 205 F.3d at 134, we give the third\n\nfactor controlling weight here because the charge’s regulatory purpose provides a better\n\nindication of its overall nature than the body that implemented it or the class of persons it\n\nis levied upon. See also Club Ass’n of W. Va., Inc. v. Wise, 293 F.3d 723, 726 (4th Cir.\n\n2002) (applying this principle). Accordingly, we conclude that the charge is a fee, rather\n\n\n\n\n 14\n\nthan a tax subject to the 4-R Act’s requirements. The district court correctly granted\n\nDefendants’ motion for summary judgment.\n\n AFFIRMED\n\n\n\n\n 15", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368585/", "author_raw": "DIAZ, Circuit Judge:"}, {"author": "WILKINSON, Circuit Judge, concurring", "type": "concurrence", "text": "WILKINSON, Circuit Judge, concurring:\n\n I am happy to concur in Judge Diaz’s fine opinion. For the reasons given in that\n\nopinion, I agree that the charge levied on Norfolk Southern by the City of Roanoke is a\n\nfee and not a tax. I write separately to describe how this case fits into the larger story of\n\nenvironmental restoration.\n\n I.\n\n Captain John Smith’s party could hardly convey to readers the “abundance of fish\n\nlying so thicke” that exceeded any river in Europe: “Neither better fish, more plenty, or\n\nvariety, had any of us ever seene, in any place swimming in the water, then in the Bay of\n\nChesapeack ….” Walter Russell & Anas Todkill et al., The Accidents That Happened in\n\nthe Discoverie of the Bay, in 1 The Complete Works of Captain John Smith (1580-1631)\n\n224, 228 (Philip L. Barbour ed., 1986). Before the arrival of Captain Smith, the\n\nAlgonquin Indians recognized the extraordinary productivity of the Bay, terming it\n\n“Chesepioc,” meaning “great shellfish bay.” Christopher P. White, The Chesapeake Bay\n\nField Guide, 3 (1989). More than a century later, in 1728, William Byrd II wrote that\n\n“one might believe, when he sees such terrible amounts of them, that there was as great a\n\nsupply of herring as there is water. In a word, it is unbelievable, indeed, indescribable,\n\nand also incomprehensible, what quantity is found there. One must behold oneself.”\n\nWilliam Byrd, The Newly Discovered Eden 78 (Richmond C. Beatty & William J.\n\nMulloy eds., trans., 1940).\n\n Today, one no longer can. Instead of fish, we quantify phosphorus, nitrogen,\n\nsediment, and other pollutants. Clouds of sediment and algal blooms blot out the sun,\n\n 16\n\nleaving the subaqueous flora starved for photosynthetic fuel. U.S. Environmental\n\nProtection Agency, Chesapeake Bay: Introduction to an Ecosystem, 4 (Kathryn\n\nReshetiloff ed., 1995). As the underwater grasses die for lack of sun, the fauna that rely\n\non them begin to die as well. Id. Microscopic zooplankton and small invertebrates that\n\nfeed on the grasses are deprived of their food. Alice Jane Lippson and Robert L. Lippson,\n\nLife in the Chesapeake Bay, 175, 192 (2006). In turn, species of fish and fowl that feed\n\non these creatures lose their food as well. Id. Blue crabs lose a safe place to hide after\n\nthey shed their hard shells during their seasonal molting. Christopher P. White,\n\nChesapeake Bay: A Field Guide, 84 (1989). And fish like menhaden and croakers, which\n\nuse the grasses as protective nurseries, are deprived of a safe place to nurture their young.\n\nAlice Jane Lippson and Robert L. Lippson, Life in the Chesapeake Bay, 190 (2006).\n\nThose fish that remain suffer from contamination by metals like chromium and mercury\n\nor organic contaminants like PCBs and pesticides. Karl Blankenship, “Report finds\n\nevidence of toxic contaminants impacting fish,” Bay Journal (January 1, 2013).\n\n But all that has happened, and is happening, need not always happen. And therein\n\nlies the future of Virginia’s waters and the Bay.\n\n II.\n\n Restoring damaged waters like the Chesapeake Bay requires sustained effort,\n\nentailing cooperation and coordination among the federal government, “[s]tate and local\n\ngovernments, the enterprise of the private sector, and . . . all the people who make this\n\nregion their home.” Exec. Order No. 13508, 74 Fed. Reg. 23099, 23100 (May 12, 2009).\n\nChesapeake Bay restoration would be impossible without stitching together the efforts of\n\n 17\n\na vast number of people from diverse walks of life: cattle farmers in West Virginia, lawn\n\ncare specialists in New York, and golf course operators in Pennsylvania, to name a few,\n\nnot to mention countless public servants—town managers, environmental experts,\n\nCooperative Extension agents. All share a common goal and corresponding common\n\nburdens.\n\n The response to the problem of stormwater runoff demonstrates the necessity of\n\ncooperation between all levels of government and private actors. Stormwater is of\n\nparticular concern to environmental restoration: when it falls on impervious surfaces like\n\nstreets or parking lots, it picks up pollutants like motor oil, animal waste, or just plain\n\ndirt, and washes them into the local streams. These pollutants contain chemical\n\ncontaminants and the nutrients that feed algal blooms. They make their way through\n\nstreams and tributaries, causing harm along the way, until they collect in the estuary\n\nwhere the rivers meet the ocean. William H. Funk, “Virginia Artificial Wetland a Game-\n\nChanger for Stormwater Pollution,” Chesapeake Bay Magazine (June 13, 2017).\n\n The scheme that regulates stormwater runoff begins with the federal government\n\nwhich, through the Clean Water Act, mandates that states set water quality standards that\n\nany given river must meet. 33 U.S.C. § 1313. If the river does not meet the water quality\n\nstandards, the state government steps in and works with the EPA to put the river on a\n\n“pollution diet” or Total Maximum Daily Load (TMDL). Id. The TMDL establishes the\n\ntotal amount of each pollutant that is allowed to drain into the river, and slowly reduces\n\nthat amount to a level consistent with federally mandated water quality standards. Id. One\n\nof the ways the state then implements the TMDL is by adjusting the permits it gives to\n\n 18\n\nentities within the river’s watershed so that the total amount of pollution these entities are\n\nallowed to drain into the river is below the overall limit. Local governments must obtain\n\none of these permits to manage the flow of stormwater from their sewer system into local\n\nwaterways.\n\n The City of Roanoke’s stormwater clean-up scheme, which is governed by its\n\npermit, is what’s at issue here. While not in the Bay’s watershed, the Roanoke River is\n\nitself worthy of protection, and the City of Roanoke’s program is a prime example of the\n\ntype of stormwater remediation efforts that localities in the Bay’s watershed must enact.\n\nA ruling for Norfolk Southern here would have deleterious implications for comparable\n\nmunicipal stormwater programs that are within the Bay’s watershed like Richmond,\n\nCharlottesville, and Lynchburg. Richmond, Va., Code art. V., § 14-336 (2017);\n\nLynchburg, Va., Code art. V., § 16.2-56 (2018); Charlottesville, Va. Code art. VI., § 10-\n\n104 (2018). And so while this case does not deal directly with the Chesapeake’s waters,\n\nits health is very much at stake here.\n\n Under its permit, the City of Roanoke has the burden of reducing stormwater\n\npollution, but it can only do this with the cooperation of its residents. In addition to\n\nmaintaining its sewer infrastructure, the City coordinates with local “watershed\n\nassociations, environmental advisory committees, and other environmental\n\norganizations.” J.A. 156. The City also helps its residents install features like rain gardens\n\nand detention ponds that soak up the stormwater rather than allowing it to drain\n\nimmediately into the river. And, importantly, the City relies on its residents to help fund\n\nits stormwater clean-up efforts through the fee at issue here.\n\n 19\n\n III.\n\n In seeking to avoid paying a fee that the City uses to fund its stormwater clean-up\n\nscheme, Norfolk Southern, one of the largest property owners in Roanoke, is seeking to\n\nabsolve itself of responsibility. Stormwater runs off the railroad’s property into the City’s\n\nsewer system. The City must then treat and manage this water to comply with its permit.\n\nThis costs money. If the City could not charge a fee to Norfolk Southern, Roanoke\n\nwould bear the burden of managing the railroad’s runoff alone. Erroneously deeming this\n\nfee a tax under the Railroad Revitalization and Regulatory Reform Act would, as the\n\nrailroad knows, run the decided risk of limiting its contribution to the broader project of\n\nstormwater management. The City would thus lose important revenue needed to offset\n\nthe costs of building and maintaining municipal gutters and drains, monitoring pollution\n\nlevels, policing illegal discharges of polluted water, and educating the public on proper\n\nenvironmental practices. Norfolk Southern would, in effect, be shifting its burden to the\n\nCity. What we have here is the irony of a railroad seeking a free ride.\n\n This is unacceptable. As Judge Diaz aptly notes, “the charge is part of a regulatory\n\nscheme, rooted in the Clean Water Act, whose purpose is to remedy the environmental\n\nharms associated with stormwater runoff and to hold stormwater dischargers responsible\n\nfor footing the bill.” Maj. Op. at 13. The arteries of the Chesapeake Bay wend through\n\nsix states, including three in the Fourth Circuit (Maryland, West Virginia, and Virginia).\n\nNumerous localities in the Bay’s watershed have clean-up schemes with fees comparable\n\nto Roanoke’s. Norfolk Southern’s position would put these projects at risk.\n\n\n\n 20\n\n Our rivers and estuaries are complex, interconnected ecosystems. It follows,\n\ntherefore, that efforts to restore them are correspondingly complex and interconnected.\n\nWithout the cooperation of all levels of government, as well as of private companies and\n\ncitizens, our waters will continue to be compromised by pollution. The restoration effort\n\nimposes burdens on many people; happily, the benefits of clean waters (economic;\n\nhealth; scenic; recreational) accrue to just as many if not more. Everyone, including the\n\nowners and employees of Norfolk Southern, are better off when our streams run clear and\n\nestuarine flora and fauna are flourishing. It is only fair to ask those who benefit to\n\nshoulder some of the burden.\n\n No one is so naïve as to believe that the Chesapeake Bay can be restored to the\n\npristine condition viewed by John Smith and William Byrd, or that the Roanoke River\n\nand its tributaries such as Peters Creek and Tinker Creek can be restored to the condition\n\nin which this country’s earliest inhabitants found them. We would be fortunate to\n\npreserve a wholesome fraction of what once there was. This case is but a tiny chapter in\n\nthe story of our nation’s effort to reconcile the just demands of development with the\n\nimperative of preserving an environment that can help make productive enterprise worth\n\nhaving. A reversal here might seem just a small setback. But a series of such setbacks\n\naccelerates rather than retards the degradation of the natural world. We happily accepted\n\nthe abundance that came down from our forebears. How then can we impoverish the\n\nenvironment for those who come after?\n\n\n\n\n 21", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368585/", "author_raw": "WILKINSON, Circuit Judge, concurring"}, {"author": "WYNN, Circuit Judge, concurring", "type": "concurrence", "text": "WYNN, Circuit Judge, concurring:\n\n I concur in the majority opinion’s determination that the City of Roanoke’s\n\nstormwater assessment constitutes a “fee,” rather than a “tax,” and therefore is not subject\n\nto the provision in the Railroad Revitalization and Reform Act (the “4-R Act”)\n\nprohibiting state and municipal “tax[es]” that discriminate against rail carriers. 49 U.S.C.\n\n§ 11501(b)(4). The assessment is connected to a federal regulatory program, is designed\n\nto defray the costs of that program, and encourages property owners to take steps to\n\nadvance the program’s regulatory objectives, and therefore serves “primarily . . .\n\nregulatory or punitive purposes, making it a ‘fee.’” GenOn Mid-Atlantic, LLC v.\n\nMontgomery Cty., Md., 650 F.3d 1021, 1023 (4th Cir. 2011) (internal quotation marks\n\nomitted).\n\n The analytical framework used in this matter derives from the First Circuit’s\n\ndecision in San Juan Cellular Telephone Co. v. Public Svc. Comm’n, 967 F.2d 683, 685\n\n(1st Cir. 1992) (Breyer, J.). The framework in that case has been used to distinguish\n\n“taxes” from “fees” for purposes of the Tax Injunction Act, 28 U.S.C. § 1341. See\n\nValero Terrestrial Corp. v. Caffrey, 205 F.3d 130, 134 (4th Cir. 2000).\n\n Here, we apply that Tax Injunction Act precedent to interpret whether an\n\nassessment is a “tax” or “fee” under the 4-R Act. In doing so, we recognize that this\n\nCourt has held that “we must examine the explicit factual circumstances that transcend\n\nthe literal meaning of the terminology and ask whether the charge is levied primarily for\n\nrevenue raising purposes, making it a ‘tax,’ or whether it is assessed primary for\n\nregulatory or punitive purposes, making it a ‘fee.’” GenOn, 650 F.3d at 1023 (internal\n\n 22\n\nquotation marks omitted). “[B]roader-based taxes . . . sustain the essential flow of\n\nrevenue to the state (or local) government [whereas] fees . . . are connected to some\n\nregulatory scheme.” Collins Holding Corp. v. Jasper Cty., S.C., 123 F.3d 797, 800 (4th\n\nCir. 1997). And this Court’s long-standing precedent makes clear that “[t]he proper\n\nanalysis to arrive at the real nature of the assessment is to examine all the facts and\n\ncircumstances and assess them on the basis of economic realities.” United States v. City\n\nof Huntington, W. Va., 999 F.2d 71, 73 (4th Cir. 1993) (internal quotation marks and\n\nalterations omitted).\n\n Thus, determining whether an assessment amounts to a tax or fee turns on “all the\n\nfacts and circumstances.” Id. Nonetheless, this Court, and other courts, have\n\ncharacterized San Juan Cellular as identifying three “factors” that bear on the resolution\n\nof that question: “(1) what entity imposes the charge; (2) what population is subject to the\n\ncharge; and (3) what purposes are served by the use of the monies obtained by the\n\ncharge.” Valero, 205 F.3d at 134. But San Juan Cellular did not enumerate a “three-\n\nfactor” test—which instead came from a Ninth Circuit opinion purporting to distill the\n\nanalysis in San Juan Cellular. See Bidart Bros. v. Cal. Apple Comm’n, 73 F.3d 925, 931\n\n(9th Cir. 1996). Rather, San Juan Cellular highlighted three “facts of th[e] case”—which\n\n“facts” the Ninth Circuit later denominated as “factors”—because those facts indicated\n\nthat the assessment at issue was “close to the ‘fee’ end of the spectrum,” “with a\n\nparadigmatic tax at one end and a paradigmatic fee at the other.” 967 F.2d at 686. The\n\ncourt had no reason to address other “circumstances” that might be relevant in\n\ndistinguishing a tax from a fee because they were not present in the case. Id.\n\n 23\n\n Significantly, our Tax Injunction Act decisions distinguishing between taxes and\n\nfees have not always rigorously adhered to the three-factor analytical framework. See,\n\ne.g., GenOn, 650 F.3d at 1023–24 (placing little weight on first factor, and characterizing\n\nthree factor framework as an “aid” in resolving governing question of whether\n\nassessment is for revenue raising purposes or regulatory purposes); Collins, 123 F.3d at\n\n797 (citing San Juan Cellular, but only addressing two of the three factors, and\n\ncharacterizing the third factor—the “purpose and ultimate use of the assessment”—as\n\n“the heart of the inquiry”).\n\n I write separately to point out that reducing a “totality-of-the-circumstances”\n\ninquiry into a “three-factor test” poses substantial risks. It elevates the significance of\n\nenumerated factors, relative to non-enumerated factors. It suggests that the enumerated\n\nfactors warrant equal significance in the ultimate weighing, notwithstanding that some\n\nfacts may be more important than others. It also discourages courts from considering\n\nfactors that are not enumerated in the test, but may be highly relevant in a particular case.\n\nAnd it serves as an invitation to lower courts to simply tick through the enumerated\n\nfactors and determine whether more factors favor treating an assessment as a tax or a fee.\n\nBut “a score of [2] to [1] decides a baseball game,” Remington Hybrid Seed Co., 495 F.3d\n\n403, 407 (7th Cir. 2007), not a multi-factorial balancing test, let alone a totality-of-the-\n\nfacts-and-circumstances test, like that used to determine whether an assessment\n\nconstitutes a tax or fee, cf. Hexom v. Or. Dep’t of Transp., 177 F.3d 1134, 1137 (9th Cir.\n\n1999) (explaining that cases applying the San Juan Cellular test “take a practical and\n\n\n\n 24\n\nsensible approach. They do not apply a set of rigid rules or elements and then reach a\n\nmechanical conclusion”).\n\n In this case, we conclude that the first two factors have little or no bearing on our\n\nultimate determination that the assessment at issue constitutes a fee. Additionally, the\n\ndecisive third factor—which appears to be coextensive with the purpose of the entire\n\nthree-factor inquiry—encompasses numerous considerations that bear significant weight\n\nin the ultimate determination—such as whether the funds are kept in a segregated fund\n\nand whether the assessment incentivizes decisions that advance the program’s regulatory\n\nobjectives—but which are not elevated to separate “factors” in the three-factor\n\nframework. Thus, though we characterize our analytical framework as a “three factor\n\ntest,” the analysis adheres moreso to the governing “totality-of-the-circumstances”\n\ninquiry.\n\n In sum, the three “factors” from San Juan Cellular provide helpful guidance in\n\nanalyzing the fundamental question of whether an assessment serves revenue raising\n\npurposes, and therefore is a tax, or serves a regulatory purpose, and therefore is a fee.\n\nBut the “heart of the inquiry” remains “the purpose and ultimate use of the assessment.”\n\nCollins, 123 F.3d at 797. The majority opinion engages in a thorough and persuasive\n\nanalysis of numerous facts and circumstances bearing on that question and concludes the\n\nassessment is a fee. Accordingly, I concur.\n\n\n\n\n 25", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368585/", "author_raw": "WYNN, Circuit Judge, concurring"}]} | WILKINSON | WYNN | DIAZ | 1 | {} | 6 | 0 | 0 | 4 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4591332/ | Published | 1 | 1 | 2 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,591,792 | HANNAH P., Plaintiff-Appellant, v. Daniel COATS, Director of the Office of the Director of National Intelligence McLean, VA, Defendant-Appellee, and Mark Ewing, in His Personal Capacity McLean, VA, Defendant. | Hannah P. v. Daniel Coats | 2019-02-19 | 17-1943 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, Thacker, Quattlebaum", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888034/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888035/", "author_raw": ""}, {"author": "THACKER, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n\n No. 17-1943\n\n\nHANNAH P.,\n\n Plaintiff - Appellant,\n\n v.\n\nDANIEL COATS, Director of the Office of The Director of National Intelligence\nMcLean, VA,\n\n Defendant - Appellee,\n\n and\n\nMARK EWING, in his personal capacity McLean, VA,\n\n Defendant.\n\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nAlexandria. Claude M. Hilton, Senior District Judge. (1:16-cv-01030-CMH-IDD)\n\n\nArgued: October 31, 2018 Decided: February 19, 2019\n\n\nBefore GREGORY, Chief Judge, THACKER and QUATTLEBAUM, Circuit Judges.\n\n\nAffirmed in part, vacated in part, and remanded by published opinion. Judge Thacker\nwrote the opinion, in which Judge Quattlebaum joined. Chief Judge Gregory wrote a\nseparate opinion concurring in part and dissenting in part.\n\nARGUED: Timothy Bosson, BOSSON LEGAL GROUP, Fairfax, Virginia, for\nAppellant. Caroline D. Lopez, UNITED STATES DEPARTMENT OF JUSTICE,\nWashington, D.C., for Appellee. ON BRIEF: Chad A. Readler, Principal Deputy\nAssistant Attorney General, Marleigh D. Dover, Civil Division, UNITED STATES\nDEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente, United States\nAttorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for\nAppellee.\n\n\n\n\n 2\n\nTHACKER, Circuit Judge:\n\n Appellant Hannah P. 1 (“Hannah”), a former employee of the Office of the Director\n\nof National Intelligence (“Appellee”), asserts that Appellee discriminated against her\n\npursuant to the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701, et\n\nseq., and violated the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C.\n\n§ 2601, et seq., by not hiring her for a permanent position. The district court granted\n\nsummary judgment in Appellee’s favor as to all claims.\n\n For the reasons explained below, we affirm the district court’s judgment as to the\n\nRehabilitation Act and FMLA retaliation claims. However, because a genuine issue of\n\nmaterial fact remains as to whether Hannah provided notice of her disability and interest\n\nin FMLA leave sufficient to trigger Appellee’s duty to inquire, we hold that summary\n\njudgment as to Hannah’s FMLA interference claim was not warranted. Accordingly, we\n\nvacate that part of the district court’s judgment and remand Hannah’s FMLA interference\n\nclaim for further proceedings.\n\n I.\n\n A.\n\n In March 2011, Appellee hired Hannah for a five-year term as an operations\n\nanalyst. In that position, Hannah participated in “long-term, in-depth studies into issues\n\n\n\n\n 1\n Pursuant to a protective order, Hannah is identified by her first name and last\ninitial.\n\n\n\n 3\n\nthat had particular budgetary importance for the [c]ommunity.” J.A. 18. 2 Hannah\n\ngenerally received glowing reviews from her supervisors. See, e.g., id. at 412 (describing\n\nHannah’s performance prior to 2015 as “outstanding” and noting her “energy/drive,\n\ntechnical competence, superb communication and networking skills, and superior\n\nanalytic tradecraft”); id. at 350 (describing Hannah as “a high-performing employee”); id.\n\nat 391–410 (describing, repeatedly, various elements of Hannah’s performance as\n\n“excellent” and “outstanding”).\n\n B.\n\n A few months after she was hired, Hannah was diagnosed with depression.\n\nHannah immediately informed at least two of her supervisors of her diagnosis, but she\n\ndid not request any accommodations at that time. Hannah treated her depression by\n\nseeing a counselor and a psychiatrist and by taking prescribed medication.\n\n In November 2013, Hannah was assigned to coordinate the responses of the\n\nNational Intelligence Director and Principal Deputy Director to Edward Snowden’s\n\nunauthorized disclosures. 3 This role was “high stress” and required “frequent long hours\n\nand weekend work coupled with meeting tight deadlines and dealing with a demanding\n\n 2\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this\nappeal.\n 3\n In 2013, National Security Agency subcontractor Edward Snowden leaked “the\nbiggest cache of top-secret documents in history,” which revealed numerous global\nsurveillance programs run by the United States government. Ewen MacAskill & Alex\nHern, Edward Snowden: ‘The People Are Still Powerless, but Now They’re Aware,’\nGuardian (June 4, 2018), https://www.theguardian.com/us-news/2018/jun/04/edward-\nsnowden-people-still-powerless-but-aware.\n\n\n\n 4\n\n[National Security Council] customer.” J.A. 412. In fact, to accommodate the schedule\n\nchange that this role required, Appellee moved Hannah to a “maxi flex” schedule. Id. at\n\n350–51. A “maxi flex” schedule requires an analyst to work a certain number of hours --\n\n80 hours over a two-week period -- but does not dictate the exact hours that the analyst\n\nmust work per day. For Hannah, that meant starting and ending work later than\n\ntraditional business hours.\n\n The Snowden assignment lasted 18 months and completed in January 2015.\n\nHowever, Hannah continued her atypical working hours beyond the completion of the\n\nSnowden assignment. Hannah’s supervisor “was expecting” that when the Snowden\n\nassignment ended, Hannah’s hours “might become more normal.” J.A. 353. However,\n\nfor the first few months, he did not communicate with Hannah about returning to normal\n\nbusiness hours. Rather, he explained, he was “primarily concerned about establishing\n\nwhat [Hannah’s] next task was going to be.” Id.\n\n By March 2015, Hannah’s co-workers perceived her schedule to be “erratic.” J.A.\n\n413. Hannah arrived to work well after normal business hours and racked up numerous\n\nunplanned absences. On some occasions Hannah was “extremely late,” sometimes\n\narriving after 2 PM. Id. On other occasions Hannah was unreachable for hours, often\n\nmissing and failing to return “repeated phone calls to her cell and home phone.” Id.\n\nWhen Hannah’s supervisors were able to reach her, they noted that she seemed “either\n\nlethargic or almost unconcerned” about her lateness and absences. Id. They also noted\n\nthat her demeanor was “sad, very flat, and almost trance like.” Id. Around that time,\n\nHannah informed her supervisors that she “had a recent change in medication.” Id.\n\n\n 5\n\n C.\n\n 1.\n\n Appellee made some accommodations for Hannah following the Snowden\n\nassignment. First, after consulting with Hannah in January 2015, Appellee lightened\n\nHannah’s workload “to give her a chance to decompress” from the stress of the Snowden\n\nassignment. J.A. 413 (internal quotation marks omitted). Second, multiple of Hannah’s\n\nsupervisors had “informal counseling sessions” with her “to discuss any issues that she\n\nmight be having” and to “urge her” to notify them if she was going to be late or absent.\n\nId.\n\n On March 19, 2015, one of Hannah’s supervisors met with Hannah directly to\n\naddress her attendance issues. Together, Hannah and her supervisors developed a plan to\n\nreconcile Hannah’s depression with Appellee’s staffing needs. According to that plan,\n\nHannah was to arrive to work by 10 AM. If she was going to be absent or later than 10\n\nAM, Hannah was to contact one of her supervisors in advance. If Hannah had not arrived\n\nat work or contacted a supervisor by 11 AM, a supervisor would call her to determine\n\nwhen she would arrive.\n\n But, Hannah did not follow the plan. For example, the very next day after she and\n\nher supervisors developed the plan, Hannah emailed her supervisors at 11:05 AM to\n\ninform them that she would be arriving after 12 PM. Similarly, on March 31, Hannah\n\nemailed her supervisors at 11:56 AM to inform them that she would not be coming into\n\nwork at all that day. On April 1, after Hannah had not arrived to work or contacted her\n\nsupervisors, Hannah’s second-level supervisor called her at 12:30 PM, at which time\n\n\n 6\n\nHannah reported “being unable to just get going.” J.A. 413. Later that day, when\n\nHannah finally arrived to work, her supervisor informed her that the plan they created\n\nwas not working.\n\n At that same time, her supervisor revised the plan to require Hannah to arrive at\n\nwork by 10 AM or report to her supervisors in advance if she was going to be late or\n\nabsent. This “put the onus” on Hannah to contact her supervisors, rather than asking her\n\nsupervisors to contact her if she had not arrived at work by 11 AM. J.A. 90. Hannah\n\nfailed to follow this modified plan as well. In fact, she failed to comply on April 2 and\n\nApril 3, the two days following the meeting where the plan was modified.\n\n According to Appellee, Hannah’s timeliness and attendance issues impacted her\n\nperformance, the performance of her peers, and the performance of her supervisors. Per\n\nAppellee, Hannah’s “erratic” schedule was “noted by her teammates” and affected “unit\n\ncohesion.” J.A. 413. Hannah’s failure to report her tardiness and absences as well as her\n\nunresponsiveness required her management team to spend “significant time and energy”\n\ntracking her down. Id. Additionally, because of Hannah’s absences, Hannah’s\n\nsupervisors were often forced to assign work that might have been assigned to Hannah to\n\nother analysts.\n\n 2.\n\n On April 9, 2015, just three weeks after the initial work plan was developed to\n\nattempt to accommodate Hannah’s needs, Hannah again met with her supervisors. At\n\nthis meeting, Hannah’s supervisors informed her that they were referring her to the\n\nEmployee Assistance Program (“EAP”). EAP is a voluntary counseling service for\n\n\n 7\n\nemployees and their family members that provides “free, confidential, short-term mental\n\nhealth[,] financial, and addictions counseling and referral to cleared community\n\nproviders.” J.A. 132. Hannah’s supervisors made an EAP appointment for her for the\n\nfollowing day, Friday, April 10. At that time, Hannah explained to her supervisors that\n\nher psychiatrist recommended she take four weeks of medical leave. But, Hannah’s\n\nsupervisors insisted that she would need to meet with EAP before they could approve her\n\nrequest for medical leave.\n\n On the next business day following Hannah’s EAP session -- Monday, April 13 --\n\nHannah’s supervisor told Hannah he was willing to authorize her to take medical leave.\n\nHowever, at that point, Hannah informed her supervisor that her leave request was “on\n\nhold,” without further explanation. J.A. 170, 178.\n\n On April 16, Hannah’s supervisor noted in an email that he had an “extended” 40-\n\nminute discussion with Hannah’s EAP psychologist. J.A. 604. Hannah alleges that the\n\nEAP psychologist “shared with [Hannah’s supervisor] details of what Hannah had\n\nrevealed in confidence at the EAP sessions.” Appellant’s Br. 17. Specifically, Hannah\n\nalleges that the EAP psychologist told her supervisor that Hannah was concerned about\n\nAppellee’s records retention policies, and that Hannah’s “difficulties in getting to work\n\nwere the result of a lack of motivation, not related to depression.” J.A. 540.\n\n 3.\n\n Despite Hannah’s participation in EAP, her attendance problems persisted. For\n\nexample, on April 13, 2015, Hannah emailed her supervisors at 10:58 AM to inform them\n\nthat she would arrive to work by 11:30 AM. Similarly, on April 14, Hannah emailed her\n\n\n 8\n\nsupervisors at 11:08 AM to inform them that she would arrive to work by 12 PM. That\n\nday, Hannah’s supervisors were not able to confirm her arrival to work until after 1:50\n\nPM.\n\n A week after advising her supervisors that her leave request was “on hold,” on\n\nApril 21, Hannah renewed her request for four weeks of medical leave. Hannah’s\n\nsupervisors approved that request on May 5. They required her to use her annual leave to\n\naccount for four-fifths of the four week leave period, and allowed her one day of sick\n\nleave per week to make up the rest. Hannah began her leave the day it was approved.\n\n On May 4, the day before Hannah began her leave of absence, Hannah’s\n\nsupervisors gave her a letter of expectations. That letter confirmed the revised attendance\n\nand reporting plan. This plan required Hannah to arrive to work by 10 AM or report to\n\nher supervisors by 9:30 AM if she was going to be late or absent.\n\n 4.\n\n During this time, Hannah applied for three permanent positions within the Office\n\nof the Director of National Intelligence. In February 2015, Hannah interviewed for two\n\npermanent positions for which she was not selected. Shortly before taking her leave of\n\nabsence in May 2015, Hannah applied for a third full-time position, the Program Mission\n\nManager Cyber Position (“Cyber position”). She was interviewed for the Cyber position\n\non June 9, eight days after she returned from leave, and the interview panel recommended\n\nher for the position. Her application was then forwarded to Appellee’s Chief\n\nManagement Officer, Mark Ewing, who recommended that Hannah not be selected for\n\nthe position “at this time,” stating that Hannah’s “recent performance is not consistent\n\n\n 9\n\nwith a potentially good employee.” J.A. 232. Hannah was informed that her application\n\nhad been rejected in early July 2015, and she did not apply for any other positions.\n\nHannah completed her five-year term with Appellee in March 2016.\n\n D.\n\n Hannah exhausted her administrative remedies and filed this lawsuit on August 12,\n\n2016. She alleged that Appellee violated the Rehabilitation Act in five ways: (1) failing\n\nto accommodate her mental illness; (2) creating a hostile work environment; (3) requiring\n\nher to undergo a medical examination; (4) disclosing her confidential medical\n\ninformation; and (5) refusing to hire her for the Cyber position. Additionally, Hannah\n\nalleged that Appellee violated the FMLA in two ways: (1) by interfering with her ability\n\nto take medical leave; and (2) by retaliating against her when she took medical leave.\n\nAfter the close of discovery, Appellee moved for summary judgment on all counts. The\n\ndistrict court granted that motion on July 27, 2017. Hannah filed this timely notice of\n\nappeal challenging the district court’s decisions on all but the hostile work environment\n\nclaim.\n\n II.\n\n We review a district court’s decision to grant summary judgment de novo. See\n\nVannoy v. Fed. Reserve Bank of Richmond, 827 F.3d 296, 300 (4th Cir. 2016). In doing\n\nso, this court applies the same standard as the district court. See id. That standard\n\nrequires the court to grant summary judgment where “there is no genuine dispute as to\n\nany material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.\n\nP. 56(a); see also Vannoy, 827 F.3d at 300. We construe the evidence in the light most\n\n\n 10\n\nfavorable to Hannah, the nonmovant, and we draw all reasonable inferences in her favor.\n\nSee Vannoy, 827 F.3d at 300.\n\n III.\n\n Hannah asserts that Appellee violated the Rehabilitation Act by failing to\n\naccommodate her depression, wrongfully requiring her to undergo a medical\n\nexamination, unlawfully disclosing her confidential medical information, and refusing to\n\nhire her for the Cyber position. Additionally, Hannah asserts that Appellee interfered\n\nwith and retaliated against her for using leave under the FMLA. We will address each of\n\nthese claims in turn.\n\n A.\n\n Rehabilitation Act Claims\n\n The Rehabilitation Act prohibits federal agencies from discriminating against its\n\nemployees on the basis of disability. See 29 U.S.C. § 794. For the reasons explained\n\nbelow, Hannah failed to satisfy her burden on each of her claims under the Rehabilitation\n\nAct. Specifically, Hannah failed to: (1) demonstrate that Appellee failed to accommodate\n\nher depression; (2) demonstrate that Appellee’s EAP amounted to a required medical\n\nexamination; (3) demonstrate that Appellee disclosed or misused confidential medical\n\ninformation; and (4) rebut Appellee’s legitimate, nondiscriminatory reason for rejecting\n\nher application for a permanent position.\n\n\n\n\n 11\n\n 1.\n\n Reasonable Accommodation\n\n Turning first to Hannah’s claim that Appellee failed to accommodate her\n\ndepression, the district court correctly concluded that Hannah did not establish a prima\n\nfacie case because Hannah failed to demonstrate that Appellee refused to make a\n\nreasonable accommodation.\n\n To establish a prima facie claim of failure to accommodate under the\n\nRehabilitation Act, a plaintiff must demonstrate that (1) she was a qualified person with a\n\ndisability; (2) the employer had notice of the disability; (3) the plaintiff could perform the\n\nessential functions of the position with a reasonable accommodation; and (4) the\n\nemployer nonetheless refused to make the accommodation. See Reyazuddin v.\n\nMontgomery Cty., 789 F.3d 407, 414 (4th Cir. 2015). The district court concluded that\n\nHannah could not establish the fourth element -- specifically, the district court\n\ndetermined that Appellee provided Hannah with at least two reasonable accommodations.\n\nAnd, on appeal, the parties dispute only the fourth element.\n\n Here, as detailed above, Appellee provided Hannah with a reasonable\n\naccommodation. When Hannah failed to follow that plan, Hannah’s supervisors\n\nattempted a new accommodation -- referring Hannah to EAP. Yet, despite Hannah’s\n\nparticipation in EAP, her attendance problems persisted.\n\n Hannah argues that Appellee’s accommodations were not reasonable for two\n\nreasons. First, she claims that the accommodation was improperly rescinded when her\n\nsupervisors concluded that the first plan was not working. Hannah asserts that the\n\n\n 12\n\nRehabilitation Act requires a collaborative process. Hannah argues that rather than\n\ncollaborating with her to identify a workable accommodation, Appellee unilaterally\n\ndecided that the first plan was not working, then unilaterally decided that Hannah should\n\nparticipate in EAP counseling instead. Although employers have a duty to engage with\n\ntheir employees in an “interactive process to identify a reasonable accommodation,”\n\nWilson v. Dollar Gen. Corp., 717 F.3d 337, 346 (4th Cir. 2013), the employer “has the\n\nultimate discretion to choose between effective accommodations.” Reyazuddin, 789 F.3d\n\nat 415–16 (citing Hankins v. Gap, Inc., 84 F.3d 797, 800 (6th Cir. 1996)). Nonetheless,\n\neven under Hannah’s view of the record, Appellee did, in fact, collaborate with Hannah\n\nin establishing the first accommodation and only acted unilaterally when that\n\naccommodation did not work.\n\n Second, Hannah claims that a reasonable accommodation that she requested -- a\n\nleave of absence -- was improperly delayed. Hannah posits that she “suffered immense\n\nemotional stress during this one month lapse of [Appellee’s] compliance with the law.”\n\nAppellant’s Br. 37. This argument is without merit and is not supported by the record,\n\neven when viewed in the light most favorable to Hannah. Hannah first requested the\n\nleave of absence on April 9, 2015. Then, on April 13 -- just two business days later --\n\nHannah withdrew her request without explanation, telling her supervisor that her leave\n\nrequest was “on hold.” J.A. 170, 178. Hannah then renewed her request for leave on\n\nApril 21, and her request was approved on May 5. Thus, there was no “one month\n\nlapse,” since Hannah’s request was “on hold” for nine days of that time.\n\n\n\n\n 13\n\n During the remaining gap between Hannah’s request for leave and Appellee’s\n\napproval of that request, Appellee referred Hannah to its counseling service. The\n\nRehabilitation Act does not require an employer to provide the exact accommodation that\n\nan employee requests. See Reyazuddin, 789 F.3d at 415 (“An employer may reasonably\n\naccommodate an employee without providing the exact accommodation that the\n\nemployee requested.”). Further, the record demonstrates that Hannah’s supervisors were\n\nactively considering her request for leave during that time, and they did ultimately\n\napprove it less than a month after she first requested leave.\n\n For these reasons, granting summary judgment to Appellee on Hannah’s\n\nreasonable accommodation claim was proper.\n\n 2.\n\n Required Medical Examination\n\n Under the Rehabilitation Act, an employer “shall not require a medical\n\nexamination and shall not make inquiries of an employee as to whether such employee is\n\nan individual with a disability or as to the nature or severity of the disability, unless such\n\nexamination or inquiry is shown to be job-related and consistent with business necessity.”\n\n42 U.S.C. § 12112(d)(4)(A).\n\n\n\n\n 14\n\n a.\n\n Examination of a Job Applicant\n\n As an initial matter, Hannah’s arguments related to pre-employment medical\n\nexaminations under the Rehabilitation Act 4 miss the mark because Hannah was a current\n\nemployee, not a job applicant. Although Appellee knew Hannah was considering\n\napplying for permanent positions with Appellee at the time she was referred to EAP, she\n\nhad not yet done so. The evidence is clear that Appellee referred Hannah to EAP in lieu\n\nof disciplining her for her attendance issues in her then-current position, rather than as a\n\npre-employment medical examination. Moreover, the fact that Hannah’s attendance\n\nissues may have been related to her stress and frustration surrounding obtaining\n\npermanent employment with Appellee does not transform her EAP referral into a pre-\n\nemployment medical examination.\n\n b.\n\n Examination of a Current Employee\n\n Further, Hannah failed to demonstrate, much less create a genuine issue of\n\nmaterial fact, that EAP constituted a prohibited medical examination of a current\n\nemployee. We note that EAP’s policies make clear that EAP is intended to be used as a\n\nvoluntary counseling service, and not as a mandatory medical examination that would\n\n\n 4\n Subject to certain exceptions, an employer “shall not conduct a medical\nexamination or make inquiries of a job applicant as to whether such applicant is an\nindividual with a disability or as to the nature or severity of such disability.” 42 U.S.C.\n§ 12112(d)(2)(A).\n\n\n\n 15\n\nviolate the Rehabilitation Act. See J.A. 130 (“[U]tilizing EAP is always voluntary and\n\ntherefore the employee has the right to decline to attend treatment, even if management-\n\nreferred.”). Additionally, Hannah’s EAP counselor repeatedly stated that she did not\n\nconduct a medical examination:\n\n I did not conduct a medical examination of [Hannah], and I\n did not conduct a mental health evaluation or diagnostic\n assessment because a) [Hannah] informed me she was already\n in treatment and b) . . . it is not in EAP’s purview to conduct a\n medical evaluation. I did not administer any medical or\n mental health tests or diagnostic assessment tools for the\n same reason. I was [n]ot tasked to diagnose or provide a\n second opinion; my role was to facilitate communication\n between [Hannah] and Management to resolve the problem\n presented in the Management Referral -- namely, improving\n attendance and notifying management when not attending\n work.\n\nId. at 188 (emphasis omitted).\n\n However, even if EAP constituted a mandatory medical examination under the\n\nfacts of this case, summary judgment to Appellee was still appropriate on this claim\n\nbecause Hannah’s referral to EAP was “job-related and consistent with business\n\nnecessity.” 42 U.S.C. § 12112(d)(4)(A). As we have stated, “whether a mental\n\nexamination was ‘job-related and consistent with business necessity’ is an objective\n\ninquiry.” Pence v. Tenneco Auto. Operating Co., 169 F. App’x 808, 812 (4th Cir. 2006).\n\n“We therefore do not resolve any dispute about what [Appellee’s] subjective motivations\n\nwere for having [Hannah] examined by the EAP.” Id. An employer’s request for a\n\nmedical examination is job-related and consistent with business necessity when: “(1) the\n\nemployee requests an accommodation; (2) the employee’s ability to perform the essential\n\n\n\n 16\n\nfunctions of the job is impaired; or (3) the employee poses a direct threat to himself or\n\nothers.” Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 623 (6th Cir. 2014).\n\n Here, the evidence, even when viewed in the light most favorable to Hannah,\n\nsupports granting summary judgment because Appellee had a reasonable belief that\n\nHannah’s ability to perform the essential functions of her job was impaired by her\n\nrepeated issues with attendance and timely reporting. Hannah attempts to refute this by\n\nasserting that her job performance was excellent, but job performance alone does not\n\ncreate a genuine issue of material fact. Attendance was also an essential function of\n\nHannah’s job, one the record amply demonstrates she was unable to fulfill when Appellee\n\nreferred her to EAP. As we have stated:\n\n In addition to possessing the skills necessary to perform the\n job in question, an employee must be willing and able to\n demonstrate these skills by coming to work on a regular basis.\n Except in the unusual case where an employee can effectively\n perform all work-related duties at home, an employee “who\n does not come to work cannot perform any of his job\n functions, essential or otherwise.” Therefore, a regular and\n reliable level of attendance is a necessary element of most\n jobs.\n\nTyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (quoting\n\nWimbley v. Bolger, 642 F. Supp. 481, 485 (W.D. Tenn. 1986), aff’d, 831 F.2d 298 (6th\n\nCir. 1987)) (emphasis in original); see also Denman v. Davey Tree Expert Co., 266 F.\n\nApp’x 377, 380 (6th Cir. 2007) (“Job performance is separate from the ability to show up\n\nfor work, an essential function of [Hannah’s] position.”).\n\n\n\n\n 17\n\n Accordingly, Appellee did not violate the Rehabilitation Act by referring Hannah\n\nto EAP, and the district court properly granted summary judgment to Appellee on this\n\nclaim.\n\n 3.\n\n Confidential Medical Information\n\n Under the Rehabilitation Act, an employer may “conduct voluntary medical\n\nexaminations, including voluntary medical histories, which are part of an employee\n\nhealth program” and may “make inquiries into the ability of an employee to perform job-\n\nrelated functions.” 42 U.S.C. § 12112(d)(4)(B). Any “information obtained regarding\n\nthe medical condition or history of the applicant” -- that is, medical information -- must\n\nbe “collected and maintained on separate forms and in separate medical files and [must\n\nbe] treated as a confidential medical record.” Id. § 12112(d)(3)(B); see also id.\n\n§ 12112(d)(4)(C).\n\n Hannah alleges two separate Rehabilitation Act violations regarding her medical\n\ninformation: first, that Hannah’s supervisors wrongfully sought and disclosed\n\nconfidential medical information elicited from Hannah, and second, that the EAP\n\npsychologist wrongfully disclosed confidential medical information gathered from the\n\nEAP session to Hannah’s supervisors. In both instances, the district court correctly\n\ndetermined that Hannah failed to demonstrate that Appellee violated the Rehabilitation\n\nAct.\n\n\n\n\n 18\n\n a.\n\n Disclosures by Supervisors\n\n Hannah asserts that her supervisors disclosed her confidential medical information\n\nby writing in her EAP referral memo, “[e]arly in her tenure . . . and reaffirmed recently,\n\n[Hannah] informed us that she was meeting with a psychiatrist and counselor and taking\n\nmedication for depression.” J.A. 413. Notably, Hannah voluntarily disclosed her\n\ndepression diagnosis to her supervisors. The Rehabilitation Act does not protect\n\ninformation shared voluntarily. See Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143, 155\n\n(4th Cir. 2012) (finding the district court properly granted summary judgment on a\n\nconfidentiality claim brought under the Rehabilitation Act because the record “clearly\n\nshow[ed]” that the appellant “disclosed his medical condition voluntarily”). Indeed,\n\nHannah voluntarily told at least four of her supervisors that she had been diagnosed with\n\ndepression. See J.A. 179 (Hannah’s interrogatory responses) (“I disclosed my diagnosis\n\nof depression to my supervisors Kelly G. in summer 2011, Ann W. in fall 2014; Art Z. in\n\nMarch 2015, and Roy P. in March 2015.”).\n\n Hannah argues that these disclosures were not voluntary because they were made\n\nin response to inquiries about her disability. But the evidence does not support or create\n\na genuine issue of fact about that argument. The record indicates that only the March\n\n2015 disclosure was made in response to an inquiry, and that inquiry was not medical -- it\n\nwas about her attendance. See J.A. 23 (Hannah’s deposition testimony) (“[H]e was\n\nconcerned about unpredictability in my schedule. . . . I told him at that time I had\n\ndepression.”).\n\n\n 19\n\n Hannah asserts that this inquiry about her attendance was de facto an inquiry into\n\nher depression because (according to Hannah) the inquiring supervisor knew she was\n\ndepressed and knew her attendance issues were linked to her depression. Hannah cites\n\nonly out-of-circuit cases for the proposition that asking a question “likely to elicit”\n\ninformation about a disability amounts to a medical inquiry. See Harrison v. Benchmark\n\nElecs. Huntsville, Inc., 593 F.3d 1206, 1216 (11th Cir. 2010) (concluding that whether an\n\ninquiry following a failed drug test was likely to elicit information about a disability in\n\nviolation of the Americans with Disabilities Act (“ADA”) 5 presented a question of fact\n\nfor a jury to resolve); Fleming v. State Univ. of N.Y., 502 F. Supp. 2d 324, 338 (E.D.N.Y.\n\n2007) (concluding the plaintiff pled facts sufficient to state a claim for failure to\n\nconfidentially maintain medical information under the ADA where the plaintiff alleged\n\nthat his disclosure of his sickle cell anemia was not voluntary because his supervisor\n\ncalled him while he was in the hospital and asked him why he was there).\n\n First, the record does not support Hannah’s argument that the supervisor in\n\nquestion knew about Hannah’s depression before she disclosed it to him. Hannah points\n\nto the supervisor’s statement that when he spoke to Hannah on the phone before\n\nconfronting her about her attendance, “she didn’t sound well on the other end of the\n\nphone.” J.A. 466. Hannah also points to her supervisor’s statement that Hannah’s\n\n“demeanor [wa]s sad, very flat, and almost trance like.” Id. at 413. This is not enough to\n\n 5\n “To the extent possible, we construe the ADA and Rehabilitation Act to impose\nsimilar requirements.” Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 461\n(4th Cir. 2012).\n\n\n\n 20\n\ncreate a genuine issue of material fact as to whether the inquiring supervisor knew\n\nHannah had been medically diagnosed with clinical depression, or whether by asking\n\nabout her attendance, the supervisor was fishing for medical information about Hannah’s\n\nillness.\n\n Second, even if Hannah’s supervisor had an inkling that Hannah may have had\n\ndepression, this is not evidence that he knew asking about her repeated absences and\n\ntardiness -- indisputably bad work behavior -- would elicit medical information related to\n\nher depression. Indeed, Hannah’s absences could have been the result of a world of\n\nother, nonmedical possibilities, such as transportation issues or oversleeping. Adopting\n\nHannah’s argument would require us to find that where an employer might know that a\n\nparticular bad work behavior is connected to a medical condition, the employer cannot\n\ninquire into the behavior without running afoul of the ADA and Rehabilitation Act’s\n\nprohibition on medical inquiries. We have held expressly the opposite: “[T]he ADA does\n\nnot require an employer to simply ignore an employee’s blatant and persistent\n\nmisconduct, even where that behavior is potentially tied to a medical condition.” Vannoy\n\nv. Fed. Reserve Bank of Richmond, 827 F.3d 296, 305 (4th Cir. 2016) (citing Jones v. Am.\n\nPostal Workers Union, 192 F.3d 417, 429 (4th Cir. 1999) (holding the ADA does not\n\n“require an employer to ignore such egregious misconduct by one of its employees, even\n\nif the misconduct was caused by the employee’s disability”)).\n\n\n\n\n 21\n\n b.\n\n Disclosures by EAP Psychologist\n\n Hannah also argues that, in addition to her supervisors disclosing her depression\n\ndiagnosis internally, the EAP psychologist disclosed “additional, unique information\n\nfrom what Hannah had already told her supervisors.” Appellant’s Br. 51. Specifically,\n\nHannah alleges that the EAP psychologist told her supervisor that Hannah was concerned\n\nabout Appellee’s records retention policies, and that Hannah’s “difficulties in getting to\n\nwork were the result of a lack of motivation, not related to depression.” J.A. 540.\n\n Perhaps that is true. The record does indicate that the EAP psychologist shared\n\nsome information with Hannah’s supervisors and maybe it was unique information. See\n\nJ.A. 192 (EAP psychologist statement) (noting that the psychologist provided Hannah’s\n\nsupervisors updates regarding Hannah’s “EAP attendance” and “cooperation and\n\nprogress toward resolving the referral issues”). But there is no evidence that the EAP\n\npsychologist shared medical information. To the contrary, the EAP psychologist insisted,\n\nagain and again, that she did not share any confidential medical information. See id. at\n\n190 (noting that the psychologist, who is not a doctor, “did not disclose any confidential\n\nmedical information” to anyone). Of note, Hannah did not point to any evidence in the\n\nrecord contradicting the psychologist’s assertions.\n\n Therefore, the information shared by the EAP psychologist did not trigger the\n\nRehabilitation Act’s confidentiality protections because the record indicates that the EAP\n\npsychologist shared only nonmedical information.\n\n\n\n\n 22\n\n c.\n\n Non-Reliance on Medical Information\n\n Finally, even if either Hannah’s supervisors or the EAP psychologist disclosed\n\nHannah’s medical information, Appellee still did not violate the Rehabilitation Act\n\nbecause Appellee did not rely on Hannah’s depression diagnosis or any other medical\n\ninformation in deciding not to hire Hannah for the Cyber position. Rather, the record\n\noverwhelmingly indicates that Appellee’s decision was based on Hannah’s attendance\n\nissues. Accordingly, Hannah has not demonstrated that Appellee violated the\n\nRehabilitation Act by disclosing or misusing confidential medical information.\n\n 4.\n\n Discrimination\n\n Rehabilitation Act claims for discrimination are reviewed under the McDonnell\n\nDouglas burden-shifting framework. See Laber v. Harvey, 438 F.3d 404, 430 (4th Cir.\n\n2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)); Perry v.\n\nComput. Scis. Corp., 429 F. App’x 218, 219–20 (4th Cir. 2011). Under that framework,\n\nHannah has the initial burden of establishing a prima facie case of discrimination. See\n\nPerry, 429 F. App’x at 220. To establish this prima facie case, Hannah must show that:\n\n(1) she is disabled; (2) she was otherwise qualified for the position; and (3) she suffered\n\nan adverse employment action solely on the basis of her disability. See id. (citing\n\nConstantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir.\n\n2005)).\n\n\n\n\n 23\n\n If Hannah establishes a prima facie case, the burden shifts to Appellee to provide a\n\nlegitimate, nondiscriminatory reason for its conduct. See Perry, 429 F. App’x at 220. If\n\nAppellee provides such a reason, Hannah “bears the ultimate burden of persuasion” and\n\n“must show by a preponderance of the evidence that the proffered reason was a pretext\n\nfor discrimination.” Id.\n\n a.\n\n Establishing Pretext\n\n Even assuming that Hannah established a prima facie case of discrimination\n\n(which Appellee disputes), she cannot succeed on her claim that Appellee discriminated\n\nagainst her by not hiring her for a permanent position because she did not sufficiently\n\nrebut Appellee’s proffered reason for rejecting her application, as required under the final\n\nstep of the McDonnell Douglas burden-shifting framework. See Perry, 429 F. App’x at\n\n220.\n\n Appellee presented evidence demonstrating that Hannah’s perpetual issues with\n\nattendance, timeliness, and reporting absences to her superiors were the bases of its\n\ndecision not to hire her for the permanent position. Attempting to expose that\n\nexplanation as a ruse, Hannah pointed to a purported inconsistency between the sworn\n\nstatement that Mark Ewing provided during the Equal Employment Opportunity\n\nCommission (“EEOC”) investigation of Hannah’s case and an email he sent more than a\n\n\n\n\n 24\n\nyear earlier. In the sworn statement, signed on April 26, 2016, 6 Ewing asserts he “had no\n\nknowledge of [Hannah’s] disability.” J.A. 650. But in the email, sent on June 30, 2015,\n\nEwing references two memos that he received from Hannah’s supervisors, both of which\n\nnote Hannah’s depression. See id. at 413 (April 9, 2015 memo) (“Early in her tenure . . .\n\nand reaffirmed recently, [Hannah] informed us that she was meeting with a psychiatrist\n\nand counselor and taking medication for depression.”); id. at 606 (April 23, 2015 memo)\n\n(“While . . . medical considerations (i.e., depression and/or ADD) do make this situation\n\nworse, these factors are under her control based upon treatment plans with her\n\npsychologist and psychiatric care providers.”). Underscoring the significance of this\n\ninconsistency, Hannah argues, is the fact that Ewing did not provide the June 30, 2015\n\nemail to the EEOC. Hannah argues that the inconsistency, coupled with Ewing’s failure\n\nto disclose the email evidencing the inconsistency, illustrates “clear pretext.” Appellant’s\n\nBr. 27.\n\n Despite Hannah’s arguments to the contrary, this apparent discrepancy does not\n\ncreate a genuine issue of material fact that Appellee’s proffered reason for rejecting\n\nHannah’s application is pretextual. First, nothing in the record indicates that Ewing had\n\nfirst-hand knowledge of Hannah’s disability. Although the memos mention that Hannah\n\nself-reported that she had depression, the second memo also describes Hannah’s\n\ndepression as “under her control.” J.A. 606. Indeed, Ewing’s email suggests that he did\n\n\n 6\n The excerpt of the statement that is included in the J.A. does not include the date.\nThis date comes from Hannah’s brief. See Appellant’s Br. 26.\n\n\n\n 25\n\nnot know that Hannah had an ongoing disability. See J.A. 635 (“I am informed that EAP\n\nconcluded that [Hannah] does not have a medical problem, rather she is a disciplinary\n\nproblem.”).\n\n More significantly, Hannah’s asserted contradiction between Ewing’s EEOC\n\nstatements and his June 30, 2015 email do not create a genuine issue of material fact\n\nabout pretext because Ewing’s email and the memos written by Hannah’s supervisors\n\nfocus on Hannah’s attendance problems, not on her disability. See J.A. 413 (April 9,\n\n2015 memo) (noting that “[Hannah’s] schedule has become increasingly erratic” and that\n\n“frequent absences and late arrivals [have begun] to affect her assigned unit and\n\nindividual performance”); id. at 606 (April 23, 2015 memo) (describing Hannah’s history\n\nof attendance issues and Appellee’s attempts to accommodate Hannah and noting that,\n\ndespite those attempts, “[Hannah’s] late attendance has continued”); id. at 635–36\n\n(Ewing’s June 30, 2015 email) (detailing Hannah’s problem with “attendance at work,”\n\nnoting that Hannah’s “absences and late arrivals were affecting her assigned staff element\n\nand her individual performance,” and concluding that Hannah’s “recent performance is\n\nnot consistent with a potentially good employee.”).\n\n Accordingly, Hannah did not point to any genuine issue of material fact that\n\nAppellee’s purported basis for not hiring her was merely a pretext for discriminating\n\nagainst her on the basis of her depression.\n\n\n\n\n 26\n\n b.\n\n Appellee’s Nondiscriminatory Explanation\n\n i.\n\n Moreover, the record indicates that Appellee’s proffered explanation for not hiring\n\nHannah for the Cyber position is genuine, legitimate, and nondiscriminatory.\n\n As the district court concluded, a continuous attendance issue is a legitimate\n\nreason for withholding an employment benefit. See Tyndall, 31 F.3d at 213 (finding an\n\nemployee who cannot satisfy their employer’s attendance policy cannot be considered\n\n“qualified” for the purposes of the ADA). Hannah might have been exceptionally\n\ntalented and substantively good at her job, but as noted above, “[i]n addition to\n\npossessing the skills necessary to perform the job in question, an employee must be\n\nwilling and able to demonstrate these skills by coming to work on a regular basis.” Id.\n\n Hannah asserts that “serious questions of fact exist as to whether Hannah even had\n\n‘significant attendance and reporting problems.’” Appellant’s Br. 28. But the record\n\nevidences no less than 13 attendance issues that occurred in the 46 days between\n\nAppellee’s first attempt to accommodate Hannah on March 19, 2015, and the revised\n\nplan made on May 4, 2015. Compare J.A. 114, 174 (noting Appellee’s March 19, 2015\n\nmeeting with her supervisor and original accommodation asking her to arrive at work by\n\n10 AM or report to a supervisor), with id. at 556 (indicating four unexcused absences and\n\n\n\n\n 27\n\nnine late arrivals between March 19 and April 29 that Appellee failed to timely report). 7\n\nIn light of Hannah’s failure to arrive or call in before 10 AM 13 times in 46 days, there is\n\nno genuine issue of material fact about Hannah’s significant attendance and reporting\n\nproblem.\n\n ii.\n\n Hannah also argues that because her disability was the cause of her attendance\n\nissues, Appellee could not withhold an employment benefit from her on that basis. We\n\nhave no doubt that Hannah’s struggle with depression was the cause of her attendance\n\nissues, and we are sympathetic to the toll this condition took on a highly talented\n\n\n 7\n The record reflects the following late arrivals and absences for Hannah between\nMarch 19, 2015, and May 4, 2015: (1) April 2: Hannah emailed at 11:02 AM indicating\nshe would arrive to work by 12 PM; (2) April 8: Hannah emailed at 11:05 AM indicating\nshe would arrive to work by 12 PM; Hannah emailed again at 1:55 PM indicating she\nwould not be coming in that day; (3) April 9: Hannah emailed at 11:11 AM indicating her\ncar was towed and she would arrive at work by 1 PM; (4) April 13: Hannah emailed at\n10:58 AM indicating she would arrive at work by 11:30 AM; (5) April 14: Hannah\nemailed at 11:08 AM indicating she would arrive at work by 12 PM; (6) April 16:\nHannah’s supervisor emailed Hannah at 10:18 AM looking for her; when Hannah was\nreached at 11 AM, she indicated she would arrive to work by 12 PM; (7) April 20:\nHannah emailed at 10:45 AM indicating she would arrive to work by 11:30 AM;\nHannah’s supervisor confirmed her arrival at 12:50 PM; (8) April 22: Hannah emailed at\n11:01 AM indicating she would arrive at work after 12 PM; Hannah emailed again at\n12:41 PM indicating she would arrive at 1 PM due to traffic; (9) April 23: Hannah\nemailed at 10:59 AM indicating she would arrive at work by 12 PM; Hannah emailed\nagain at 12:56 PM indicating she would not be coming in that day due to a migraine; (10)\nApril 24: Hannah emailed at 11:02 AM indicating she would arrive at work in the\nafternoon; Hannah later called at 3:24 PM indicating she would not be coming in that\nday; (11) April 27: Hannah’s supervisor emailed indicating Hannah arrived at work by 11\nAM; (12) April 28: Hannah emailed at 10:52 AM indicating she would arrive at work by\n11:30 AM; (13) April 29: Hannah emailed at 11:49 AM indicating she would not come in\nto work that day. See J.A. 556.\n\n\n\n 28\n\nemployee. However, Appellee was nevertheless permitted to take Hannah’s attendance\n\nissues into account in its decision whether to hire her for the Cyber position. To reiterate,\n\nthe Rehabilitation Act “does not require an employer to simply ignore an employee’s\n\nblatant and persistent misconduct, even where that behavior is potentially tied to a\n\nmedical condition.” Vannoy, 827 F.3d at 305; cf. Martinson v. Kinney Shoe Corp., 104\n\nF.3d 683, 686 n.3 (4th Cir. 1997) (“Misconduct -- even misconduct related to a disability\n\n-- is not itself a disability, and an employer is free to fire an employee on that basis.”).\n\n iii.\n\n Finally, Hannah argues that by the time Appellee made the decision not to hire\n\nher, her attendance had improved. She asserts that between returning from her leave of\n\nabsence on June 1, 2015, and learning that she was not selected for the permanent\n\nposition on June 17, 2015, she “had shown she was able to perform the essential\n\nfunctions of the job and had no current attendance issues.” Appellant’s Br. 32.\n\n Hannah is correct that in a failure to hire case, the relevant inquiry is the\n\ncandidate’s performance “at the time of the employment decision or in the immediate\n\nfuture.” Lamb v. Qualex, Inc., 33 F. App’x 49, 57 (4th Cir. 2002). However, Appellee\n\nwas not required to consider the two weeks before the decision was made in a vacuum.\n\nMoreover, it is not the job of this court to decide whether Appellee made the right choice\n\nby not hiring Hannah for the Cyber position. Rather, our job is simply to decide whether\n\nAppellee made an illegal choice. See Feldman v. Law Enf’t Assocs. Corp., 752 F.3d 339,\n\n350 (4th Cir. 2014) (explaining that we do not “sit as a kind of super-personnel\n\ndepartment weighing the prudence of employment decisions”).\n\n\n 29\n\n Because Hannah not did demonstrate that Appellee’s purported basis for not hiring\n\nher was merely a pretext for discriminating against her on the basis of her depression, and\n\nbecause Hannah’s attendance problem was a legitimate and nondiscriminatory reason to\n\nnot hire her, we conclude that summary judgment was appropriate on her Rehabilitation\n\nAct discrimination claim.\n\n B.\n\n FMLA Claims\n\n The FMLA gives employees with qualifying medical conditions the right to take\n\nup to 12 weeks of leave during a 12-month period “[b]ecause of a serious health\n\ncondition that makes the employee unable to perform the functions of” her job. 29\n\nU.S.C. § 2612(a)(1)(D). “The employee has an accompanying right to return to the same\n\nor an equivalent position at the conclusion of the leave period.” Reed v. Buckeye Fire\n\nEquip., 241 F. App’x 917, 923 (4th Cir. 2007) (citing 29 U.S.C. § 2614(a)(1)).\n\n As discussed below, as to Hannah’s FMLA interference claim, Hannah illustrates\n\na genuine issue of material fact regarding the notice of her depression and her desire to\n\ntake a leave of absence. But, for the same reasons Hannah’s Rehabilitation Act\n\ndiscrimination claim fails, Hannah’s FMLA retaliation claim fails as well.\n\n 1.\n\n Interference\n\n a.\n\n The district court incorrectly concluded that Hannah’s disclosure of her depression\n\nwas not sufficient to put Appellee on notice that Hannah could have qualified for FMLA\n\n\n 30\n\nprotections. Accordingly, summary judgment was not warranted as to Hannah’s FMLA\n\ninterference claim.\n\n “An employee is mandated to provide notice to her employer when she requires\n\nFMLA leave.” Brushwood v. Wachovia Bank, N.A., 520 F. App’x 154, 157 (4th Cir.\n\n2013) (quoting Rhoads v. FDIC, 257 F.3d 373, 382 (4th Cir. 2001)). That said, an\n\nemployee need not specifically invoke the FMLA to benefit from its protections. See\n\nDotson v. Pfizer, Inc., 558 F.3d 284, 295 (4th Cir. 2009). Proper notice does not require\n\n“any magic words.” Id. Indeed, “[w]hen an employee seeks leave for the first time for\n\na[n] FMLA-qualifying reason, the employee need not expressly assert rights under the\n\nFMLA or even mention the FMLA.” 29 C.F.R. § 825.302. Proper notice merely “makes\n\nthe employer aware” that the employee needs potentially FMLA-qualifying leave.\n\nBrushwood, 520 F. App’x at 157. And once the employer is on notice of the employee’s\n\nneed to take potentially FMLA-qualifying leave, “the responsibility falls on the employer\n\nto inquire further about whether the employee is seeking FMLA leave.” Dotson, 558\n\nF.3d at 295.\n\n A reasonable jury could find that Hannah’s disclosure of her depression and her\n\nApril 9, 2015 request for psychiatrist-recommended leave was sufficient to trigger\n\nAppellee’s responsibility to inquire further about whether Hannah was seeking FMLA\n\nleave. We have held that disclosure of a potentially FMLA-qualifying circumstance and\n\nan inquiry into leave options is sufficient to create a material question of fact regarding\n\nwhether an employee triggered her employer’s FMLA obligations. See Dotson, 558 F.3d\n\nat 291, 295 (finding that an employee informing his employer that he was adopting a\n\n\n 31\n\nchild and speaking to a human resources representative about “taking leave during the\n\nadoption process” was sufficient to create a question of fact as to whether the employer’s\n\nFMLA-inquiry duties had been triggered).\n\n b.\n\n Here, Hannah informed her supervisors of her depression on multiple occasions.\n\nSee, e.g., J.A. 413 (April 9, 2015 memo from Hannah’s supervisors) (“Early in her tenure\n\n. . . and reaffirmed recently, [Hannah] informed us that she was meeting with a\n\npsychiatrist and counselor and taking medication for depression.”). 8 And on April 9,\n\n2015, Hannah explained to her supervisors that her psychiatrist recommended that she\n\ntake four weeks of medical leave. Hannah’s disclosures about her depression and her\n\npsychiatrist’s recommendation could lead a reasonable jury to find that Appellee was on\n\nnotice that Hannah was inquiring about potentially FMLA-qualifying leave, triggering\n\nAppellee’s responsibility to inquire further about whether Hannah was seeking FMLA\n\nleave. 9\n\n c.\n\n Appellee argues that Hannah’s interference claim fails because Hannah cannot\n\ndemonstrate that her depression was “a serious health condition.” Appellee’s Resp. 40–\n\n41; see also 29 U.S.C. § 2612(a)(1)(D). But that argument is premature. Appellee has\n\n 8\n Indeed, Hannah’s supervisors had “grown increasingly alarmed at the overall\nchange in [Hannah’s] demeanor.” J.A. 413.\n 9\n It is undisputed that Appellee did not inquire about whether the leave should be\nclassified as FMLA-protected.\n\n\n\n 32\n\nnot shown that it made any inquiry into whether Hannah’s depression was an FMLA-\n\nqualifying serious health condition. Appellee’s argument “would allow it to use its own\n\nfailure to determine whether leave should be designated as FMLA-protected to block\n\nliability.” Dotson, 558 F.3d at 295. We have refused “to allow an employer to take\n\nadvantage of its own lapse in such a way.” Id.\n\n d.\n\n Additionally, Appellee’s failure to provide notice of the availability of FMLA\n\nleave prejudiced Hannah because if she had been aware of the availability of FMLA\n\nleave, she could have structured her leave differently. The FMLA “provides no relief\n\nunless the employee has been prejudiced by the violation.” Vannoy, 827 F.3d at 302\n\n(citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)). “Prejudice may\n\nbe gleaned from evidence that had the plaintiff received the required (but omitted)\n\ninformation regarding his FMLA rights, he would have structured his leave differently.”\n\nId.\n\n Here, the record contains evidence that if Hannah had known that the FMLA\n\nprotected her position, she would have used only sick leave for her leave of absence. See\n\nJ.A. 664 (Hannah’s declaration) (“Had I known I could have chosen to take sick leave for\n\nthe entire period, I would have elected to do so.”). Instead, she used a combination of\n\nsick leave and annual time to take four weeks off. According to Hannah, “[u]nlike\n\nannual leave, sick leave is not paid out at the end of an employee’s service, resulting in a\n\nloss of a benefit worth at least $20,000.” Id. Based on Hannah’s testimony, a jury could\n\n\n\n\n 33\n\nfind that Hannah was prejudiced by Appellee’s failure to inquire into the availability of\n\nFMLA leave and thus interfered with her FMLA rights.\n\n For these reasons, Hannah has demonstrated a genuine issue of material fact that\n\nshould have precluded summary judgment on her FMLA interference claim.\n\n 2.\n\n Retaliation\n\n As for Hannah’s FMLA retaliation claim, however, the district court correctly\n\nconcluded that like her discrimination claim brought pursuant to the Rehabilitation Act,\n\nHannah did not sufficiently rebut Appellee’s legitimate, nonretaliatory reason for not\n\nhiring Hannah for the Cyber position.\n\n The FMLA prohibits employers from discriminating against an employee for\n\nexercising her FMLA rights. See 29 U.S.C. § 2615(a)(2). As relevant here, “employers\n\ncannot use the taking of FMLA leave as a negative factor in employment actions.” 29\n\nC.F.R. § 825.220(c). Courts analyze FMLA retaliation claims, like discrimination claims\n\nbrought pursuant to the Rehabilitation Act, under the McDonnell Douglas burden-shifting\n\nframework. See Laing v. Fed. Express Corp., 703 F.3d 713, 717 (4th Cir. 2013). To\n\nestablish a prima facie case of FMLA retaliation, a plaintiff must demonstrate that “(1)\n\nshe engaged in a protected activity; (2) her employer took an adverse employment action\n\nagainst her; and (3) there was a causal link between the two events.” Adams v. Anne\n\nArundel Cty. Pub. Schs., 789 F.3d 422, 429 (4th Cir. 2015) (internal quotation marks\n\nomitted). If the plaintiff establishes a prima facie case, the burden shifts to the defendant\n\nto provide a legitimate, nonretaliatory reason for taking the employment action at issue.\n\n\n 34\n\nId. If the defendant does so, the burden shifts back to the plaintiff to demonstrate that the\n\ndefendant’s proffered reason is pretextual. Id.\n\n Even assuming Hannah demonstrated a prima facie case of FMLA retaliation,\n\nsummary judgment was proper because she failed to rebut Appellee’s legitimate,\n\nnonretaliatory reason for not hiring her for the Cyber position. Appellee asserts that it\n\nrelied on Hannah’s attendance issues in deciding not to hire her for the position, and the\n\nevidence in the record supports that assertion. See J.A. 635–36 (Ewing’s June 30, 2015\n\nemail expressing concerns about Hannah’s application for the Cyber position) (noting,\n\n“despite some apparently solid performance while on the Snowden project,” Appellee\n\nhad “a consistent history of issues with [Hannah] over many months” regarding Hannah’s\n\n“attendance at work and attitude”); id. at 219 (Ewing’s deposition testimony) (“The\n\nprimary reason that I was concerned [about Hannah’s application] was the fact that her\n\nconduct was extremely negative at the point of time we were making a hiring decision for\n\npermanent employment status.”). Hannah points to no evidence that adequately\n\nundermines Appellee’s proffered nonretaliatory reason for not hiring her. 10\n\n Accordingly, the district court properly granted summary judgment on Hannah’s\n\nFMLA retaliation claim.\n\n\n 10\n Hannah again argues, as she did in the context of her claim of discrimination\nunder the Rehabilitation Act, that the “inconsistency” between the sworn statement\nEwing provided during the EEOC investigation of Hannah’s case and an email he sent\nmore than a year earlier exposes Appellee’s proffered reason for not hiring her for the\npermanent position as pretextual. For the same reasons explained above, that argument\nfails.\n\n\n\n 35\n\n IV.\n\n For these reasons, we affirm the judgment of the district court as to Hannah’s\n\nRehabilitation Act claims and FMLA retaliation claim. We vacate the grant of summary\n\njudgment as to Hannah’s FMLA interference claim because there is a genuine issue of\n\nfact as to whether Hannah’s disclosure of her depression was sufficient to put Appellee\n\non notice that Hannah could have qualified for FMLA protections. Accordingly, we\n\nremand for further proceedings as to that claim.\n\n AFFIRMED IN PART, VACATED IN PART, AND REMANDED\n\n\n\n\n 36", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369045/", "author_raw": "THACKER, Circuit Judge:"}, {"author": "GREGORY, Chief Judge, concurring", "type": "concurrence", "text": "GREGORY, Chief Judge, concurring in part and dissenting in part:\n\n Hannah P. was undisputedly an excellent intelligence officer. The Office of the\n\nDirector of National Intelligence (“ODNI”) entrusted her with the high-stress, high-\n\nprofile Edward Snowden case. She worked tirelessly and impeccably on that assignment,\n\nand ODNI praised her performance. For the duration of that assignment, Hannah kept\n\nnonconventional work hours with the knowledge and consent of her supervisors, and her\n\nattendance was not considered a problem.\n\n It was only after the Snowden project ended, and Hannah’s depression worsened,\n\nthat her supervisors found fault with her work hours, though she remained formally on a\n\nflexible schedule. When Hannah requested an accommodation for her depression—a\n\nleave of absence recommended by both of her medical professionals—Hannah’s\n\nsupervisors refused to timely grant the request. This was despite the fact that her\n\nsupervisors had offered to grant her leave just a few months earlier—before her\n\ndepression was triggered.\n\n The result of this was tragic. Hannah was denied a permanent position for which\n\nit is undisputed that she was exceptionally qualified and for which the interview panel\n\nunanimously selected her. ODNI concedes that Hannah’s depression qualifies as a\n\ndisability protected by the Rehabilitation Act. Yet, the employer denied Hannah, a\n\ndedicated and valuable employee, the protection that the law requires.\n\n The majority mistakenly fails to see the force of Hannah’s claims. Though the\n\nmajority cites repeatedly to our decision in Vannoy v. Federal Reserve Bank of\n\nRichmond, it fails to grapple with the stark distinctions between the “blatant and\n\n 37\n\npersistent misconduct” by the employee in that case and Hannah’s cooperative attempts\n\nto satisfy her supervisors’ expectations, despite the increasingly severe symptoms of her\n\ndisability. 827 F.3d 296, 300 (4th Cir. 2016).\n\n While I concur in Parts III.A.2.a, III.A.3, and III.B.1 of the Court’s opinion, I\n\ncannot agree that no genuine issue of material fact exists with respect to Hannah’s claims\n\nthat ODNI violated the Rehabilitation Act and Family and Medical Leave Act (“FMLA”)\n\nwhen it discriminated against her on the basis of her disability, failed to reasonably\n\naccommodate her depression, wrongfully required a medical examination of her as a\n\ncurrent employee, and chose not to hire her for permanent employment in retaliation for\n\nher FMLA-qualifying leave. I believe that several disputes of fact exist and that Hannah\n\nis entitled to her day in court. Therefore, I respectfully dissent with respect to those\n\nclaims.\n\n\n\n I.\n\n Hannah’s supervisors were informed early in her employment that she suffered\n\nfrom depression. She was under the treatment of a psychiatrist and a licensed clinical\n\nsocial worker and did not initially request any work accommodations because she “was\n\nadequately handling [her] depression at the time with medication and counseling.” J.A.\n\n19–20.\n\n Despite her depression, Hannah excelled at her job. In her position as the\n\ndisclosures coordinator for the Edward Snowden project, her “leadership, poise, and\n\nperformance were impeccable.” J.A. 412. She was described by her supervisors as “an\n\n 38\n\noutstanding employee combining energy/drive, technical competence, superb\n\ncommunication and networking skills, and superior analytic tradecraft.” Id. In short,\n\nHannah was considered “an invaluable intelligence officer and a future [Intelligence\n\nCommunity] leader.” Id.\n\n The high-profile Snowden project required long work hours, and Hannah was not\n\nrequired to maintain an established “core” hours schedule. Instead, she worked a “maxi\n\nflex” schedule, which permitted her to vary her schedule so long as she put in 80 hours of\n\nwork in each two-week period. J.A. 492–93. She often came in later than other ODNI\n\nemployees (around noon), but stayed later as well. J.A. 494.\n\n In November or December 2014, as the Snowden project was coming to a close,\n\nHannah’s supervisors encouraged her to take leave, a common practice for ODNI\n\nemployees “after finishing a burn-out job.” J.A. 173. Hannah did not take her\n\nsupervisors up on the offer, however, not only because she was interviewing for\n\npermanent employment, but also because “there was still ambiguity over whether the\n\n[Snowden] disclosures responsibilities had truly finished.” Id.\n\n During this time, Hannah’s depression became more serious. She had trouble\n\narriving at work before noon and had unscheduled absences. Hannah remained on a maxi\n\nflex schedule, however, and it was not until March 19, 2015, that she was informed that\n\nher attendance and arrival time were problematic. J.A. 461, 495. In fact, her first-line\n\nsupervisor had no concerns about her attendance or work hours in early 2015 and asked\n\nHannah to fill in as acting chief of their division while he was out of the office in late\n\nFebruary. J.A. 494–95, 498.\n\n 39\n\n When Hannah’s supervisor spoke with her about her work hours on March 19,\n\n2015, Hannah was not told that she was required to return to a “core” schedule. Rather,\n\nHannah and her first-line supervisor agreed that Hannah would either arrive at work by\n\n10:00 a.m. or contact her supervisors if she was unable to arrive by that time; if she\n\nneither arrived at work nor contacted the office by 11:00 a.m., her supervisor would reach\n\nout to her by phone. J.A. 114. Hannah’s second-line supervisor had no objection to the\n\narrangement; he “wanted to see what would happen.” J.A. 345.\n\n The day after making this arrangement, Hannah did not report for work by 10:00\n\na.m. When she did not arrive by 11:00 a.m., her supervisors did not call her. Instead, she\n\nemailed them at 11:05 a.m., advising she would be in around 12:30 p.m. J.A. 118.\n\n After that work day, Hannah began a pre-scheduled week-long leave during which\n\nshe was preoccupied with home renovations. J.A. 114. At the end of the week, she\n\nemailed her supervisors to inform them she would not be in Monday, the next business\n\nday, because of the renovations. J.A. 120. On Tuesday, Hannah emailed her supervisors\n\nnotifying them that she would not be in that day either. J.A. 122.\n\n On Wednesday, when Hannah did not come in by 10:00 a.m., Hannah’s second-\n\nline supervisor called her. J.A. 174. According to Hannah, her supervisor was “angry”\n\nand demanded to know why Hannah had not arrived. Id. Hannah apologized, explained\n\nshe was having trouble getting out of bed, and indicated that she would be in as soon as\n\npossible. Id. When she arrived at work, her supervisor told her that the arrangement they\n\nhad made “was not working.” J.A. 175. She was told that she was solely responsible for\n\ncontacting the office in the event she would be late or absent, and that her supervisors\n\n 40\n\nwould not be contacting her. J.A. 90. The arrangement had been in place for a total of\n\nfour days on which Hannah was scheduled to work.\n\n Hannah asked that her supervisors “give the current accommodation more time to\n\nwork.” J.A. 175. Her supervisor, who was aware of Hannah’s depression, insisted that\n\nHannah propose an alternative plan “right then.” Id. She was ultimately given “a day or\n\ntwo” to propose an alternative. Id.\n\n The next day, on April 2, 2015, Hannah emailed her supervisors at 11:02 a.m.,\n\nnotifying them that she would be in by noon. J.A. 124. That day, Hannah’s supervisors\n\nmet with ODNI’s Employee Management Relations Officer, the head of ODNI’s Equal\n\nEmployment Opportunity and Diversity Office, and the head of ODNI’s Human\n\nResources Division to discuss how to best address Hannah’s attendance and reporting.\n\nJ.A. 66, 128, 149. They collectively decided to refer Hannah to the Central Intelligence\n\nAgency’s Employee Assistance Program (“EAP”). 1 J.A. 326–29. Although Hannah’s\n\nsupervisors were well aware of her depression, she was referred to the EAP to “help\n\nidentify what her challenges were and provide her any support she needed,” such as\n\n“accommodation with work hours, . . . counseling or any other type of support.” J.A.\n\n139–40.\n\n\n\n\n 1\n Hannah was referred to the CIA’s EAP program because ODNI did not have one\nof its own. The EAP provides employees with “free, confidential, short-term mental\nhealth[,] financial, and addictions counseling and referral to cleared community\nproviders.” J.A. 132.\n\n\n 41\n\n Hannah’s supervisors drafted a memorandum, which they dated April 9, 2015,\n\nreferring Hannah to the EAP. The memo outlined Hannah’s “impressive capabilities”\n\nand her work with ODNI, commented on her recent attendance, and explained that\n\nHannah had disclosed to her supervisors that she was meeting with a psychiatrist and\n\ncounselor and taking medication for depression. J.A. 412–13. The memo also noted:\n\n Hannah has indicated that she is struggling to get out of bed\n in the morning and admits to feeling almost paralyzed. She\n has also indicated that she had a recent change in medication\n and that the upheaval in her living arrangements negatively\n impacted some of her physical coping mechanisms.\n\nJ.A. 413. The memo explained that “as senior intelligence officials,” Hannah’s\n\nsupervisors “ha[d] a duty to identify and if possible help vulnerable employees.” J.A.\n\n414.\n\n Meanwhile, Hannah met with her psychiatrist and counselor. Both professionals\n\nagreed that Hannah should take four weeks of leave. J.A. 175. Accordingly, Hannah met\n\nwith her supervisors on April 9, 2015 and requested a four-week leave of absence. J.A.\n\n424, 449, 468. Her supervisors did not ask her for any medical documentation to support\n\nthe leave request because they expected to receive a “quick answer” from EAP. J.A. 95.\n\nThey also believed that Hannah’s medical providers did not have “the expertise to\n\nprovide” an opinion on “all of the items” that they were planning to submit to EPA. Id.\n\n Hannah’s supervisors denied her leave request; they had already determined\n\nbefore meeting with Hannah that if Hannah asked for leave, they would “defer that\n\ndecision until after meeting with EAP.” J.A. 422. One of Hannah’s supervisors\n\nexplained in her deposition that she “wanted to get a sense [Hannah] was in a good\n\n 42\n\nplace.” J.A. 431. According to that supervisor, the “rationale” of the group that decided\n\nto refer Hannah to EAP first was:\n\n If this were . . . a bad behavior problem, there would\n be no need to grant immediate leave.\n\n If it were a medical mental health problem, the thought\n was, granting leave and isolating [Hannah] from day-to-day\n contact with her coworkers and her managers when we didn’t\n know her state of mind and how much medical care she was\n receiving could, potentially, be dangerous.\n\nJ.A. 422–23. Hannah’s second-line supervisor told her that the decision was made\n\nbecause of concern that “since [Hannah] was a single woman if [she] took leave [she]\n\nwould be home by [herself] and that could make [her] depression worse.” J.A. 176. It\n\nwas made clear that Hannah was required to attend EAP counseling; if she refused, her\n\ntemporary position would be deemed “as excess” and she would lose her job\n\n“immediately.” Id.\n\n Hannah’s first-line supervisor disagreed with the others’ proposed course of\n\naction; he believed that the supervisors should not “substitute [their] judgment for\n\n[Hannah’s] doctor’s.” J.A. 504. Nonetheless, Hannah signed the memo to EAP and\n\nattended an appointment with an EAP counselor the next day, April 10, 2015.\n\n On Monday, April 13, 2015, Hannah met again with one of her supervisors to\n\ndiscuss her leave request. Her supervisor told her that her leave request was approved but\n\n“was pushing” her to take only two weeks off, not the four she had requested. J.A. 524,\n\n528. He explained that Hannah would have to submit to a medical evaluation if she\n\nwished to take leave beyond the two weeks. J.A. 524. Hannah felt uncomfortable with\n\n\n 43\n\nher supervisor’s pushiness and confused about the status of her leave request so she\n\nresponded that her request was “on hold.” Id. She wanted to figure out what the EAP\n\ncounselor had told her supervisor and to confirm her legal options. Id.\n\n Hannah continued to arrive at work later than 10:00 a.m. during April 2015.\n\nDuring that month, Hannah also continued attending the EAP sessions. In those sessions,\n\nHannah testified, she was questioned about her medical history, her family’s medical\n\nhistory, and the medication she was taking and its dosage. J.A. 531–32. In the third\n\nsession, Hannah was given a diagnostic questionnaire “to assess depression or severity of\n\nthose sorts of things.” J.A. 534.\n\n On April 16, 2015, the EAP counselor had an extended forty-minute discussion\n\nwith Hannah’s second-line supervisor. During that discussion, the counselor disclosed\n\nthat Hannah’s “lack of motivation/inability to come to work” was primarily influenced by\n\nfeelings of frustration over not securing a permanent position at ODNI. J.A. 604. At\n\nsome point, the counselor also indicated that Hannah was not cooperating with the EAP\n\nprocess because she was spending “more than half the session at times” expressing\n\nconcerns over the record retention policy. J.A. 192.\n\n A week later, Hannah’s second-line supervisor circulated a status update via email\n\nto ODNI leadership outlining the information shared by the EAP counselor. That\n\ninformation included Hannah’s explained reasons for her inability to arrive punctually for\n\nwork, as well as Hannah’s concerns that the EAP process would “create a paper trail that\n\n[would] adversely impact her future employment and career.” J.A. 606. The email also\n\n\n\n 44\n\nindicated that the EAP counselor had identified “non-medical” factors as the primary\n\ncause of Hannah’s attendance problems. J.A. 607.\n\n On April 28, 2015, Hannah met with one of her supervisors and reiterated her\n\nrequest for four weeks of leave. J.A. 41. She was told that her leave request would be\n\napproved if she met with the EAP counselor once more on May 1, 2015 and signed a\n\nLetter of Expectations. J.A. 42. Hannah attended the May 1 appointment and signed the\n\nLetter of Expectations on May 4, 2015. J.A. 43. The Letter of Expectations provided\n\nthat, “[e]ffective immediately,” Hannah would begin work by 10:00 a.m. and would\n\ncontact her office no later than 9:30 a.m. in the event she would be late. J.A. 614.\n\n Beginning on May 5, 2015, Hannah took a four-week leave of absence. She\n\nreturned to work on June 1, 2015 and was immediately tasked with leading a significant\n\nstudy. J.A. 44–45. Her attendance problem “largely disappeared as Hannah responded to\n\nthe need for daily meetings all over the community.” J.A. 612.\n\n On June 9, 2015, Hannah interviewed for a permanent position with ODNI—\n\nProgram Mission Manager Cyber (“Cyber”), a job she had applied for at the end of April\n\nor beginning of May 2015. J.A. 620–21. She was unanimously selected by the interview\n\npanel as the most qualified candidate for the position. J.A. 206, 625. A week later, the\n\ninterview panel forwarded its recommendation to ODNI’s Chief Management Officer,\n\nMark Ewing. J.A. 206–07. Ewing was already aware of the decision to refer Hannah to\n\nthe EAP and had been consulted in that decision-making process. J.A. 216. As Ewing\n\ntestified, the EAP referral was intended not only to address Hannah’s issues with the\n\n\n\n 45\n\ntemporary job she had at the time; Ewing’s “concern was her conduct in relationship to\n\nbeing selected for a permanent government position.” J.A. 217, 585.\n\n Hannah’s application for the Cyber position stalled for several weeks, despite the\n\nfact that the approval process typically only took a few days. J.A. 443, 630. On June 25,\n\n2015, members of the interview panel began questioning the holdup. J.A. 633. In\n\nresponse, Ewing sent an email to the Principal Deputy Director of National Intelligence\n\n(“PDDNI”) recommending that Hannah not be approved for the Cyber position based on\n\nher recent attendance history. J.A. 635–36. Ewing also represented that the EAP\n\ncounselor had concluded that Hannah did not have a medical problem, “rather she is a\n\ndisciplinary problem.” J.A. 635.\n\n The PDDNI shared that email with the Director of National Intelligence (“DNI”).\n\nNeither the PDDNI nor the DNI approved Hannah for the permanent position. J.A. 722.\n\nOn July 7, 2015, Hannah was notified that she was not selected for the position. J.A.\n\n638. Hannah completed her temporary term at ODNI on March 27, 2016 as a high\n\nperformer, yet did not secure a permanent position with the department.\n\n\n\n II.\n\n A.\n\n I first take issue with the Court’s treatment of Hannah’s discrimination claim\n\nunder the Rehabilitation Act. The majority concludes that Hannah’s 13 “attendance\n\nissues” between March 19, 2015 and May 4, 2015 constituted a “significant attendance\n\nand reporting problem.” Maj. Op. at 27–28. Accordingly, the majority credits this\n\n 46\n\nproffered legitimate, non-discriminatory reason for ODNI’s failure to hire Hannah for the\n\npermanent Cyber position. 2 The majority also concludes that Hannah has failed to satisfy\n\nher burden at this stage of presenting sufficient evidence that ODNI’s explanation for\n\nrejecting her application is pretext for disability discrimination. Maj. Op. 24–26.\n\n I disagree with the majority’s conclusions for several reasons. Fundamentally,\n\nODNI’s proffered reason for not hiring Hannah reflects a misunderstanding of Hannah’s\n\ndisability. Among the most typical symptoms of depression are a loss of interest in\n\nnearly all activities, decreased energy, disturbed or irregular sleep, and an impaired\n\nability to function in one’s daily activities, including communicating with others. Jerry\n\nVon Talge, Ph. D., Major Depressive Disorder—Essential Features, 26 Am.\n\nJurisprudence Proof of Facts 1, § 12 (3d ed. 1994); Spangler v. Fed. Home Loan Bank of\n\nDes Moines, 278 F.3d 847, 853 (8th Cir. 2002) (“A jury could consider the difficulty one\n\nsuffering from depression has with communications . . . .”). “Even the smallest tasks\n\nseem to require substantial effort.” VonTalge, Major Depressive Disorder—Essential\n\nFeatures, 26 Am. Jurisprudence Proof of Facts 1, § 12. In Hannah’s case, although she\n\nwas taking medication to treat her depression, she was “unable to just get going.” J.A.\n\n413. She was “lethargic or almost unconcerned.” Id. Her demeanor was “sad, very flat,\n\nand almost trance like.” Id. Yet, Hannah came to work, and her job performance\n\nremained “excellent.” J.A. 408.\n\n\n 2\n ODNI does not dispute that Hannah’s depression qualifies as a disability under\nthe Rehabilitation Act.\n\n\n 47\n\n In light of the nature of Hannah’s disability and the record evidence, I am baffled\n\nby the majority’s conclusion that her conduct amounted to a “significant attendance and\n\nreporting problem” as a matter of law. Maj. Op. at 28; see Vannoy v. Fed. Reserve Bank\n\nof Richmond, 827 F.3d 296, 300 (4th Cir. 2016) (“Summary judgment is appropriate if\n\nthere is no genuine dispute as to any material fact and the movant is entitled to judgment\n\nas a matter of law.” (internal citations and quotation marks omitted)). Hannah’s behavior\n\nis far from the “blatant and persistent misconduct” that we have found to be lawful\n\ngrounds for adverse employment actions in this context. Vannoy, 827 F.3d at 305. In\n\nVannoy, for example, the employee, like Hannah, suffered from depression. Id. at 299.\n\nWe found that Vannoy’s employer had a legitimate, non-discriminatory reason to\n\nterminate his employment, despite his disability, when Vannoy had several unscheduled\n\nabsences from work; drove an employer vehicle for a three-day, out-of-state work\n\nassignment and stayed at a hotel paid for by his employer, yet did not once report for\n\nduty; refused to complete his portion of a performance improvement plan; and left work\n\nwithout authorization. Id. at 299–300, 305. It was in that context that we explained that\n\nthe Americans with Disabilities Act (“ADA”) “does not require an employer to simply\n\nignore an employee’s blatant and persistent misconduct, even where that behavior is\n\npotentially tied to a medical condition.” Id. at 305 (emphasis added); see also 29 U.S.C.\n\n§ 791(f) (incorporating ADA employment standards into section 501 of the\n\nRehabilitation Act).\n\n Unlike in Vannoy, the record here does not paint a picture of Hannah as an\n\ninsubordinate employee who refused to cooperate with her employer and blatantly\n\n 48\n\nmisused department resources. To the contrary, Hannah openly communicated with her\n\nsupervisors, even if she did so later in the day than they had expected. She informed her\n\nsupervisors of her depression and cooperated by attending the sessions with the EAP\n\ncounselor. During the 46-day period between the first accommodation and Hannah’s\n\nwritten agreement to begin work at a specified time, she had four unscheduled absences\n\nand came into work after 10:00 a.m. nine times. J.A. 556. On all but two occasions she\n\ncommunicated her anticipated schedule to ODNI. And on one of those two occasions,\n\nHannah arrived by 11:00 a.m., the time after which her supervisors were to contact her.\n\nId. During this time she actively worked with her medical professionals to design an\n\nalternative solution, and she requested, on more than one occasion, that ODNI grant the\n\nrecommended leave of absence. In fact, Hannah was absent only once and arrived after\n\n10:00 a.m. only twice before her initial leave request was denied. See id. Had her\n\nsupervisors granted her leave of absence on April 9 when she first requested it, many of\n\nher attendance issues would have been avoided. A jury could reasonably conclude that\n\nHannah’s late arrivals to work continued only because her depression was not effectively\n\naccommodated. See J.A. 175 (both medical professionals recommended four-week\n\nleave); J.A. 612 (noting Hannah’s attendance problem “largely disappeared” upon her\n\nreturn from leave). On this record, I find unfounded the characterization of Hannah’s\n\nconduct as blatant and persistent as a matter of law.\n\n Furthermore, Hannah has sufficiently shown that ODNI’s proffered reason for not\n\nhiring her—her attendance problems—may be pretext for disability discrimination. At\n\nthe summary judgment stage, Hannah need not conclusively prove discrimination. But\n\n 49\n\nshe must proffer sufficient evidence from which a reasonable jury could conclude that\n\nshe was in fact the victim of intentional discrimination by ODNI. Reyazuddin v.\n\nMontgomery Cty., Md., 789 F.3d 407, 419 (4th Cir. 2015). I would find that she has met\n\nthis burden for two reasons.\n\n First, as Hannah argues, questions of fact exist as to whether her attendance was a\n\nserious problem, or whether her attendance even violated any work-hours policy. The\n\nrecord suggests that it was not until May 4, 2015 that Hannah was given a formal time by\n\nwhich to arrive at work. See, e.g., J.A. 108 (“[D]ifferent people had different schedules\n\n. . . .”); id. (explaining that while most employees arrived at work around 9:00 a.m., there\n\nwas no “explicit” requirement to do so); J.A. 518 (denying that a “core hours\n\nexpectation” existed before September or October 2015). Although her supervisors told\n\nher on March 19, 2015 that she was to report by 10:00 a.m., they also initially agreed to\n\ncontact her if she did not report by 11:00 a.m. Had the 10:00 a.m. start time been deemed\n\na requirement, it would make little sense to have made any further arrangements. When\n\none of her supervisors attempted to unilaterally change that arrangement, he acceded to\n\nHannah’s request for time to propose an alternative. Hannah requested the doctor-\n\nrecommended leave of absence as an alternative, but she was never told that she was\n\nrequired to work specific hours; she remained formally on a maxi flex schedule. It was\n\nnot until the Letter of Expectation on May 4, 2015 that a formal start time was imposed.\n\nThe department itself did not move to “core” hours until October 2015. J.A. 518.\n\nTherefore, Hannah’s work schedule during the relevant time may have been “erratic,”\n\n\n\n 50\n\nMaj. Op. 26, but a reasonable jury could conclude that it did not violate any established\n\nwork-hours requirement. 3\n\n Second, I would find that Mark Ewing’s inconsistent statements regarding his\n\nknowledge of Hannah’s disability, coupled with the above evidence, are sufficient\n\nevidence of pretext to survive summary judgment. The majority emphasizes that Ewing\n\ndid not have first-hand knowledge of her condition and that he was informed that her\n\ndepression was under control. Maj. Op. 25. But depression is not like physical illnesses;\n\nit does not simply dissipate overnight. Its symptoms may be under control one day yet\n\ntriggered the very next. See Sidney H. Kennedy, M.D., A Review of Antidepressant\n\nTherapy in Primary Care: Current Practices and Future Directions, Primary Care\n\nCompanion for CNS Disorders, vol. 15(2), PCC.12r01420 (Apr. 11, 2013) (noting that\n\nmajor depressive disorder, the disease with which Hannah was diagnosed, is “chronic and\n\nepisodic” in nature). Indeed, Hannah was able to control her symptoms for years while\n\nworking at ODNI. Ewing was consulted by Hannah’s supervisors in connection with\n\ntheir decision to refer Hannah to EAP. J.A. 216. The EAP memo, a copy of which\n\nEwing possessed, explicitly stated: “[Hannah] informed us that she was meeting with a\n\npsychiatrist and counselor and taking medication for depression.” J.A. 413. And the\n\n\n 3\n Hannah’s supervisors testified that, because she arrived later than other\nemployees, they were forced to reassign work that would have fallen to her. There is\nevidence that the work assignments were made around 9:00 or 9:30 a.m. J.A. 108–09.\nHad Hannah’s supervisors truly been concerned about being able to assign her work, one\nwould expect the accommodation they offered to Hannah to have required her to come\ninto the office by 9:00. No such requirement was ever made of her.\n\n\n 51\n\nmemo implicitly made the connection between Hannah’s “struggling to get out of bed in\n\nthe morning” and recent upheavals in her life that “negatively impacted some of her\n\nphysical coping mechanisms.” Id. In fact, it noted that Hannah “appear[ed] to gain more\n\nenergy and become aware as the day progress[ed] into early evening.” Id. On this\n\nevidence, a reasonable jury could determine that Ewing was aware that Hannah’s\n\ndepression affected her ability to get to work by 10:00 a.m. and required medical\n\nintervention and that Ewing’s initial statement that he was unaware of her condition was\n\nintended to cover up the true reason for his desire not to hire her: her disability.\n\n In sum, because a reasonable jury could conclude on this record that Hannah’s\n\nattendance issues were far from “blatant and persistent misconduct,” Vannoy, 827 F.3d at\n\n305, and that ODNI’s proffered reason for failing to hire Hannah for the Cyber position\n\nwas pretext for discrimination on the basis of her disability, I would reverse the district\n\ncourt’s grant of summary judgment on the discrimination claim.\n\n B.\n\n I also take issue with the Court’s conclusion that no question exists as to the\n\nreasonableness of the accommodations made by ODNI. The reasonableness of an\n\naccommodation depends “on a good-faith effort to assess the employee’s needs and to\n\nrespond to them.” Feliberty v. Kemper Corp., 98 F.3d 274, 280 (7th Cir. 1996).\n\nImportantly, “a ‘reasonable accommodation’ is one that ‘effectively accommodates the\n\ndisabled employee’s limitations.’” Bellino v. Peters, 530 F.3d 543, 549 (7th Cir. 2008)\n\n(emphasis added) (citation omitted). In identifying a reasonable accommodation,\n\nemployers are required to engage in an interactive process with the disabled employee.\n\n 52\n\nSee 29 C.F.R. § 1630.2(o)(3); Jacobs v. N.C. Administrative Office of the Courts, 780\n\nF.3d 562, 581 (4th Cir. 2015) (“The ADA imposes upon employers a good-faith duty ‘to\n\nengage [with their employees] in an interactive process to identify a reasonable\n\naccommodation.’” (quoting Wilson v. Dollar Gen. Corp., 717 F.3d 337, 346 (4th Cir.\n\n2013))); Bellino, 530 F.3d at 548–50 (discussing ADA’s interactive-process requirement\n\nin the context of claim brought under section 501 of the Rehabilitation Act). It is only if\n\nan employer provides a reasonable accommodation that the employer’s failure to engage\n\nin an interactive process will not sustain a failure-to-accommodate claim. Jacobs, 780\n\nF.3d at 581.\n\n The majority finds that ODNI provided Hannah with two accommodations: (1)\n\nthe March 19, 2015 agreement that Hannah would report for work by 10:00 a.m., and (2)\n\nthe referral to EAP. Maj. Op. 12. I submit that questions of fact exist with respect to\n\nwhether ODNI made a good-faith effort to respond to Hannah’s needs and whether either\n\nof these accommodations was effective, i.e., whether the accommodations were\n\nreasonable. And because a question of fact exists as to that issue, I agree with Hannah\n\nthat a question also exists as to whether her employer engaged in the required interactive\n\nprocess.\n\n Hannah argues that her supervisors’ initial commitment to contact her if she did\n\nnot contact them or arrive by 11:00 a.m. was the sine qua non of the first\n\naccommodation. But Hannah’s supervisors allowed that accommodation to remain in\n\nplace for only four working days before unilaterally modifying it and, according to\n\nHannah, angrily pressuring her to propose an alternative accommodation on the spot.\n\n 53\n\nWhen Hannah did propose an alternative—four weeks of leave, as recommended by both\n\nof her treating medical professionals—her supervisors denied the request because they\n\nhad already decided that EAP counseling was more appropriate. Speculating that they\n\nknew better than both of Hannah’s medical professionals, her supervisors believed that\n\nher medical providers lacked “the expertise to provide” an opinion on “all of the items”\n\nthey wanted to submit to the EAP. J.A. 95. And while Hannah’s supervisors had\n\nsuggested that she take leave a few months earlier, prior to any signs that Hannah’s\n\ndisability would affect her ability to get into work in the morning, J.A. 173, they\n\nthreatened to terminate her employment if she did not first attend EAP sessions after she\n\nrequested medically recommended leave to cope with her depression, J.A. 176. On this\n\nevidence, the question of whether the first accommodation and the decision to require\n\nEAP counseling before granting medically recommended leave were made in good faith\n\nand were effective to address Hannah’s disability should be submitted to the jury, as\n\nreasonable minds could conclude that they were not.\n\n Likewise, the reasonableness of ODNI’s delay in granting Hannah leave should be\n\ndecided by a jury. Concededly, the short duration of the delay (from April 9, 2015 to\n\nMay 4, 2015) undercuts Hannah’s argument of unreasonableness. See Terrell v. USAir,\n\n132 F.3d 621, 628 (11th Cir. 1998) (finding that delay of three months in providing\n\naccommodation was reasonable). However, Hannah’s attendance—and the manifestation\n\nof her depression—was negatively impacted during the delay period; ODNI purposefully\n\n\n\n\n 54\n\ndelayed her leave while she attended required EAP sessions 4; ODNI would have\n\nterminated Hannah’s temporary position if she failed to attend the EAP counseling 5; and\n\nMark Ewing intended to use the EAP sessions to gather information regarding Hannah’s\n\nsuitability for future employment. 6 Presented with this evidence, a reasonable jury could\n\nconclude that the delay was the result of ODNI’s bad faith. Feliberty, 98 F.3d at 280.\n\nThus, I would reverse the grant of summary judgment on Hannah’s reasonable\n\naccommodation claim.\n\n C.\n\n I would also reverse summary judgment on Hannah’s claim that she was subjected\n\nto an unlawful medical examination as a current employee.\n\n Under the Rehabilitation Act, “[a] covered entity shall not require a medical\n\nexamination and shall not make inquiries of an employee as to whether such employee is\n\nan individual with a disability or as to the nature and severity of the disability, unless\n\nsuch examination or inquiry is shown to be job-related and consistent with business\n\nnecessity.” 42 U.S.C. § 12112(d)(4)(A); 29 U.S.C. § 791(f).\n\n\n 4\n See J.A. 422 (“The recommendation of the group was if Hannah were to ask for\nleave, we should defer that decision until after meeting with EAP.”); J.A. 176 (“EAP was\nconcerned that since I was a single woman if I took leave I would be home by myself and\nthat could make my depression worse.”).\n 5\n See J.A. 176 (Hannah’s statement that she was told she had “no choice” but to\nattend the EAP sessions or her job would be terminated immediately).\n 6\n See J.A. 584–85 (Mark Ewing’s deposition testimony that EAP referral “wasn’t\ninitially just about” Hannah’s temporary position but also because Ewing “knew she was\nlooking for permanent employment”).\n\n\n 55\n\n First, a clear dispute exists as to whether the EAP sessions constituted a required\n\nmedical examination under the Rehabilitation Act. Despite the voluntary nature of EAP\n\ncounseling highlighted by the majority, Maj. Op. 15, two of Hannah’s supervisors\n\ntestified that the sessions were in fact “mandatory.” J.A. 448, 474. As Hannah\n\nexplained, she was told by her supervisor that she had “no choice” in the matter and that\n\nif she did not participate in the EAP counseling, her temporary position with ODNI\n\nwould be declared “as excess” and she “would be out of a job immediately.” J.A. 176.\n\n The majority emphasizes the EAP counselor’s testimony that she did not conduct a\n\nmedical examination. Yet, the Court’s opinion says nothing about Hannah’s testimony\n\nregarding the substance of her sessions with the counselor. According to Hannah, she\n\nwas asked for a family medical history, questioned about her medication and dosage, and\n\neven administered a diagnostic tool used to assess depression. J.A. 531–32, 534.\n\n In light of this testimony, a reasonable jury could conclude that the EAP sessions\n\nwere in fact required and that the diagnostic tool constituted a “procedure or test that\n\nseeks information about an individual’s physical or mental impairments or health.”\n\nE.E.O.C., Enforcement Guidance: Disability–Related Inquiries and Medical\n\nExaminations of Employees Under the Americans with Disabilities Act (ADA) (EEOC\n\nNotice 915.002) (July 27, 2000). Likewise, a jury could determine that the questions\n\nasked during the sessions amounted to a “series of questions . . . likely to elicit\n\ninformation about a disability” and the scope of Hannah’s disability. Id.; Grenier v.\n\nCyanamid Plastics, Inc., 70 F.3d 667, 677 (1st Cir. 1995). As Hannah’s supervisors\n\nexplained, the decision to refer her to EAP was to determine whether her attendance was\n\n 56\n\ndue to “a medical mental health problem.” J.A. 422. Their decision was predicated on a\n\nconcern that granting Hannah the doctor-recommended leave could “make [her]\n\ndepression worse” and could even “be dangerous.” J.A. 176, 422–23. After meeting\n\nwith Hannah, the EAP counselor even suggested that Hannah could have bipolar\n\ndisorder. J.A. 601–02. If faced with this evidence, a reasonable jury could easily find\n\nthat the EAP sessions were in fact required medical examinations or disability-related\n\ninquiries.\n\n With respect to the second prong of our inquiry—whether the EAP sessions were\n\njob-related and consistent with business necessity—questions of fact also preclude\n\nsummary judgment. “[W]hether a mental examination was ‘job-related and consistent\n\nwith business necessity’ is an objective inquiry.” Pence v. Tenneco Auto. Operating Co.,\n\nInc., 169 F. App’x 808, 812 (4th Cir. 2006) (citing Tice v. Centre Area Transp. Auth.,\n\n247 F.3d 506, 518 (3d Cir. 2001)). It is the employer who bears the burden of proving\n\nthis prong. Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 623 (6th Cir. 2014). “A\n\nbusiness necessity must be based on more than ‘mere expediency,’ and will be found to\n\nexist where the employer can ‘identify legitimate, non-discriminatory reasons to doubt\n\nthe employee’s capacity to perform his or her duties.’” Coursey v. Univ. of Md. E. Shore,\n\n577 F. App’x 167, 173 (4th Cir. 2014) (citing Conroy v. N.Y. State Dep’t of Corr. Servs.,\n\n333 F.3d 88, 97–98 (2d Cir. 2003); Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir.\n\n2007)). A business necessity may also exist if a medical examination is necessary to\n\ndetermine “whether an employee’s absence or request for an absence is due to legitimate\n\n\n\n 57\n\nmedical reasons, when the employer has reason to suspect abuse of an attendance\n\npolicy.” Thomas, 483 F.3d at 527 (citing Conroy, 333 F.3d at 98).\n\n I would find that ODNI is not entitled to summary judgment because a reasonable\n\njury could conclude that the employer lacked a “reasonable belief based on objective\n\nevidence that [Hannah] was unable to perform the essential functions of her job or that\n\nshe posed a threat to herself or to others based on a medical condition.” Wright v. Ill.\n\nDep’t of Children and Family Servs., 798 F.3d 513, 524 (7th Cir. 2015); see also Kroll,\n\n763 F.3d at 623 (“[T]he individual who decides to require a medical examination must\n\nhave a reasonable belief based on objective evidence that the employee’s behavior\n\nthreatens a vital function of the business.” (citing Pence, 69 F. App’x at 812) (other\n\ncitation omitted)). It is undisputed that Hannah’s supervisors, as well as Mark Ewing,\n\nwere involved in the decision to refer Hannah to the EAP. Therefore, the question is\n\nwhether those supervisors had objective evidence that Hannah was unable to perform an\n\nessential function of her job. For the period including Hannah’s “egregious” attendance\n\nissues, she received an overall performance rating of 4.53 out of 5.00—a rating of\n\n“Excellent.” J.A. 406–10. Yet the majority concludes that her poor attendance precluded\n\nher from performing an essential function of her job.\n\n I submit that this conclusion cannot be reached as a matter of law on this record, a\n\nrecord that seriously calls into question ODNI’s sincerity in its assertion that Hannah was\n\nunable to perform an essential function of her job. For the entirety of Hannah’s time as\n\nthe disclosures coordinator on the Snowden project, she started work and left work later\n\nthan other ODNI employees. J.A. 25, 494. Although she came in later, she got the job\n\n 58\n\ndone, and she did it “impeccabl[y].” J.A. 412. She was able to manage her depression\n\nand worked long hours in a stressful environment while excelling. J.A. 19–20, 412. Her\n\nsupervisors had no qualm with her attendance, and aside from the maxi flex schedule,\n\nthere was no formal work-hours requirement in place. J.A. 492–94, 518. When that\n\nproject winded down in late 2014 and early 2015, Hannah’s supervisors did not institute\n\n“core” hours or otherwise formally remove Hannah from the maxi flex schedule. J.A.\n\n461, 518. In light of Hannah’s ODNI-sanctioned history of beginning her work day later\n\nthan others (a practice which simply continued into April 2015), the apparent lack of any\n\nformal policy requiring that her schedule be otherwise, and her consistent “excellent”\n\nperformance reviews, there is at the very least a question of fact regarding ODNI’s\n\n“reasonable belief based on objective evidence that [Hannah] was unable to perform the\n\nessential functions of her job.” Wright, 798 F.3d at 524.\n\n This is not to say that the essential functions of Hannah’s job did not include\n\nregular attendance. See Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th\n\nCir. 1994). However, as discussed above, a jury could reasonably conclude that ODNI\n\nhad no “reason to suspect abuse of an attendance policy,” Thomas, 483 F.3d at 527\n\n(citation omitted), when no such policy formally existed and when Hannah had been\n\nallowed for over a year to begin work later than other department employees. And\n\nalthough Hannah requested leave, her supervisors had decided before Hannah’s request\n\nthat they would defer a decision on any leave request until after the EAP referral because\n\nthey expected a “quick answer” from EAP. J.A. 95. But “mere expediency” is\n\ninsufficient to establish business necessity. Coursey, 577 F. App’x at 173.\n\n 59\n\n In light of these considerations, I would submit the issue of whether the EAP\n\nsessions were job-related and consistent with business necessity to the jury for resolution.\n\n D.\n\n Finally, I would reverse the district court’s grant of summary judgment on\n\nHannah’s FMLA retaliation claim. ODNI argues that Hannah cannot prove this claim\n\nbecause her non-selection for the Cyber position was due to “her significant attendance\n\nand reporting problems prior to her first leave request.” Resp. Br. 48. For largely the\n\nsame reasons that I would reverse with respect to Hannah’s discrimination-in-hiring\n\nclaim, I would find that there is sufficient evidence in the record to create a material issue\n\nof fact for the jury to decide on this claim.\n\n Hannah suffered from a disability, one that could effectively be accommodated\n\nwith leave. Unfortunately, her leave was granted only after she struggled to manage her\n\ndisability—a struggle which a reasonable jury could readily conclude did not violate any\n\nattendance policy. Despite Hannah’s rebound upon her return, ODNI used her late\n\narrivals during the time for which she requested but was denied leave as grounds for\n\ndenying her a permanent position, a position for which it is undisputed that she was\n\nexceptionally qualified. J.A. 623–25, 635–36. In essence, ODNI assigned Hannah to a\n\nhigh-stress position after which her depression worsened; delayed her request for FMLA-\n\nqualifying leave to accommodate her depression, thereby intensifying her symptoms;\n\nthen refused to hire her for a permanent role when she returned from leave. Because of\n\nthis, and for the reasons I articulate above, a jury could reasonably conclude that ODNI’s\n\nrejection of Hannah’s application for permanent employment was based on the exercise\n\n 60\n\nof her FMLA rights in requesting and taking a qualifying leave of absence to\n\naccommodate her disability.\n\n\n\n\n 61", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369045/", "author_raw": "GREGORY, Chief Judge, concurring"}]} | GREGORY | THACKER | QUATTLEBAUM | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4591792/ | Published | 1 | 1 | 0 | 1 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,592,127 | UNITED STATES of America, Plaintiff - Appellee, v. Gregory Kyle SEERDEN, Defendant - Appellant. | United States v. Gregory Seerden | 2019-02-20 | 18-4124 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Wilkinson, Agee, Thacker", "parties": "", "opinions": [{"author": "THACKER, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4124\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nGREGORY KYLE SEERDEN,\n\n Defendant - Appellant.\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nNorfolk. Raymond A. Jackson, District Judge. (2:17-cr-00067-RAJ-DEM-1)\n\n\nArgued: December 11, 2018 Decided: February 20, 2019\n\n\nBefore WILKINSON, AGEE, and THACKER, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Thacker wrote the opinion, in which Judge\nWilkinson and Judge Agee joined.\n\n\nARGUED: Andrew William Grindrod, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Norfolk, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE\nUNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:\nGeremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States\nAttorney, Alexandria, Virginia, David A. Layne, Special Assistant United States\nAttorney, Elizabeth M. Yusi, Assistant United States Attorney, OFFICE OF THE\nUNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.\n\fTHACKER, Circuit Judge:\n\n In January 2017 investigators with the Naval Criminal Investigation Service\n\n(“NCIS”) obtained a military warrant to search the cell phone of Gregory Kyle Seerden\n\n(“Appellant”) for evidence of sexual assault. During the search of Appellant’s phone, the\n\ninvestigators found child pornography. On that basis, the investigators then obtained a\n\nfederal warrant to search Appellant’s phone a second time and again found child\n\npornography. Appellant moved to suppress the evidence, arguing that the first search\n\nwas unlawful because it violated the Military Rules of Evidence and that evidence\n\nobtained during the second search was fruit of the poisonous tree.\n\n Although the district court agreed that evidence obtained during the military\n\nsearch was inadmissible because it violated the Military Rules of Evidence, it nonetheless\n\nfound that the good faith exception allowed the government to admit evidence discovered\n\nvia the second search.\n\n On September 20, 2017, Appellant entered a conditional guilty plea to production\n\nof child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). He subsequently filed\n\nthis appeal. As explained below, we affirm on different grounds.\n\n I.\n\n Appellant was a member of the United States Navy’s Sea, Air, and Land Team.\n\nAt all times relevant to this appeal, he was stationed in San Diego, California. But for\n\none week in January 2017, Appellant attended a training at the Little Creek base in\n\nVirginia Beach, Virginia. During that week, Appellant was accused of sexual assault and\n\nsuspected of possession of child pornography.\n\n 2\n\f On his next to last night of training in Virginia, Appellant met a woman. The\n\nwoman recalled that, during her night out with Appellant, the pair went to a few bars and\n\nhad more than a few drinks. The woman came in and out of consciousness throughout\n\nthe night, but she remembered returning to Appellant’s room in the Navy Gateway Inns\n\nand Suites at Little Creek. At around 4:00 a.m., the woman woke up lying naked next to\n\nAppellant. She learned from Appellant that, at some point during the night, they had sex.\n\nShe then left. While she was waiting for a cab at the gate of the base, she began to cry.\n\nA service member on guard duty (a “sentry”) approached her, and she told him that\n\nAppellant sexually assaulted her. Appellant then attempted to call her. She didn’t\n\nanswer. Meanwhile, the sentry reported the allegations to NCIS.\n\n Later that day, NCIS began investigating the allegations. In doing so, NCIS\n\norchestrated a “controlled text message conversation” between the woman and Appellant.\n\nNCIS agents had the woman text Appellant and inquire about the night in question.\n\nDuring that conversation, Appellant admitted that the pair had sex and that the woman\n\nwas not sober. With that, NCIS agents began coordinating with Appellant’s commanding\n\nofficer in San Diego as well as the commanding officer of the Little Creek base to obtain\n\nauthorizations to search Appellant’s cell phone and hotel room. NCIS also consulted the\n\nJudge Advocate General’s (“JAG”) authorities at both bases. NCIS and JAG officers\n\ndecided that the Little Creek commanding officer should authorize the search of\n\nAppellant’s hotel room while Appellant’s commanding officer in San Diego should\n\nauthorize the search of his phone. The officers reasoned that, while the Little Creek\n\ncommanding officer had control over the base, Appellant’s commanding officer in San\n\n 3\n\fDiego had control over Appellant. In line with that plan, Appellant’s commanding\n\nofficer in San Diego signed a Command Authorization for Search and Seizure (“CASS”)\n\nsanctioning the search of Appellant’s phone.\n\n The CASS sought to collect messages, photographs, videos, and any other\n\ninformation related to the investigation from Appellant’s phone. In its statement of\n\nprobable cause, the affidavit supporting the CASS connected Appellant’s phone to the\n\nalleged criminal activity by noting that Appellant attempted to call his accuser after\n\ndropping her off at the gate. It also noted that NCIS agents orchestrated a pretext\n\ncommunication between Appellant and the woman accusing him of sexual assault.\n\n A week later, a digital forensics examiner executed the search of Appellant’s\n\nphone. In doing so, the forensics examiner viewed thumbnail-size icons of photographs\n\non Appellant’s phone. The examiner, who was trained in and had experience with child\n\nexploitation investigations, believed some of those photographs were images of child\n\npornography.\n\n Based on the evidence discovered during the military search of Appellant’s phone,\n\nNCIS obtained a federal search warrant from the Eastern District of Virginia to search\n\nAppellant’s phone for further evidence of child pornography. Under the authority of this\n\nsecond warrant, the forensics examiner continued his analysis of Appellant’s cell phone\n\ndata. He found 78 images and four videos of child pornography. The images depicted\n\nknown victims of child sexual exploitation, while the videos depicted Appellant\n\nperforming a sexual act inches from the face of a sleeping child.\n\n\n\n 4\n\f On March 31, 2017, the Government filed a criminal complaint charging\n\nAppellant with possession and production of child pornography. And on April 20, 2017,\n\na grand jury indicted Appellant for possession, production, and transportation of child\n\npornography. On June 6, 2017, Appellant moved to suppress the evidence obtained from\n\nthe two searches of his phone. After holding a hearing on Appellant’s motion, the district\n\ncourt denied it.\n\n The district court first concluded that the evidence obtained during the first search\n\nwas inadmissible. Applying the Military Rules of Evidence in evaluating the lawfulness\n\nof that search, the district court reasoned that the CASS obtained by NCIS did not satisfy\n\nthe “authorization” requirement of Military Rule of Evidence 315:\n\n Pursuant to Military Rule of Evidence 315(d), a search\n is valid only if it is issued by an impartial individual. An\n impartial individual is a commander, military judge or\n magistrate. Mil. R. Evid. 315(d)(1) and (2). A military\n commander is defined as “a commander or other person\n serving in a position designated by the Secretary concerned as\n either a position analogous to an officer in charge or a\n position of command, who has control over the place where\n the property or person to be search is situated or found, or if\n that place is not under military control, having control over\n persons subject to military law or the law of war.” Mil. R.\n Evid. 315(d)(1). A military judge or magistrate “is a person\n who is authorized under regulations prescribed by the\n Secretary of Defense or the Secretary concerned.” Mil. R.\n Evid. 315(d)(2).\n\n Here, the person who authorized the CASS for the first\n search of [Appellant’s] telephone was [Appellant’s] unit\n commander in San Diego, CA. Pursuant to the definitions\n provided in Military Rules of Evidence 315(d)(1),\n [Appellant’s] unit commander did not have the authority to\n authorize any search [conducted] on [the Little Creek base]\n because [Appellant’s] unit commander did not have control\n\n 5\n\f over the place where the property or person to be searched was\n situated.\n\nJ.A. 215. 1 The district court further reasoned that, because of the defect in the CASS\n\nauthorization, it could not apply the exclusionary rule’s good faith exception to the\n\nevidence obtained as a result of the first search. Citing Military Rule of Evidence 311,\n\nthe district court noted, “Pursuant to military law, evidence obtained as the result of an\n\nunlawful search may [only] be used if . . . ‘the search or seizure resulted from an\n\nauthorization . . . issued by an individual competent to issue the authorization under Mil.\n\nR. Evid. 315(d).’” J.A. 217–18. Because the district court found that Appellant’s\n\ncommander in San Diego was not competent to authorize the CASS, the court concluded\n\nthat “the good faith exception does not cure the first search.” Id. at 218.\n\n Despite finding that evidence obtained during the first search was inadmissible,\n\nthe district court concluded that evidence obtained during the second search was\n\nadmissible. In doing so, the district court acknowledged that “the second search relied\n\nupon evidence found during the first search,” J.A. 218, that the probable cause supporting\n\nthe search warrant authorizing the second search was “obtained through unlawful\n\nmeans,” id. at 220, and that “[a]s a result, the magistrate judge’s subsequent issuance of a\n\nsearch warrant . . . was void ab initio.” Id. at 222. Nonetheless, the district court found\n\nthat the good faith exception to the exclusionary rule permitted the admission of the\n\nevidence obtained during the second search and denied Appellant’s motion to suppress.\n\n 1\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this\nappeal.\n\n\n 6\n\f Thereafter, on September 27, 2017, Appellant plead guilty to production of child\n\npornography. He stipulated to a written statement of facts but reserved his right to appeal\n\nthe district court’s denial of his motion to suppress. On February 15, 2018, the district\n\ncourt sentenced Appellant to 324 months of imprisonment to be followed by 25 years of\n\nsupervised release. This appeal followed.\n\n II.\n\n Analyzing a district court’s decision to deny a motion to suppress, we review legal\n\nconclusions de novo and factual findings for clear error. See United States v. Kolsuz, 890\n\nF.3d 133, 141–42 (4th Cir. 2018). In doing so, we consider the evidence in the light most\n\nfavorable to the Government. See id.\n\n III.\n\n Appellant contends that the Military Rules of Evidence apply here and require\n\nsuppression. We hold, however, that the Fourth Amendment governs whether evidence\n\nis admissible in federal criminal proceedings. The Military Rules of Evidence cannot\n\nusurp the Fourth Amendment. We further hold that, even assuming the initial warrant\n\nviolated the Fourth Amendment, the good faith exception to the exclusionary rule\n\nprecludes suppression of evidence obtained from the first search. And because the good\n\nfaith exception saves the evidence of the first search, it also saves the evidence obtained\n\nfrom the second search.\n\n\n\n\n 7\n\f A.\n\n At the outset, we recognize that federal courts treat searches conducted within the\n\nconfines of the military differently. As this court observed in United States v. Rendon,\n\n“[T]he Fourth Amendment protects members of the armed services from unreasonable\n\nsearches and seizures” with “different standards than those that apply in the civilian\n\ncontext.” 607 F.3d 982, 990 (4th Cir. 2010).\n\n That is not to say that military rules wholly displace the framework of the Fourth\n\nAmendment. To the contrary, military rules and procedures affect whether a military\n\nsearch satisfies the Fourth Amendment’s reasonableness requirement. To determine\n\nwhether a search is reasonable, the Fourth Amendment requires courts to balance the\n\ndegree to which a search “intrudes upon an individual’s privacy” against “the degree to\n\nwhich it is needed for the promotion of legitimate governmental interests.” Samson v.\n\nCalifornia, 547 U.S. 843, 848 (2006) (citations omitted). The privacy and governmental\n\ninterests implicated by military searches are different from those implicated by civilian\n\nsearches: In military settings, the government has a significant interest in maintaining\n\norder and control over its service members. See Parker v. Levy, 417 U.S. 733, 744\n\n(1974). Meanwhile, the rights of service members must bend to meet the demands of\n\ndiscipline and duty. See Burns v. Wilson, 346 U.S. 137, 140 (1953). For that reason,\n\nfederal courts consider the Military Rules of Evidence, which outline the rules and\n\nprocedures that govern how military officers conduct military searches, in evaluating the\n\nreasonableness of military searches. See, e.g., Rendon, 607 F.3d at 990–91. And when\n\nsuch a search violates those rules in a way that impedes a service member’s specific\n\n 8\n\fexpectations of privacy, “a violation of the Fourth Amendment can result.” See id. at\n\n991.\n\n But it does not follow that the Military Rules of Evidence themselves tie the hands\n\nof the federal courts. “Military law, like state law, is a jurisprudence which exists\n\nseparate and apart from the law which governs in our federal judicial establishment.”\n\nBurns, 346 U.S. at 140. Just as states “lack the power to impose on federal courts\n\nrequirements stricter than those mandated by the federal Constitution,” United States v.\n\nClyburn, 24 F.3d 613, 616 (4th Cir. 1994), so too does the military. To hold otherwise\n\nwould “hamper the enforcement of valid federal laws by rendering relevant and reliable\n\nevidence unavailable.” Id. (quoting United States v. Chavez-Vernaza, 844 F.2d 1368,\n\n1374 (9th Cir. 1987) (alteration omitted)). For that reason, the Fourth Amendment\n\nprovides the proper standard for determining whether evidence seized pursuant to a non-\n\nfederal warrant is admissible in federal court. Id. at 616–17; see also United States v.\n\nVan Metre, 150 F.3d 339, 346–47 (4th Cir. 1998) (“[T]he proper standard for evaluating\n\nillegal seizure claims in federal courts has uniformly been whether the actions of the state\n\nofficials in securing the evidence violated the Fourth Amendment to the United States\n\nConstitution.” (alteration and internal quotation marks omitted)).\n\n B.\n\n Even assuming there was a Fourth Amendment violation here, we hold that the\n\ngood faith exception to the exclusionary rule precludes suppression.\n\n Suppression is not itself a right explicitly bestowed by the Fourth Amendment.\n\nRather, suppression of evidence obtained through a search that violates the Fourth\n\n 9\n\fAmendment is a judicially created prescription for such a violation. See United States v.\n\nLeon, 486 U.S. 897, 909 (1984). Indeed, the exclusionary rule is primarily proscriptive:\n\nit is designed to safeguard Fourth Amendment rights through its deterrent effect. Id. For\n\nthat reason, “evidence should be suppressed only if it can be said that the law\n\nenforcement officer had knowledge, or may properly be charged with knowledge, that the\n\nsearch was unconstitutional under the Fourth Amendment.” Illinois v. Krull, 480 U.S.\n\n340, 348–49 (1987) (quoting United States v. Peltier, 422 U.S. 531, 542 (1975) (internal\n\nquotation marks omitted)).\n\n In line with that principle, the good faith exception to the exclusionary rule allows\n\ncourts to introduce evidence obtained in violation of the Constitution but in reasonable\n\nreliance on a defective warrant. See Leon, 468 U.S. at 905. The Supreme Court has\n\nidentified only five limitations to the application of the good faith exception: (1) where a\n\nmagistrate issues a warrant based on a deliberately or recklessly false affidavit, see\n\nFranks v. Delaware, 438 U.S. 154, 155–56 (1978); (2) where a magistrate lacks\n\nneutrality and detachment, see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326–28\n\n(1979); (3) where a warrant is based on an affidavit “so lacking in indicia of probable\n\ncause as to render official belief in its existence entirely unreasonable,” Leon, 468 U.S. at\n\n923 (quoting Brown v. Illinois, 422 U.S. 590, 610–11 (1975) (Powell, J., concurring in\n\npart)); (4) where a warrant is so facially deficient that a reasonable officer could not\n\nbelieve it was valid, see id. at 923; and (5) where police recklessly maintain or knowingly\n\nenter false information into a warrant database to enable a future arrest, Herring v. United\n\n\n\n 10\n\fStates, 555 U.S. 135, 145 (2009). Appellant argues that the CASS at issue here triggers\n\ntwo of those limitations. 2\n\n 1.\n\n Appellant argues that, because the CASS was not authorized by the commanding\n\nofficer with “control over the place where the property or person to be searched [was]\n\nsituated,” it was facially deficient to the point where “no reasonable person could have\n\nconcluded that this officer possessed authority to issue the CASS.” Appellant’s Br. 18.\n\nThat argument lacks both legal and logical support.\n\n First, we have applied the good faith exception to warrants authorized by\n\nmagistrate judges lacking jurisdiction. See, e.g., United States v. McLamb, 880 F.3d 685,\n\n691 (4th Cir. 2018). We have done so because “the exclusionary rule is designed to deter\n\npolice misconduct rather than to punish the errors of judges and magistrates.” Id.\n\n(quoting Leon, 468 U.S. at 916). And suppressing evidence obtained pursuant to a\n\nwarrant issued by the wrong magistrate judge would not appreciably deter police\n\nmisconduct. Id. There is no reason to conclude that a case of the wrong commanding\n\nofficer should be treated any differently.\n\n\n\n\n 2\n Appellant presents no independent basis for suppressing the evidence that\nofficers obtained when they executed the federal warrant. Instead, Appellant argues that\nevidence obtained through the federal warrant must be suppressed because the CASS was\nillegal and the federal warrant was supported solely by evidence obtained through the\nCASS. Accordingly, the question before us is whether evidence obtained through the\nCASS is admissible. We need not scrutinize the federal warrant.\n\n\n 11\n\f Second, we cannot say that no reasonable officer could review a CASS authorized\n\nby the subject of the search’s commanding officer -- as opposed to the commanding\n\nofficer of the subject’s current location -- and believe it to be valid. Military Rule of\n\nEvidence 315(d) is no bastion of clarity: it places the power to authorize searches on the\n\nofficer “who has control over the place where the property or person to be searched is\n\nsituated.” One could reasonably conclude that a military service member’s commanding\n\nofficer is the officer who has control over the place where he or she “is situated.” Indeed,\n\nin this case, several officers reached that conclusion. NCIS consulted Appellant’s\n\ncommanding officer in San Diego and the commanding officer of the Little Creek base.\n\nNCIS also consulted JAG attorneys at both bases. Only after taking these measures did\n\nNCIS reach the technically incorrect conclusion that Appellant’s commander in San\n\nDiego should authorize the search of Appellant’s phone, while the Little Creek\n\ncommanding officer should authorize the search of his hotel room. This court is not\n\nprepared to call that conclusion, and each of those officers, unreasonable.\n\n 2.\n\n Appellant also argues that the good faith exception cannot apply to the CASS\n\nbecause it was so lacking in indicia of probable cause. But “the threshold for establishing\n\nthis exception is a high one.” Messerschmidt v. Millender, 565 U.S. 535, 547 (2012).\n\nOfficers executing warrants are not often expected to question the conclusions of an\n\nissuing authority. Id. (citing Leon, 468 U.S. at 921). For that reason, to preclude\n\napplication of the good faith exception, an officer’s reliance on an issuing authority’s\n\nprobable cause determination must have been “entirely unreasonable.” Id. at 549. That\n\n 12\n\fwas not the case here. The affidavit supporting the CASS detailed the allegations of\n\nAppellant’s accuser. It also noted that NCIS agents orchestrated a controlled text\n\nmessage conversation between Appellant and his accuser and described the admissions\n\nthat Appellant made during that conversation. Those admissions were consistent with the\n\nallegations of Appellant’s accuser. Presented with such information, it would not be\n\nentirely unreasonable for an officer to believe that the CASS was supported by probable\n\ncause.\n\n Accordingly, we hold that the good faith exception to the exclusionary rule applies\n\nto the evidence obtained through the CASS. Evidence subsequently obtained through the\n\nfederal warrant, which was supported by the CASS evidence, is likewise admissible.\n\n IV.\n\n For the forgoing reasons, the judgement of the district court is\n\n AFFIRMED.\n\n\n\n\n 13", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369380/", "author_raw": "THACKER, Circuit Judge:"}]} | WILKINSON | AGEE | THACKER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4592127/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,592,596 | UNITED STATES of America, Plaintiff - Appellee, v. Nicholas YOUNG, Defendant - Appellant. | United States v. Nicholas Young | 2019-02-21 | 18-4138 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Agee, Keenan, Richardson", "parties": "", "opinions": [{"author": "AGEE, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4138\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nNICHOLAS YOUNG,\n\n Defendant - Appellant.\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nAlexandria. Leonie M. Brinkema, District Judge. (1:16-cr-00265-LMB-1)\n\n\nArgued: November 1, 2018 Decided: February 21, 2019\n\n\nBefore AGEE, KEENAN, and RICHARDSON, Circuit Judges.\n\n\nAffirmed in part, vacated in part, and remanded by published opinion. Judge Agee wrote\nthe opinion, in which Judge Keenan and Judge Richardson joined.\n\n\nARGUED: Nicholas David Smith, DAVID B. SMITH, PLLC, Alexandria, Virginia, for\nAppellant. Gordon D. Kromberg, OFFICE OF THE UNITED STATES ATTORNEY,\nAlexandria, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United States\nAttorney, John T. Gibbs, Assistant United States Attorney, OFFICE OF THE UNITED\nSTATES ATTORNEY, Alexandria, Virginia, for Appellee.\n\fAGEE, Circuit Judge:\n\n A jury in the United States District Court for the Eastern District of Virginia\n\nconvicted Nicholas Young of one count of attempting to provide material support to the\n\nIslamic State of Iraq and the Levant (“ISIL”), a designated foreign terrorist organization\n\n(“FTO”), in violation of 18 U.S.C. § 2339B, as well as two counts of attempting to\n\nobstruct justice, in violation of 18 U.S.C. § 1512(c)(2). Asserting a host of district court\n\nerrors, Young challenges his convictions and sentence. For the following reasons, we\n\naffirm the material support conviction, vacate the obstruction convictions, and remand for\n\nresentencing.\n\n\n\n I.\n\n In 2010, the Federal Bureau of Investigation (“FBI”) opened a counterterrorism\n\ninvestigation into Young, a police officer with the Washington Metropolitan Area Transit\n\nAuthority, prompted in part by his connections to an acquaintance who had been arrested\n\non 18 U.S.C. § 2339B charges. That December, “Khalil,” an undercover FBI agent,\n\nbegan maintaining contact with Young, who would discuss with Khalil his wariness of\n\nFBI surveillance, the measures he had taken to thwart such surveillance, and the skills\n\nneeded—which he purported to possess—to attack an FBI or a federal office. During this\n\nperiod, law enforcement also observed Young traveling to and from Libya, though law\n\nenforcement was unable to determine the purpose of his trips. Khalil’s contact with\n\nYoung eventually concluded in April 2012.\n\n\n\n 2\n\f In May 2014, the FBI again began observing Young more actively after an FBI\n\ninformant, “Mo,” met Young through Young’s acquaintances, whom Mo was monitoring.\n\nOver the next several months, Mo and Young met approximately 20 times. During their\n\nmeetings, Mo indicated that he was interested in traveling to Syria to join ISIL. Young in\n\nturn offered advice on how to travel overseas without being flagged by government\n\nauthorities. Specifically, Young suggested that Mo devise a cover story for his trip, such\n\nas pretending that he was taking a guided tour of Turkey (or that he actually take such a\n\ntour). Young also advised Mo to book a roundtrip ticket and volunteered to send a text to\n\nMo a few days after Mo’s “return date” to assist Mo in evading law enforcement\n\nsuspicion, explaining that the text would make it look like Young was expecting Mo’s\n\nreturn (rather than staying on in the region to travel to ISIL-controlled territory). Finally,\n\nYoung and Mo set up covert email accounts to communicate.\n\n That October, Mo traveled to Turkey with his FBI handler, Special Agent John\n\nMinichello. While there, Mo emailed Young that he was planning to travel to ISIL-\n\ncontrolled territory in Syria. Mo then returned to the U.S. In November 2014, Young\n\nsent Mo the pre-arranged text message: “Hope you had a good vacation. If you want to\n\ngrab lunch . . . hit me up.” J.A. 566:3–5. After forwarding that message to Agent\n\nMinichello, Mo’s involvement in the investigation concluded; from that point on, Agent\n\nMinichello and another agent impersonated Mo to Young through the email account.\n\n In subsequent emails to Mo, Young made it clear that he believed Mo had joined\n\nISIL. In 2015, Young asked Mo to mention him to any Libyan ISIL members Mo might\n\nencounter and to tell them that Young had been in Libya with the Abu Salem Martyrs’\n\n 3\n\fBrigade, a militia group with connections to al Qaeda that had been fighting Muammar al\n\nQaddafi’s regime. Young also emailed his contacts in the Brigade on Mo’s behalf.\n\n On December 3 and 5, 2015, two FBI agents interviewed Young. Although the\n\nagents purported to be questioning Young about Mo’s whereabouts, they were attempting\n\nto determine whether Young himself was in contact with any terrorists. During the\n\ninterviews, Young denied having current contact information for Mo. He informed the\n\nagents that he believed Mo had gone on vacation but that he had not been in touch with\n\nMo since October 2014. He also denied knowing anyone who had given Mo travel\n\nguidance. Young later emailed Mo to inform him about the FBI’s inquiry.\n\n In April 2016, Mo suggested to Young that they should communicate through an\n\nencrypted messaging app, Threema. In July, Young created a Threema account and\n\nreceived a message from Mo noting that ISIL needed more fighters. Mo explained that\n\nGoogle gift cards could be used to buy Threema accounts to help fighters communicate\n\nwith ISIL, thereby facilitating their travel to ISIL-controlled territory. At the end of the\n\nmonth, Young used Threema to transmit $245 in Google gift cards to Mo. After\n\nconfirming that Mo had received the cards, Young responded that he was “glad” and\n\nwould be disposing of the device used to communicate with Mo. J.A. 868:13.\n\n In August 2016, Young was arrested for attempted material support of ISIL, an\n\nFTO. On the day of his arrest, agents executed a search warrant and seized militant\n\nIslamist, Nazi, and white supremacist paraphernalia as well as weapons from his home.\n\nAn indictment subsequently charged Young with attempting to provide material\n\nsupport—the gift cards—to a designated FTO, in violation of 18 U.S.C. § 2339B (Count\n\n 4\n\fOne), and attempting to obstruct—during the 2015 interviews (Count Two) and with the\n\nNovember 2014 text (Count Four)—an official proceeding, in violation of 18 U.S.C.\n\n§ 1512(c)(2). 1 Young proceeded to a trial on these counts. The jury convicted Young of\n\nall three counts and the district court imposed a below-Guidelines sentence of 180\n\nmonths as to each count, with the sentences to run concurrently.\n\n Young timely appealed, asserting five sets of errors by the district court. The first\n\nthree concern Count One, to which Young had asserted an entrapment defense during\n\ntrial. To establish Young’s predisposition to commit the offense conduct, the\n\nGovernment had introduced evidence of the seized items over Young’s objections. On\n\nappeal, Young asserts in Ground One that the district court erred by admitting into\n\nevidence the white supremacist and Nazi paraphernalia. Ground Two contends that the\n\ndistrict court erroneously certified an expert witness on militant Islamist and Nazi\n\n“convergence.” Ground Three asserts that a number of the district court’s evidentiary\n\nrulings deprived Young of his due process right to a fair trial. Ground Four posits that\n\nthe Government failed to offer sufficient evidence to prove the two attempted obstruction\n\nof justice charges. Finally, Ground Five asserts that his sentence was both procedurally\n\nerroneous and substantively unreasonable.\n\n This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.\n\n\n\n II. Grounds One to Three: Entrapment-Centered Challenges\n\n 1\n Count Three, charging a violation of 18 U.S.C. § 1512(b)(3), was dismissed as\nduplicative.\n\n 5\n\f At trial, Young presented an entrapment defense to Count One, which charged\n\nYoung with attempting to provide material support to a designated FTO. To establish\n\nentrapment, a defendant must first demonstrate the government induced him to engage in\n\nthe criminal activity. United States v. McLaurin, 764 F.3d 372, 380 (4th Cir. 2014).\n\nOnce the defendant has shown government inducement, the burden shifts to the\n\ngovernment to prove beyond a reasonable doubt the defendant’s predisposition to have\n\nengaged in the criminal conduct. United States v. Jones, 976 F.2d 176, 179 (4th Cir.\n\n1992). Predisposition “focuses upon whether the defendant was an unwary innocent or,\n\ninstead, an unwary criminal who readily availed himself of the opportunity to perpetrate\n\nthe crime.” Mathews v. United States, 485 U.S. 58, 63 (1988). 2 To establish Young’s\n\npredisposition to commit the offense conduct, the Government introduced evidence of\n\nYoung’s interest in radical, anti-Semitic terrorist causes both before and after his first\n\ncontact with Khalil in 2010. See Jacobson v. United States, 503 U.S. 540, 548–50 (1992)\n\n(holding that predisposition must be established prior to the defendant’s first contact with\n\na government agent). This evidence included Nazi and white supremacist paraphernalia\n\nseized from Young’s home, expert testimony regarding the “convergence” of Nazism and\n\nmilitant Islamism, and testimony about Young’s prior support for such causes. Young\n\ncontests the admission of that evidence as well as the exclusion of other purportedly\n\nexculpatory evidence.\n\n\n\n 2\n We have omitted internal quotation marks, alterations, and citations here and\nthroughout this opinion, unless otherwise noted.\n\n 6\n\f In reviewing evidentiary rulings, this Court reviews the district court’s legal\n\nconclusions de novo and its factual findings for clear error. United States v. Kolsuz, 890\n\nF.3d 133, 141–42 (4th Cir. 2018). Such rulings are reviewed for abuse of discretion and\n\noverturned only if the error was not harmless. United States v. Cloud, 680 F.3d 396, 401\n\n(4th Cir. 2012); United States v. Forrest, 429 F.3d 73, 81 (4th Cir. 2005) (concerning\n\nexpert testimony).\n\n A. Ground One: Nazi and White Supremacist Paraphernalia\n\n To prove Young’s predisposition to assist an FTO, the Government introduced\n\nNazi and white supremacist paraphernalia seized from Young’s home pursuant to a\n\nsearch warrant. The warrant had authorized the seizure of “[a]ll records, documents, and\n\nparaphernalia . . . relating to ISIL/ISIS,” as well as “other designated terrorist groups, or\n\nany individual or group engaged in terrorism or terrorist activity, or communications with\n\nor involving such groups and/or individuals.” J.A. 56; 66. After finding the items in\n\nYoung’s home and consulting with a Government attorney, law enforcement seized the\n\nmaterials.\n\n The Government then moved to admit this evidence (1) to corroborate testimony\n\nfrom Young’s college friends and former housemates concerning his pre-2010 interest in\n\nthese causes 3 and (2) to further illustrate his interest in a historical and modern-day\n\n\n 3\n Specifically, Young’s college friend testified that after they had attended a 2001\ngathering of neo-Nazis for a school project, Young told him not to discount an alliance\nbetween Nazis and Muslims to combat Jews. And Young’s former housemates testified\nthat Young had listened to racially inflammatory music and used an Israeli flag as a\ndoormat to make an anti-Semitic statement. To corroborate this testimony, the\n(Continued)\n 7\n\fconnection between Nazis and militant Islamists. To this latter point, the Government\n\nintroduced, among other items, a poster Young had downloaded in 2007 depicting a Nazi\n\nshaking hands with the Mufti of Jerusalem—who had allied himself with Adolf Hitler\n\nand recruited Muslim troops to serve in the SS—titled “The Alliance: Worldwide\n\nAssociation of Nazis and Islamists 1939–2004,” Response Br. 35; photos of the Mufti\n\nand Hitler as well as the Mufti and Muslim SS troops; Young’s prayer list, which\n\nincluded Hitler and the Mufti; a 2007 photo on his computer of Muslim women with a\n\nsign saying, “God Bless Hitler,” J.A. 1636; a copy of Young’s Facebook page from 2011,\n\nin which Young linked to a story about the arrest of neo-Nazi turned jihadist Emerson\n\nBegolly; and a 2014 graphic on his phone with the words, “Together, we can finish what\n\nHitler started,” J.A. 1633.\n\n Young moved prior to trial to suppress the admission of the Nazi and white\n\nsupremacist paraphernalia based on two asserted errors: first, the seizure of the items\n\nexceeded the warrant’s scope and second, their admission violated Federal Rules of\n\nEvidence 401 and 403. The district court denied the motion, and Young challenges the\n\ndistrict court’s holding based on these two alleged errors. We consider each in turn and\n\naffirm the district court’s rulings.\n\n 1. Scope of the Search Warrant\n\n\n\n\nGovernment introduced, among other items, a copy of a neo-Nazi book that Young had\ngifted to his college friend; a flyer for a “white power” music company; and an anti-\nSemitic graphic that Young had downloaded to his computer in 2007.\n\n 8\n\f Young contends the items should have been suppressed because they were outside\n\nthe scope of the warrant. He argues the warrant—which permitted the seizure of items\n\nrelated to ISIL as well as “other designated terrorist groups,” J.A. 56; 66—did not\n\nauthorize the seizure of the Nazi and white supremacist items, both because they were not\n\nincluded within the warrant’s language and because he was not being investigated for a\n\nhate crime. The district court rejected Young’s arguments, concluding that the items fell\n\nwithin the scope of the search warrant’s expansive language.\n\n “When a search is conducted pursuant to a warrant, it is limited in scope by the\n\nterms of the warrant’s authorization,” but these terms “are not to be interpreted in a\n\nhypertechnical manner.” United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010).\n\nInstead, a warrant should be read in a “commonsense and realistic” manner. United\n\nStates v. Phillips, 588 F.3d 218, 223 (4th Cir. 2009). Agents may seize an item pursuant\n\nto a warrant even if it “does not expressly mention and painstakingly describe it,” id. at\n\n225, because the specificity required may “vary according to the circumstances and type\n\nof items involved.” In re Grand Jury Subpoena, 920 F.2d 235, 239 (4th Cir. 1990).\n\n We conclude the seizure of the items here did not exceed the scope of the warrant.\n\nFirst, as the district court correctly recognized, even if Nazi organizations are not\n\ndesignated FTOs, a reasonable officer would be able to draw on common knowledge to\n\nconclude that the Nazis’ threats and use of violence as a means of achieving their\n\npolitical ends meant that Nazis engaged in terroristic activity as defined by the U.S. Code\n\n\n\n\n 9\n\fand Black’s Law Dictionary. 4 See also United States v. Young, 260 F. Supp. 3d 530,\n\n554–55 (E.D. Va. 2017). Second, some of the items illustrated a historical and present-\n\nday connection between Nazism and radical Islamism. Third, the Criminal Complaint\n\nAffidavit provided examples of Young’s affiliation with both Nazism and radical\n\nIslamism: the Affidavit described how Young had told law enforcement he had dressed\n\nup both as a “Jihadi John” and a Nazi, had collected Nazi memorabilia, and had a tattoo\n\nof a German eagle on his neck. J.A. 43. Given this information, agents reasonably\n\nconcluded both that Nazis qualified as a terrorist organization and that as to this particular\n\ncase, the Nazi paraphernalia was relevant to or probative of material support for a\n\nterrorist organization. For these reasons, we conclude the district court did not err in\n\ndeclining to suppress these items.\n\n 2. Federal Rules of Evidence 401 and 403\n\n Even if the items were properly seized, Young argues that they nonetheless should\n\nhave been excluded under Federal Rules of Evidence 401 and 403. He contends that\n\nunder Rule 401, the materials were irrelevant because Nazism and militant Islamism are\n\nmutually exclusive belief systems. And under Rule 403, he asserts that the items were\n\nunfairly prejudicial because they did not tend to prove Young’s predisposition. But the\n\n\n 4\n 18 U.S.C. § 2331(1) and (5) define “terrorism” as activities that: (1) involve\nviolent acts violative of federal or state criminal laws; and (2) appear to be intended to\nintimidate a civilian population, influence government policy by intimidation or coercion,\nor affect government conduct through mass destruction, assassination, or kidnapping.\nSimilarly, Black’s Law Dictionary defines terrorism as “[t]he use or threat of violence to\nintimidate or cause panic, esp. as a means of achieving a political end.” Terrorism,\nBLACK’S LAW DICTIONARY (10th ed. 2014).\n\n 10\n\fdistrict court determined that the evidence was neither unfairly irrelevant nor prejudicial\n\nbecause for this particular defendant, predisposition encompassed “the convergence\n\nbetween Nazis and Islamist terrorists.” J.A. 136.\n\n With respect to relevance, we conclude the district court did not abuse its\n\ndiscretion in rejecting Young’s argument because Young’s advancement of the\n\nentrapment defense increased the scope of the relevant evidence. Under Rule 401,\n\nevidence is relevant if it has any tendency to make a fact more or less probable than it\n\nwould be without the evidence and the fact is of consequence in determining the action.\n\nSpecifically as to this case, “a broad swath of evidence, including aspects of the\n\ndefendant’s character and criminal past, [was] relevant to proving predisposition.”\n\nMcLaurin, 764 F.3d at 381. This is because predisposition “refers to the defendant’s\n\nstate of mind before government agents make any suggestion that he shall commit a\n\ncrime,” and so is a “broad concept” that requires distinguishing the “unwary innocent”\n\nfrom the “unwary criminal.” Id. (finding that certain bad act evidence may be admissible\n\nunder Rule 404(b) in entrapment cases). In this vein, “[p]redisposition is not limited only\n\nto the crimes specifically contemplated by the defendant prior to government\n\nsuggestion[.]” United States v. Ramos, 462 F.3d 329, 334–35 (4th Cir. 2006); see also\n\nUnited States v. Cromitie, 727 F.3d 194, 207 (2d Cir. 2013) (concluding in a terrorism\n\ncase that, to show predisposition, a defendant’s relevant prior design to commit the crime\n\ncould include a generalized intent to inflict harm on the U.S.).\n\n Here, the district court correctly recognized that Nazism and militant Islamism\n\nshare common ground—specifically, radical, anti-Semitic viewpoints. Given that the\n\n 11\n\fitems seized were probative of (1) Young’s predisposition to support such viewpoints,\n\nand (2) the length of such a predisposition, the items were relevant to meeting the\n\nGovernment’s burden to prove Young’s predisposition to support terrorist activity. See,\n\ne.g., United States v. Mostafa, 16 F. Supp. 3d 236, 266–67 (S.D.N.Y. 2014) (concluding a\n\ndefendant’s statement that “everybody wants to kill [Jews, including Hitler]” was\n\n“relevant to the defendant’s motive and intent regarding violent jihad”).\n\n Second, even if, as Young contends, Nazism and militant Islamism are mutually\n\nexclusive belief systems, absolute consistency of belief is not a prerequisite to proving\n\npredisposition. Other circuits have recognized that seemingly inconsistent belief in a\n\nterrorist group’s ideology does not preclude a finding by a court that a defendant either\n\nsupported that group in a criminal fashion or was predisposed to do so. See United States\n\nv. Van Haften, 881 F.3d 543, 544 (7th Cir. 2018) (affirming the application of a terrorism\n\nenhancement at a sentencing for material support of ISIL despite defendant’s support for\n\na variety of ideologies and evidence suggesting he had at times disclaimed his support for\n\nISIL); see also Cromitie, 727 F.3d at 215 (finding that moments of wavering did not\n\npreclude a finding of predisposition in a terrorism case).\n\n This does not end the analysis, however, because under Rule 403 a court “may\n\nexclude relevant evidence if its probative value is substantially outweighed by danger of\n\none or more of the following: unfair prejudice, confusing the issues, misleading the jury,\n\nundue delay, wasting time, or needlessly presenting cumulative evidence.” Here, as\n\ndiscussed, the district court properly concluded the evidence was highly probative of\n\nYoung’s particular predisposition to support ISIL. See United States v. Siraj, No. 07-\n\n 12\n\f0224-cr, 2008 WL 2675826, at *2 (2d Cir. July 9, 2008) (affirming the admission of\n\nallegedly prejudicial radical Islamist books from the bookstore at which the defendant\n\nhad worked because to the extent the defendant recommended the books, “they were\n\nrelevant to show predisposition,” and to the extent that they were for sale, they “tended to\n\nrebut [the defendant’s] assertion that the cooperating witness first exposed him to radical\n\nIslam and violent jihad”). This highly probative value meant that any prejudicial effect\n\nwas not unfair. Sorrells v. United States, 287 U.S. 435, 452 (1932) (noting that if a\n\ndefendant presents an entrapment defense and suffers a disadvantage, “he has brought it\n\nupon himself by reason of the nature of the defense”).\n\n Furthermore, any prejudicial effect was blunted by the district court’s limiting\n\ninstructions to the jury, which specifically cautioned:\n\n So I want you to understand that he is not being charged and you cannot\n find him guilty for possessing Nazi or anti-Semitic literature. He’s not\n being charged with that, he cannot be convicted for that, but the evidence is\n being allowed in [to consider] . . . whether or not it helps or doesn’t help to\n establish the predisposition issue, all right?\n\nJ.A. 980. See also United States v. Crowden, 882 F.3d 464, 473 (4th Cir. 2018) (“[A]ny\n\nprejudicial effect was reduced by the district court’s issuance of two sets of limiting\n\ninstructions[.]”). For these reasons, we conclude the district court’s admission of the\n\nNazi and white supremacist paraphernalia did not constitute an abuse of discretion and\n\ntherefore affirm the district court’s denial of the motion to suppress.\n\n B. Ground Two: Expert Certification\n\n At trial, the Government called Dr. Daveed Gartenstein-Ross as an expert witness\n\nregarding (1) violent extremist movements claiming inspiration from Islam; (2) white\n\n 13\n\fseparatists and the neo-Nazi movement; (3) the radicalization processes for such groups;\n\nand (4) the Libyan Civil War. Dr. Gartenstein-Ross also explained points of overlap\n\nbetween Nazism and radical Islamism with examples of individuals who had subscribed\n\nto both philosophies. Expert testimony is admissible under Federal Rule of Evidence 702\n\nif it involves specialized knowledge that will assist the trier of fact in understanding the\n\nevidence or determining a fact in issue, and is both reliable and relevant. Daubert v.\n\nMerrell Dow Pharms., Inc., 509 U.S. 579, 589–92 (1993). In admitting Dr. Gartenstein-\n\nRoss’ testimony, the district court found that “his background,” “his extensive academic\n\ncredentials,” “the fact that the United States government uses him for training in these\n\nareas,” and his prior work as an expert in other contexts sufficiently qualified him as an\n\nexpert witness. J.A. 212–13. The district court also concluded his testimony was\n\nrelevant. Although Young contends that the testimony of Dr. Gartenstein-Ross was\n\nneither reliable nor relevant, we agree with the district court’s conclusions.\n\n With respect to reliability, Young contends that Dr. Gartenstein-Ross had never\n\ntestified in a civil or criminal proceeding on these issues; had not published his thesis on\n\nthe “convergence” of white supremacism and militant Islamism in peer-reviewed\n\njournals; had not authored any studies on far-right radicalization; and had yet to perform\n\nany empirical analysis on this matter in the field. See United States v. Hassan, 742 F.3d\n\n104, 131 (4th Cir. 2014) (affirming the admission of expert testimony on homegrown\n\nterrorism in a material support case where the court had “previously approved of [the\n\nexpert’s] expertise in terrorism matters” and the expert’s methods had been subjected to\n\npeer review). But under the highly deferential standard afforded to the district court in\n\n 14\n\fdetermining an expert witness’s reliability, the district court did not abuse its discretion in\n\ndetermining that Dr. Gartenstein-Ross was reliable. 5 Even when an expert has never\n\npreviously been qualified, “it is the quality” of the expert’s qualifications that a district\n\ncourt must focus on. United States v. Garcia, 752 F.3d 382, 391 (4th Cir. 2014). Here,\n\nthe district court considered Young’s concerns yet reached a reasonable decision in\n\nqualifying Dr. Gartenstein-Ross based on his extensive credentials and areas of\n\nexpertise. 6 And although publishing in a peer-reviewed publication is often a hallmark of\n\nexpert witness reliability, that hallmark is a guidepost, not a mandatory prerequisite to\n\nqualification as an expert. See Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir.\n\n2017) (noting Daubert’s “list of specific factors neither necessarily nor exclusively\n\napplies to all experts”).\n\n In turn, the district court did not abuse its discretion in accepting Dr. Gartenstein-\n\nRoss’ social sciences-based methodology. At trial, Dr. Gartenstein-Ross explained that\n\nhe conducted his research “through a comparative method,” focusing on primary sources,\n\nthen comparing his conclusions against secondary sources and “events on the ground.”\n\n\n 5\n Furthermore, contrary to Young’s assertion, a Daubert hearing was not required.\nA district court need not hold a hearing if, after being presented with a proposed expert’s\n“substantial” credentials and training, it concludes “[t]his training and experience amply\n[qualifies the expert] to give testimony [on the topic for which he or she is being\nqualified].” United States v. Beasley, 495 F.3d 142, 150 (4th Cir. 2007). Here, as\ndiscussed below, the district court reviewed Dr. Gartenstein-Ross’ credentials and\nconcluded he was qualified to give expert testimony.\n 6\n These credentials included: training on radical groups for federal agencies;\nteaching university courses on violent non-state actors; consultation on the Libyan Civil\nWar for the U.S. government; field research on jihadist recruiting in the Middle East; and\ntestimony in immigration cases on the Taliban and al Qaeda.\n\n 15\n\fJ.A. 1124–25. This methodology appears to be indistinguishable from that which we\n\napproved in United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004), rev’d on other\n\ngrounds, 543 U.S. 1097 (2005). There, we affirmed the admission of expert testimony on\n\nthe structure of terrorist groups after “[the expert] identified his methodology as one\n\ngenerally employed in the social sciences”—that is, “collect[ing] as much information as\n\npossible,” then balancing “each new incoming piece of information against the body of\n\ninformation you’ve built to that point.” Id. at 337. Accordingly, the district court did not\n\nabuse its discretion when it deemed Dr. Gartenstein-Ross’ explanation of his\n\nmethodology, when combined with his credentials, “sufficient.” J.A. 1126.\n\n As to relevance, we conclude the testimony was relevant and met Rule 702’s\n\nrequirement that the expert’s specialized knowledge “help the trier of fact . . . understand\n\nthe evidence or to determine a fact in issue.” Dr. Gartenstein-Ross’ testimony assisted\n\nthe jury by providing context for the historical backgrounds of and connection between\n\nNazism and militant Islamism. As the “evidence in this case was complicated, touching\n\nby necessity on a wide variety of ideas, terms, people, and organizations connected to\n\nradical Islam,” as well as white supremacism, the district court fairly concluded that the\n\ntestimony would assist the jury in understanding evidence regarding predisposition.\n\nUnited States v. Benkahla, 530 F.3d 300, 309 (4th Cir. 2008). For these reasons, we\n\nconclude the district court did not abuse its discretion in admitting Dr. Gartenstein-Ross’\n\ntestimony.\n\n C. Ground Three: Evidentiary Rulings\n\n\n\n 16\n\f Young argues that three of the district court’s evidentiary rulings, considered\n\nindividually or cumulatively, violated his due process right to a fair trial.\n\n 1. Admission of Weapons and Young’s Comments\n\n Young argues that the district court denied Young a fair trial when it reversed\n\npretrial rulings excluding evidence of (1) Young’s lawfully-owned weapons and (2)\n\nremarks Young had made to Khalil about attacking federal buildings. The contention by\n\nYoung is that the district court violated his claimed entitlement to rely on several pretrial\n\nrulings as the settled law of the case. But “the district judge is free, in the exercise of\n\nsound judicial discretion, to alter a previous in limine ruling,” especially in light of issues\n\nthat arise during a trial. Luce v. United States, 469 U.S. 38, 41–42 (1984). In particular,\n\nit is well within the district court’s discretion to deem previously-excluded evidence\n\nadmissible after the party seeking exclusion “open[s] the door.” United States v. Blake,\n\n571 F.3d 331, 348 (4th Cir. 2009).\n\n Here, the district court did not abuse its discretion in later deeming certain\n\nevidence admissible. First, the district court provided notice to Young multiple times that\n\nit could change its in limine rulings depending on what occurred during trial. For\n\nexample, the district court warned, “[N]ormally my rulings on a motion in limine are\n\nalways with a caveat that if something changes during the course of the trial, the decision\n\nmay be reversed[.]” J.A. 127–28. Second, with respect to Khalil’s testimony, the district\n\ncourt properly admitted this evidence after Young decided to focus his entrapment\n\ndefense on whether there was predisposition prior to his first contact with Khalil. At a\n\npretrial hearing, the district court warned Young that by framing his entrapment defense\n\n 17\n\fin this manner, some of Khalil’s testimony about Young’s statements might be admitted\n\nbecause such testimony would be probative of whether Young was already predisposed to\n\nsupport militant, radical ideas or whether Khalil implanted such ideas. (Specifically, the\n\ndistrict court advised, “[I]f you start the predisposition at a later date, then some of that\n\nKhalil business might not come in.” J.A. 261.) Nonetheless, Young continued to pursue\n\nthis line of argument utilizing an earlier chronological starting point. As a result, the\n\ndistrict court allowed Khalil to describe his relationship with Young, including\n\nrecounting Young’s statements about attacking the FBI, his ability to smuggle guns into a\n\nfederal building, and the usefulness of ballistic vests if the FBI were to come to his home.\n\nThird, at that point, the district court did not abuse its discretion in deeming Young’s\n\npossession of firearms and weapons admissible. Such possession was corroborative of\n\nKhalil’s testimony, and therefore properly admissible because Khalil’s credibility was\n\nfundamental in establishing Young’s predisposition before 2010. For these reasons, we\n\naffirm the district court’s admission of this evidence.\n\n 2. Exclusion of Young’s and Agents’ Comments\n\n Young argues the district court erred by excluding purportedly exculpatory\n\nevidence demonstrating that he lacked the predisposition to support ISIL. First, the\n\ndistrict court excluded, among other claimed exculpatory remarks, online comments\n\nYoung had made from his LiveLeak 7 account denouncing ISIL because the Government\n\nhad previously been barred from introducing other comments from this same account,\n\n\n 7\n LiveLeak is a video-sharing website.\n\n 18\n\fwhich the district court had deemed unfairly prejudicial and cumulative. We discern no\n\nreversible error because in excluding these and similar comments, the district court acted\n\nwithin its discretion to determine whether introducing such comments would permit the\n\nadmission of other previously-excluded evidence. See McLaurin, 764 F.3d at 384.\n\n Second, the district court barred the introduction of June 2016 messages between\n\nFBI agents reflecting their frustration with the slow pace of the investigation, which\n\nYoung argued went to their motives and consequently the issue of entrapment. The\n\ndistrict court properly concluded that the agents’ motives were “irrelevant” to entrapment\n\nbecause whether or not Young was induced had to be assessed by “what specifically was\n\npresented to [Young]” by the agents rather than what the agents discussed amongst\n\nthemselves. J.A. 443. See also United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993)\n\n(“Inducement . . . involves elements of governmental . . . conduct sufficiently excessive\n\nto implant a criminal design in the mind of an otherwise innocent third party.”). We thus\n\nconclude the district court did not abuse its discretion in excluding these materials.\n\n 3. Jencks Act and Brady Materials\n\n Finally, Young asserts Jencks 8 and Brady 9 errors. In the week prior to trial, the\n\nGovernment made two last-minute classified Jencks productions of communications\n\n\n 8\n “Under the Jencks Act, 18 U.S.C. § 3500(b), on a motion by the defendant, the\ngovernment is required to produce any ‘statement’ of the witness related to the witness’[]\ntestimony that is in the government’s possession.” United States v. Savage, 885 F.3d\n212, 220 (4th Cir. 2018).\n 9\n Brady v. Maryland held that “suppression by the prosecution of evidence\nfavorable to an accused upon request violates due process where the evidence is material\neither to guilt or to punishment[.]” 373 U.S. 83, 87 (1963).\n\n 19\n\famongst FBI agents about (1) the number of audio recordings made of Mo’s meetings\n\nwith Young and (2) their frustration with the pace of their investigation of Young.\n\nYoung moved to strike the witnesses as to whom the Jencks material applied or to\n\ncontinue trial. Rather than striking the witnesses, the district court permitted defense\n\ncounsel a five-day continuance to which Young did not object. Young now argues that\n\nthe district court erred in doing so, contending these materials suggested spoliation of\n\nexculpatory evidence and therefore a Brady violation.\n\n We discern no reversible error by the district court. First, when the government\n\nfails to timely provide discovery materials that are not exculpatory, such as Jencks\n\nmaterials, the district court’s determination of whether to impose a sanction, and what\n\nsanction to impose, is reviewed for abuse of discretion. See United States v. Sterling, 724\n\nF.3d 482, 512 (4th Cir. 2013). “A continuance is the preferred sanction.” Id. In\n\nfashioning a remedy, the district court must consider the reason for the government’s\n\ndelay, whether the government acted intentionally or in bad faith, the degree of prejudice\n\n(if any) suffered by the defendant, and whether any less severe sanction will remedy the\n\nprejudice. Id. We have recognized that it is the rare case that would, absent bad faith,\n\nresult in an exclusion of evidence (such as striking witnesses). Id. Here, the district court\n\ncorrectly recognized that the government did not act in bad faith, given that the vast\n\nmajority of discovery was produced well in advance of trial, and that Young was not\n\nprejudiced because the materials at issue were not “relevant, let alone exculpatory.” J.A.\n\n278. Nonetheless, given the last-minute production, the district court permitted defense\n\n\n\n 20\n\fcounsel an ample continuance to review the material. Under these circumstances, the\n\ndistrict court did not abuse its discretion.\n\n Second, to establish a Brady violation, the evidence at issue must have been (1)\n\nfavorable to the defendant (either because it was exculpatory or impeaching), (2) material\n\nto the defense (that is, prejudice must have ensued), and (3) suppressed (that is, within the\n\nprosecution’s possession but not disclosed to defendant). United States v. Sarihifard, 155\n\nF.3d 301, 309 (4th Cir. 1998). But here, no issue implicating Brady arose. Young\n\ncontends that some of the Jencks material suggested Government spoliation of some\n\naudio recordings of Mo’s meetings with Young. Specifically, he notes that FBI records\n\nindicate that Young and Mo discussed ISIL for the first time during a June 29, 2014\n\nmeeting, but that no recording of this meeting was produced to him. Young argues that\n\nbecause (1) most of Mo’s other meetings with Young were recorded and (2) such an early\n\nconversation regarding ISIL may have been probative of Young’s predisposition, the\n\nGovernment withheld potentially exculpatory evidence and thereby committed a Brady\n\nviolation. But a review of the record—particularly the very FBI communications at\n\nissue—indicates that a recording of the meeting, unlike recordings of most of Mo’s other\n\nmeetings with Young, was never made and that any information purportedly within the\n\nrecordings was not material. 10 There is no record evidence to the contrary. Given this,\n\n\n 10\n Evidence is material if there is a reasonable probability that it would have\nproduced a different outcome. United States v. Kelly, 35 F.3d 929, 936 (4th Cir. 1994).\nYoung suggests the purported missing conversation would have gone to Young’s lack of\npredisposition because it could have included statements by Young criticizing ISIL or\nsupporters of ISIL. However, by Young’s own count, at least thirteen similar comments\n(Continued)\n 21\n\fYoung has offered nothing but rank speculation as to the nature of the allegedly\n\nsuppressed materials, which cannot establish a Brady violation. See United States v.\n\nStokes, 261 F.3d 496, 502 (4th Cir. 2001) (noting that to prove a Brady violation, the\n\ndefendant must show that “the prosecution had the [purportedly withheld materials] and\n\nfailed to disclose them”); see also United States v. Caro, 597 F.3d 608, 619 (4th Cir.\n\n2010) (“Because [the defendant] can only speculate as to what the requested information\n\nmight reveal, he cannot satisfy Brady’s requirement of showing that the requested\n\nevidence would be favorable to the accused.”). We therefore affirm the district court’s\n\nruling on this issue.\n\n\n\n III. Ground Four: Obstruction Convictions\n\n Young argues that the Government failed to provide sufficient evidence to prove\n\nthe attempted obstruction of justice counts and that the district court erroneously denied\n\nhis motion for judgment of acquittal after a guilty verdict. Fed. R. Crim. P. 29(c). We\n\nreview the denial of such a Rule 29 motion de novo. United States v. Howard, 773 F.3d\n\n519, 525 (4th Cir. 2014). “In its assessment of a challenge to the sufficiency of evidence,\n\na reviewing court views the evidence in the light most favorable to the prosecution and\n\ndecides whether ‘substantial evidence’”—that is, “evidence that a reasonable finder of\n\n\nwere admitted during Mo’s testimony. Therefore, the recordings would not have been\nmaterial because the jury nonetheless found—despite the admission of similar\ncomments—that Young was predisposed to support terrorism. These reasons also\nsupport the holding that the district court did not err in declining to find a Brady\nviolation.\n\n 22\n\ffact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt\n\nbeyond a reasonable doubt”—supports the verdict. Id. Under that standard, we\n\nconclude that the evidence was insufficient to prove the nexus and foreseeability\n\nrequirements of the obstruction statute and consequently vacate the convictions under\n\nCounts Two and Four.\n\n A. Elements of the Offense\n\n To convict Young of attempted obstruction, the Government was required to prove\n\nhe (1) “corruptly” attempted to (2) “obstruct[], influence[], or impede[]” (3) “an official\n\nproceeding” during the December 3 and 5, 2015 interviews with FBI agents (Count Two)\n\nand when he sent the November 2014 text message (Count Four). 18 U.S.C.\n\n§ 1512(c)(2).\n\n An “official proceeding” includes a grand jury investigation, but not an FBI\n\ninvestigation. 18 U.S.C. § 1515(a)(1) provides that “official proceeding” encompasses:\n\n“(A) a proceeding before a judge or court of the United States . . . or a Federal grand\n\njury” or “(C) a proceeding before a Federal Government agency which is authorized by\n\nlaw[.]” Here, only a proceeding before a “Federal grand jury,” as found at\n\n§ 1515(a)(1)(A), could apply to Young. Other circuits considering whether an FBI\n\ninvestigation would fall under § 1515(a)(1)(C) have concluded that it does not because\n\nthe use of the preposition “before” in conjunction with “Federal Government agency”\n\nimplies “some formal convocation of the agency in which parties are directed to appear,\n\ninstead of any informal investigation conducted by any member of the agency.” United\n\n\n\n 23\n\fStates v. Ermoian, 752 F.3d 1165, 1171 (9th Cir. 2013) (citing United States v. Ramos,\n\n537 F.3d 439, 462–63 (5th Cir. 2008)). We agree with our sister circuits.\n\n Young argues that the evidence was insufficient to prove the existence of an\n\n“official proceeding” that he could have obstructed. First, Young asserts there was no\n\n“official proceeding” concerning Mo for Young to obstruct: Mo was the FBI’s own\n\ninformant and therefore the FBI never investigated Mo. Second, Young contends there\n\nwas no evidence that Young attempted to obstruct a proceeding concerning himself: the\n\nagents never informed Young that he was under investigation; the gift card crime was\n\ncommitted after the allegedly obstructive conduct, so there was no crime whose\n\ninvestigation Young could knowingly have attempted to obstruct; and an agent testified\n\nthat Young was not aware of any investigation until his arrest in August 2016. And even\n\nif he had been aware of an FBI investigation of himself, Young asserts, such an\n\ninvestigation would not have constituted an “official proceeding” under § 1515(a)(1).\n\n Young’s view misses the mark but points to a much more fundamental flaw in the\n\nGovernment’s evidence. As 18 U.S.C. § 1512(f)(1) provides, “an official proceeding\n\nneed not be pending or about to be instituted at the time of the offense.” Therefore, it\n\nwas immaterial whether an official proceeding actually existed at the time of the\n\nobstructive conduct. 11 Nonetheless, § 1512(c) does require that (1) the obstructive\n\nconduct be connected to a specific official proceeding (the “nexus” requirement) that was\n\n\n 11\n Although the FBI began “request[ing] federal grand jury subpoenas related to\n[Young]” as early as 2011, the existence of such a grand jury investigation is irrelevant to\nour determination of this matter for the reasons we describe. J.A. 1376.\n\n 24\n\f(2) either pending or was reasonably foreseeable to Young when he engaged in the\n\nconduct (the “reasonable foreseeability” requirement). These requirements, while not\n\nexplicitly laid out in § 1512(c), arise from two Supreme Court cases—United States v.\n\nAguilar, 515 U.S. 593 (1995), and Arthur Anderson, LLP v. United States, 544 U.S. 696\n\n(2005)—in which the Supreme Court identified these elements from related obstruction\n\nstatutes. 12 See also Marinello v. United States, 138 S. Ct. 1101, 1110 (2018).\n\n Aguilar considered the catchall provision of a statute criminalizing attempted\n\ngrand jury tampering. 515 U.S. at 599. The defendant had lied to the FBI during the\n\ncourse of an investigation and was convicted of “corruptly endeavoring to influence,\n\nobstruct, and impede [a] grand jury investigation” in violation of 18 U.S.C. § 1503. Id.\n\nAll the government had shown in support of the conviction was that the defendant had\n\nuttered false statements to an investigating agent “who might or might not testify before a\n\ngrand jury.” Id. at 600. The Supreme Court held that § 1503 required a greater\n\nconnection between the obstructive act and an official proceeding than what the\n\ngovernment had shown—specifically, a “nexus” showing “that the act [had] a\n\nrelationship in time, causation, or logic with the judicial proceeding.” Id. at 599. In\n\nconsidering the evidence, the Court in Aguilar concluded: “We do not believe that\n\nuttering false statements to an investigating agent—and that seems to be all that was\n\n\n 12\n Our sister circuits have noted that “[t]he nexus limitation is best understood as\nan articulation of the proof of wrongful intent that will satisfy the mens rea requirement\nof ‘corruptly’ obstructing or endeavoring to obstruct”—that is, the first element of\nproving a § 1512(c)(2) charge. United States v. Erickson, 561 F.3d 1150, 1159 (10th Cir.\n2009) (quoting United States v. Quattrone, 441 F.3d 153, 170 (2d Cir. 2006)).\n\n 25\n\fproved here—who might or might not testify before a grand jury is sufficient to” satisfy\n\nthe nexus requirement. Id. at 600.\n\n Arthur Andersen applied the nexus requirement to § 1512(b)(2)(A) offenses,\n\nwhich criminalize “knowingly” and “corruptly persuad[ing]” another person “with intent\n\nto cause” that person to tamper with documents that would be used in an official\n\nproceeding. 544 U.S. at 703. There, the Supreme Court considered whether the\n\ngovernment was required to prove a nexus between the tampering and a particular (rather\n\nthan abstract) proceeding. Id. at 707–08. Although the government pointed to § 1512(f)\n\nto argue that the statute did not require contemplation of a particular proceeding, the\n\nSupreme Court concluded that an official proceeding must, at a minimum, be reasonably\n\nforeseeable to the defendant who commits the obstructive act: “It is . . . one thing to say\n\nthat a proceeding need not be pending or instituted at the time of the offense, and quite\n\nanother to say a proceeding need not even be foreseen.” Id. A knowingly corrupt\n\npersuader cannot be convicted “when he does not have in contemplation any particular\n\nofficial proceeding in which those documents might be material.” Id. at 708.\n\n Though we have not specifically done so, 13 other circuits have applied Aguilar and\n\nArthur Andersen to the similarly-structured statute, § 1512(c), to conclude that, in\n\n\n 13\n We have previously considered in an unpublished per curiam opinion a\ndefendant’s nexus argument. In affirming his § 1512(c)(2) conviction, we concluded the\nevidence was sufficient to uphold his conviction because “there [was] a clear, logical\nrelationship between his [obstructive] conduct and the judicial proceeding.” United\nStates v. Wein, 521 F. App’x 138 (4th Cir. 2013) (per curiam). But we have not further\naddressed the nexus or reasonable foreseeability requirements to prove such a charge.\nSee id.\n\n 26\n\fdemonstrating a § 1512(c)(2) offense, “the government must prove that such a\n\nproceeding was reasonably foreseeable to the defendant” and “that there was a ‘nexus’\n\nbetween the defendant’s conduct and the pending, or foreseeable, official proceeding.”\n\nUnited States v. Martinez, 862 F.3d 223, 237 (2d Cir. 2017); see, e.g., United States v.\n\nPetruk, 781 F.3d 438, 445 (8th Cir. 2015); United States v. Tyler, 732 F.3d 241, 249–50\n\n(3d Cir. 2013) (applying the nexus and foreseeability requirements to “any prosecution\n\nbrought under a § 1512 provision charging obstruction of justice involving an ‘official\n\nproceeding’”); United States v. Bennett, 664 F.3d 997, 1013 (5th Cir. 2011) (applying the\n\nnexus requirement to § 1512(c)(2)), vacated on other grounds by 567 U.S. 950 (2012);\n\nUnited States v. Friske, 640 F.3d 1288, 1292 (11th Cir. 2011) (same); United States v.\n\nPhillips, 583 F.3d 1261, 1263–64 (10th Cir. 2009) (same); United States v. Carson, 560\n\nF.3d 566, 584 (6th Cir. 2009) (assuming arguendo that the nexus requirement applies to\n\n§ 1512(c)(2)). And as the Eighth Circuit noted in Petruk, “[W]e are aware of no circuit\n\nthat has considered and rejected application of the nexus requirement to § 1512(c)(2),”\n\ngiven the “similarity of statutory language between § 1512(c)(2) and the catchall\n\nprovision at issue in Aguilar, the application of the nexus requirement in Arthur Andersen\n\nto another provision of § 1512, and other circuits’ application of the nexus requirement to\n\n§ 1512(c)(2).” 781 F.3d at 445. We agree and hold that § 1512(c)(2) incorporates the\n\nnexus and reasonable foreseeability requirements set forth in Aguilar and Arthur\n\nAndersen. That is, it is a requirement “that a successful prosecution under § 1512(c)(2)\n\n[provide] proof beyond a reasonable doubt that the defendant contemplated a particular,\n\nforeseeable proceeding, and that the contemplated proceeding constituted an ‘official\n\n 27\n\fproceeding,’ which is defined under § 1515(a)(1)(A) to include a proceeding before a\n\nfederal judge, court, or grand jury[.]” Id. at 445. Young’s convictions do not meet this\n\nrequirement.\n\n B. Young’s Obstruction Convictions\n\n Upon considering the evidence presented at trial, we conclude that the evidence\n\nwas insufficient to convict Young of Counts Two and Four for attempting to obstruct\n\njustice under 18 U.S.C. § 1512(c)(2). In November 2014 and December 2015, Young did\n\ndesign his conduct to mislead FBI agents, including those he believed were investigating\n\nhis relationship with Mo. With respect to Count Four, prior to Mo’s “trip,” Young told\n\nMo the FBI would investigate Young after becoming aware Mo had joined ISIL and that\n\nthey knew one another. Young said he would send the text because the text would be\n\n“good for [Young],” helping Young avoid suspicion from law enforcement that he knew\n\nof Mo’s plans to join ISIL. J.A. 656. And with respect to Count Two, when Young\n\nthought in December 2015 that the FBI had learned that Mo had joined ISIL, Young\n\nattempted to deceive the FBI by providing statements consistent with the cover story,\n\ndisclaiming any knowledge of Mo’s whereabouts or plans. Young would only have\n\nundertaken these actions had an FBI investigation—whether in November 2014 or\n\nDecember 2015—been at least foreseeable to him.\n\n But this is not enough for purposes of § 1512(c)(2). In neither situation\n\n(November 2014 or December 2015) was this conduct connected to a specific official\n\nproceeding, nor was such a specific official proceeding reasonably foreseeable to Young.\n\nSimply because an FBI investigation was reasonably foreseeable to Young does not mean\n\n 28\n\fthat a grand jury investigation was reasonably foreseeable to him or that his conduct was\n\ndesigned to obstruct a grand jury’s proceedings. Specifically as to Count Two, the\n\nevidence is insufficient largely for the same reason that it was insufficient in Aguilar:\n\n“All the Government ha[s] shown was that [the defendant] had uttered false statements to\n\nan investigating agent who might or might not testify before a grand jury.” Arthur\n\nAndersen, 544 U.S. at 708. Even if there is sufficient evidence to demonstrate that\n\nYoung obstructed an FBI investigation, there is simply no evidence to demonstrate he\n\nwas aware either that his conduct would affect a grand jury proceeding or that a grand\n\njury or similar proceeding was impending. And with respect to Count Four, the\n\nGovernment has similarly failed to provide evidence demonstrating that Young foresaw a\n\nspecific grand jury investigation or that he designed his conduct to thwart such an\n\ninvestigation, rather than designing his conduct to obstruct an FBI inquiry—which he did\n\nforesee.\n\n Rather, Young’s case is more analogous to that of Friske, in which the Eleventh\n\nCircuit reversed a defendant’s § 1512(c)(2) conviction for attempting to obstruct a\n\nforfeiture proceeding. There, the defendant had, at the behest of an incarcerated friend,\n\ngone to the latter’s home to retrieve certain unspecified items which turned out to be\n\nsubject to forfeiture. 640 F.3d at 1289–90. In overturning the defendant’s conviction, the\n\nEleventh Circuit concluded that the government had failed to prove that the defendant\n\n“knew that the natural and probable result of his actions would be the obstruction of [the\n\nfriend’s] forfeiture proceeding.” Id. at 1292–93. Even though the defendant “was\n\ncertainly acting suspiciously,” “more is required to prove a violation of § 1512(c)(2).”\n\n 29\n\fId. at 1292. But because the only way for the jury to conclude that the defendant “knew\n\nof or foresaw the forfeiture proceeding” “would be through speculation,” the evidence\n\nwas insufficient to convict him. Id. at 1293. Similarly, although Young’s actions were\n\ncertainly designed to thwart an FBI inquiry, the only way the jury could have concluded\n\nhe foresaw a particular grand jury investigation would be through speculation.\n\n The insufficiency of the evidence here is highlighted by cases in which courts\n\nhave found that a grand jury proceeding into criminal activity was reasonably foreseeable\n\nbecause of a defendant’s actual awareness of an ongoing or impending investigation into\n\nclosely related activity and specific criminal actions in relation to such awareness. See\n\nUnited States v. Binday, 804 F.3d 558, 590 (2d Cir. 2015) (finding a grand jury\n\nproceeding was foreseeable because the defendant was aware that he was the target of a\n\nseparate regulatory investigation into an insurance fraud scheme and had destroyed\n\nincriminating documents related to the scheme); United States v. Simpson, 741 F.3d 539,\n\n552 (5th Cir. 2014) (finding a grand jury proceeding was reasonably foreseeable to a\n\nbusiness owner who had learned about the execution of search warrants for his company\n\nand had ordered the deletion of emails after learning of the warrants). By contrast, based\n\non the record before us in this case, we would be stretching the foreseeability requirement\n\nbeyond its limits in concluding that Young’s anticipation of an FBI investigation into an\n\nacquaintance’s future trip would also reasonably herald a grand jury proceeding. To do\n\nso would be pure speculation.\n\n Nonetheless, in an effort to bolster the evidence presented, the Government points\n\nto Young’s (1) awareness of his acquaintances’ arrests; (2) status as a law enforcement\n\n 30\n\fofficer; and (3) heightened suspicion of FBI surveillance of him, contending that these\n\nthree factors should support the inference that a grand jury investigation was reasonably\n\nforeseeable to him and that he designed his conduct to obstruct such an investigation.\n\nBut this case is entirely distinguishable from those in which a court has inferred the nexus\n\nand foreseeability requirements from similar factors. For example, in Martinez, the\n\nSecond Circuit affirmed a § 1512(c)(2) conviction of a defendant police officer who was\n\npart of a conspiracy in which at least two dozen co-conspirators committed more than\n\n200 robberies of drug traffickers. In upholding the sufficiency of the evidence, the\n\nSecond Circuit concluded that “it was easily inferable that the 2008 arrests of many of his\n\ncoconspirators made it foreseeable to [the defendant]—who estimated that as an NYPD\n\nofficer, he had testified 15-20 times in grand jury proceedings . . . —that there would be a\n\ngrand jury proceeding leading to numerous indictments.” 862 F.3d at 238. Furthermore,\n\n“it could easily be inferred that [the defendant’s] persistent searches of NYPD databases,\n\nand his reports back to coconspirators who had not been arrested, were intended to make\n\nit possible for them to avoid arrest by absconding before any outstanding warrants could\n\nbe executed, thereby potentially interfering with an ongoing grand jury proceeding.” Id.\n\n By contrast, the indictment of Young’s acquaintances was too attenuated from\n\nYoung’s relationship with Mo to have made a grand jury investigation of Young, Mo, or\n\ntheir relationship foreseeable to Young. And neither Young nor Mo was involved in an\n\nongoing criminal conspiracy with those acquaintances. Furthermore, although Young\n\nworked in law enforcement, the Government’s evidence failed to establish that he was\n\nroutinely involved in grand jury proceedings—or, for that matter, had ever testified in\n\n 31\n\fsuch a proceeding. And finally, Young’s awareness about FBI surveillance was also\n\ninadequate to create a sufficient nexus. Although the Government established at trial that\n\nYoung was constantly aware of the fact that the FBI could be investigating him, the\n\nGovernment failed to connect this general awareness—whether in combination with any\n\nof the issues discussed above or individually—with a specific and reasonably foreseeable\n\nofficial proceeding.\n\n Thus, “based on our review of the record, we have uncovered no evidence to\n\nsatisfy Arthur Andersen’s requirement that the Government prove a nexus between [the\n\nobstructive] conduct and a foreseeable particular federal proceeding to establish a\n\nconviction under” § 1512(c). Tyler, 732 F.3d at 250–51. Because the evidence was\n\ninsufficient to meet this essential requirement, we vacate Young’s convictions as to\n\nCounts Two and Four.\n\n\n\n IV.\n\n For the foregoing reasons, we affirm Young’s conviction as to Count One, vacate\n\nYoung’s convictions as to Counts Two and Four, and remand for resentencing. 14\n\n AFFIRMED IN PART, VACATED IN PART,\n AND REMANDED\n\n\n\n\n 14\n Because Counts One, Two, and Four were grouped under United States\nSentencing Guidelines § 3D1.2(c) for sentencing purposes, we do not address Young’s\nchallenges to his sentence which, if relevant, can be addressed by the district court in the\nfirst instance upon remand.\n\n 32", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369849/", "author_raw": "AGEE, Circuit Judge:"}]} | AGEE | KEENAN | RICHARDSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4592596/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,592,600 | United States v. Gregory Seerden | 2019-02-21 | 18-4124 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before WILKINSON, AGEE, and THACKER, Circuit Judges.", "parties": "", "opinions": [{"author": "THACKER, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4124\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nGREGORY KYLE SEERDEN,\n\n Defendant - Appellant.\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nNorfolk. Raymond A. Jackson, District Judge. (2:17-cr-00067-RAJ-DEM-1)\n\n\nArgued: December 11, 2018 Decided: February 20, 2019\n Amended: February 21, 2019\n\n\nBefore WILKINSON, AGEE, and THACKER, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Thacker wrote the opinion, in which Judge\nWilkinson and Judge Agee joined.\n\n\nARGUED: Andrew William Grindrod, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Norfolk, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE\nUNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:\nGeremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States\nAttorney, Alexandria, Virginia, David A. Layne, Special Assistant United States\nAttorney, Elizabeth M. Yusi, Assistant United States Attorney, OFFICE OF THE\nUNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.\n\fTHACKER, Circuit Judge:\n\n In January 2017 investigators with the Naval Criminal Investigation Service\n\n(“NCIS”) obtained a military warrant to search the cell phone of Gregory Kyle Seerden\n\n(“Appellant”) for evidence of sexual assault. During the search of Appellant’s phone, the\n\ninvestigators found child pornography. On that basis, the investigators then obtained a\n\nfederal warrant to search Appellant’s phone a second time and again found child\n\npornography. Appellant moved to suppress the evidence, arguing that the first search\n\nwas unlawful because it violated the Military Rules of Evidence and that evidence\n\nobtained during the second search was fruit of the poisonous tree.\n\n Although the district court agreed that evidence obtained during the military\n\nsearch was inadmissible because it violated the Military Rules of Evidence, it nonetheless\n\nfound that the good faith exception allowed the government to admit evidence discovered\n\nvia the second search.\n\n On September 20, 2017, Appellant entered a conditional guilty plea to production\n\nof child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). He subsequently filed\n\nthis appeal. As explained below, we affirm on different grounds.\n\n I.\n\n Appellant was a member of the United States Navy’s Sea, Air, and Land Team.\n\nAt all times relevant to this appeal, he was stationed in San Diego, California. But for\n\none week in January 2017, Appellant attended a training at the Little Creek base in\n\nVirginia Beach, Virginia. During that week, Appellant was accused of sexual assault and\n\nsuspected of possession of child pornography.\n\n 2\n\f On his next to last night of training in Virginia, Appellant met a woman. The\n\nwoman recalled that, during her night out with Appellant, the pair went to a few bars and\n\nhad more than a few drinks. The woman came in and out of consciousness throughout\n\nthe night, but she remembered returning to Appellant’s room in the Navy Gateway Inns\n\nand Suites at Little Creek. At around 4:00 a.m., the woman woke up lying naked next to\n\nAppellant. She learned from Appellant that, at some point during the night, they had sex.\n\nShe then left. While she was waiting for a cab at the gate of the base, she began to cry.\n\nA service member on guard duty (a “sentry”) approached her, and she told him that\n\nAppellant sexually assaulted her. Appellant then attempted to call her. She didn’t\n\nanswer. Meanwhile, the sentry reported the allegations to NCIS.\n\n Later that day, NCIS began investigating the allegations. In doing so, NCIS\n\norchestrated a “controlled text message conversation” between the woman and Appellant.\n\nNCIS agents had the woman text Appellant and inquire about the night in question.\n\nDuring that conversation, Appellant admitted that the pair had sex and that the woman\n\nwas not sober. With that, NCIS agents began coordinating with Appellant’s commanding\n\nofficer in San Diego as well as the commanding officer of the Little Creek base to obtain\n\nauthorizations to search Appellant’s cell phone and hotel room. NCIS also consulted the\n\nJudge Advocate General’s (“JAG”) authorities at both bases. NCIS and JAG officers\n\ndecided that the Little Creek commanding officer should authorize the search of\n\nAppellant’s hotel room while Appellant’s commanding officer in San Diego should\n\nauthorize the search of his phone. The officers reasoned that, while the Little Creek\n\ncommanding officer had control over the base, Appellant’s commanding officer in San\n\n 3\n\fDiego had control over Appellant. In line with that plan, Appellant’s commanding\n\nofficer in San Diego signed a Command Authorization for Search and Seizure (“CASS”)\n\nsanctioning the search of Appellant’s phone.\n\n The CASS sought to collect messages, photographs, videos, and any other\n\ninformation related to the investigation from Appellant’s phone. In its statement of\n\nprobable cause, the affidavit supporting the CASS connected Appellant’s phone to the\n\nalleged criminal activity by noting that Appellant attempted to call his accuser after\n\ndropping her off at the gate. It also noted that NCIS agents orchestrated a pretext\n\ncommunication between Appellant and the woman accusing him of sexual assault.\n\n A week later, a digital forensics examiner executed the search of Appellant’s\n\nphone. In doing so, the forensics examiner viewed thumbnail-size icons of photographs\n\non Appellant’s phone. The examiner, who was trained in and had experience with child\n\nexploitation investigations, believed some of those photographs were images of child\n\npornography.\n\n Based on the evidence discovered during the military search of Appellant’s phone,\n\nNCIS obtained a federal search warrant from the Eastern District of Virginia to search\n\nAppellant’s phone for further evidence of child pornography. Under the authority of this\n\nsecond warrant, the forensics examiner continued his analysis of Appellant’s cell phone\n\ndata. He found 78 images and four videos of child pornography. The images depicted\n\nknown victims of child sexual exploitation, while the videos depicted Appellant\n\nperforming a sexual act inches from the face of a sleeping child.\n\n\n\n 4\n\f On March 31, 2017, the Government filed a criminal complaint charging\n\nAppellant with possession and production of child pornography. And on April 20, 2017,\n\na grand jury indicted Appellant for possession, production, and transportation of child\n\npornography. On June 6, 2017, Appellant moved to suppress the evidence obtained from\n\nthe two searches of his phone. After holding a hearing on Appellant’s motion, the district\n\ncourt denied it.\n\n The district court first concluded that the evidence obtained during the first search\n\nwas inadmissible. Applying the Military Rules of Evidence in evaluating the lawfulness\n\nof that search, the district court reasoned that the CASS obtained by NCIS did not satisfy\n\nthe “authorization” requirement of Military Rule of Evidence 315:\n\n Pursuant to Military Rule of Evidence 315(d), a search\n is valid only if it is issued by an impartial individual. An\n impartial individual is a commander, military judge or\n magistrate. Mil. R. Evid. 315(d)(1) and (2). A military\n commander is defined as “a commander or other person\n serving in a position designated by the Secretary concerned as\n either a position analogous to an officer in charge or a\n position of command, who has control over the place where\n the property or person to be search is situated or found, or if\n that place is not under military control, having control over\n persons subject to military law or the law of war.” Mil. R.\n Evid. 315(d)(1). A military judge or magistrate “is a person\n who is authorized under regulations prescribed by the\n Secretary of Defense or the Secretary concerned.” Mil. R.\n Evid. 315(d)(2).\n\n Here, the person who authorized the CASS for the first\n search of [Appellant’s] telephone was [Appellant’s] unit\n commander in San Diego, CA. Pursuant to the definitions\n provided in Military Rules of Evidence 315(d)(1),\n [Appellant’s] unit commander did not have the authority to\n authorize any search [conducted] on [the Little Creek base]\n because [Appellant’s] unit commander did not have control\n\n 5\n\f over the place where the property or person to be searched was\n situated.\n\nJ.A. 215. 1 The district court further reasoned that, because of the defect in the CASS\n\nauthorization, it could not apply the exclusionary rule’s good faith exception to the\n\nevidence obtained as a result of the first search. Citing Military Rule of Evidence 311,\n\nthe district court noted, “Pursuant to military law, evidence obtained as the result of an\n\nunlawful search may [only] be used if . . . ‘the search or seizure resulted from an\n\nauthorization . . . issued by an individual competent to issue the authorization under Mil.\n\nR. Evid. 315(d).’” J.A. 217–18. Because the district court found that Appellant’s\n\ncommander in San Diego was not competent to authorize the CASS, the court concluded\n\nthat “the good faith exception does not cure the first search.” Id. at 218.\n\n Despite finding that evidence obtained during the first search was inadmissible,\n\nthe district court concluded that evidence obtained during the second search was\n\nadmissible. In doing so, the district court acknowledged that “the second search relied\n\nupon evidence found during the first search,” J.A. 218, that the probable cause supporting\n\nthe search warrant authorizing the second search was “obtained through unlawful\n\nmeans,” id. at 220, and that “[a]s a result, the magistrate judge’s subsequent issuance of a\n\nsearch warrant . . . was void ab initio.” Id. at 222. Nonetheless, the district court found\n\nthat the good faith exception to the exclusionary rule permitted the admission of the\n\nevidence obtained during the second search and denied Appellant’s motion to suppress.\n\n 1\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this\nappeal.\n\n\n 6\n\f Thereafter, on September 27, 2017, Appellant plead guilty to production of child\n\npornography. He stipulated to a written statement of facts but reserved his right to appeal\n\nthe district court’s denial of his motion to suppress. On February 15, 2018, the district\n\ncourt sentenced Appellant to 324 months of imprisonment to be followed by 25 years of\n\nsupervised release. This appeal followed.\n\n II.\n\n Analyzing a district court’s decision to deny a motion to suppress, we review legal\n\nconclusions de novo and factual findings for clear error. See United States v. Kolsuz, 890\n\nF.3d 133, 141–42 (4th Cir. 2018). In doing so, we consider the evidence in the light most\n\nfavorable to the Government. See id.\n\n III.\n\n Appellant contends that the Military Rules of Evidence apply here and require\n\nsuppression. We hold, however, that the Fourth Amendment governs whether evidence\n\nis admissible in federal criminal proceedings. The Military Rules of Evidence cannot\n\nusurp the Fourth Amendment. We further hold that, even assuming the initial warrant\n\nviolated the Fourth Amendment, the good faith exception to the exclusionary rule\n\nprecludes suppression of evidence obtained from the first search. And because the good\n\nfaith exception saves the evidence of the first search, it also saves the evidence obtained\n\nfrom the second search.\n\n\n\n\n 7\n\f A.\n\n At the outset, we recognize that federal courts treat searches conducted within the\n\nconfines of the military differently. As this court observed in United States v. Rendon,\n\n“[T]he Fourth Amendment protects members of the armed services from unreasonable\n\nsearches and seizures” with “different standards than those that apply in the civilian\n\ncontext.” 607 F.3d 982, 990 (4th Cir. 2010).\n\n That is not to say that military rules wholly displace the framework of the Fourth\n\nAmendment. To the contrary, military rules and procedures affect whether a military\n\nsearch satisfies the Fourth Amendment’s reasonableness requirement. To determine\n\nwhether a search is reasonable, the Fourth Amendment requires courts to balance the\n\ndegree to which a search “intrudes upon an individual’s privacy” against “the degree to\n\nwhich it is needed for the promotion of legitimate governmental interests.” Samson v.\n\nCalifornia, 547 U.S. 843, 848 (2006) (citations omitted). The privacy and governmental\n\ninterests implicated by military searches are different from those implicated by civilian\n\nsearches: In military settings, the government has a significant interest in maintaining\n\norder and control over its service members. See Parker v. Levy, 417 U.S. 733, 744\n\n(1974). Meanwhile, the rights of service members must bend to meet the demands of\n\ndiscipline and duty. See Burns v. Wilson, 346 U.S. 137, 140 (1953). For that reason,\n\nfederal courts consider the Military Rules of Evidence, which outline the rules and\n\nprocedures that govern how military officers conduct military searches, in evaluating the\n\nreasonableness of military searches. See, e.g., Rendon, 607 F.3d at 990–91. And when\n\nsuch a search violates those rules in a way that impedes a service member’s specific\n\n 8\n\fexpectations of privacy, “a violation of the Fourth Amendment can result.” See id. at\n\n991.\n\n But it does not follow that the Military Rules of Evidence themselves tie the hands\n\nof the federal courts. “Military law, like state law, is a jurisprudence which exists\n\nseparate and apart from the law which governs in our federal judicial establishment.”\n\nBurns, 346 U.S. at 140. Just as states “lack the power to impose on federal courts\n\nrequirements stricter than those mandated by the federal Constitution,” United States v.\n\nClyburn, 24 F.3d 613, 616 (4th Cir. 1994), so too does the military. To hold otherwise\n\nwould “hamper the enforcement of valid federal laws by rendering relevant and reliable\n\nevidence unavailable.” Id. (quoting United States v. Chavez-Vernaza, 844 F.2d 1368,\n\n1374 (9th Cir. 1987) (alteration omitted)). For that reason, the Fourth Amendment\n\nprovides the proper standard for determining whether evidence seized pursuant to a non-\n\nfederal warrant is admissible in federal court. Id. at 616–17; see also United States v.\n\nVan Metre, 150 F.3d 339, 346–47 (4th Cir. 1998) (“[T]he proper standard for evaluating\n\nillegal seizure claims in federal courts has uniformly been whether the actions of the state\n\nofficials in securing the evidence violated the Fourth Amendment to the United States\n\nConstitution.” (alteration and internal quotation marks omitted)).\n\n B.\n\n Even assuming there was a Fourth Amendment violation here, we hold that the\n\ngood faith exception to the exclusionary rule precludes suppression.\n\n Suppression is not itself a right explicitly bestowed by the Fourth Amendment.\n\nRather, suppression of evidence obtained through a search that violates the Fourth\n\n 9\n\fAmendment is a judicially created prescription for such a violation. See United States v.\n\nLeon, 486 U.S. 897, 909 (1984). Indeed, the exclusionary rule is primarily proscriptive:\n\nit is designed to safeguard Fourth Amendment rights through its deterrent effect. Id. For\n\nthat reason, “evidence should be suppressed only if it can be said that the law\n\nenforcement officer had knowledge, or may properly be charged with knowledge, that the\n\nsearch was unconstitutional under the Fourth Amendment.” Illinois v. Krull, 480 U.S.\n\n340, 348–49 (1987) (quoting United States v. Peltier, 422 U.S. 531, 542 (1975) (internal\n\nquotation marks omitted)).\n\n In line with that principle, the good faith exception to the exclusionary rule allows\n\ncourts to introduce evidence obtained in violation of the Constitution but in reasonable\n\nreliance on a defective warrant. See Leon, 468 U.S. at 905. The Supreme Court has\n\nidentified only five limitations to the application of the good faith exception: (1) where a\n\nmagistrate issues a warrant based on a deliberately or recklessly false affidavit, see\n\nFranks v. Delaware, 438 U.S. 154, 155–56 (1978); (2) where a magistrate lacks\n\nneutrality and detachment, see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326–28\n\n(1979); (3) where a warrant is based on an affidavit “so lacking in indicia of probable\n\ncause as to render official belief in its existence entirely unreasonable,” Leon, 468 U.S. at\n\n923 (quoting Brown v. Illinois, 422 U.S. 590, 610–11 (1975) (Powell, J., concurring in\n\npart)); (4) where a warrant is so facially deficient that a reasonable officer could not\n\nbelieve it was valid, see id. at 923; and (5) where police recklessly maintain or knowingly\n\nenter false information into a warrant database to enable a future arrest, Herring v. United\n\n\n\n 10\n\fStates, 555 U.S. 135, 145 (2009). Appellant argues that the CASS at issue here triggers\n\ntwo of those limitations. 2\n\n 1.\n\n Appellant argues that, because the CASS was not authorized by the commanding\n\nofficer with “control over the place where the property or person to be searched [was]\n\nsituated,” it was facially deficient to the point where “no reasonable person could have\n\nconcluded that this officer possessed authority to issue the CASS.” Appellant’s Br. 18.\n\nThat argument lacks both legal and logical support.\n\n First, we have applied the good faith exception to warrants authorized by\n\nmagistrate judges lacking jurisdiction. See, e.g., United States v. McLamb, 880 F.3d 685,\n\n691 (4th Cir. 2018). We have done so because “the exclusionary rule is designed to deter\n\npolice misconduct rather than to punish the errors of judges and magistrates.” Id.\n\n(quoting Leon, 468 U.S. at 916). And suppressing evidence obtained pursuant to a\n\nwarrant issued by the wrong magistrate judge would not appreciably deter police\n\nmisconduct. Id. There is no reason to conclude that a case of the wrong commanding\n\nofficer should be treated any differently.\n\n\n\n\n 2\n Appellant presents no independent basis for suppressing the evidence that\nofficers obtained when they executed the federal warrant. Instead, Appellant argues that\nevidence obtained through the federal warrant must be suppressed because the CASS was\nillegal and the federal warrant was supported solely by evidence obtained through the\nCASS. Accordingly, the question before us is whether evidence obtained through the\nCASS is admissible. We need not scrutinize the federal warrant.\n\n\n 11\n\f Second, we cannot say that no reasonable officer could review a CASS authorized\n\nby the subject of the search’s commanding officer -- as opposed to the commanding\n\nofficer of the subject’s current location -- and believe it to be valid. Military Rule of\n\nEvidence 315(d) is no bastion of clarity: it places the power to authorize searches on the\n\nofficer “who has control over the place where the property or person to be searched is\n\nsituated.” One could reasonably conclude that a military service member’s commanding\n\nofficer is the officer who has control over the place where he or she “is situated.” Indeed,\n\nin this case, several officers reached that conclusion. NCIS consulted Appellant’s\n\ncommanding officer in San Diego and the commanding officer of the Little Creek base.\n\nNCIS also consulted JAG attorneys at both bases. Only after taking these measures did\n\nNCIS reach the technically incorrect conclusion that Appellant’s commander in San\n\nDiego should authorize the search of Appellant’s phone, while the Little Creek\n\ncommanding officer should authorize the search of his hotel room. This court is not\n\nprepared to call that conclusion, and each of those officers, unreasonable.\n\n 2.\n\n Appellant also argues that the good faith exception cannot apply to the CASS\n\nbecause it was so lacking in indicia of probable cause. But “the threshold for establishing\n\nthis exception is a high one.” Messerschmidt v. Millender, 565 U.S. 535, 547 (2012).\n\nOfficers executing warrants are not often expected to question the conclusions of an\n\nissuing authority. Id. (citing Leon, 468 U.S. at 921). For that reason, to preclude\n\napplication of the good faith exception, an officer’s reliance on an issuing authority’s\n\nprobable cause determination must have been “entirely unreasonable.” Id. at 549. That\n\n 12\n\fwas not the case here. The affidavit supporting the CASS detailed the allegations of\n\nAppellant’s accuser. It also noted that NCIS agents orchestrated a controlled text\n\nmessage conversation between Appellant and his accuser and described the admissions\n\nthat Appellant made during that conversation. Those admissions were consistent with the\n\nallegations of Appellant’s accuser. Presented with such information, it would not be\n\nentirely unreasonable for an officer to believe that the CASS was supported by probable\n\ncause.\n\n Accordingly, we hold that the good faith exception to the exclusionary rule applies\n\nto the evidence obtained through the CASS. Evidence subsequently obtained through the\n\nfederal warrant, which was supported by the CASS evidence, is likewise admissible.\n\n IV.\n\n For the foregoing reasons, the judgment of the district court is\n\n AFFIRMED.\n\n\n\n\n 13", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369853/", "author_raw": "THACKER, Circuit Judge:"}]} | WILKINSON | AGEE | THACKER | 1 | {"WILKINSON": ", Circuit", "AGEE": ", Circuit", "THACKER": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4592600/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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4,592,605 | ACA FINANCIAL GUARANTY CORPORATION; UMB Bank, NA, Plaintiffs - Appellants, v. CITY OF BUENA VISTA, VIRGINIA ; Public Recreational Facilities Authority of the City of Buena Vista, Virginia, Defendants - Appellees, and Russell J. Singer and Douglas L. Sbertoli, SR., Trustees. | ACA Financial Guaranty v. City of Buena Vista, Virginia | 2019-02-21 | 18-1268 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, Thacker, Quattlebaum", "parties": "", "opinions": [{"author": "QUATTLEBAUM, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1268\n\n\nACA FINANCIAL GUARANTY CORPORATION; UMB BANK, NA,\n\n Plaintiffs - Appellants,\n\n v.\n\nCITY OF BUENA VISTA, VIRGINIA; PUBLIC RECREATIONAL\nFACILITIES AUTHORITY OF THE CITY OF BUENA VISTA, VIRGINIA,\n\n Defendants - Appellees,\n\nand\n\nRUSSELL J. SINGER and DOUGLAS L. SBERTOLI, SR.,\n\n Trustees.\n\n\nAppeal from the United States District Court for the Western District of Virginia, at\nLynchburg. Norman K. Moon, Senior District Judge. (6:17-cv-00013-NKM-RSB)\n\n\nArgued: October 31, 2018 Decided: February 21, 2019\n\n\nBefore GREGORY, Chief Judge, and THACKER and QUATTLEBAUM, Circuit\nJudges.\n\n\nAffirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Chief\nJudge Gregory and Judge Thacker joined.\n\fARGUED: Scott Carlton Ford, Brian Aaron Richardson, FORD RICHARDSON, PC,\nRichmond, Virginia, for Appellants. Kevin M. Rose, BOTKINROSE PLC,\nHarrisonburg, Virginia, for Appellees. ON BRIEF: Michael W. Sharp, BOTKINROSE\nPLC, Harrisonburg, Virginia; Brian J. Kearney, W. Wayne Heslep, HESLEP &\nKEARNEY PC, Lexington, Virginia, for Appellees.\n\n\n\n\n 2\n\fQUATTLEBAUM, Circuit Judge:\n\n In this appeal, we review an order dismissing a complaint that arose from a\n\ntroubled bond transaction involving a municipal golf course in the City of Buena Vista,\n\nVirginia (the “City”). Bonds were issued to refinance debt on the golf course and the\n\nrepayment of the bonds depended on the City making payments on the lease of the golf\n\ncourse. When it failed to do so, this litigation ensued. The primary question on appeal is\n\nwhether the City’s obligation to make rent payments is legally enforceable when the\n\nobligation is expressly subject to the City’s annual decision to appropriate funds. Finding\n\nthat the answer is no, we affirm the district court’s dismissal of the complaint.\n\n I.\n\n Plans for a golf course in the City date back to 2002. In that year, the\n\nCommonwealth of Virginia created the Public Recreational Facilities Authority (the\n\n“Authority”) to construct, operate and maintain public recreational facilities for the\n\nbenefit of the City. In 2003, the Authority, at the request of the City, took out a loan to\n\nfinance the construction of a municipal golf course called the Vista Links Golf Club (the\n\n“Golf Course”). 1\n\n\n 1\n The facts that led to the City’s interest in a golf course and the subsequent\nproblems with this course are not in the record nor material to this Court’s decision.\nHowever, the events that are described in this case generally follow trends in the golf\nindustry. In the early 2000s, there was a noticeable rise in the popularity of golf. See\nSteven J. Wernick, Diamonds in the Rough: Judicial Reaction to Golf Course\nConversations, 2017 WL 1098131, 30 No. 4 ZONING & PLANNING LAW REPORT 1 (April\n2007). Tiger Woods’ dramatic entry and domination in the golf world brought a wave of\nnew golfers to the sport. Id. What is known as the “Tiger Woods Effect” led to increased\ntelevision ratings and golf related sales. Id. However, monetization of the increased\n(Continued)\n 3\n\f In 2005, the City and the Authority sought to refinance the loan on the Golf\n\nCourse. To accomplish this, the Authority issued over $9 million in bonds. The Authority\n\nand SunTrust Bank (the “Bank”) entered into a Trust Agreement which described how\n\nthe bonds would be issued, how they would be repaid and the rights of the parties in the\n\nevent the bonds were not repaid. 2 The Authority used the bond proceeds to pay off the\n\nexisting loan on the Golf Course.\n\n To have a source of revenue to repay the bonds, the Authority leased the Golf\n\nCourse to the City. Under the Lease Agreement, the City agreed to make rent payments\n\nas well as maintain and operate the Golf Course. The Authority agreed that the rent\n\npayments would be used to repay the bonds. The rent payments from the City, therefore,\n\nwere the financial linchpin of the transaction. Critically, however, the City never made an\n\nabsolute commitment to make the rent payments. Under the Lease Agreement and the\n\n\n\n\npopularity of golf did not always extend to golf courses. Id. While the number of golf\ncourses increased, the number of rounds of golf played per year roughly stayed the same.\nThus, some golf courses became the victim of too much supply and not enough demand.\nAccording to the National Golf Foundation, a trend began in 2006 where each year\nsignificantly more golf courses closed than opened. National Golf Foundation, NGF\nIssues 2018 Golf Industry Report: Consolidated State-of-the-Industry Report Features\nParticipation and Course Supply Dada, NGF Quarterly, May 2018,\nhttps://www.thengfq.com/2018/05/ngf-issues-2018-golf-industry-report/.\n 2\n UMB Bank, N.A. is the successor-in-interest to SunTrust Bank.\n\n\n\n\n 4\n\fother financing documents, the City’s obligation was subject to its decision to appropriate\n\nfunds each year. 3\n\n Other documents in the bond transaction gave the Bank rights as a creditor in the\n\nevent the bonds were not repaid. The City issued a Deed of Trust to the Bank where the\n\nCity pledged its existing City Hall building and police station as security. Similarly, the\n\nAuthority issued a Deed of Trust to the Bank where the Authority pledged the Golf\n\nCourse as security. Both the City Deed of Trust and the Authority Deed of Trust\n\n(collectively “Deeds of Trust”) along with the Trust Agreement contain provisions\n\noutlining the Bank’s creditor rights to this collateral.\n\n The Bank retained ACA Financial Guaranty Corporation (“ACA”) to provide\n\ninsurance on the bonds. Through this arrangement, ACA received insurance premiums,\n\nand, in return, agreed to pay off the bonds if there was a default in repayment. In such a\n\nsituation, ACA would front the costs of paying off the bonds and then assume the Bank’s\n\nrights to receive rent payments and to enforce other creditor rights.\n\n In 2010 and 2011, the City failed to appropriate enough money to fully pay the\n\nrent due on the Golf Course lease. As a result, the Authority could not repay the bonds.\n\nAfter discussions and negotiations, the parties entered into the Forbearance Agreement.\n\n\n 3\n The reason for this arrangement is not clear from the record. However, because\nthe City’s charter requires “any bonded indebtedness” to be approved through a\nreferendum “passed by a majority of the qualified voters,” see City of Buena Vista (Va.)\nCharter § 2.214, the City could not simply enter into a long-term loan agreement with the\nBank. An obligation subject to the City’s decision to make appropriations avoided the\nrequirement of having the electorate vote on the debt.\n\n\n 5\n\fUnder the Forbearance Agreement, ACA agreed to make up any shortfall resulting from\n\nthe City’s failure to make rent payments. It also agreed to temporarily forego exercising\n\nits creditor rights and remedies. The City and the Authority agreed that ACA would be\n\nreimbursed for any payments it made and agreed that the bonds would still be repaid\n\nfrom rent payments, although the payment plan was extended over a longer period of\n\ntime. Significantly, the Forbearance Agreement also makes clear that the obligation to\n\nmake the rent payments is subject to annual appropriations by the City.\n\n In January 2015, the City voted not to appropriate funds for the rent payments and\n\nhas not made any payments since that time. As a result, the Authority once again failed to\n\nrepay the bonds.\n\n In response, ACA and the Bank filed a ten-count complaint in federal court against\n\nthe City and the Authority. The City and the Authority filed a motion to dismiss the\n\ncomplaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court\n\ngranted the motion to dismiss finding that all ten counts in the complaint failed to state\n\nclaims for which relief could be granted. ACA and the Bank appealed all but one of the\n\ncounts. We have jurisdiction for this appeal pursuant to 28 U.S.C. § 1291.\n\n II.\n\n This Court reviews a motion to dismiss de novo. Nemet Chevrolet, Ltd. v.\n\nConsumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009). In so doing, we follow the\n\nwell-settled standard for considering a motion to dismiss under Rule 12(b)(6).\n\n A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the claims\n\npled in a complaint. To sufficiently plead a claim, the Federal Rules of Civil Procedure\n\n 6\n\frequire that “[a] pleading that states a claim for relief must contain . . . a short and plain\n\nstatement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P.\n\n8(a). This pleading standard does not require detailed factual allegations. Ashcroft v.\n\nIqbal, 556 U.S. 662, 678 (2009). However, “it demands more than an unadorned, the-\n\ndefendant-unlawfully-harmed-me accusation.” Id. Labels, conclusions, recitation of a\n\nclaim’s elements, and naked assertions devoid of further factual enhancement will not\n\nsuffice to meet the Rule 8 pleading standard. Id.\n\n To meet the Rule 8 standard and survive a motion to dismiss, “a complaint must\n\ncontain sufficient factual matter, accepted as true, to ‘state a claim to relief that is\n\nplausible on its face.’” Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557\n\n(2007)). To contain sufficient factual matter to make a claim plausible, the factual content\n\nmust “allow the court to draw the reasonable inference that the defendant is liable for the\n\nmisconduct alleged.” Id.\n\n While we must accept the factual allegations in the complaint as true, we need not\n\naccept a complaint’s legal conclusions. Id. Thus, simply reciting the cause of actions’\n\nelements and supporting them by conclusory statements does not meet the required\n\nstandard. Id. The Supreme Court noted that while Rule 8 departed from the\n\nhypertechnical code-pleading requirement of a prior era, it did not “unlock the doors of\n\ndiscovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–679.\n\n Using this standard, we review ACA and the Bank’s claims on appeal.\n\n\n\n\n 7\n\f III.\n\n ACA and the Bank appeal nine of the ten counts that the district court dismissed.\n\nFive of the nine counts at issue on appeal are primarily based on the City’s failure to\n\nmake the rent payments because it did not appropriate the funds for such payments.\n\nThese five counts all assert a breach of one of the financing documents. The remaining\n\nfour counts are implied, declaratory and equitable in nature. We will address the five\n\nbreach of contract counts and then the remaining implied, declaratory and equitable\n\ncounts.\n\n A.\n\n First, ACA and the Bank argue the district court erred in dismissing their claim\n\nfor breach of a third-party beneficiary contract. Although they are not parties to the Lease\n\nAgreement between the City and the Authority, ACA and the Bank claim they can bring\n\nan action under it because they are third-party beneficiaries to that Lease Agreement.\n\nThey contend this count states a plausible claim for relief because the City has a legally\n\nenforceable obligation to pay rent under the Lease Agreement. ACA and the Bank claim\n\nthat the City breached the Lease Agreement by not paying rent to the Bank.\n\n This argument gets to the crux of the lawsuit—whether the City has an\n\nenforceable obligation to make rent payments. The language of the Lease Agreement is\n\ndispositive on this issue. Section 4.2 of the Lease Agreement states that the City shall pay\n\nthe rent to the Bank on behalf of the Authority. This provision is subject to Section 4.5\n\nwhich states:\n\n\n\n 8\n\f Notwithstanding anything in this Lease Agreement to the contrary, the\n City’s obligations to pay the cost of performing its obligations under this\n Lease Agreement and the Trust Agreement, including without limitation its\n obligation to pay all Basic Rent and Additional Rent, shall be subject to\n and dependent upon appropriations being made from time to time by\n the City Council for such purpose . . . .\n\nJ.A. 54. (emphasis added).\n\n Consistently, Section 6.1(c) states:\n\n Notwithstanding anything contained in this Section to the contrary, failure\n by the City to make when due any payment required to be made under\n this Lease Agreement or failure by the City to observe and perform any\n covenant, condition or agreement on its part to be observed or performed\n under this Lease Agreement resulting from failure of the City to\n appropriate moneys for such purposes, as described in Section 4.5,\n shall not constitute an event of default.\n\nJ.A. 61–62. (emphasis added).\n\n This language unambiguously states that the City did not have an enforceable\n\nobligation to make the rent payments. Any obligation of the City to make rent payments\n\nwas and is subject to the City appropriating the funds for such payments. In other words,\n\nif the City did not appropriate funds, which it did not, the City had no obligation to make\n\nthe rent payments. A party cannot be sued for breaching an obligation it never had in the\n\nfirst place. To make this even more clear, the Lease Agreement provides that the City’s\n\nfailure to make rent payments when no appropriations are made does not constitute an\n\nevent of default. Therefore, the claim that the City breached its obligation to the\n\nAuthority under the Lease Agreement fails to state a claim for which relief can be\n\ngranted.\n\n\n\n\n 9\n\f The ACA and the Bank challenge the legal effect of the “subject to appropriation”\n\nlanguage. In considering this challenge, the Virginia Supreme Court’s decision in Dykes\n\nv. Northern Virginia Transp. Dist. Comm’n, 411 S.E.2d 1 (Va. 1991) is instructive. In\n\nthat case, a county incurred a long-term debt obligation without holding a referendum on\n\nthe debt. Concerned citizens alleged that the obligation violated Virginia’s constitutional\n\nrequirement that such obligations be approved by the citizens of the county. The court\n\nrejected the challenge because the county’s obligation, like the obligation in this case,\n\nwas subject to the county’s appropriation of funds for that purpose. The court held that\n\n“subject to appropriation” financing does not create constitutional cognizable debt\n\n“because it does not impose any enforceable duty or liability on the County.” Id. at 10.\n\n“[N]either the County nor its general revenues is liable for repayment of the debt incurred\n\nby the bond issue.” Id.\n\n ACA and the Bank argue that Dykes is distinguishable from this case because it\n\ninvolved a constitutional challenge to a municipal bond transaction brought by concerned\n\ncitizens whereas this case is brought by parties to the financing arrangement. This\n\ndistinction, however, is immaterial. The court in Dykes looked to the nature of the debt,\n\nnot the nature of the parties, and found that “subject to appropriation” financing does not\n\nimpose any enforceable duty or liability on the county. Dykes confirms the complaint\n\nfails to state a claim that the City breached its obligation to the Authority under the Lease\n\nAgreement for which ACA and the Bank can recover as third-party beneficiaries.\n\n\n\n\n 10\n\f B.\n\n ACA and the Bank next argue the district court erred in dismissing their claim that\n\nthe Authority breached the Trust Agreement. In that count, ACA and the Bank claim the\n\nAuthority has not made bond payments since 2014. To address this ground, we look to\n\nthe language of the Trust Agreement. Under it, the Authority’s obligation to make the\n\nbond payments was dependent on the City paying rent. For example, Section 1001(c) of\n\nthe Trust Agreement states:\n\n The Authority covenants to faithfully observe and perform all of its\n covenants, conditions and agreements contained in this Trust Agreement\n and to promptly pay the principal of and premium, if any, and interest on\n the Bonds at the places, on the dates and in the manner specified in this\n Trust Agreement and the Bonds; provided, however, that such\n obligations are limited obligations of the Authority, payable solely from\n the payments of Basic Rent and Additional Rent and the property\n secured by the Deed of Trust.\n\nJ.A. 118. (emphasis added).\n\n Additionally, Section 1703 of the Trust Agreement states:\n\n Notwithstanding any provision of the Bonds or the Basic Agreements to the\n contrary, the obligations of the Authority under the Bonds and the Basic\n Agreements are not general obligations of the Authority, but are limited\n obligations payable solely from payments of Basic Rent and Additional\n Rent and the property pledged pursuant to the Deed of Trust.\n\nJ.A. 141. (emphasis added).\n\n As the language quoted above makes clear, the Authority’s promise to make the\n\nbond payments was and is subject to the City’s payment of the rent. Aside from the rent\n\npayments from the City, the Authority had no independent contractual obligation to make\n\nthe bond payments. Thus, we find that ACA and the Bank’s claim for breach of the Trust\n\n\n 11\n\fAgreement is not plausible because it is contradicted by the clear and unambiguous terms\n\nof the Trust Agreement. See Foothill Capital Corp. v. E. Coast Bldg. Supply Corp., 259\n\nB.R. 844, 845 (E.D. Va. 2001) (holding that where an agreement is plain and\n 4\nunambiguous, the court is not at liberty to rewrite the contractual language).\n\n C.\n\n ACA and the Bank next claim the district court erred in dismissing their claims for\n\nbreach of the City Deed of Trust and breach of the Authority Deed of Trust. They point to\n\nSection 1.2 of the Deeds of Trust, which states that the “Grantor shall perform and\n\nobserve all duties, obligations, and requirements and shall comply in all respects with the\n\nterms, covenants, conditions, representations and warranties of the Bonds, this Deed of\n\nTrust, the Lease Agreement and the Trust Agreement.” J.A. 176, 199. Specifically, they\n\nargue that by failing to make bond payments in the manner provided by the Trust\n\n\n\n\n 4\n ACA and the Bank raise an additional issue regarding this count by asserting that\nthe Authority also breached the Trust Agreement by not paying revenues derived from\nthe secured property. However, they did not make this argument before the district court.\nWe have held that “[w]hen a party in a civil case fails to raise an argument in the lower\ncourt and instead raises it for the first time before us, we may reverse only if the newly\nraised argument establishes ‘fundamental error’ or a denial of fundamental justice.” In re\nUnder Seal, 749 F.3d 276, 285 (4th Cir. 2014) (citing Stewart v. Hall, 770 F.2d 1267,\n1271 (4th Cir. 1985)). We find neither fundamental error nor a denial of fundamental\njustice here. ACA and the Bank do not even allege in this count that the Authority failed\nto pay from the revenues of the property secured by the Deed of Trust. The complaint\nsimply alleges that the Authority breached the Trust Agreement “in a number of material\nways” and does not give any further specificity. These conclusory allegations fail to meet\npleading requirements prescribed in Twombly and Iqbal. They also defeat any argument\nthat dismissing ACA and the Bank’s new and improperly late argument constitutes\nfundamental error or denial of fundamental justice.\n\n 12\n\fAgreement, the City and the Authority breached their obligations under the Deeds of\n\nTrust.\n\n While the Deeds of Trust require the City and the Authority to adhere to the Trust\n\nAgreement, they do not alter or modify the language in Sections 1001(c) and 1703 of the\n\nTrust Agreement discussed above. By the express terms of the Trust Agreement, the\n\nAuthority’s obligation to make bond payments is limited to the rent paid by the City. It\n\nmakes clear that the City’s obligation to make rent payments is subject to the City’s\n\ndecision to appropriate rent money. In the face of those clear contractual terms, the\n\ncounts alleging violations of the Deeds of Trust fail to state a claim for which relief can\n\nbe granted.\n\n D.\n\n ACA and the Bank next claim the district court erred in dismissing their count for\n\nbreach of the Forbearance Agreement. They concede that the City’s rent payment\n\nobligation under the Forbearance Agreement is subject to appropriations by the City.\n\nHowever, they contend that language does not waive the City’s or the Authority’s duty to\n\nmake rent payments under the Forbearance Agreement. We disagree. Section 5.4 of the\n\nForbearance Agreement provides:\n\n The obligations of the City to make adjusted Basic Rent payments pursuant\n to Paragraph 5.1 and deferred payments of Basic Rent pursuant to\n Paragraph 5.3 are subject to annual appropriation by the City Council\n of amounts sufficient to make such payments. The City agrees that it is the\n intention of the City to make annual appropriations in amounts sufficient to\n make the payments required under this Agreement.\n\nJ.A. 227. (emphasis added).\n\n\n 13\n\f Like the language in the Trust Agreement and the Lease Agreement described\n\nabove, this language is unambiguous. Accordingly, the claim for breach of the\n\nForbearance Agreement fails to state a plausible claim.\n\n ACA and the Bank also claim on appeal the district court erred in dismissing this\n\ncount because the City and the Authority made misrepresentations which constituted a\n\nbreach of the Forbearance Agreement. However, neither this count nor any part of the\n\ncomplaint contains any allegations about misrepresentations. Instead, the complaint\n\nalleges that ACA and the Bank “have been damaged as a result of Defendants’ breaches\n\nof their contractual obligations contained in the Forbearance Agreement.” J.A. 32. ACA\n\nand the Bank argue that making a misrepresentation constitutes a breach of the City and\n\nthe Authority’s obligations under the Forbearance Agreement. ACA and the Bank thus\n\ncontend that they have satisfied their pleading requirements by alleging the City and the\n\nAuthority breached their contractual obligations even though they have not specified the\n\nalleged misrepresentations. This position is in direct conflict with Twombly and Iqbal.\n\nConclusory allegations, such as those pointed to by ACA and the Bank, do not contain\n\nsufficient facts to properly state a claim. The allegations do not specify what contractual\n\nobligation was breached. Neither do they refer to any underlying facts to support the\n\npurported breach. Thus, the complaint is not pled with enough specificity to plausibly\n\nstate a claim for breach of the Forbearance Agreement.\n\n E.\n\n Having addressed the breach of contract counts, we turn to ACA and the Bank’s\n\ncount for breach of the implied covenant of good faith and fair dealing. ACA and the\n\n 14\n\fBank argue that, even if they have no claim for breach of an express term, they have\n\nstated a plausible claim for breach of the implied covenant of good faith and fair dealing.\n\nSpecifically, ACA and the Bank argue that the “subject to appropriation” language is\n\nambiguous and created discretion on the part of the City. They then claim the City acted\n\narbitrarily and unfairly by failing to appropriate funds when the City could afford to\n\nappropriate the funds to repay the Golf Course debt. This argument fails for two reasons.\n\n First, the complaint does not allege that the City acted arbitrarily and unfairly by\n\nfailing to make appropriations when it could afford to appropriate. When a complaint\n\nfails to state a short and plain statement of the claim showing the pleader is entitled to\n\nrelief, the claim fails. See Fed. R. Civ. Pro. 8(a)(2). That is precisely the situation here.\n\nWithout factual allegations that support their legal conclusions, ACA and the Bank have\n\nfailed to plead a plausible claim for relief.\n\n Second, even if we put aside the deficiencies in the pleadings, the “subject to\n\nappropriation” language is not ambiguous. As stated above, ACA and the Bank are\n\nsophisticated commercial entities engaged in a multi-million dollar municipal finance\n\ntransaction. They are to be bound by the plain and unambiguous terms of their contracts.\n\nSee Quadros & Assocs., P.C. v. City of Hampton, 268 Va. 50, 54, 597 S.E.2d 90, 93\n\n(2004) (holding that the terms of the parties’ contract were plain and unambiguous and\n\nthus the parties were bound by them). Under Virginia law, the implied covenant of good\n\nfaith and fair dealing “cannot be the vehicle for rewriting an unambiguous contract in\n\norder to create duties that do not otherwise exist.” Ward’s Equip., Inc. v. New Holland N.\n\nAm., Inc., 254 Va. 379, 385, 493 S.E.2d 516, 520 (1997).\n\n 15\n\f In essence, ACA and the Bank ask us to impose new terms to their deal that save\n\nthem from the consequences of the express terms of their agreements. We decline to do\n\nso. We find that ACA and the Bank fail to state a claim that the City and the Authority\n\nbreached the implied covenant of good faith and fair dealing.\n\n F.\n\n ACA and the Bank challenge the district court’s dismissal of their declaratory\n\njudgment count. In that count, ACA and the Bank sought a declaration that the financing\n\ndocuments were legal and enforceable and provide ACA and the Bank with the right to\n\npossess and foreclose on the secured property. The district court dismissed this count on\n\nthe basis that the request for declaratory judgment was not a proper standalone claim.\n\n We first consider the request for a declaration that the financing documents were\n\nlegal and enforceable. Despite its ruling that the declaratory judgment count was not a\n\nproper standalone claim, the district court proceeded to address the merits of this request\n\nin its consideration of the City Deed of Trust claim. The district court explained that the\n\nonly document whose legality was at issue was the City Deed of Trust. The district court\n\nthen evaluated that document and found it to be legally valid and enforceable. This\n\nfinding was not appealed to this Court, thus there is no longer a dispute regarding its\n\nlegality. Since the issue for which the declaration was sought is not in dispute, we decline\n\nto address this issue.\n\n Turning now to the request for a declaration that ACA and the Bank could possess\n\nand foreclose the secured property, counsel for the City and the Authority conceded at\n\noral argument that, subject to compliance with the terms of the documents, ACA and the\n\n 16\n\fBank have the right to foreclose the property secured by the Deeds of Trust. As there\n\nappears to be no dispute about whether ACA and the Bank have the right to pursue their\n\ncreditor rights under the financing documents, we decline to address this issue as well.\n\n G.\n\n ACA and the Bank next argue that the district court erred in dismissing their count\n\nfor restitution/unjust enrichment/quantum meruit. They argue that this count properly\n\nstates a claim because the enforceability of the financing documents is in dispute. ACA\n\nand the Bank claim that if the City and the Authority are not forced to make bond\n\npayments under the financing documents, they can recover under equitable theories. In\n\nsupport of this argument, ACA and the Bank appear to assume that a finding that the City\n\nand the Authority were not required to make bond payments equates to a finding that the\n\nfinancing documents are unenforceable or void.\n\n ACA and the Bank are mistaken. The district court did not find that the financing\n\ndocuments were unenforceable, nor do we. We, as did the district court, simply recognize\n\nthat the express terms of the contract make repayment subject to appropriations by the\n\nCity. Virginia law makes clear that “where there is an express and enforceable contract in\n\nexistence which governs the rights of the parties, the law will not imply a contract in\n\ncontravention thereof.” Royer v. Bd. Of Cty. Supervisors of Albemarle Cty., 10 S.E. 2d\n\n876, 881 (Va. 1940). Thus, this count fails to state a claim. 5\n\n\n 5\n Additionally, the district court found that ACA and the Bank pled this count “in\nthe alternative” in the event that the court found the City Deed of Trust void. The district\njudge found that the City Deed of Trust was a valid document, and thus dismissed this\n(Continued)\n 17\n\f H.\n\n ACA and the Bank next argue that the district court erred in dismissing their count\n\nfor constructive fraudulent inducement. They assert that the complaint states a plausible\n\nclaim because they pled that they detrimentally relied on misrepresentations by the City\n\nand the Authority concerning the validity of the financing documents. We find this count\n\nshould be dismissed because it was inadequately pled. In the complaint, ACA and the\n\nBank do not identify any specific misrepresentations of the Authority. Therefore, under\n\nIqbal and Twombly, any claim of misrepresentation by the Authority fails to assert facts\n\nwhich could plausibly provide relief. 6\n\n IV.\n\n Having addressed the challenges to the district court’s dismissal of the complaint,\n\nwe now turn to the challenge to the district court’s rulings on ACA and the Bank’s\n\nrequests to amend. ACA and the Bank did not file a motion to amend. However, they\n\nrequested leave to amend five times in their response in opposition to the City and the\n\nAuthority’s motion to dismiss. Three requests are mentioned in the body of their response\n\nand two in the footnotes. The district court addressed one of these requests, denying it on\n\n\n\n\ncount. While the complaint did not state that this count was pled in the alternative,\ncounsel for ACA and the Bank made representations at oral argument that the count was\npled in the alternative. Therefore, we find no error in the district court’s determination.\n 6\n The district court dismissed this claim because it found that, like the\nrestitution/unjust enrichment/quantum meruit claim, ACA and the Bank pled it in the\nalternative. As stated in the preceding footnote, we find no error in this determination.\n\n\n 18\n\fthe basis that it was not a proper motion. The district court does not appear to have ruled\n\non the other requests. ACA and the Bank argue that the district court erred by summarily\n\ndenying one of their requests to amend and ignoring their other requests to amend.\n\n Generally, courts “should freely give leave [to amend] when justice so requires.”\n\nFed. R. Civ. P. 15(a)(2). A motion to amend should only be denied when “the amendment\n\nwould be prejudicial to the opposing party, there has been bad faith on the part of the\n\nmoving party, or the amendment would be futile.” Edwards v. City of Goldsboro, 178\n\nF.3d 231, 242 (4th Cir. 1999) (internal quotation marks omitted). However, a district\n\ncourt does not abuse its discretion by declining to grant a request to amend when it is not\n\nproperly made as a motion. See Cozzarelli v. Inspire Pharm. Inc., 549 F.3d 618, 630–31\n\n(4th Cir. 2008) (affirming denial of leave to amend when the plaintiffs’ request for leave\n\nwas in a footnote of their response to a motion to dismiss and in their final sentence of\n\ntheir objection to the recommendation of the magistrate judge).\n\n ACA and the Bank concede that this Court has held that a district court does not\n\nabuse its discretion by denying contingent requests to amend in the legal memoranda\n\nmade in lieu of a motion to amend. They argue, however, that this Court should follow\n\nother circuits which, according to their interpretation, find that requests made in\n\nopposition memoranda constitute a proper motion to amend. We decline to do so.\n\n Even if we did find that ACA and the Bank’s “requests” to amend constituted a\n\nmotion to amend, the district court did not abuse its discretion by denying it. A review of\n\nthe record indicates that although they informally requested several times to amend, ACA\n\nand the Bank never indicated what amendments they were seeking. They never identified\n\n 19\n\fany facts they sought to include in an amendment. They never identified any cause of\n\naction they sought to add in an amendment. Without that information, there was no way\n\nfor a district court to evaluate whether the proposed amendments were futile or not. Thus,\n\nto the extent their requests for leave are considered motions to amend, and to the extent\n\nthey were denied, we affirm the district court.\n\n V.\n\n As the district court correctly concluded, the complaint fails to allege claims for\n\nwhich relief could be granted. For all the foregoing reasons, the judgment of the district\n\ncourt is\n\n AFFIRMED.\n\n\n\n\n 20", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369858/", "author_raw": "QUATTLEBAUM, Circuit Judge:"}]} | GREGORY | THACKER | QUATTLEBAUM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4592605/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,593,142 | Nikki Thomas v. Nancy Berryhill | 2019-02-22 | 17-2215 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before KING, FLOYD, and THACKER, Circuit Judges.", "parties": "", "opinions": [{"author": "FLOYD, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-2215\n\n\nNIKKI T. THOMAS,\n\n Plaintiff - Appellant,\n v.\n\nNANCY A. BERRYHILL, Acting Commissioner of Social Security,\n\n Defendant - Appellee.\n\n\n\nAppeal from the United States District Court for the Western District of North Carolina,\nat Charlotte. Max O. Cogburn, Jr., District Judge. (3:16-cv-00836-MOC)\n\n\nArgued: November 1, 2018 Decided: January 15, 2019\n Amended: February 22, 2019\n\n\nBefore KING, FLOYD, and THACKER, Circuit Judges.\n\n\nVacated and remanded by published opinion. Judge Floyd wrote the majority opinion, in\nwhich Judge Thacker joined. Judge King wrote a separate opinion concurring in part and\nconcurring in the judgment.\n\n\nARGUED: Dana Wayne Duncan, DUNCAN DISABILITY LAW, SC, Nekoosa,\nWisconsin, for Appellant. David Nathaniel Mervis, SOCIAL SECURITY\nADMINISTRATION, Baltimore, Maryland, for Appellee. ON BRIEF: R. Andrew\nMurray, United States Attorney, Charlotte, North Carolina, Kaba-Kabi A. Kazadi,\nSpecial Assistant United States Attorney, Gill B. Beck, Assistant United States Attorney,\nOFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for\nAppellee.\n\nFLOYD, Circuit Judge:\n\n The Acting Commissioner of Social Security (Commissioner) denied Nikki T.\n\nThomas’s application for supplemental security income (SSI). Thomas sought review in\n\nthe district court, and the district court affirmed the denial of her application. This appeal\n\nfollowed. We now hold that the administrative law judge (ALJ) who effectuated the\n\ndenial of Thomas’s application made two legal errors. First, the ALJ did not sufficiently\n\nexplain the reasoning underlying her evaluation of Thomas’s residual functional capacity\n\n(RFC). Second, the ALJ neither identified nor resolved an apparent conflict between the\n\ntestimony of a vocational expert (VE) and the DICTIONARY OF OCCUPATIONAL TITLES\n\n(4th ed. 1991) (hereinafter “DOT”). 1 Accordingly, we vacate and remand.\n\n\n\n\n I.\n\n On October 30, 2012, Thomas applied for SSI, alleging that a combination of\n\nphysical and mental impairments had left her unable to stay employed. The\n\nCommissioner denied Thomas’s application both initially and on reconsideration; at\n\nThomas’s request, her application then went to an ALJ for further review.\n\n An ALJ reviews an application for SSI using a five-step process established by the\n\n\n\n1\n The DOT is a “Social Security Administration resource[] that list[s] occupations\nexisting in the economy and explain[s] some of the physical and mental requirements of\nthose occupations.” Pearson v. Colvin, 810 F.3d 204, 205 n.1 (4th Cir. 2015). The\nSocial Security Administration also uses a companion resource to the DOT, entitled\nSELECTED CHARACTERISTICS OF OCCUPATIONS DEFINED IN THE REVISED DICTIONARY\nOF OCCUPATIONAL TITLES (1993), that explains additional physical and environmental\ndemands of the occupations listed in the DOT.\n 2\n\nregulations of the Social Security Administration (Administration). See 20 C.F.R.\n\n§ 416.920(a)(4) (2018); see also Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015)\n\n(summarizing the five-step process). Briefly: at step one, the ALJ determines whether\n\nthe claimant is unemployed. At step two, the ALJ determines whether the claimant’s\n\nimpairments are severe enough, and have lasted long enough, to satisfy the regulations’\n\nthreshold requirements. At step three, the ALJ determines whether the claimant’s\n\nimpairments match—or are functionally equal to—an impairment listed in the\n\nregulations; if not, the ALJ makes a finding as to the claimant’s RFC, which is the\n\nmaximum work the claimant can do for a full workweek despite her impairments. At\n\nstep four, the ALJ determines whether the claimant’s RFC enables her to do the work she\n\ndid in the past; if not, the ALJ moves on to step five. At step five, the ALJ determines\n\nwhether the claimant—given her RFC, her age, her education, and her prior work\n\nexperience—can do any other work that “exists in significant numbers in the national\n\neconomy.” 20 C.F.R. § 416.960(c)(2). For the first four steps, the burden lies with the\n\nclaimant; at step five, it shifts to the Commissioner. Mascio, 780 F.3d at 635.\n\n Here, at steps one through three, the ALJ determined that Thomas was not employed,\n\nthat she suffered from severe physical and mental impairments, and that her impairments\n\ndid not meet or equal any of the impairments listed in the Administration’s regulations.\n\nTherefore, the ALJ examined the evidence of Thomas’s impairments and made a finding\n\nas to Thomas’s RFC. In relevant part, the ALJ found that Thomas\n\n has the residual functional capacity to perform light work . . . . [She] is able\n to follow short, simple instructions and perform routine tasks, but no work\n requiring a production rate or demand pace. She can have occasional\n\n 3\n\n public contact or interaction and frequent, but not continuous, contact or\n interaction with coworkers and supervisors. [She] must avoid work\n involving crisis situations, complex decision making, or constant changes\n in a routine setting. 2\n\nA.R. 21. 3\n\n Having established Thomas’s RFC, the ALJ concluded that Thomas could not\n\nperform the work in which she had previously been employed. The ALJ therefore\n\nreached the fifth and final step of the process: determining whether, given the limitations\n\nembodied in her RFC, Thomas could perform any work that existed in significant\n\nnumbers in the national economy. To make that determination, the ALJ relied on a VE’s\n\ntestimony. The VE testified that Thomas could perform three jobs that existed in\n\nsignificant numbers in the national economy: “marker,” “final inspector,” and “order\n\ncaller.” A.R. 26. (According to the DOT, all three jobs require Level 2 reasoning,\n\nwhich, among other things, entails “carry[ing] out detailed but uninvolved written or oral\n\ninstructions . . . .” DOT 209.587-034, 1991 WL 671802; DOT 727.687-054, 1991 WL\n\n679672; DOT 209.667-014, 1991 WL 671807.) The ALJ accepted the VE’s testimony\n\nand concluded that Thomas’s impairments did not prevent her from working;\n\nconsequently, Thomas’s application for SSI was denied.\n\n Thomas sought review of the ALJ’s decision in district court. The district court\n\ngranted summary judgment to the Commissioner and affirmed the ALJ’s decision.\n\n2\n This is the portion of the RFC that deals with Thomas’s mental limitations. Other\nportions of the RFC deal with Thomas’s physical limitations. We focus on the portion\ndealing with Thomas’s mental limitations because that is the only portion Thomas\nchallenges on appeal.\n3\n Citations to the administrative record are abbreviated “A.R.”\n 4\n\nThomas now appeals. She argues, in relevant part, that the ALJ made legal errors at two\n\nstages of the review process: first, in her evaluation of Thomas’s RFC; second, in her\n\nreliance on the VE’s testimony.\n\n\n\n\n II.\n\n We review de novo the district court’s decision to grant or deny summary judgment.\n\nMartin v. Lloyd, 700 F.3d 132, 135 (4th Cir. 2012). Like the district court, we will not\n\ndisturb an ALJ’s decision on an application for SSI “when [the] ALJ has applied correct\n\nlegal standards and the ALJ’s factual findings are supported by substantial evidence.”\n\nBird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).\n\n\n\n\n III.\n\n We agree with Thomas that the ALJ who reviewed her application made two errors\n\nof law. First, when evaluating Thomas’s RFC, the ALJ did not sufficiently explain her\n\nconclusions regarding Thomas’s mental impairments. Second, the ALJ did not identify\n\nor resolve an apparent conflict between the DOT and the testimony of the VE. Each error\n\nrequires us to vacate and remand.\n\n\n\n A.\n\n We begin with the ALJ’s evaluation of Thomas’s RFC. According to Thomas, the\n\nALJ erred at this stage by failing to provide a logical explanation of how she weighed the\n\n\n 5\n\nrecord evidence and arrived at her RFC findings. We conclude that Thomas is correct,\n\ngiven our binding decisions in Woods v. Berryhill, 888 F.3d 686 (4th Cir. 2018); Monroe\n\nv. Colvin, 826 F.3d 176 (2016); and Mascio, 780 F.3d at 632. 4\n\n The Administration has specified the manner in which an ALJ should assess a\n\nclaimant’s RFC. The ALJ must consider all of the claimant’s “physical and mental\n\nimpairments, severe and otherwise, and determine, on a function-by-function basis, how\n\nthey affect [the claimant’s] ability to work.” Monroe, 826 F.3d at 188. In doing so, the\n\nALJ must provide “a narrative discussion describing how the evidence supports each\n\nconclusion . . . .” SSR 96-8P, 1996 WL 374184 at *7 (July 2, 1996). Once the ALJ has\n\ncompleted this function-by-function analysis, the ALJ can make a finding as to the\n\nclaimant’s RFC.\n\n Thus, a proper RFC analysis has three components: (1) evidence, (2) logical\n\nexplanation, and (3) conclusion. The second component, the ALJ’s logical explanation,\n\nis just as important as the other two. Indeed, our precedent makes clear that meaningful\n\nreview is frustrated when an ALJ goes straight from listing evidence to stating a\n\nconclusion. Woods, 888 F.3d at 694.\n\n In this case, the ALJ’s analysis of Thomas’s RFC contains too little logical\n\nexplanation for us to conduct meaningful appellate review. We are particularly troubled\n\nby four flaws in the ALJ’s analysis:\n\n First, the ALJ drew no explicit conclusions about how Thomas’s mental limitations\n\n\n4\n We note that Mascio was published only a month before the ALJ denied Thomas’s\napplication, while Woods and Monroe were published well after.\n 6\n\naffect her ability to perform job-related tasks for a full workday—a benchmark\n\nestablished by the Administration’s own regulations. SSR 96-8P, 1996 WL 374184 at\n\n*2; see also Mascio, 780 F.3d at 637 (stating that ALJ’s RFC analysis was “sorely\n\nlacking” because, among other things, the ALJ “said nothing about [the claimant’s]\n\nability to perform [job-related functions] for a full workday”).\n\n Second, the ALJ did not sufficiently explain how she weighed significant evidence\n\nrelated to Thomas’s mental-health treatment. The ALJ accurately stated that “the\n\nrecord . . . includes numerous findings of normal mood and affect or normal mental status\n\nexaminations,” but she omitted that those findings—at least, those she cites—were made\n\nby physicians treating Thomas’s chronic foot pain. A.R. 24. There is no way for us to\n\nknow whether, or why, the ALJ gave those findings the same weight as inconsistent\n\nfindings made by Dr. Ida Richmond, a licensed psychologist who evaluated Thomas.\n\nSimilarly, the ALJ did not say why she declined to discuss Thomas’s record of mental-\n\nhealth evaluations at Bridge Builders Family and Youth Services. To be sure, “there is\n\nno rigid requirement that the ALJ specifically refer to every piece of evidence in [her]\n\ndecision.” Reid v. Comm’r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (internal\n\ncitation and quotation marks omitted). But here, the ALJ chose not to discuss what\n\nappears to be a substantial portion of the record relating to Thomas’s treatment by\n\nmental-health specialists, even while citing curt mental-health notes made by doctors\n\ntreating Thomas’s foot ailment. Right or wrong, that decision warrants some\n\nexplanation.\n\n Third, the ALJ “express[ed] [Thomas’s] RFC first and only then conclud[ed] that the\n\n 7\n\nlimitations caused by [her] impairments were consistent with that RFC . . . .” Monroe,\n\n826 F.3d at 188 (emphasis in original). Stating a claimant’s RFC before conducting a\n\nfunction-by-function analysis is an error—even though, on its own, it does not\n\nnecessarily require remand. Id.\n\n Fourth, while the ALJ stated that Thomas could not perform work “requiring a\n\nproduction rate or demand pace,” she did not give us enough information to understand\n\nwhat those terms mean. A.R. 21. That makes it difficult, if not impossible, for us to\n\nassess whether their inclusion in Thomas’s RFC is supported by substantial evidence.\n\nThe Commissioner contends that “production rate” and “demand pace” are “common\n\nvocationally relevant functional limitations.” Resp. Br. at 21. But those terms appear in\n\na vanishingly small number of Social Security cases involving RFC evaluations. Of the\n\ncases in which the terms do appear, several originated with the same ALJ as the one who\n\ndenied Thomas’s application. See, e.g., Dyrda v. Colvin, 47 F. Supp. 3d 318, 321\n\n(M.D.N.C. 2014). We therefore disagree with the Commissioner: the terms do not seem\n\nto be especially common—certainly not common enough for us to know what they mean\n\nwithout elaboration.\n\n Combined, the above-listed missteps in the ALJ’s RFC evaluation frustrate our\n\nability to conduct meaningful appellate review, requiring us to vacate and remand. 5 In so\n\n\n\n5\n Thomas argues that her RFC, as stated by the ALJ, does not account for her moderate\nlimitations in concentration, persistence, and pace—even though the RFC limits her to\njobs that do not require a “production rate” or “demand pace.” We decline to resolve that\nquestion. As discussed above, the ALJ’s evaluation of Thomas’s mental impairments for\npurposes of the RFC contains too little explanation for us to meaningfully review it.\n 8\n\ndoing, we express no opinion on whether the ALJ’s RFC findings were correct. We\n\nsimply ask the ALJ to give us a clearer window into her reasoning.\n\n\n\n B.\n\n Since it is likely to come up again below, we address another issue raised by\n\nThomas’s appeal: whether the ALJ should have identified and resolved a conflict\n\nbetween the DOT and the testimony of the VE. This requires us to decide whether there\n\nis an “apparent conflict” between a limitation to “short, simple instructions” (as found in\n\nThomas’s RFC) and a need to carry out “detailed but uninvolved . . . instructions” (as\n\nfound in jobs requiring Level 2 reasoning). We hold that there is.\n\n Some background explanation is in order. When, as in this case, an ALJ determines\n\nthat a claimant’s RFC prevents the claimant from performing her past work, the ALJ\n\nreaches step five of the review process. Recall that at this step, the burden shifts to the\n\nCommissioner to prove, by a preponderance of the evidence, that the claimant is capable\n\nof doing other work that exists in significant supply in the national economy. Mascio,\n\n780 F.3d at 635. The Commissioner often seeks to meet this burden through the\n\ntestimony of a VE. Specifically, as in this case, the Commissioner calls a VE to testify to\n\n\nWithout further explanation, we simply cannot tell whether the RFC finding—\nparticularly the portion restricting Thomas to jobs that do not require a “production rate”\nor “demand pace”—properly accounts for Thomas’s moderate limitations in\nconcentration, persistence, and pace. On remand, the ALJ will need to establish for how\nlong, and under what conditions, Thomas is able “to focus [her] attention on work\nactivities and stay on task at a sustained rate.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1 §\n12.00E(3). Only then will we or any court be able to meaningfully review the ALJ’s\nRFC finding.\n 9\n\nwhether a hypothetical person with the same limitations as the claimant would be able to\n\nperform any of the jobs listed in the DOT. Id.; see also SSR 00-4P, 2000 WL 1898704 at\n\n*2 (Dec. 4, 2000).\n\n An ALJ cannot rely unquestioningly on a VE’s testimony. Rather, an ALJ must\n\nensure that any “apparent” conflicts between the Dictionary and the VE’s testimony are\n\nreasonably resolved. SSR 00-4P, 2000 WL 1898704 at *2. To that end, the ALJ must\n\nask the VE whether his or her testimony conflicts with the DOT. If the answer is “yes,”\n\nthe ALJ “must elicit a reasonable explanation for the conflict before relying on” the\n\ntestimony. Id. But even if the VE answers “no,” the ALJ has an affirmative “duty to\n\nmake an independent identification of apparent conflicts.” Pearson v. Colvin, 810 F.3d\n\n204, 210 (4th Cir. 2015). This means that the ALJ must recognize and resolve ways in\n\nwhich a VE’s testimony “seems to, but does not necessarily,” conflict with the “express\n\nlanguage” of the DOT—even if the conflict is not “obvious.” Id. at 209.\n\n Our opinion in Pearson furnishes us with a useful example of what makes a conflict\n\napparent. 6 In Pearson, an ALJ evaluated an SSI claimant’s RFC and determined that the\n\nclaimant “could only occasionally reach upward” with his “nondominant arm.” Id. at\n\n210. At step five of the review process, a VE testified that in spite of the claimant’s\n\nphysical limitation, the claimant could perform several jobs that existed in significant\n\nnumbers in the national economy. Id. Yet according to the DOT, all the jobs identified\n\nby the VE required “frequent reaching.” Id. at 210–11 (emphasis in original). We held\n\n\n\n6\n We note that Pearson was decided after the ALJ denied Thomas’s application.\n 10\n\nthat there was an apparent conflict between the DOT and the VE’s testimony—even\n\nthough, based on the DOT, it was not clear whether the jobs identified by the VE would\n\never require the claimant to reach overhead with his nondominant arm. Because the ALJ\n\nhad failed to identify or resolve this conflict, we remanded. Id. at 211.\n\n The VE’s testimony in this case contains a comparable conflict with the DOT. After\n\nbeing informed of Thomas’s RFC, the VE testified that Thomas was capable of holding\n\nthree jobs: marker, final inspector, and order caller. As noted above, the DOT states that\n\nall three of the jobs identified by the VE require employees to “carry out detailed but\n\nuninvolved written or oral instructions . . . .” DOT 209.587-034, 1991 WL 671802; DOT\n\n727.687-054, 1991 WL 679672; DOT 209.667-014, 1991 WL 671807. By comparison,\n\nThomas’s RFC limits her to jobs that involve only “short, simple instructions.”\n\n We believe that Thomas, being limited to short, simple instructions, may not be able\n\nto carry out detailed but uninvolved instructions. This is not a categorical rule—some\n\ninstructions, particularly if they are well-drafted, may be simultaneously short, simple,\n\ndetailed, and uninvolved. Even so, the conflict between Thomas’s limitation to short,\n\nsimple instructions and the VE’s testimony that Thomas could perform jobs that include\n\ndetailed but uninvolved instructions is as apparent as the conflict we identified in\n\nPearson. Since we held that an apparent conflict existed in Pearson, we are satisfied that\n\none exists in this case, too. 7 We remand so that the ALJ can resolve the conflict in\n\n\n\n7\n The Commissioner did not argue that this conflict, if apparent, would be harmless;\ntherefore, we decline to reach that question now. See United States v. Hall, 858 F.3d 254,\n280 n.8 (4th Cir. 2017) (explaining that government may waive harmless error\n 11\n\naccordance with the Administration’s regulations.\n\n\n\n\n IV.\n\n We hereby vacate the district court’s order granting summary judgment to the\n\nCommissioner. The case is remanded to the district court with instructions to remand to\n\nthe Commissioner for such further administrative proceedings as may be appropriate.\n\n VACATED AND REMANDED\n\n\n\n\nargument).\n 12", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370395/", "author_raw": "FLOYD, Circuit Judge:"}, {"author": "KING, Circuit Judge, concurring", "type": "concurrence", "text": "KING, Circuit Judge, concurring in part and concurring in the judgment:\n\n I am pleased to concur in all of the majority opinion except Part III.A. With great\n\nrespect for the views of my good colleagues, I am unable to join that part of the\n\nmajority’s analysis because it is in tension with our recent decision in Keller v. Berryhill,\n\nNo. 17-2248, where we properly affirmed a very similar mental RFC explanation from\n\nthe same ALJ. I ultimately agree, however, that we should vacate the district court’s\n\njudgment and return this case to the Commissioner of Social Security for such further\n\nadministrative proceedings as may be appropriate.\n\n\n\n\n 13", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370395/", "author_raw": "KING, Circuit Judge, concurring"}]} | KING | FLOYD | THACKER | 1 | {"KING": ", Circuit", "FLOYD": ", Circuit", "THACKER": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593142/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,593,143 | Mitra RANGARAJAN, Plaintiff - Appellant, v. JOHNS HOPKINS UNIVERSITY, Defendant - Appellee. Mitra Rangarajan, United States of America, State of Maryland, Ex Rel., Plaintiff - Appellant, v. Johns Hopkins Health System Corporation; Johns Hopkins Hospital, Incorporated, Trading as Johns Hopkins Medicine; Anthony Kalloo, M.D.; Johns Hopkins University, Defendants - Appellees. Mitra Rangarajan, United States of America, State of Maryland, Ex Rel., Plaintiff - Appellant, v. Johns Hopkins Health System Corporation and Johns Hopkins University, Trading as Johns Hopkins Medicine; Johns Hopkins Hospital, Incorporated, Defendants - Appellees. | Mitra Rangarajan v. Johns Hopkins University | 2019-02-22 | 17-1834; 17-1835; 17-1836 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, Niemeyer, Harris", "parties": "", "opinions": [{"author": "NIEMEYER, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-1834\n\n\nMITRA RANGARAJAN,\n\n Plaintiff – Appellant,\n\n v.\n\nJOHNS HOPKINS UNIVERSITY,\n\n Defendant – Appellee.\n\n\n\n No. 17-1835\n\n\nMITRA RANGARAJAN, United States of America, State of Maryland, ex rel.,\n\n Plaintiff – Appellant,\n\n v.\n\nJOHNS HOPKINS HEALTH SYSTEM CORPORATION; JOHNS HOPKINS\nHOSPITAL, INCORPORATED, trading as Johns Hopkins Medicine; ANTHONY\nKALLOO, M.D.; JOHNS HOPKINS UNIVERSITY,\n\n Defendants – Appellees.\n\n\n\n No. 17-1836\n\n\nMITRA RANGARAJAN, United States of America, State of Maryland, ex rel.,\n\f Plaintiff – Appellant,\n\n v.\n\nJOHNS HOPKINS HEALTH SYSTEM CORPORATION AND JOHNS\nHOPKINS UNIVERSITY, trading as Johns Hopkins Medicine; JOHNS HOPKINS\nHOSPITAL, INCORPORATED,\n\n Defendants – Appellees.\n\n\nAppeals from the United States District Court for the District of Maryland, at Baltimore.\nWilliam M. Nickerson, Senior District Judge. (1:12-cv-01953-WMN; 1:13-cv-03630-\nWMN; 1:17-cv-00807-WMN)\n\n\nArgued: November 1, 2018 Decided: February 22, 2019\n\n\nBefore GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Niemeyer wrote the opinion, in which Chief\nJudge Gregory and Judge Harris joined.\n\n\nARGUED: Erienne A. Sutherell, HANSEL LAW, P.C., Baltimore, Maryland, for\nAppellant. Robert Thomas Smith, KATTEN MUCHIN ROSENMAN LLP, Washington\nD.C., for Appellees. ON BRIEF: Cary J. Hansel, III, HANSEL LAW, P.C., Baltimore,\nMaryland, for Appellant. Maria E. Rodriguez, Elizabeth Clark Rinehart, VENABLE,\nLLP, Baltimore, Maryland; Daniel E. Lipton, KATTEN MUCHIN ROSENMAN LLP,\nWashington, D.C., for Appellees.\n\n\n\n\n 2\n\fNIEMEYER, Circuit Judge:\n\n Mitra Rangarajan, who claims that she was constructively discharged as a nurse\n\npractitioner at the School of Medicine of Johns Hopkins University — whether because\n\nof discrimination and retaliation, as she contends, or because of her performance, as\n\nJohns Hopkins contends — commenced four separate actions against the University *\n\narising out of the same course of events and alleging state torts of defamation and\n\ninterference with prospective advantage, as well as violations of the False Claims Act, the\n\nMaryland False Health Claims Act, Title VII, and 42 U.S.C. § 1981. Over the long\n\ncourse of proceedings in these cases, the district court dismissed one action for failure to\n\nprosecute and the remaining three actions as the sanction for Rangarajan’s “flagrant and\n\nunremitting” violations of the Federal Rules of Civil Procedure, especially with respect to\n\ndiscovery and summary judgment practice.\n\n On appeal, Rangarajan contends that the district court abused its discretion by\n\nfailing to give her adequate warning of the sanction and failing to show required restraint\n\nby imposing lesser sanctions. After careful review of the lengthy procedural history of\n\nthe cases, we conclude that the district court did not abuse its discretion. Rangarajan’s\n\nconduct under the procedural rules was inept and abusive to the degree that, as the district\n\ncourt found in its thorough 44-page opinion, it rendered virtually useless five years of\n\n\n *\n Rangarajan sued not only Johns Hopkins University but also the Johns Hopkins\nHealth System Corp., the Johns Hopkins Hospital Inc., and related personnel whom she\nrefers to in her brief collectively as Johns Hopkins or JH. We are satisfied also to refer to\nJohns Hopkins collectively, as the issues in this appeal are not implicated by which entity\nmight have been involved in any given activity.\n\n 3\n\fproceedings before the district court, and such abuse would likely have continued in any\n\nfuture proceedings. Accordingly, we affirm.\n\n\n I\n\n Rangarajan’s employment at Johns Hopkins as a nurse over the period from 2007\n\nto 2011 was volatile and unsatisfactory to both Rangarajan and Johns Hopkins. From\n\nRangarajan’s viewpoint, as the district court summarized, she was a stellar healthcare\n\nprovider who was treated unfairly by supervisors and coworkers in the following\n\nrespects:\n\n [S]he was denied the $95,000 salary that she was allegedly promised; she\n was assigned unmanageable workloads; she was not provided the training\n she needed to advance her career while Dr. [Anthony] Kalloo, [the director\n of the GI Division in which Rangarajan worked] showed favoritism and\n provided those opportunities to another Nurse Practitioner . . . ; [she]\n applied for but was denied permission to participate in a Nurse Practitioner\n Fellowship Program; while she was accepted into a Doctor of Nursing\n Practice (DNP) program, once in the program she was treated unfairly by\n the program director . . . ; she was given an undeserved failing grade by the\n Capstone Professor in the DNP program . . . ; and, she was denied vacation\n leave and reimbursement for attending professional conferences.\n\nBut from Johns Hopkins’ point of view, again as the district court summarized, she failed\n\nas a professional nurse:\n\n [Rangarajan] had attendance and tardiness issues, she failed to timely check\n for test results and follow-up with patients, and her notes in medical\n histories were often disorganized and unreliable. In response to a round of\n negative performance reviews, [Rangarajan] was placed on a performance\n improvement plan in January of 2011. Before that plan could be fully\n implemented, [she] demonstrated poor judgment in the care of a patient that\n [Johns Hopkins] assert[s] could have had catastrophic results for that\n patient. In response to those concerns, Dr. Anthony Kalloo, the director of\n the GI Division, suspended [Rangarajan’s] clinical privileges.\n\n\n 4\n\fAfter Rangarajan was suspended, she resigned from Johns Hopkins in May 2011,\n\nclaiming that she was constructively discharged. She then began litigation against Johns\n\nHopkins, filing four separate actions based on its treatment of her.\n\n In the first action filed in October 2012 — No. 12-1953 — Rangarajan alleged that\n\nJohns Hopkins engaged in widespread fraudulent billing of the U.S. Government and\n\nthen retaliated against her for reporting it internally. Because her claims under the False\n\nClaims Act and the Maryland False Health Claims Act were qui tam actions, the U.S.\n\nDepartment of Justice and the Maryland Attorney General investigated them but then\n\ndeclined to intervene, as those statutes would allow. Rangarajan thereafter voluntarily\n\ndismissed the qui tam claims but continued her claim alleging that Johns Hopkins\n\nretaliated against her for reporting fraudulent billing practices. Later, however, she filed\n\na motion to amend her complaint to reallege the qui tam claims, but the district court\n\ndenied her motion as untimely and prejudicial.\n\n Several months after filing the first action, Rangarajan filed a second action\n\nagainst Johns Hopkins — No. 13-3630 — alleging that Johns Hopkins had discriminated\n\nagainst her on the basis of race, national origin, age, and sex, in violation of Title VII and\n\n42 U.S.C. § 1981. This action was based on the same conduct that formed the basis for\n\nher claims in the first action.\n\n A month after the district court denied Rangarajan’s motion to amend the first\n\naction to re-allege her qui tam claims, Rangarajan filed a third action — No. 15-1394 —\n\nalleging those same qui tam action claims again. She did not, however, pursue this action\n\n\n\n 5\n\fin accordance with the rules of procedure, and, after it languished for over a year and a\n\nhalf, the district court dismissed it for failure to prosecute.\n\n Rather than appealing the district court’s ruling in the third action, Rangarajan\n\nfiled a fourth action — No. 17-807 — which the district court concluded was “essentially\n\nidentical to the just-dismissed [third] action.” The court by then, however, had before it\n\nJohns Hopkins’ motion for sanctions based on Rangarajan’s discovery and summary\n\njudgment practices in the first and second actions, and accordingly it stayed the fourth\n\naction pending its ruling on the sanctions motion.\n\n After the second action was filed, the district court consolidated the first and\n\nsecond actions, and the parties conducted discovery in the consolidated actions. During\n\ndiscovery, Johns Hopkins provided Rangarajan with nearly 50,000 pages of documents,\n\nincluding tens of thousands of emails. It also arranged for and participated in the\n\ndepositions of 14 former and current employees of Johns Hopkins. During this period,\n\nRangarajan also responded to Johns Hopkins’ discovery requests. In response to Johns\n\nHopkins’ request for all “jhmi.edu” and “jhu.edu” emails in her possession, Rangarajan\n\nmade no objection and produced 1,573 pages of documents. After the close of discovery,\n\nshe produced an additional 85 pages, stating that they also responded to Johns Hopkins’\n\nrequest for her “jhmi.edu” and “jhu.edu” emails. Rangarajan also gave a deposition,\n\nwhich lasted roughly seven hours.\n\n After discovery closed in September 2016 as directed in the district court’s\n\nscheduling order, Johns Hopkins filed a motion for summary judgment in both\n\nconsolidated actions, based on the record that discovery had produced. Johns Hopkins\n\n 6\n\fcontended that summary judgment in its favor was justified by “overwhelming evidence\n\nthat Ms. Rangarajan did not satisfy the basic requirements of her job[] and that there were\n\nlegitimate, non-discriminatory and non-retaliatory reasons for any adverse employment\n\naction that she allegedly suffered.”\n\n In response to Johns Hopkins’ motion for summary judgment, Rangarajan took a\n\nnumber of steps to expand, embellish, alter, and recast her deposition testimony. First,\n\nshe submitted a 51-page errata sheet to her deposition, proposing hundreds of edits to her\n\ntestimony and justifying many of the changes by claiming that the court reporter had\n\nintentionally altered both the transcript and the audio and video recording of her\n\ndeposition. She stated:\n\n The Court Reporters’ Office has informed me that they edited my video,\n audio and typed deposition transcripts. It is clear that key testimony is\n deleted, altered, cloned from various sound bites etc., to accomplish two\n things. 1. Change the testimony 2. To induce grammar mistakes thus\n making me sound as if I am speaking broken English.\n\nShe also sent an ex parte letter to the district court for the district judge’s “eyes only,”\n\nclaiming similarly that the court reporter improperly edited her deposition.\n\n Second, in support of her opposition to the summary judgment motion, Rangarajan\n\nfiled a 54-page Declaration in which she introduced new allegations, attached 19 exhibits\n\nthat had never before been produced during discovery, and revised testimony that\n\nallegedly contradicted her deposition testimony. While the district court did not find the\n\nDeclaration to be “diametrically opposed” to Rangarajan’s statements in the deposition, it\n\nnonetheless concluded that reliance on the Declaration “would render the taking of\n\n[Rangarajan’s] deposition essentially useless.” Rangarajan’s opposition to Johns\n\n 7\n\fHopkins’ motion for summary judgment was grounded mainly on her Declaration and not\n\nthe evidence produced during discovery. As the district court noted, while Rangarajan\n\ncited her deposition testimony only 3 times in her opposition, she cited her subsequently\n\nfiled Declaration “over 750 times.”\n\n In addition, the newly disclosed exhibits revealed major failures by Rangarajan to\n\nproduce documents requested of her during discovery. For instance, several exhibits —\n\nscreenshots of Rangarajan’s emails — revealed her computer’s entire display showing\n\nretained copies of emails in two inboxes labeled “Jhmi” and “Jhmi 1,” and one of those\n\ninboxes contained 8,612 emails, most of which had never been produced during\n\ndiscovery; Rangarajan had only produced 1,658 documents during discovery.\n\n After receiving Rangarajan’s opposition to its motion for summary judgment,\n\nJohns Hopkins filed a motion to stay further briefing on the summary judgment motion,\n\nto strike Rangarajan’s opposition to its motion for summary judgment, and to dismiss\n\nRangarajan’s actions as the sanction for her improper conduct. In support of its motion,\n\nit claimed that Rangarajan had “attempted to fundamentally alter the record that existed\n\nwhen discovery closed” by, among other things,\n\n (1) submitting her 51-page errata, which baselessly accused the court\n reporter of altering hundreds of lines of key testimony; (2) including\n a 54-page declaration that sought to fill critical holes in her story;\n (3) attaching at least 19 documents to her opposition that had not\n been produced during discovery; and (4) concealing thousands of e-\n mails responsive to [Johns Hopkins’] requests after falsely certifying\n that she would produce these documents.\n\nAfter receiving Johns Hopkins’ motion, the district court issued an order staying further\n\nproceedings on the summary judgment motion and informing Rangarajan that Johns\n\n 8\n\fHopkins’ motion for sanctions “raise[d] some serious issues regarding [Rangarajan’s]\n\nlack of compliance with the Federal Rules of Civil Procedure, both throughout the\n\ndiscovery process and in the submission of her opposition to the summary judgment\n\nmotion.”\n\n The next day, the court unsealed Rangarajan’s third action, which was again a qui\n\ntam action, and dismissed it for nonprosecution. Nonetheless, Rangarajan then proceeded\n\nto file the fourth action repeating the qui tam allegations she had made in the first and\n\nthird actions. The district court stayed the fourth action, pending disposition of the\n\nmotion for sanctions.\n\n In response to the motion for sanctions, Rangarajan argued that her Declaration\n\ndid not contradict her deposition testimony and that her errata sheet properly clarified her\n\ndeposition testimony. As to her accusation that the court reporter altered the deposition\n\ntranscript, she stated:\n\n Ms. Rangarajan believes that her deposition transcript was changed and that\n Defendants are attempting to divert attention to this discrepancy through its\n Motion to Strike. However, Ms. Rangarajan does not know who changed\n the transcript. She also believes that the exhibits provided by the Court\n Reporter were different than those shown to her during her deposition. In\n addition, she believes that she did not receive her original deposition video.\n Ms. Rangarajan has provided a detailed chart with examples of the\n testimony in the transcript to show the discrepancy in the written testimony\n and video and the statement of an expert who viewed the video, which\n confirm her position.\n\nAs to her nonproduction of emails, Rangarajan stated that she “believe[d] that she\n\nprovided all her emails to her counsel.”\n\n\n\n\n 9\n\f After briefing on the motion for sanctions was completed, Rangarajan filed yet\n\nanother paper entitled “Notice of Plaintiff’s Analysis,” again purporting to demonstrate\n\nthat the Court Reporter had altered the videotape of her deposition, again asserting\n\nmalfeasance, and again embellishing her testimony.\n\n By order dated June 16, 2017, the district court granted Johns Hopkins’ motion for\n\nsanctions, dismissing Rangarajan’s three pending actions — the first, the second, and the\n\nfourth. In its thorough written opinion, which recited Rangarajan’s misconduct chapter\n\nand verse, the court concluded that “[n]othing that [Rangarajan] submitted lends any\n\ncredence to her claims that the videotape or transcript of her deposition was purposely\n\naltered in any way. . . . The Court suspects that [Rangarajan’s] inexorable need to deflect\n\nresponsibility and to project it on others perhaps sheds more light on [her] difficulties in\n\nthe GI Division than any of the actual testimony in her deposition.” With respect to the\n\nDeclaration that Rangarajan had filed, the court concluded that it was an effort “to\n\nreplace [Rangarajan’s deposition testimony] with [a] more favorable narrative of events.”\n\nThe court noted that if it were to rely on the Declaration, the Declaration “would render\n\nthe taking of [Rangarajan’s] deposition essentially useless.” And with respect to Johns\n\nHopkins’ claims that Rangarajan withheld documents during discovery, the court\n\nconcluded that Rangarajan “failed to fulfill her discovery obligations under Rule 26(e).”\n\nMoreover, the court found that Rangarajan “flagrantly and unremittingly violated the\n\nrules governing discovery and summary judgment motions practice” and that Rangarajan\n\nherself was clearly culpable. “The responsibility for the lack of compliance with the\n\npertinent rules [lay] primarily with her and not with her counsel.” While the court\n\n 10\n\fcriticized Rangarajan’s counsel for his judgment, the court concluded that Rangarajan\n\nherself “has been and continues to be the prime offender.” Finally, the court concluded\n\nthat Rangarajan’s conduct “rendered much of [the litigation] activity essentially\n\nmeaningless,” and her conduct “impacted the dozen witnesses who could not care for\n\npatients while responding to her claims and has also depleted the resources of [the\n\nvarious agencies that were necessarily involved].” And to justify dismissal rather than a\n\nlesser sanction, the court concluded that “there is not another remedy that would\n\neffectively address [Rangarajan’s] violations.” Even if it attempted a more limited\n\nsanction, it noted, “discovery would need to be reopened and it is likely that plaintiff\n\nwould need to be re-deposed and [Johns Hopkins’] motion for summary judgment\n\nre-briefed. Doing so would foist considerabl[y] more expense on [Johns Hopkins].\n\nGiven the history of this litigation, were discovery to be reopened, the Court has little\n\nconfidence that [Rangarajan’s] counsel would be able to ensure [Rangarajan’s]\n\ncompliance with the rules of discovery.” The court also recognized “the futility of\n\nredoing discovery and motions practice” because “it [was] apparent from the current\n\nrecord that those claims would fail on the merits.”\n\n From the district court’s order, Rangarajan filed this appeal.\n\n\n II\n\n Rangarajan does not challenge the district court’s factual findings. Indeed, she\n\nappears to acknowledge her “irregularities” and “transgressions,” blaming them on\n\n“disagreements between [her] and her previous attorney.” Rather, she contends (1) that\n\n\n 11\n\fthe district court abused its discretion in imposing the sanction “without providing the\n\nrequired clear and explicit warning to [her] that her discovery transgressions could lead to\n\ndismissal” and (2) that the court abused its discretion in “fail[ing] to use the restraint\n\nrequired in exercising this most extreme sanction without adequately addressing the\n\nrequired factors,” arguing that the “transgressions . . . would have been rectifiable by\n\nlesser sanctions.” She also contends that the district court abused its discretion in\n\ndismissing the fourth action as part of the sanction. We address these points in order.\n\n\n A\n\n Rangarajan first argues that prior warning of sanctions was required and that she\n\ndid not receive prior warning. We reject both arguments.\n\n First, as a factual matter, Rangarajan did receive notice that dismissal of her\n\nactions was a potential sanction when the district court, in response to Johns Hopkins’\n\nmotion for sanctions, alerted her that the motion “raised some serious issues” regarding\n\nher failure to comply with rules relating to discovery and summary judgment. Johns\n\nHopkins’ motion itself detailed the alleged failures and sought dismissal of the first and\n\nsecond actions as a sanction. The gravity of the issues was also conveyed to Rangarajan\n\nby the district court’s order staying proceedings in not only the first and second actions,\n\nbut also in the fourth action. Moreover, Rangarajan conceded in her response that she\n\nknew that the sanction of dismissal was on the table, as she fully addressed the sanction\n\nof dismissal, arguing that it was “not warranted” and that Johns Hopkins’ motion was\n\nonly an effort at distracting the court from the truth. She also argued that she had not\n\n\n 12\n\freceived clear notice of potential dismissal, yet, in making that argument itself before any\n\nsanction was imposed, she revealed that she had notice. It does not ring true, therefore,\n\nthat the district court failed to warn Rangarajan. The fact remains that she not only was\n\nwarned, she argued her position on both the sanction of dismissal and the lack of notice\n\nbefore any sanction was issued.\n\n Moreover, Rangarajan’s contention that a clear and explicit warning of dismissal\n\nmust always be given is not supported by any specific authority. To be sure, giving\n\nnotice is an aspect of fairness in procedure that might relate to the ultimate fairness of\n\nimposing any sanction. But it is not a rubric to be applied mechanically. Federal Rule of\n\nCivil Procedure 37, on which Rangarajan relies, imposes no such requirement, and\n\nHathcock v. Navistar International Transportation Corp., 53 F.3d 36 (4th Cir. 1995), on\n\nwhich she also relies, did not mandate it in every situation. In Hathcock, we recognized\n\nthe “significance of warning a defendant about the possibility of default before entering\n\nsuch a harsh sanction” in circumstances where the district court had entered a default\n\njudgment for the defendant’s failure to follow general scheduling orders. Id. at 40. But a\n\nwarning was not held to be a necessary element for imposing a Rule 37 sanction. Rather,\n\nthe lack of warning was a deficiency reflecting on the district court’s exercise of\n\ndiscretion in selecting a particular sanction for violating the court’s general scheduling\n\norders.\n\n As importantly, in this case, the district court did not impose its sanction under\n\nRule 37. While the court did recognize its authority under Rule 37 to dismiss actions, it\n\nrelied on its inherent power to do so because the circumstances presented a party who\n\n 13\n\f“abuse[d] the process at a level that [was] utterly inconsistent with the orderly\n\nadministration of justice or undermine[d] the integrity of the process,” quoting Projects\n\nManagement Co. v. Dyncorp International, LLC, 734 F.3d 366, 373 (4th Cir. 2013)\n\n(quoting United States v. Shaffer Equip. Co., 11 F.3d 450, 462 (4th Cir. 1993)). In\n\nDyncorp, we affirmed dismissal of an action as a sanction where the plaintiff “was on\n\nclear notice of the district court’s consideration of the use of its inherent authority and\n\nhad a full opportunity to argue its position before the court.” Id. at 376. So it was here,\n\nas the court stated in response to Johns Hopkins’ motion for dismissal, that Johns\n\nHopkins had presented the court with “serious issues,” and Rangarajan then had a full\n\nopportunity to respond — and did respond — before any decision on sanctions was\n\nmade.\n\n\n B\n\n Rangarajan’s argument that the district court failed to exhibit restraint by declining\n\nto impose lesser sanctions challenges the court’s exercise of discretion with respect to its\n\ninherent power to dismiss an action. We review that exercise of discretion for abuse. See\n\nShaffer, 11 F.3d at 462.\n\n In exercising its discretion, the district court relied on the six factors set forth in\n\nShaffer, 11 F.3d at 462–63. As we explained in Shaffer, when exercising its power to\n\ndismiss as a sanction, a court must consider:\n\n (1) the degree of the wrongdoer’s culpability; (2) the extent of the client’s\n blameworthiness if the wrongful conduct is committed by its attorney,\n recognizing that we seldom dismiss claims against blameless clients; (3) the\n prejudice to the judicial process and the administration of justice; (4) the\n\n 14\n\f prejudice to the victim; (5) the availability of other sanctions to rectify the\n wrong by punishing culpable persons, compensating harmed persons, and\n deterring similar conduct in the future; and (6) the public interest.\n\nId. In addressing the first two factors, the district court found that Rangarajan was\n\npersonally responsible for her actions. As to the third and fourth factors, the court noted\n\nthat “Defendants have been forced to expend a tremendous amount of time, effort, and\n\nexpense in the discovery process and motions practice” and that Rangarajan’s “conduct\n\nhas rendered much of that activity essentially meaningless.” As to the fifth factor, while\n\nrecognizing that striking Rangarajan’s Declaration and the exhibits not produced in\n\ndiscovery could have cured the prejudice resulting from those specific failures, the court\n\nconcluded that such a sanction “would not address her failure to produce the thousands of\n\nemails contained on her home computer.” Moreover, the court expressed its lack of\n\nconfidence that counsel could ensure Rangarajan’s compliance given her previous\n\nfailures. The court also concluded that reopening discovery would be futile because\n\nRangarajan’s “desperate attempt to disavow her deposition testimony and replace it with\n\nher Declaration [was] an implicit acknowledgement that her claims were unsupported\n\nunder the record produced through discovery.” Finally, as to the sixth factor, the court\n\nfound that the public interest supported dismissal because the “litigation ha[d] interrupted\n\nthe provision of care of numerous health care providers and impacted the resources of\n\nthis Court and several administrative agencies” and Rangarajan’s actions “seriously\n\nundermined the truth-seeking function of the Court.” Finding that all of the six factors\n\nweighed against Rangarajan and in favor of dismissal, the court imposed the sanction of\n\ndismissal.\n\n 15\n\f Rangarajan argues nonetheless that the district court abused its discretion in\n\nbypassing “the analysis set forth by the Fourth Circuit for determining whether sanction\n\nis even appropriate for [her] failures to update disclosure in discovery and proceed[ing]\n\ndirectly to selecting a penalty.” She also argues that, “[i]n seeking an appropriate\n\npenalty, the court also bypassed those penalties contemplated specifically for this failure\n\nto disclose, as set forth in Rule 37(c)(1), and proceed[ed] directly to [the] harshest of the\n\nother sanctions enumerated under Rule 37(b)(2).” She then concludes:\n\n The several irregularities of discovery cited by the lower court in the instant\n matter either do not rise to the level of a violation worthy of sanction or, if\n found to be sanctionable, were by no means permanent, surprising, or\n fatally prejudicial. The lower court could have easily remedied these by\n sanctions tailored to the transgression, even though it may not be exactly\n commensurate, and still remain within its discretion.\n\nTo support that conclusion, Rangarajan then launches into a discussion of how each\n\n“irregularity” or “transgression” was justified, could have been rectified, or in any case\n\ndid not justify dismissal. For example, with respect to her failure to produce thousands of\n\nemails that she was required to produce during discovery, she argues that “there has been\n\nno effort by the court and no agreement by the parties to provide for a finding of fact or\n\nagreeable method of determining which of those [8,612 emails] [was] discoverable,\n\nwhich may be personal or even privileged, or how they should be provided in discovery.”\n\nYet, during the discovery, Rangarajan made no objection to the request for documents —\n\nwhich called for the production of all emails in her “Jhmi” and “Jhmi 1” inboxes, and\n\nmore — but rather confirmed that she was producing all of the documents covered by\n\nJohns Hopkins’ requests. Her arguments typically turn a blind eye to the scope of her\n\n\n 16\n\fmisconduct as found by the district court and thus fail to address the specific misconduct\n\nfound.\n\n When reviewed it its totality, the record in this case reveals a totally dysfunctional\n\nperformance by Rangarajan and her counsel, but mostly by her, as she acknowledged in\n\nher brief that “[t]hough [I] was, in fact, represented by an attorney, the court was well\n\naware that [I] was in many ways acting without the benefit of counsel.”\n\n To begin, Rangarajan commenced four actions, when only one was proper and\n\nwould have sufficed, repeatedly reasserting claims that the district court had dismissed.\n\nAfter the district court denied her motion to replead qui tam claims in the first action, she\n\nnonetheless repleaded them in the third action, and when the district court dismissed the\n\nthird action, she refiled the same claims in the fourth action.\n\n In the course of discovery, Rangarajan flagrantly failed to produce thousands of\n\ndocuments, several of which were core documents relating to her claims. She later\n\nproduced some of those documents for the first time during the summary judgment\n\nprocess, because she thought she needed them to make her points. Also, after giving a\n\ndaylong deposition, she sought to undermine and recant her testimony in a long, 54-page\n\nDeclaration that, as the district court found, rendered her deposition essentially useless.\n\nFinally, she challenged the transcription of her deposition, claiming it was deliberately\n\naltered and recreated by the court reporter, a conclusion that the district court found to be\n\nconclusively false. In short, she rendered virtually useless the entire discovery process, in\n\nwhich the parties had invested substantial time and money.\n\n\n\n 17\n\f During summary judgment, which required additional expenditures of time and\n\nmoney, Rangarajan relied almost exclusively on her Declaration, which had not been\n\nmade part of the discovery record and which was often inconsistent with her deposition\n\ntestimony, placing the summary judgment practice on an untenable and virtually useless\n\nfooting.\n\n In addition to these specifics, it was also apparent throughout the entire\n\nproceedings that, while Rangarajan was represented by an attorney, she refused to follow\n\nhis advice and engaged in inappropriate actions, such as communicating arguments\n\ndirectly to the court ex parte and including substantive matters in her errata sheet. And\n\nthe district court attributed this dysfunction between attorney and client to Rangarajan\n\npersonally, a finding that Rangarajan has not disputed. As the court stated:\n\n It [was] [Rangarajan] who continue[d] the attempt to support the\n unsupportable contention that the court reporting service made hundreds of\n alterations to her deposition video and transcript. It is clear that it was\n [Rangarajan] who authored the embellished narrative contained in her\n Declaration. It was [Rangarajan] who failed to turn over to her counsel\n documents that were clearly responsive to discovery requests and it [was]\n [Rangarajan] who misrepresented the amount of emails from her work\n email account that were stored on her home computer.\n\nThe court also pointed to the statement of Rangarajan’s counsel that “[Rangarajan] had\n\nadditions and revisions to her declaration which . . . result[ed] in changes to the\n\nopposition, and [Rangarajan] and her counsel [were] not in agreement with the final\n\ncontent of the opposition.”\n\n Any effort to have retrieved useful products of some five years of the litigation\n\nprocess would undoubtedly have failed to produce much of what was needed to\n\n\n 18\n\fadjudicate the case. The district court so concluded — “Rangarajan’s conduct has\n\nrendered much of [the litigation] activity essentially meaningless.” It observed that any\n\nattempt to remedy this would require a do-over — “discovery would need to be reopened\n\nand it is likely that [Rangarajan] would need to be re-deposed and [Johns Hopkins’]\n\nmotion for summary judgment re-briefed.” And all of this would be at much additional\n\nexpense. Also important to the court’s ultimate sanction decision was its additional\n\nfinding that, in light of Rangarajan’s conduct, the court had “little confidence that\n\n[Rangarajan’s] counsel would be able to ensure [Rangarajan’s] compliance with the rules\n\nof discovery,” a finding that the court made while expressing doubt about the merits of\n\nRangarajan’s claims.\n\n We are mindful of the strong policy favoring the disposition of cases on the merits\n\nand disfavoring dismissals without a merits decision. See Shaffer, 11 F.3d at 462. But\n\nwhen a party “abuses the process at a level that is utterly inconsistent with the orderly\n\nadministration of justice or undermines the integrity of the process” — as we conclude\n\nRangarajan did here — she forfeits her right to use the process. Id. We hold that the\n\ndistrict court did not abuse its discretion in dismissing the actions.\n\n\n C\n\n Finally, Rangarajan contends that the sanction imposed by the district court should\n\nnot have included dismissal of the fourth action because the reasons that the district court\n\ngave for dismissal of the first and second actions were not applicable to the fourth action.\n\nThe district court, however, noted that the fourth action was essentially the same as the\n\n\n 19\n\fthird action, which it had dismissed earlier for nonprosecution. It also noted that the\n\nfourth action related to “transactions that took place as long as nine years ago.”\n\nMoreover, we note that the claims in the fourth action were not only the same as the\n\nclaims in the third action, they were also the same as the claims that Rangarajan was\n\nbarred from repleading in the first action based on the court’s finding that they were\n\nuntimely and prejudicial.\n\n All four actions that Rangarajan filed against Johns Hopkins were based on the\n\nsame term of employment and the same course of events, and the fact that two of the\n\nactions specifically suffered from Rangarajan’s misconduct does not spare the other two\n\nactions from being infected by the same misconduct. As the court found, Rangarajan’s\n\nmisconduct in litigating would not likely have abated in the future. We believe,\n\nmoreover, that the unnecessary multiplicity of actions was an abuse that colored\n\nRangarajan’s entire litigation efforts. The district court thus did not abuse its discretion\n\nin including the fourth action in the scope of its sanction.\n\n Accordingly, we affirm the judgment of the district court.\n\n AFFIRMED\n\n\n\n\n 20", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370396/", "author_raw": "NIEMEYER, Circuit Judge:"}]} | GREGORY | NIEMEYER | HARRIS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593143/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,593,595 | Sarah ROE, Plaintiff - Appellee, v. Linda HOWARD, Defendant - Appellant, and Estate of Russell Howard, Defendant. | Sarah Roe v. Linda Howard | 2019-02-25 | 17-2338 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Wilkinson, King, Quattlebaum", "parties": "", "opinions": [{"author": "KING, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-2338\n\n\nSARAH ROE,\n\n Plaintiff – Appellee,\n\n v.\n\n\nLINDA HOWARD,\n\n Defendant – Appellant,\n and\n\nESTATE OF RUSSELL HOWARD,\n\n Defendant.\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nAlexandria. Liam O’Grady, District Judge. (1:16-cv-00562-LO-JFA)\n\n\nArgued: October 30, 2018 Decided: February 25, 2019\n\n\nBefore WILKINSON, KING, and QUATTLEBAUM, Circuit Judges.\n\n\nAffirmed by published opinion. Judge King wrote the opinion in which Judge Wilkinson\nand Judge Quattlebaum joined.\n\n\nARGUED: Richard Francis Rinaldo, JONES, GREGG, CREEHAN & GERACE LLP,\nPittsburgh, Pennsylvania, for Appellant. Melissa Lim Patterson, JONES DAY,\nWashington, D.C., for Appellee. ON BRIEF: Timothy J. Battle, Alexandria, Virginia,\n\ffor Appellant. Alison B. Marshall, Christian G. Vergonis, JONES DAY, Washington,\nD.C., for Appellee.\n\n\n\n\n 2\n\fKING, Circuit Judge:\n\n Defendant Linda Howard appeals from a judgment entered against her in the\n\nEastern District of Virginia after a jury found her civilly liable to plaintiff Sarah Roe\n\nunder the Trafficking Victims Protection Act (the “TVPA”). 1 Roe had sued Howard for\n\nher role in sexual abuse that Roe suffered at the hands of Russell Howard, Linda’s\n\nhusband, when Roe worked in 2007 as the Howards’ housekeeper in housing provided by\n\nthe Embassy of the United States in Yemen. 2 The jury found that Linda’s conduct in\n\nYemen contravened criminal provisions of the TVPA and thus awarded Roe $3 million in\n\ndamages pursuant to the TVPA’s civil remedy provision. See 18 U.S.C. § 1595. On\n\nappeal, Linda challenges the district court’s denial of her post-trial motion for judgment\n\nas a matter of law, wherein she sought relief on the ground that, in 2007, the TVPA’s\n\ncivil remedy provision did not apply extraterritorially. Linda also challenges the court’s\n\nadmission of testimonial evidence from another former housekeeper of Linda and Russell\n\nwhom they had similarly abused. As explained below, we are satisfied to affirm the\n\njudgment.\n\n\n\n\n 1\n The TVPA is generally codified at 18 U.S.C. § 1581 et seq.\n 2\n To avoid confusion, we generally refer to Linda Howard and Russell Howard by\ntheir first names, that is, simply as Linda and Russell. We refer to the plaintiff by her\npseudonym “Sarah Roe,” pursuant to the district court’s ruling in that regard. See Roe v.\nHoward, No. 16-cv-562 (E.D. Va. May 27, 2016), ECF No. 11.\n\n\n 3\n\f I.\n\n A.\n\n On July 31, 2017, following a four-day trial, a jury in the Eastern District of\n\nVirginia found Linda Howard civilly liable for contravening criminal provisions of the\n\nTVPA. More specifically, the jury found that Linda had engaged in forced labor in\n\nviolation of 18 U.S.C. § 1589, forced labor trafficking in violation of § 1590, commercial\n\nsex trafficking in violation of § 1591, and conspiring to engage in those offenses in\n\nviolation of § 1594. See J.A. 115-17. 3\n\n When we review an appeal following a jury verdict, we view the trial evidence in\n\nthe light most favorable to the prevailing party. See Randall v. Prince George’s Cty., 302\n\nF.3d 188, 195 n.8 (4th Cir. 2002) (citing Lowery v. Cir. City Stores, Inc., 206 F.3d 431,\n\n442-43 (4th Cir. 2000)). We are likewise obliged to accord the prevailing party the\n\nbenefit of all reasonable inferences to be drawn from the evidence. See Lowery, 206 F.3d\n\nat 443. The facts recited herein are taken in that light and drawn from the record, which\n\nincludes evidence presented at trial and the parties’ joint submission of stipulated facts.\n\n 1.\n\n Linda is an American citizen. She began working for the Department of State in\n\n1991 as a Communications Officer in Paris, France. In Paris, Linda met and married\n\nRussell, an Australian citizen who then worked for the Australian Embassy in France.\n\n\n 3\n Citations herein to “J.A.__” refer to the contents of the Joint Appendix filed by\nthe parties in this appeal.\n\n\n 4\n\fOver the next decade, Linda and Russell held similar postings around the world, usually\n\narranging their assignments so that they could pursue their careers in the same country.\n\nIn 2001, Russell retired from his position with the Australian government, and he\n\nthereafter followed Linda as she continued her career with the State Department.\n\n In 2005, the State Department assigned Linda to our Embassy in Sana’a, Yemen.\n\nRussell accompanied Linda to Sana’a and also found work at the Embassy. Among other\n\njobs, Russell performed administrative work for the Embassy Commissary. In Sana’a,\n\nLinda and Russell lived in housing provided by the State Department, and they were\n\nprotected by U.S. government security. Linda and Russell remained in Sana’a for\n\napproximately three years. Around December 2008, Linda and Russell moved to Japan,\n\nwhere Linda received her next State Department posting. By 2012, Linda and Russell\n\nhad relocated to Melbourne, Australia, where Russell died of pancreatic cancer that\n\nSeptember. Linda continues to reside in Melbourne.\n\n 2.\n\n Sarah Roe first met the Howards in September 2005, soon after their arrival in\n\nYemen. At that time, Roe was twenty years old. Born into an impoverished family in\n\nEthiopia, Roe had moved to Yemen to seek work, and she initially secured various\n\nhousekeeping and cleaning jobs. In September 2005, Roe was employed there as a\n\nwaitress at a restaurant on U.S. Embassy grounds called Uncle Sam’s. It was at Uncle\n\nSam’s that the Howards first encountered Roe and sought to befriend her.\n\n As one of his odd jobs around the U.S. Embassy, Russell worked in a shop next\n\ndoor to Uncle Sam’s. He first introduced himself to Roe, and then introduced Roe to\n\n 5\n\fLinda. Both Howards paid special attention to Roe: they complimented her appearance,\n\ninitiated friendly conversations, and encouraged her to work for them as their live-in\n\nhousekeeper. At first Roe declined the job offer, and Russell asked her to help “find a\n\nbeautiful woman like [her]self to work in [the Howards’] home.” See J.A. 232. Linda\n\nwould stop by Uncle Sam’s three or four times a week, where she would “greet” and\n\n“hug” Roe. Id. at 231. Linda even gave Roe her personal phone number. Id. at 234.\n\n Around 2006, Roe returned to Ethiopia from Yemen for several months to care for\n\nher mother. As a result, she lost her job at Uncle Sam’s. When Roe returned to Sana’a, a\n\nyoung Ethiopian woman named Sabha was then employed as the Howards’ live-in\n\nhousekeeper, but Linda helped Roe obtain a data-entry job at the U.S. Embassy. Linda\n\ngave Roe an application for the data-entry position and taught her how to use a basic\n\ndata-entry program on Linda’s home computer. After Roe got the job, Linda continued\n\nto befriend her, meeting Roe to talk about her hair stylist and other non-work matters.\n\nLinda presented herself to Roe “as a friend, someone very easy to talk to, someone with a\n\nvery good heart.” See J.A. 239. Linda also promised to help Roe find another job after\n\nthe data-entry position ended. Roe believed Linda offered such help because Linda\n\n“really liked” her. Id. at 241.\n\n Some months later, in the spring of 2007, the Howards’ then live-in housekeeper\n\n(another young Ethiopian woman named Brhan) left them. At the time, Roe was looking\n\nfor a new job and the Howards renewed their offer to Roe to fill the housekeeping\n\nposition. Roe was uncertain about accepting the Howards’ offer. She made more money\n\nwhen she had jobs that allowed her to accept tips, like waitressing. Roe also had her own\n\n 6\n\fapartment and did not want to move in with the Howards, which was a requirement of the\n\nposition. But the Howards offered to help Roe get medical treatment for an eye ailment,\n\nrenew her work visa, and aid her family in Ethiopia. Linda also “knew that [Roe] had a\n\ndesire to improve [her] language skills,” and promised that Russell could help her with\n\nher English. See J.A. 247. As part of their discussions about the live-in position, Linda\n\nexplained to Roe “that Russell is usually at home, he needs a friend.” Id. Linda told Roe\n\nthat “the main part of this job is to make Russell happy.” Id. at 250. Roe understood this\n\nto mean that “doing my job, cleaning, doing everything else was what was going to make\n\nhim happy.” Id. Roe accepted the position and agreed to move in with the Howards.\n\nShe began working for the Howards in June 2007.\n\n Once Roe moved into the Howards’ apartment, she discovered that, although she\n\nhad her own room and bathroom, the door to her room could not be locked without a key.\n\nThe Howards told Roe they did not have the key. The Howards then presented Roe with\n\na uniform consisting of a “very short” skirt and a blouse that “looked like something you\n\nwould wear . . . when you go out.” See J.A. 253. Linda had made the outfit herself.\n\n When Roe refused to wear the uniform, Russell took Roe to the mall to go\n\nshopping. At the mall, he purchased a “very revealing” “one-piece” that “open[ed] in the\n\nfront,” and “underwear . . . with one tiny string” and “many holes.” See J.A. 253. Back\n\nat the apartment, Russell asked Roe to put on the new purchases “and show him what it\n\nlooks like.” Id. at 254. Roe refused again and went to the kitchen to prepare Russell’s\n\nlunch. She then retired to her room. Suddenly, Russell entered the room, naked. Roe\n\ntried to escape but Russell cornered her, pinned her down on the bed, and raped her.\n\n 7\n\fRussell continually raped and sexually assaulted Roe for the duration of her time with the\n\nHowards. He repeatedly threatened Roe to maintain her silence: he verbally abused her,\n\nhe warned Roe that he could have her thrown in jail, he threatened to tell her religiously\n\nconservative family about the assaults, and he retained possession of her passport.\n\n As the district court succinctly put it in its post-trial opinion, “Linda Howard was\n\naware of these assaults.” See J.A. 145-46. Linda often watched as Russell touched Roe’s\n\nrear end and breasts. Roe overheard Russell talking to Linda on the phone about the\n\nassaults, including complaining that Roe “wasn’t like Brhan.” Id. at 258, 334. Roe knew\n\nit was Linda on the other end of the line based on the nature and content of those\n\nconversations. On one occasion, Russell related events to Linda over the phone as he\n\ntook Roe to a hospital to have an intrauterine contraceptive device implanted. Russell\n\nalso told Roe that he talked to Linda about the rapes.\n\n Eventually, Roe’s continued resistance to Russell’s repeated assaults and open,\n\nabject misery so enraged Russell that he fired her in December 2007. Linda then helped\n\nRoe obtain another restaurant job near the Howards’ apartment and wrote a letter of\n\nrecommendation for her. Even then, Russell would often stop by the restaurant to\n\nthreaten Roe to maintain her silence about the rapes he had perpetrated.\n\n B.\n\n Congress enacted the TVPA in the year 2000 “to combat trafficking in persons, a\n\ncontemporary manifestation of slavery whose victims are predominantly women and\n\nchildren, to ensure just and effective punishment of traffickers, and to protect their\n\nvictims.” TVPA, Pub. L. No. 106-386, § 102(a), 114 Stat. 1464, 1466 (codified at 22\n\n 8\n\fU.S.C. § 7101(a)). The congressional findings that accompanied the TVPA in its original\n\nform repeatedly emphasized the transnational nature of human trafficking and sexual\n\nexploitation, and the enforcement challenges posed by the international scope of that\n\ncriminal activity. See id., § 102(b), 114 Stat. at 1466-69.\n\n By way of the TVPA, Congress created several new federal criminal offenses\n\nintended to more comprehensively and effectively combat human trafficking. Among\n\nother provisions, the TVPA criminalized: “Forced labor,” “[t]rafficking with respect to\n\npeonage, slavery, involuntary servitude, or forced labor,” and “[s]ex trafficking of\n\nchildren or by force, fraud or coercion.” See TVPA, § 112(a)(2), 114 Stat. at 1486-88.\n\nThose provisions are respectively codified at 18 U.S.C. §§ 1589, 1590, and 1591, all\n\nwithin chapter 77 of Title 18.\n\n In 2003, Congress reauthorized and amended the TVPA. See Trafficking Victims\n\nProtection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875 (the “2003\n\nTVPRA”). In the findings accompanying the 2003 TVPRA, Congress stressed the\n\nchallenges that remained “in responding to the needs of victims of trafficking in the\n\nUnited States and abroad.” See id., § 2(2), 117 Stat. at 2875. As part of the 2003\n\nTVPRA amendments, Congress added a civil remedy provision to chapter 77. See 2003\n\nTVPRA, § 4(a)(4)(A), 117 Stat. at 2878. That civil remedy provision is codified at 18\n\nU.S.C. § 1595(a), which provides:\n\n (a) An individual who is a victim of a violation of [chapter 77] may bring a\n civil action against the perpetrator . . . in an appropriate district court of the\n United States and may recover damages . . . .\n\n\n\n 9\n\f The 2003 TVPRA also amended § 1591, which prohibits “[s]ex trafficking of\n\nchildren or by force, fraud, or coercion.” That amendment altered § 1591 to expressly\n\napply to acts committed “within the special maritime and territorial jurisdiction of the\n\nUnited States.” See 2003 TVPRA, § 5(a)(2), 117 Stat. at 2879. The phrase “special\n\nmaritime and territorial jurisdiction of the United States” is a term of art defined\n\nelsewhere in the U.S. Code. That term encompasses a variety of locations under varying\n\ndegrees of control by the United States and includes, with respect to offenses committed\n\nby U.S. nationals, the grounds of U.S. diplomatic installations and related premises. See\n\n18 U.S.C. § 7(9). Specifically, § 7(9) defines the term to reach:\n\n (A) the premises of United States diplomatic, consular, military or other\n United States Government missions or entities in foreign States, including\n the buildings, parts of buildings, and land appurtenant or ancillary thereto\n or used for purposes of those missions or entities, irrespective of\n ownership; and\n\n (B) residences in foreign States and the land appurtenant or ancillary\n thereto, irrespective of ownership, used for purposes of those missions or\n entities or used by United States personnel assigned to those missions or\n entities.\n\nSee id.\n\n In 2006, Congress again reauthorized the TVPA. See Trafficking Victims\n\nProtection Reauthorization Act of 2005, Pub. L. No. 109-164, 119 Stat. 3558 (effective\n\nJan. 10, 2006) (the “2005 TVPRA”). This time, Congress expressly found that “[t]he\n\ninvolvement of employees and contractors of the United States Government . . . in\n\ntrafficking in persons, facilitating the trafficking in persons, or exploiting the victims of\n\ntrafficking in persons is inconsistent with United States laws and policies and undermines\n\n\n 10\n\fthe credibility and mission of the United States Government programs in post-conflict\n\nregions.” See id., § 2(10), 119 Stat. at 3559. Accordingly, Congress further expanded the\n\nTVPA’s extraterritorial reach by providing:\n\n Whoever, while employed by . . . the Federal Government outside the\n United States, engages in conduct outside the United States that would\n constitute an offense under chapter 77 . . . of this title if the conduct had\n been engaged in within the United States or within the special maritime and\n territorial jurisdiction of the United States shall be punished as provided for\n that offense.\n\nSee id., § 103, 119 Stat. at 3562 (codified at 18 U.S.C. § 3271). Each of the statutory\n\nprovisions and amendments discussed heretofore was in effect between June and\n\nDecember 2007, when the Howards exploited and abused Roe.\n\n In 2008, after Roe had left the Howards, Congress further amended and\n\nreauthorized the TVPA. See William Wilberforce Trafficking Victims Protection\n\nReauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044 (the “2008 TVPRA”).\n\nThe 2008 TVPRA further expanded the extraterritorial reach of the TVPA by providing:\n\n In addition to any domestic or extra-territorial jurisdiction otherwise\n provided by law, the courts of the United States have extra-territorial\n jurisdiction over any offense (or any attempt or conspiracy to commit an\n offense) under section . . . 1589, 1590, or 1591 if—\n\n (1) an alleged offender is a national of the United States . . . .\n\nSee id., § 223, 122 Stat. at 5071 (codified at 18 U.S.C. § 1596). The 2008 TVPRA also\n\nexpanded chapter 77 to prohibit conspiracy to commit the offenses codified at, inter alia,\n\n18 U.S.C. §§ 1589, 1590, and 1591. See id., § 222, 122 Stat. at 5070 (codified at 18\n\nU.S.C. § 1594(b)-(c)).\n\n\n\n 11\n\f C.\n\n In May 2016, Roe sued Linda in the Eastern District of Virginia pursuant to the\n\nTVPA civil remedy provision codified at 18 U.S.C. § 1595. 4 See J.A. 15. Roe alleged\n\nthat Linda had violated multiple criminal provisions of the TVPA, including its\n\nprohibitions of forced labor under 18 U.S.C. § 1589, forced labor trafficking under\n\n§ 1590, commercial sex trafficking under § 1591, and conspiracy to engage in those\n\noffenses under § 1594.\n\n Before trial, Linda sought summary judgment on the grounds that the TVPA did\n\nnot apply extraterritorially to reach her conduct in 2007, and that the 2008 amendments\n\nexpanding its extraterritorial application did not apply retroactively. The district court\n\ndenied that request without prejudice after argument.\n\n Linda also filed a motion in limine to exclude the testimony of Jane Doe, a live-in\n\nhousekeeper who worked for the Howards after Roe was fired. 5 The district court denied\n\nthat motion and ruled that Doe’s testimony was admissible under either Rule 404(b) or\n\nRule 415 of the Federal Rules of Evidence. Roe’s claims proceeded to trial in Alexandria\n\non July 26, 2017.\n\n\n\n\n 4\n Roe originally sued Russell’s estate in addition to Linda, but later dismissed the\nestate as a defendant in these proceedings. See Roe v. Howard, No. 16-cv-562 (E.D. Va.\nJuly 26, 2017), ECF No. 78.\n 5\n The district court permitted Jane Doe to testify using this pseudonym. See J.A.\n156.\n\n\n 12\n\f In accordance with the district court’s ruling, Jane Doe took the stand at trial.\n\nLike Roe, Doe was a young Ethiopian woman who came to Yemen in search of work.\n\nDoe testified, inter alia, that she began working for the Howards in Sana’a as a live-in\n\nhousekeeper in 2008. Doe followed the Howards to Tokyo when they relocated at the\n\nend of that year, based in part on the Howards’ promises that they would increase her pay\n\nand help her obtain health insurance. Such insurance was a benefit of particular value to\n\nDoe, who had “kidney issues.” See J.A. 162-63. Doe knew no one in Japan other than\n\nthe Howards and did not speak Japanese.\n\n Shortly after Doe and the Howards arrived in Tokyo, Russell’s behavior toward\n\nDoe changed. Doe testified, over objection, that Russell told her about “some of the\n\nways he abused his former employees.” See J.A. 165. She described how Russell began\n\nto touch her inappropriately, on her butt and thigh. Doe then testified that Russell\n\ncornered her in her bedroom in the Howards’ home and raped her. Russell raped Doe\n\nrepeatedly during her employment with the Howards. Doe testified, over objection, that\n\nRussell told her that Linda knew “everything that is happening.” Id. at 174. Doe also\n\nrelated that, after they had arrived in Tokyo, Linda told Doe “to make sure that I please\n\n[Russell], and that’s my primary job, that she didn’t want him to be mad.” Id. at 175.\n\nSome months later, while Doe and the Howards were still in Tokyo, Russell fired Doe\n\nand threatened to have her deported.\n\n On July 31, 2017, after additional testimony and stipulated submissions consistent\n\nwith the preceding recitation of facts, the jury returned its verdict. The jury found Linda\n\nliable for each of the four alleged violations of the TVPA. The jury calculated Roe’s\n\n 13\n\fcompensatory damages at $1 million for each violation. The jury found, however, that\n\nthose compensatory damages were duplicative, and thus awarded Roe $1 million in total\n\ncompensatory damages. The jury also awarded Roe $2 million in punitive damages. See\n\nJ.A. 115-17.\n\n In September 2017, Linda filed multiple post-trial motions seeking to overturn the\n\njury’s verdict. As relevant to this appeal, Linda sought a new trial pursuant to Federal\n\nRule of Civil Procedure 59(a), contending that the district court had erred in admitting\n\nDoe’s testimony. Linda also renewed her Rule 50 motion for judgment as a matter of law\n\non the grounds that the TVPA did not apply to her extraterritorial conduct in 2007, and\n\nthat the 2008 TVPRA amendments did not apply retroactively. In October 2017, the\n\ncourt denied Linda’s post-trial motions. The court then entered judgment in favor of Roe\n\nin accordance with the verdict.\n\n In January 2018, the district court issued a post-trial opinion that addressed, inter\n\nalia, Linda’s contention that the TVPA’s civil remedy provision did not apply\n\nextraterritorially to reach her conduct in Yemen in 2007. See Roe v. Howard, No. 16-cv-\n\n562 (E.D. Va. Jan. 3, 2018), ECF No. 125. The court ruled that, under the version of the\n\nTVPA in effect in 2007, the presumption against extraterritoriality was rebutted with\n\nrespect to Linda’s relevant conduct. Specifically, the court applied the Supreme Court’s\n\ndecision in Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), and this Court’s\n\ndecision in Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516 (4th Cir. 2014), to\n\nconclude that Linda’s conduct sufficiently “touche[d] and concern[ed] the United States”\n\nto displace the presumption against extraterritoriality. See J.A. 148-49. Alternatively,\n\n 14\n\fthe court determined that 18 U.S.C. § 1596, enacted in 2008, could apply retroactively\n\nand supported the extraterritorial application of the TVPA civil remedy provision to\n\nLinda’s conduct.\n\n Linda has timely appealed the judgment of the district court, and we possess\n\nappellate jurisdiction pursuant to 28 U.S.C. § 1291.\n\n\n\n II.\n\n We review de novo a district court’s denial of a Rule 50 motion for judgment as a\n\nmatter of law, viewing the evidence in the light most favorable to the nonmoving party.\n\nSee Fontenot v. Taser Int’l, Inc., 736 F.3d 318, 332 (4th Cir. 2013). We also review de\n\nnovo “the conclusions of law on which the court’s denial of judgment as a matter of law\n\nwas premised.” Adkins v. Crown Auto, Inc., 488 F.3d 225, 231 (4th Cir. 2007). Our de\n\nnovo review extends to all questions of statutory interpretation encompassed therein.\n\nSee, e.g., Stone v. Instrumentation Lab. Co., 591 F.3d 239, 242-43 (4th Cir. 2009).\n\n By contrast, we review a district court’s denial of a Rule 59 motion for a new trial\n\nfor abuse of discretion, and we will reverse only “in the most exceptional circumstances.”\n\nMinter v. Wells Fargo Bank, N.A., 762 F.3d 339, 346 (4th Cir. 2014). Likewise, we\n\nreview rulings on the admissibility of evidence, including testimony, for abuse of\n\ndiscretion. See, e.g., United States v. Vidacak, 553 F.3d 344, 348 (4th Cir. 2009).\n\n\n\n\n 15\n\f III.\n\n Linda seeks to overturn the jury verdict against her by challenging two of the\n\ndistrict court’s rulings in the proceedings below. First, Linda maintains that the court\n\nerred in concluding that the TVPA’s civil remedy provision applied to her extraterritorial\n\nconduct in 2007, and thus erred in denying her motion for judgment as a matter of law.\n\nBy her second contention, Linda argues that the court erred in admitting Jane Doe’s trial\n\ntestimony regarding her abuse by the Howards in 2008. We address each contention in\n\nturn.\n\n A.\n\n Linda seeks to vacate the judgment against her on the ground that the TVPA’s\n\ncivil remedy provision, codified at 18 U.S.C. § 1595, did not apply extraterritorially\n\nbefore 2008. Linda contends that this precludes any liability for her conduct toward Roe,\n\nwhich took place in Yemen in 2007. The district court rejected that argument when it\n\ndenied Linda’s post-trial motion for judgment as a matter of law. In so ruling, the court\n\nrelied on the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co., and\n\nconcluded that Linda’s conduct sufficiently “touch[ed] and concern[ed] the United\n\nStates” to displace the presumption against extraterritoriality. See J.A. 149 (citing\n\nKiobel, 569 U.S. 108, 124-25 (2013)). Alternatively, the court determined that 18 U.S.C.\n\n§ 1596 — which expanded the extraterritorial reach of the TVPA in 2008 — applied\n\nretroactively and sustained Linda’s liability under the TVPA.\n\n As explained below, we affirm the district court and conclude that the TVPA’s\n\ncivil remedy provision applied to Linda’s conduct in Yemen in 2007. We reach this\n\n 16\n\fconclusion, however, based on a somewhat different analysis than that employed by the\n\ndistrict court. See United States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005) (confirming\n\nthat this Court “may affirm on any grounds apparent from the record”). Specifically, we\n\nrely on the Supreme Court’s more recent decision on extraterritoriality in RJR Nabisco,\n\nInc. v. European Cmty., 136 S. Ct. 2090 (2016). Adhering to the framework explained in\n\nRJR Nabisco, we ground our ruling on the text and structure of the relevant TVPA\n\nprovisions. Pursuant to our analysis, we are satisfied that the TVPA’s civil remedy\n\nprovision applied to Linda’s conduct toward Roe in 2007.\n\n 1.\n\n Congress has the undisputed authority to apply its laws beyond “the territorial\n\nboundaries of the United States.” See United States v. Ayesh, 702 F.3d 162, 166 (4th Cir.\n\n2012). Whether it has exercised that authority “is a matter of statutory construction.” Id.\n\n(citing E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991), superseded in part by\n\nstatute, Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1074, as recognized in\n\nLandgraf v. USI Film Prods., 511 U.S. 244, 251 (1994)). The canon of statutory\n\ninterpretation known as the “presumption against extraterritoriality” instructs that\n\n“[a]bsent clearly expressed congressional intent to the contrary, federal laws will be\n\nconstrued to have only domestic application.” RJR Nabisco, 136 S. Ct. at 2100.\n\n In its 2016 ruling in RJR Nabisco, the Supreme Court drew on its precedent to\n\ndescribe a “two-step framework for analyzing extraterritoriality issues.” See id. at 2101\n\n(citing Kiobel, 569 U.S. 108; Morrison v. Nat’l Austr. Bank Ltd., 561 U.S. 247 (2010)).\n\nThe first step of the RJR Nabisco framework asks “whether the statute gives a clear,\n\n 17\n\faffirmative indication that it applies extraterritorially,” and thereby rebuts the\n\npresumption against extraterritoriality. Id. In making that determination, courts look to\n\nthe text of the statute, but “an express statement of extraterritoriality is not essential.” Id.\n\nat 2102. The structure and history of the statute are also relevant to this analysis, and in\n\nsome circumstances the statute’s “context” may be “dispositive.” Id. at 2102-03.\n\n If the first step reveals that a statute — or a specific statutory provision — has\n\nextraterritorial effect, our analysis is complete. See id. at 2101. If, on the other hand, the\n\nfirst step shows that a statute does not apply extraterritorially, a court must proceed to the\n\nsecond step identified in RJR Nabisco. Specifically, the court must then “determine\n\nwhether the case involves a domestic application of the statute” by considering the\n\nchallenged conduct in light of the statute’s “focus.” Id. at 2101. If “the conduct relevant\n\nto the statute’s focus” occurred “in U.S. Territory,” then the application of the statute is\n\nnot truly extraterritorial. See id. 6 That is, such conduct would represent a “permissible\n\ndomestic application” of the statute at issue. See id. at 2100.\n\n\n\n\n 6\n In delineating the two-step framework in RJR Nabisco, the Supreme Court drew\non two of its key precedents addressing extraterritoriality: Morrison and Kiobel. The\nsecond step described in RJR Nabisco, however, appears to privilege consideration of a\nstatute’s “focus” — the approach set out in Morrison — over the inquiry articulated in\nKiobel, which asked whether the claims at issue “touch and concern the territory of the\nUnited States.” See RJR Nabisco, 136 S. Ct. at 2102; Kiobel, 569 U.S. at 124-25. On the\nother hand, RJR Nabisco did not overturn Kiobel and — in step two — retains a similar\nemphasis on the relevant claim’s connection to U.S. territory. See RJR Nabisco, 136 S.\nCt. at 2101. We need not resolve the effect of RJR Nabisco on Kiobel because, as\nexplained herein, we do not reach the second step of the RJR Nabisco framework.\n\n 18\n\f 2.\n\n The first step of the RJR Nabisco framework requires us to assess the specific\n\nstatutory provisions at issue to determine whether those provisions demonstrate “clearly\n\nexpressed congressional intent” that they will apply extraterritorially. See 136 S. Ct. at\n\n2100, 2102; see also Morrison, 561 U.S. at 265 (emphasizing that “when a statute\n\nprovides for some extraterritorial application, the presumption against extraterritoriality\n\noperates to limit that provision to its terms”). Here, Roe sued Linda pursuant to the civil\n\nremedy provision of the TVPA, codified at 18 U.S.C. § 1595. Section 1595 permits\n\nvictims of the trafficking offenses specified in chapter 77 of Title 18 to sue the\n\nperpetrator of such an offense. Roe sought to recover damages based on Linda’s\n\nviolations of the trafficking offenses codified at 18 U.S.C. §§ 1589, 1590, and 1591,\n\nwhich prohibit forced labor, trafficking in forced labor, and forced sex trafficking,\n\nrespectively. Roe also alleged that Linda conspired to commit those offenses in violation\n\nof § 1594. As described above, the jury at Linda’s trial found that she had committed\n\neach of those four offenses and awarded Roe damages under § 1595.\n\n Applying the first step of the RJR Nabisco inquiry, we are satisfied that § 1595 of\n\nthe TVPA evinces a “clear indication of extraterritorial effect,” at least with respect to the\n\nconduct at issue here. See 136 S. Ct. at 2102. Of crucial importance, § 1595 directly\n\nincorporates predicate offenses that govern foreign conduct, providing strong textual\n\nevidence of its extraterritorial effect when applied to those predicates. See id. at 2102-03.\n\nAdditionally, the purpose, structure, history, and context of the TVPA militate toward the\n\nextraterritorial application of § 1595, to the extent that the relevant predicate offenses\n\n 19\n\freach the challenged foreign conduct at issue. See id. at 2102 (consulting “context” to\n\ndetermine extraterritoriality); In re French, 440 F.3d 145, 151 (4th Cir. 2006) (explaining\n\nthat courts should consult “all available evidence,” including text, statutory scheme, and\n\nlegislative history to determine extraterritorial effect of statute).\n\n We begin our analysis by looking to the Supreme Court’s application of the first\n\nRJR Nabisco step to the circumstances of that case. In RJR Nabisco, the Court addressed\n\nwhether the Racketeer Influenced and Corrupt Organizations Act (“RICO”) applied\n\nextraterritorially. See 136 S. Ct. at 2099. The central RICO provision, 18 U.S.C. § 1962,\n\ncontains four substantive prohibitions that criminalize certain means of influencing or\n\noperating an enterprise through “a pattern of racketeering activity.” See id. at 2097\n\n(citing 18 U.S.C. § 1962(a)-(d)). RICO defines “racketeering activity” as comprising a\n\nrange of state and federal offenses, referred to as predicate offenses. See id. at 2096\n\n(citing 18 U.S.C. § 1961). To determine whether the substantive RICO provisions\n\napplied to foreign conduct, the Court examined the text and context of § 1962. See id. at\n\n2101-03.\n\n The Court explained that “[t]he most obvious textual clue” that § 1962 applied\n\nextraterritorially was that RICO defined “racketeering activity” to include “a number of\n\npredicates that plainly apply to at least some foreign conduct.” See id. at 2101. The\n\nCourt reasoned that “Congress’s incorporation of [such] extraterritorial predicates into\n\nRICO gives a clear, affirmative indication that § 1962 applies to foreign racketeering\n\nactivity — but only to the extent that the predicates alleged in a particular case\n\nthemselves apply extraterritorially.” See id. at 2102. Thus, although Congress had not\n\n 20\n\fincluded “an express statement of extraterritoriality” in RICO’s text, the context and\n\nstructure of § 1962 — specifically, its incorporation of “predicate statutes that do apply\n\nextraterritorially” — nonetheless provided the necessary “clear, affirmative indication”\n\nthat § 1962 applied extraterritorially. See id. at 2101, 2102-03.\n\n Put simply, RJR Nabisco teaches that, even absent an express statement of\n\nextraterritoriality, a statute may apply to foreign conduct insofar as it clearly and directly\n\nincorporates a predicate statutory provision that applies extraterritorially. See 136 S. Ct.\n\nat 2102-03. Applying this rule to the TVPA, we are satisfied that § 1595 reflects\n\ncongressional intent that it applies extraterritorially to the extent that a plaintiff seeks\n\nredress for a predicate offense “that is itself extraterritorial.” See id. at 2103.\n\n Like § 1962, the TVPA’s civil remedy provision directly incorporates a set of\n\npredicate offenses “that plainly apply to at least some foreign conduct.” See RJR\n\nNabisco, 136 S. Ct. at 2101. More specifically, § 1595 permits “a victim of a violation of\n\nthis chapter [chapter 77 of Title 18]” to bring “a civil action against the perpetrator.” See\n\n18 U.S.C. § 1595. Many of the predicate offenses proscribed by chapter 77 apply\n\nextraterritorially, either expressly or by way of other provisions delineating their\n\nextraterritorial application. See, e.g., 18 U.S.C. § 1585 (prohibiting, inter alia, seizure of\n\npersons “on any foreign shore” with “intent to make that person a slave”). Thus,\n\npursuant to RJR Nabisco, “Congress’s incorporation” of such “extraterritorial predicates”\n\ninto § 1595 “gives a clear, affirmative indication” that § 1595 provides a civil remedy for\n\nthe foreign conduct that is prohibited by chapter 77. See 136 S. Ct. at 2102. That is,\n\n\n\n 21\n\f§ 1595 applies extraterritorially to the extent that the particular predicate offense\n\nsupporting a specific claim applies extraterritorially. See id. at 2103.\n\n Reinforcing that conclusion, the purpose, structure, history, and context of the\n\nTVPA all support the extraterritorial application of § 1595 for an appropriate predicate\n\noffense. The TVPA’s stated purpose and accompanying congressional findings\n\ndemonstrate that Congress enacted it to address the problem of human trafficking\n\n“throughout the world.” See Pub. L. 106-386 §§ 101-102, 114 Stat. 1464, 1466-69\n\n(2000). The TVPA contains numerous provisions authorizing funds and programs to\n\nsupport international efforts to address that global problem. See, e.g., 22 U.S.C.\n\n§ 7104(c) (creating “border interdiction” programs to combat trafficking at “key border\n\ncrossings”); § 7105 (authorizing foreign assistance programs to protect and aid\n\ntrafficking victims abroad). Notably, Congress has consistently amended the TVPA to\n\nreach and proscribe additional categories of foreign conduct. See, e.g., 18 U.S.C. § 1591\n\n(amended by 2003 TVPRA to cover conduct committed in special maritime and\n\nterritorial jurisdiction of United States); § 3271 (enacted as part of 2006 TVPRA\n\namendments to cover trafficking offenses by U.S. government employees abroad).\n\nViewed as a whole, the TVPA represents a far-reaching congressional effort to combat\n\ntransnational human trafficking on numerous fronts, including by expanding the civil\n\nclaims and remedies available to its victims.\n\n This is, in short, a situation in which Congress was clearly concerned with\n\ninternational rather than purely domestic matters. In these circumstances, unduly limiting\n\nthe TVPA’s scope risks frustrating its animating purpose. See Ayesh, 702 F.3d at 166\n\n 22\n\f(ruling that federal statute prohibiting U.S. employees from pilfering public funds applied\n\nextraterritorially because holding otherwise would immunize broad category of conduct\n\nand frustrate congressional intent); United States v. Delgado-Garcia, 374 F.3d 1337,\n\n1345 (D.C. Cir. 2004) (concluding that statutes prohibiting inducement of aliens to enter\n\nUnited States illegally applied extraterritorially because, inter alia, they were\n\n“fundamentally international” in “focus and effect”).\n\n Although we are satisfied that RJR Nabisco compels the extraterritorial application\n\nof § 1595 with respect to its extraterritorial predicates, we recognize that Part IV of that\n\ndecision declined to apply RICO’s civil cause of action to foreign conduct. See 136 S.\n\nCt. at 2106. But that part of Justice Alito’s opinion for the Court depended on factors\n\nthat do not apply to § 1595 of the TVPA. First, RICO’s civil remedy provision, codified\n\nat 18 U.S.C. § 1964(c), does not directly incorporate any extraterritorial predicates.\n\nIndeed, it makes no reference to any extraterritorial provision whatsoever. Rather, civil\n\nliability under § 1964(c) is premised on § 1962 criminal liability, but — crucially — is\n\nnot coextensive with § 1962 liability. Justice Alito emphasized that the text of § 1964(c)\n\nlimited its application to certain types of injuries, and thereby created a gap between the\n\nreach of § 1964(c) civil liability and § 1962 criminal liability. See id. at 2106, 2108.\n\nFurther, § 1964 contained no other indication that it should apply extraterritorially; that\n\nis, it lacked the kind of “foreign-oriented language” or reference to foreign activity that\n\ncould sustain its extraterritorial application. See id. at 2108-10 & n.12.\n\n None of the foregoing considerations apply to § 1595 of the TVPA. As explained\n\nabove, § 1595 expressly and directly incorporates the TVPA’s criminal predicates, many\n\n 23\n\fof which manifestly apply to foreign conduct. See RJR Nabisco, 136 S. Ct. at 2102. In\n\nthat regard, § 1595 of the TVPA resembles § 1962 of RICO rather than the circumscribed\n\ntext of § 1964(c). See id. at 2109-10 (comparing and distinguishing § 1962 and § 1964);\n\nacc. Pfizer, Inc. v. Gov’t of India, 434 U.S. 308, 313-14 (1978) (sustaining extraterritorial\n\napplication of Clayton Act civil remedy due to, inter alia, its incorporation of definitions\n\nexpressly addressing foreign entities). Moreover, the text of § 1595 shows that it applies\n\ncoextensively with its predicate offenses, omitting any qualifying or modifying language,\n\nwhich further distinguishes it from § 1964(c). Notably, as discussed above, the TVPA is\n\nreplete with the “foreign-oriented language” that Justice Alito found lacking in § 1964(c),\n\nincluding in the predicates underpinning Roe’s claim. See RJR Nabisco, 136 S. Ct. at\n\n2110 n.12. Indeed, the TVPA more clearly targets foreign conduct than any provision of\n\nRICO, as demonstrated by its international scope and Congress’s repeated expansions of\n\nits extraterritorial reach. See, e.g., 2005 TVPRA, 119 Stat. at 3562.\n\n In short, § 1595 evinces the same relationship to its extraterritorial predicate\n\noffenses that RICO’s substantive criminal provision does to its predicates, and is not\n\nsubject to textual limitations like those found in RICO’s private cause of action. Section\n\n1595 therefore provides a civil remedy for conduct that comes within the extraterritorial\n\npredicates of the TVPA. Accordingly, we now turn to the question of whether the\n\npredicate offenses underlying Roe’s civil suit applied to Linda’s extraterritorial conduct\n\nin 2007.\n\n\n\n\n 24\n\f 3.\n\n The jury awarded Roe damages based on their findings that Linda had violated 18\n\nU.S.C. §§ 1589, 1590, 1591, and 1594. Each of those offenses is a qualifying predicate\n\noffense for § 1595 civil liability, as they are all found within chapter 77 of Title 18 of the\n\nU.S. Code. See 18 U.S.C. § 1595 (authorizing civil suits by “a victim of a violation of\n\nthis chapter [chapter 77]” against the perpetrator or “whoever knowingly benefits” from\n\nthat violation). The remaining question for us today is whether those predicates applied\n\nextraterritorially and reached Linda’s foreign conduct in 2007. See RJR Nabisco, 136 S.\n\nCt. at 2102. We will therefore assess each predicate offense, mindful that “the inclusion\n\nof some extraterritorial predicates does not mean that all [statutory] predicates extend to\n\nforeign conduct.” See id.\n\n a.\n\n Section 1591 — prohibiting sex trafficking — presents the simplest analysis.\n\nSince 2003, § 1591 has applied to conduct committed “within the special maritime and\n\nterritorial jurisdiction of the United States.” See 18 U.S.C. § 1591; 2003 TVPRA, 117\n\nStat. at 2879. Where an offense is committed by a United States national like Linda,\n\nTitle 18 defines the “special maritime and territorial jurisdiction of the United States” to\n\ninclude the “premises of United States diplomatic, consular, military or other United\n\nStates Government missions or entities in foreign States,” including related residences,\n\nbuildings, and land, that, “irrespective of ownership,” are used “for purposes of those\n\nmissions or entities.” See 18 U.S.C. § 7(9). It is undisputed that Linda’s part in Roe’s\n\nabuse occurred entirely on U.S. embassy grounds and housing in Sana’a. Those premises\n\n 25\n\funquestionably fall within the “special maritime and territorial jurisdiction of the United\n\nStates,” as defined in Title 18. See id.; see also United States v. Passaro, 577 F.3d 207,\n\n214 (4th Cir. 2009) (observing that American embassies are “plainly within § 7(9)’s\n\nscope”); United States v. Erdos, 474 F.2d 157, 160 (4th Cir. 1973) (ruling that embassies\n\ncomprise part of “special territorial jurisdiction” of United States); H.R. Rep. No. 107-\n\n236, at 74 (2001) (agreeing with Erdos and explaining that “embassies and embassy\n\nhousing of the United States in foreign states are included in the special maritime and\n\nterritorial jurisdiction of the United States”). Thus, § 1591 expressly applied to Linda’s\n\nconduct in Sana’a in 2007, and she is liable for her violation thereof under § 1595.\n\n b.\n\n Sections 1589 and 1590 of Title 18 — prohibiting forced labor and forced labor\n\ntrafficking — do not directly refer to foreign conduct. But since 2006, those sections\n\nhave applied to extraterritorial acts committed by United States employees like Linda.\n\nThe 2005 TVPRA amended the TVPA by enacting 18 U.S.C. § 3271, which provides:\n\n Whoever, while employed by . . . the Federal Government outside the\n United States, engages in conduct outside the United States that would\n constitute an offense under chapter 77 [of Title 18] if the conduct had been\n engaged in within the United States or within the special maritime and\n territorial jurisdiction of the United States shall be punished as provided for\n that offense.\n\nSee 18 U.S.C. § 3271; see also 2005 TVPRA, § 103, 119 Stat. at 3562. Such language\n\n“manifests an unmistakable congressional intent to apply extraterritorially.” See RJR\n\nNabisco, 136 S. Ct. at 2102 (internal quotation marks omitted). If a plainer indication\n\nwas needed, Congress included § 3271 in chapter 212A, titled “Extraterritorial\n\n\n 26\n\fJurisdiction Over Certain Trafficking in Persons Offenses.” See 2005 TVPRA, 119 Stat.\n\nat 3562. By the TVPA’s own terms, this extraterritorial application is limited in scope;\n\nthat is, it applies only to persons employed abroad by the federal government. Linda,\n\nhowever, falls within that class of employees. Consequently, her actions in Sana’a were\n\nwithin the extraterritorial scope of § 1589 and § 1590 in 2007. The jury therefore\n\nproperly found her liable for violating those provisions under § 1595.\n\n c.\n\n Turning to § 1594, however, our analysis differs. Regardless of § 1594’s\n\nextraterritoriality, the conspiracy provision for which the jury found Linda liable had not\n\nbeen enacted by 2007. Rather, the conspiracy prohibitions contained in § 1594(b) and (c)\n\nwere added as part of the 2008 TVPRA amendments. See 2008 TVPRA, § 222, 122 Stat.\n\nat 5070. That said, we need not resolve whether § 1594 applies retroactively in order to\n\naffirm the award of damages to Roe. If this Court is “reasonably certain” that the jury\n\nwould have awarded the same amount of damages regardless of the “issues erroneously\n\nsubmitted to it,” we are entitled to affirm the award. See Tire Eng’g & Distribution, LLC\n\nv. Shandong Linglong Rubber Co., 682 F.3d 292, 314 (4th Cir. 2012). That rule holds\n\nparticular force where, as here, the jury has completed a special verdict form addressing\n\nliability and damages. See id. at 313-14 (collecting and comparing cases). Because the\n\njury indicated that it calculated Roe’s damages at $1 million for each of the four TVPA\n\nviolations, but awarded only $1 million total because those damages were duplicative, it\n\nis beyond reasonable debate that the jury would have awarded Roe $1 million in\n\n\n\n 27\n\fcompensatory damages for any one of Linda’s violations, and for any combination\n\nthereof. See J.A. 115-17.\n\n In sum, the facts established at trial show that Linda committed at least three\n\npredicate offenses that applied to her extraterritorial conduct toward Roe in 2007.\n\nPursuant to the Supreme Court’s decision in RJR Nabisco, § 1595 authorizes Linda’s\n\ncivil liability based on her commission of those offenses. 7 We are entitled to affirm the\n\njury’s award of damages because they were properly awarded pursuant to § 1595, and\n\nbecause any error with regard to the applicability of § 1594 did not affect that result.\n\n Because step one of the RJR Nabisco framework demonstrates that § 1595 applied\n\nextraterritorially to Linda’s conduct, we need not proceed to step two, which guides our\n\nanalysis only where the pertinent statute does not apply extraterritorially. See RJR\n\nNabisco, 136 S. Ct. at 2101. We thus have no occasion to determine whether, under step\n\ntwo, Linda’s offenses involved “a domestic application” of the TVPA. See id.\n\nAccordingly, we reserve for another day the issue of whether conduct occurring entirely\n\nwithin U.S. embassy grounds and associated housing takes place “in U.S. territory.” See\n\nid.; see also Arabian Am. Oil Co., 499 U.S. at 248. We confine our analysis today to the\n\ntext and context of § 1595, and affirm the jury’s award of damages to Roe on that basis.\n\n 7\n Linda’s argument against the extraterritorial application of § 1595 relies almost\nentirely on the Fifth Circuit’s ruling in Adhikari v. Kellogg Brown & Root, Inc., where\nthat court determined that § 1595 failed to provide a remedy for the plaintiffs’\nextraterritorial TVPA claims. See 845 F.3d 184, 201-06 (5th Cir. 2017); see also Br. of\nAppellant 8-16. That decision, however, is readily distinguishable because the Adhikari\nplaintiffs did not allege a violation of 18 U.S.C. § 1591 and the defendants’ conduct\noccurred before the enactment of § 3271. See Adhikari, 845 F.3d at 190, 200.\n\n\n 28\n\f B.\n\n Turning to Linda’s second and final appellate contention, we must resolve whether\n\nthe district court properly admitted Jane Doe’s evidence concerning the sexual abuse she\n\nsuffered while working as the Howards’ housekeeper in 2008. Linda raises various\n\nobjections to Doe’s testimony: that it was impermissible character evidence barred by\n\nFederal Rule of Evidence 404(a); that it could not be admitted under Rule 415, which\n\npermits testimony of “similar acts” in sexual assault lawsuits; that it was unfairly\n\nprejudicial and thus barred by Rule 403; and that the portion of Doe’s testimony relating\n\nto Russell’s statements constituted inadmissible hearsay. Each assertion is without merit.\n\n First, Doe’s testimony was plainly admissible under Rule 404(b)’s exception to\n\nRule 404(a)’s general prohibition of character evidence to prove an action in conformity\n\ntherewith. Doe’s testimony described Linda’s efforts to recruit Doe to work as the\n\nHowards’ housekeeper, and her knowledge and facilitation of Russell’s repeated sexual\n\nassaults on Doe. Consistent with the permissible uses of character evidence under Rule\n\n404(b), Doe’s testimony constituted highly probative evidence regarding Linda’s\n\nintentions in her interactions with Roe; the existence of a plan or pattern of behavior by\n\nthe Howards toward their live-in housekeepers; and Linda’s knowledge of Russell’s\n\nabuse of their staff. Doe’s testimony was therefore admissible under Rule 404(b)(2),\n\nwhich permits the introduction of evidence of “a crime, wrong, or other act” to show,\n\ninter alia, intent, preparation, plan, knowledge, or absence of mistake. Indeed, the\n\nsimilarity between Doe and Roe’s accounts of their abuse enhances the probative value\n\nand relevance of Doe’s evidence. See United States v. Queen, 132 F.3d 991, 997 (4th\n\n 29\n\fCir. 1997). 8 Because we are satisfied that Doe’s testimony was properly admitted under\n\nRule 404(b), we need not assess whether it was also admissible under Rule 415.\n\n Nor was Doe’s testimony barred by Rule 403. Pursuant to Rule 403, a court may\n\nexclude evidence if its “probative value” is “substantially outweighed” by, inter alia, the\n\nrisk of “unfair prejudice.” As noted above, Doe’s testimony provided highly probative\n\nevidence of a pattern of abusive behavior by Russell, knowingly facilitated by Linda.\n\nMoreover, because the assaults Roe suffered occurred in Yemen nearly a decade prior to\n\nLinda’s trial, Doe’s evidence was particularly important given the lack of available\n\nphysical evidence to corroborate Roe’s claims. Finally, the district court limited the\n\nscope of Doe’s testimony to avoid revealing the upsetting details of Russell’s past\n\nassaults, and thus reduced the risk of unfair prejudice. See United States v. Mark, 943\n\nF.2d 444, 449 (4th Cir. 1991). In these circumstances, the court did not abuse its\n\ndiscretion in permitting Doe to testify. See Mohr, 318 F.3d at 619-20 (emphasizing that\n\nRule 403 only requires exclusion of evidence resulting in unfair prejudice that\n\n“substantially” outweighs its probative value); United States v. Van Metre, 150 F.3d 339,\n\n351 (4th Cir. 1998) (sustaining admission of evidence of prior sexual assault in light of its\n\n“significant probative value” and trial court’s effort to reduce its prejudicial impact).\n\n\n\n 8\n Linda argues that the standard for admitting evidence under Rule 404(b) changes\nwhen that evidence concerns “subsequent” (rather than prior) acts. Br. of Appellant 26.\nNo such rule exists in this Circuit. Put simply, Rule 404(b) does not function differently\nmerely because Doe’s experience occurred after Roe’s. See United States v. Mohr, 318\nF.3d 613, 617 (4th Cir. 2003).\n\n\n 30\n\f Lastly, Doe’s testimony concerning Russell’s past statements was not inadmissible\n\nhearsay. Rule 804(b)(3) authorizes the admission of hearsay statements by an\n\nunavailable declarant that are manifestly against the declarant’s interest. Specifically, the\n\nstatement must be one that “a reasonable person in the declarant’s position would have\n\nmade only if the person believed it to be true because, when made, it . . . had so great a\n\ntendency . . . to expose the declarant to civil or criminal liability.” Fed. R. Evid.\n\n804(b)(3). Russell’s statements to Doe — admitting to his past assaults of his former\n\nemployees — more than qualify as statements against interest as so defined, and his death\n\nin 2012 establishes his unavailability to testify. Thus, the trial court did not abuse its\n\ndiscretion by relying on that exception to admit Doe’s testimony regarding Russell’s\n\nincriminating statements. See, e.g., United States v. Udeozor, 515 F.3d 260, 267-68 (4th\n\nCir. 2008) (evaluating flexible requirements of Rule 804(b)(3) and sustaining admission\n\nof hearsay statements that implicated declarant in multiple crimes).\n\n In short, the district court did not abuse its discretion in admitting Doe’s\n\ntestimony, and we are satisfied to affirm the court’s rulings in that regard.\n\n\n\n IV.\n\n Pursuant to the foregoing, we affirm the district court’s judgment in favor of Roe\n\nand against Linda Howard.\n\n\n AFFIRMED\n\n\n\n\n 31", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370848/", "author_raw": "KING, Circuit Judge:"}]} | WILKINSON | KING | QUATTLEBAUM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593595/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,593,603 | Jesus Christ is the Answer v. Baltimore County, Maryland | 2019-02-25 | 18-1450 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before NIEMEYER, AGEE, and DIAZ, Circuit Judges.", "parties": "", "opinions": [{"author": "DIAZ, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1450\n\n\nJESUS CHRIST IS THE ANSWER MINISTRIES, INC.; REV. LUCY WARE,\n\n Plaintiffs − Appellants,\n\n v.\n\nBALTIMORE COUNTY, MARYLAND; BOARD OF APPEALS OF\nBALTIMORE COUNTY, MARYLAND,\n\n Defendants – Appellees.\n\n------------------------------\n\nUNITED STATES OF AMERICA,\n\n Amicus Supporting Appellants.\n\n\nAppeal from the United States District Court for the District of Maryland, at Baltimore.\nRichard D. Bennett, District Judge. (1:17-cv-03010-RDB)\n\n\nArgued: October 31, 2018 Decided: February 7, 2019\n Amended: February 25, 2019\n\n\nBefore NIEMEYER, AGEE, and DIAZ, Circuit Judges.\n\n\nVacated and remanded by published opinion. Judge Diaz wrote the opinion, in which\nJudge Niemeyer and Judge Agee joined.\n\fARGUED: Roman P. Storzer, STORZER & ASSOCIATES, P.C., Washington, D.C.,\nfor Appellants. James Joseph Nolan, Jr., Paul M. Mayhew, BALTIMORE COUNTY\nOFFICE OF LAW, Towson, Maryland, for Appellees. John Matthew Gore, UNITED\nSTATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States of\nAmerica. ON BRIEF: Sieglinde K. Rath, STORZER & ASSOCIATES, P.C.,\nWashington, D.C.; Lawrence E. Schmidt, SMITH GILDEA & SCHMIDT LLC, Towson,\nMaryland, for Appellants. Michael E. Field, County Attorney, R. Brady Locher,\nAssistant County Attorney, BALTIMORE COUNTY OFFICE OF LAW, Towson,\nMaryland, for Appellees. Tovah R. Calderon, Katherine E. Lamm, Appellate Section,\nCivil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,\nD.C., for Amicus United States of America.\n\n\n\n\n 2\n\fDIAZ, Circuit Judge:\n\n Jesus Christ Is the Answer Ministries, Inc. (the “Church”) and Reverend Lucy\n\nWare appeal the dismissal of their claims against Baltimore County and the Board of\n\nAppeals of Baltimore County. The district court dismissed Plaintiffs’ suit for failure to\n\nstate a claim under the Religious Land Use and Institutionalized Persons Act\n\n(“RLUIPA”), 42 U.S.C. § 2000cc et seq., the Free Exercise Clause, the Equal Protection\n\nClause, and Article 36 of the Maryland Declaration of Rights. For the reasons that\n\nfollow, we vacate and remand for further proceedings.\n\n\n\n I.\n\n A.\n\n Jesus Christ is the Answer Ministries, Inc. is a nondenominational Christian\n\nchurch founded in Baltimore in 1997 by Reverend Lucy Ware. 1 The Church describes\n\nitself as evangelical and multicultural. It has associated churches in Kenya and the\n\nSeychelles, and many of the Church’s congregants were born in Africa. Reverend Ware\n\nwas born in Kenya, where she was active in her family church until moving to the United\n\nStates.\n\n The Church has struggled to secure an adequate house of worship, and this has\n\nimpeded its religious mission. This lawsuit arises from Ware’s unsuccessful efforts to\n\n 1\n Our recitation of the facts is based on the allegations in Plaintiffs’ complaint,\nwhich we accept as true at the motion to dismiss stage. Edwards v. City of Goldsboro,\n178 F.3d 231, 244 (4th Cir. 1999).\n\n\n 3\n\fobtain County approval to operate a church on property that she purchased for that\n\npurpose in 2012 (the “Property”).\n\n The Property consists of 1.2 acres of land with a building previously used as a\n\ndwelling. It is zoned under the Baltimore County Zoning Regulations (“BCZR”) as\n\n“Density Residential 3.5.”\n\n In this zone, churches are permitted as of right subject to certain conditions,\n\nincluding that parking lots and structures are (1) set back 75 feet from tract boundaries,\n\nand (2) separated from adjacent lots by a 50-foot landscaped buffer. BCZR\n\n§§ 1B01.1.A.3, 1B01.1.B.1.e. These conditions, however, don’t apply to new churches\n\nwhose site plans have been approved after a public hearing finding that compliance with\n\nthe conditions will be maintained “to the extent possible,” and that the plan “can\n\notherwise be expected to be compatible with the character and general welfare of the\n\nsurrounding residential premises.” Id. § 1B01.1.B.1.g.(6).\n\n Before Ware purchased the Property, her realtor advised her that a church was a\n\npermitted use on the Property.\n\n After buying the Property, Ware made improvements to the building and parking\n\nlot and held a church service and cookout. Neighbors complained to the County, and a\n\nCounty inspector notified Ware that she couldn’t use the Property as a church unless she\n\ncomplied with applicable zoning requirements.\n\n Ware filed a petition with the County to approve use of the Property as a church.\n\nThe petition proposed a buffer and setback of zero feet, seeking complete relief from the\n\nzoning requirements. It also sought variances from parking requirements. The County\n\n 4\n\fDirector of the Department of Planning did not oppose the petition, “provided a\n\nlandscape and signage plan is submitted to the department for review and approval.” J.A.\n\n19 ¶ 105. A hearing was held before an Administrative Law Judge (“ALJ”). Neighbors\n\nwho opposed the petition attended and participated.\n\n At the hearing, several neighbors made comments displaying open hostility to\n\nWare and the Church. These comments included: (1) “dancing and hollering like they\n\nback at their home back in Africa somewhere”; (2) “[s]he can come over here from\n\nAfrica . . . branch out from another church and put all of this in our neighborhood”; and\n\n(3) “[t]hey were out here dancing like from Africa. We don’t have that in our block.”\n\nJ.A. 19 ¶ 108. Since the hearing, neighbors have subjected the Church and its members\n\nto a sustained barrage of harassment, including racial slurs. The Property has also been\n\nsubject to vandalism and theft.\n\n The ALJ recommended denying Ware’s petition. Ware appealed this\n\nrecommendation to the Board of Appeals. The Board denied the petition, finding that\n\n“the proposed Church does not even minimally comply” with the applicable zoning\n\nrequirements and that the plan would not be compatible with “the character or general\n\nwelfare of the surrounding homes which homes are occupied by the [neighbors] who\n\ntestified.” J.A. 57. The Board’s decision was affirmed by the Circuit Court for\n\nBaltimore County and the Court of Special Appeals of Maryland. Ware v. People’s\n\nCounsel, 117 A.3d 628 (Md. Ct. Spec. App. 2015).\n\n While the first petition was pending appeal, Ware filed a second petition. This\n\nnew petition included a modified site plan that (1) moved the parking lot to increase the\n\n 5\n\fsetback to 55–72.7 feet and the buffer to 50 feet, and (2) did not seek any parking\n\nvariances. The new petition also differed from its predecessor in that it sought approval\n\nnot only under the zoning provision governing new churches, but also under a separate\n\nprovision governing existing churches.\n\n The People’s Counsel (a county official) initially sought dismissal of the new\n\npetition, on the ground that it sought essentially the same relief as its predecessor. The\n\nneighbors who opposed the first petition adopted the People’s Counsel’s motion to\n\ndismiss. But the People’s Counsel subsequently withdrew his motion based on the\n\ndifferences between the two petitions. Nevertheless, the neighbors continued to pursue\n\ndismissal. The Board granted the motion to dismiss, holding that the new petition was\n\nbarred by res judicata and collateral estoppel.\n\n B.\n\n Ware and the Church then filed suit in federal district court, alleging that the\n\nBoard’s dismissal of the second petition violated RLUIPA’s substantial burden and\n\nnondiscrimination provisions, the First Amendment’s Free Exercise Clause, the\n\nFourteenth Amendment’s Equal Protection Clause, and Article 36 of the Maryland\n\nDeclaration of Rights, which protects freedom of religion at the state level. The district\n\ncourt dismissed the complaint for failure to state a claim. This appeal followed.\n\n\n\n II.\n\n We review the district court’s dismissal order de novo, accepting as true the facts\n\nalleged in the complaint and drawing all reasonable inferences in Plaintiffs’ favor, to\n\n 6\n\fdetermine whether the complaint contains facts sufficient to state a claim that is\n\n“plausible on its face.” Kensington Volunteer Fire Dep’t, Inc. v. Montgomery County,\n\n684 F.3d 462, 467 (4th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570\n\n(2007)).\n\n A.\n\n We begin with Plaintiffs’ claim that Defendants substantially burdened their\n\nreligious exercise, in violation of RLUIPA, by dismissing the second petition. 2 We agree\n\nwith the Plaintiffs that the district court erred in dismissing this claim.\n\n RLUIPA prohibits land use regulations that impose a “substantial burden” on\n\nreligious practice, unless they are the least restrictive means of furthering a compelling\n\ngovernmental interest. 42 U.S.C. § 2000cc(a)(1). A substantial burden exists where a\n\nregulation “puts substantial pressure on [the plaintiff] to modify its behavior.” Bethel\n\nWorld Outreach Ministries v. Montgomery Cty. Council, 706 F.3d 548, 556 (4th Cir.\n\n2013).\n\n As relevant here, land use regulations can substantially burden religious exercise\n\nwhere an organization acquires property expecting to use it for a religious purpose but is\n\n\n 2\n Defendants argue, for the first time on appeal, that the Church can’t bring an\nRLUIPA claim because it doesn’t own the Property (Ware does). This argument doesn’t\nimplicate any jurisdictional issue such as the Church’s constitutional standing. Instead, it\nconcerns whether a regulation affecting the Church fits within RLUIPA’s definition of\n“land use regulation.” See 42 U.S.C. § 2000cc-5(5). Because Defendants’ argument\ndoesn’t call our subject matter jurisdiction into question or implicate “exceptional\ncircumstances,” we decline to consider it for the first time on appeal. Muth v. United\nStates, 1 F.3d 246, 250 (4th Cir. 1993).\n\n\n 7\n\fprevented from doing so by the application of a zoning ordinance. In such a case, two\n\nquestions are usually relevant to determining whether RLUIPA has been violated.\n\n First, is the impediment to the organization’s religious practice substantial? The\n\nanswer will usually be “yes” where use of the property would serve an unmet religious\n\nneed, the restriction on religious use is absolute rather than conditional, and the\n\norganization must acquire a different property as a result. See Bethel, 706 F.3d at 557–\n\n58.\n\n Second, who is responsible for the impediment—the government, or the religious\n\norganization? In answering this question, we have considered whether the organization\n\nhad a “reasonable expectation” of religious land use, see Bethel, 706 F.3d at 558, and\n\nwhether the burden faced by the organization is “self-imposed,” see Andon, LLC v. City\n\nof Newport News, 813 F.3d 510, 515 (4th Cir. 2016).\n\n In this case there is little dispute that the impediment is substantial, since the\n\nChurch is barred from using the Property, so the district court sensibly focused on the\n\nsecond question: Are Plaintiffs responsible for their present inability to use the Property\n\nas a church? But in addressing this question, the court wrongly emphasized Plaintiffs’\n\npurported “failure to exercise due diligence before acquiring and altering the property”\n\nand their “subsequent proposal [in Ware’s first petition] of a site plan that disregarded the\n\nzoning requirements.” Jesus Christ Is the Answer Ministries, Inc. v. Baltimore County,\n\n303 F. Supp. 3d 378, 396 (D. Md. 2018). The first of these supposed failings is irrelevant\n\nto whether the zoning regulations in fact authorize Plaintiffs to use the Property as a\n\nchurch. And the second is irrelevant to whether Plaintiffs were responsible for the\n\n 8\n\fdismissal of Ware’s second petition, which is what now stands in the way of their\n\nreligious practice.\n\n Ware sufficiently alleged that she had a reasonable expectation of using the\n\nProperty as a church. Her realtor told her that such a use was permitted on the Property.\n\nThis advice was of course correct because churches are “permitted as of right,” provided\n\nthat their site plans comply “to the extent possible with [applicable] requirements” and\n\ncan “otherwise be expected to be compatible with the character and general welfare of the\n\nsurrounding residential premises.” BCZR §§ 1B01.1.A.3, 1B01.1.B.1.g.(6). Ware was\n\njustified in believing that she could satisfy these broadly and permissibly phrased\n\nconditions, especially given that the zoning regulations permit churches as of right.\n\n Ware’s efforts to meet the zoning conditions were frustrated, however, when the\n\nBoard dismissed her second petition. As the district court recognized, the second petition\n\nwas based on a site plan that substantially differed from and attempted to address the\n\nshortcomings of its predecessor. The Board failed to recognize these differences when it\n\ndismissed the petition based on res judicata and collateral estoppel, relying on the faulty\n\npremise that the two petitions sought essentially the same relief.\n\n The district court declined to dismiss Plaintiffs’ suit on grounds of res judicata and\n\ncollateral estoppel, but nonetheless determined that the Board correctly dismissed the\n\nsecond petition on these grounds. The court explained this anomaly by noting that Ware\n\nadvanced different bases for distinguishing the two petitions before the Board and the\n\ndistrict court. Specifically, the Board took the “real thrust” of Ware’s argument to be that\n\nthe second petition invoked a different subsection of the zoning regulations than the first.\n\n 9\n\fJ.A. 125. Before the district court, however, Plaintiffs emphasized the differences\n\nbetween the site plans accompanying the two petitions.\n\n We are not persuaded by the district court’s reasoning. First, Ware did highlight\n\nthe differences between the site plans in the administrative proceedings. See J.A. 90,\n\n106–10, 113. It was the Board (not Ware) that decided the “real thrust” of Ware’s\n\nargument was the different zoning provisions invoked by the two petitions. Second, and\n\nmore importantly, the two site plans are in fact markedly different. The second plan\n\naddressed the first one’s main deficiencies by moving the parking lot to the center of the\n\nProperty. This increased the landscaped buffer from zero to 50 feet, which fully\n\ncomplied with the buffer requirements. The second plan also increased the parking lot’s\n\nsetback from zero to between 55 and 72.7 feet, which complied to a much greater extent\n\n(and arguably “to the extent possible”) with the 75-foot setback requirement. In light of\n\nthese substantial changes and improvements, we cannot say that the dismissal of Ware’s\n\nsecond petition was self-imposed.\n\n Plaintiffs have sufficiently alleged that the dismissal of the second petition\n\nimposed a substantial burden on their religious practice. We therefore vacate the district\n\ncourt’s dismissal of Plaintiffs’ substantial burden claim. 3\n\n\n 3\n The district court did not reach RLUIPA’s second prong, which considers\nwhether, despite substantially burdening religious exercise, a government action “is the\nleast restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C.\n§ 2000cc–1. As we discuss, Plaintiffs have sufficiently alleged that dismissal of the\nsecond petition was motivated by religious animus. Such animus is not a permissible\ngovernment interest, much less a compelling one. And the dismissal wasn’t narrowly\ntailored to further the finality interests that are normally served by res judicata and\n(Continued)\n 10\n\f B.\n\n Next, we consider the Church’s claim that Defendants discriminated against it\n\nbased on religion or religious denomination in violation of RLUIPA. 4 The district court\n\ndismissed this claim, concluding that the Church failed to allege that the Board approved\n\nspecial exceptions to the zoning regulations for similarly situated churches or that its\n\ndecision was influenced by discriminatory intent.\n\n The Church argues that the district court erred by ignoring allegations that the\n\n“Board was knowingly responsive to a hostile community” of bigoted neighbors. J.A. 8\n\n¶ 5. Defendants respond that the neighbors’ discriminatory remarks can’t be attributed to\n\nthem, and that the remarks couldn’t have influenced the decision to dismiss the second\n\npetition because they were allegedly made during the hearing on the first petition.\n\n RLUIPA prohibits land use regulations that discriminate “on the basis of religion\n\nor religious denomination.” 42 U.S.C. § 2000cc(b)(2). In applying RLUIPA’s\n\nnondiscrimination provision, courts have looked to equal protection precedent. Chabad\n\nLubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 198\n\n\n\n\ncollateral estoppel because the second petition substantially differed from the first.\nTherefore, RLUIPA’s second prong poses no barrier to Plaintiffs’ substantial burden\nclaim at this stage of the case.\n 4\n The complaint alleges religious discrimination against both the Church and\nWare. J.A. 32 ¶ 203. However, RLUIPA’s nondiscrimination provision applies only to\nregulations that discriminate against “any assembly or institution.” 42 U.S.C.\n§ 2000cc(b)(2). The district court was therefore correct to dismiss Ware’s\nnondiscrimination claim.\n\n\n 11\n\f(2d Cir. 2014) (citing Bethel, 706 F.3d at 559). Under that precedent, a plaintiff must\n\ndemonstrate that the government decision was motivated at least in part by discriminatory\n\nintent, which is evaluated using the “sensitive inquiry” established in Village of Arlington\n\nHeights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266–68 (1977).\n\n One factor which this inquiry recognizes as potentially probative of the\n\ndecisionmaker’s intent is the “specific sequence of events leading up to the challenged\n\ndecision.” Id. at 267. Departures from normal procedures can suggest that the decision\n\nwas based on unlawful motives, as can “[s]ubstantive departures . . . particularly if the\n\nfactors usually considered important by the decisionmaker strongly favor a decision\n\ncontrary to the one reached.” Id. (citing Dailey v. City of Lawton, 425 F.2d 1037, 1040\n\n(10th Cir. 1970) (finding racial motivation where a city refused to rezone a plot despite\n\npresent and former city planning directors’ testimony that there was no reason not to\n\nrezone)).\n\n Particularly relevant to this case, a government decision influenced by community\n\nmembers’ religious bias is unlawful, even if the government decisionmakers display no\n\nbias themselves. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985);\n\nMarks v. City of Chesapeake, 883 F.2d 308, 311–13 (4th Cir. 1989). Such impermissible\n\ninfluence may be inferred where expressions of community bias are followed by\n\nirregularities in government decision-making. See Smith v. Town of Clarkton, 682 F.2d\n\n1055, 1066 (4th Cir. 1982).\n\n Under RLUIPA, a plaintiff need only establish a prima facie claim of religious\n\ndiscrimination, after which the defendant bears the burden of persuasion on all elements\n\n 12\n\fof the claim. 42 U.S.C. § 2000cc-2(b); Chabad Lubavitch, 768 F.3d at 198. And as with\n\nall claims, at the motion to dismiss stage “a plaintiff need not demonstrate that her right\n\nto relief is probable or that alternative explanations are less likely; rather, she must\n\nmerely advance her claim ‘across the line from conceivable to plausible.’” Houck v.\n\nSubstitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015) (quoting Twombly, 550 U.S.\n\nat 570). So long as a plaintiff alleges a plausible prima facie claim of discrimination, a\n\ncourt may not dismiss that claim—even if the defendant advances a nondiscriminatory\n\nalternative explanation for its decision, and even if that alternative appears more\n\nprobable. Id.; see Woods v. City of Greensboro, 855 F.3d 639, 649 (4th Cir. 2017) (“The\n\nquestion is not whether there are more likely explanations for the City’s action . . . but\n\nwhether the City’s impliedly proffered reason . . . is so obviously an irrefutably sound\n\nand unambiguously nondiscriminatory and non-pretextual explanation that it renders [the\n\nplaintiff’s] claim of pretext implausible.”).\n\n The district court reasoned that the complaint failed to allege disparate treatment\n\nbecause other churches that ultimately received approval are situated on larger lots and\n\nhave sufficient space for parking. However, RLUIPA’s nondiscrimination provision\n\ndoesn’t require a comparison to similarly situated entities. Chabad Lubavitch, 768 F.3d\n\nat 199. The Church has alleged that the Board’s dismissal of Ware’s second petition was\n\nmotivated by religious discrimination. This is enough to make out a prima facie claim of\n\nreligious discrimination, provided that the Church can establish discriminatory intent.\n\n In this case, the alleged sequence of events leading to the challenged decision is\n\nhighly probative of Defendants’ motives. It is especially significant that irregularities in\n\n 13\n\fDefendants’ decision-making process followed the neighbors’ expressions of animus.\n\nSee Town of Clarkton, 682 F.2d at 1066 (describing a town’s unprecedented use of an\n\nopinion poll following expressions of racial opposition to a public housing project as a\n\n“significant” and “suspect” deviation from the procedural norm).\n\n The first irregularity occurred when the Board denied Ware’s first petition even\n\nthough the County Director of the Department of Planning didn’t oppose it. The\n\nneighbors who opposed the first petition allegedly made bigoted remarks in the hearing\n\nbefore the ALJ, and seven neighbors also testified during the Board’s hearing on the first\n\npetition.\n\n In our view, the neighbors’ remarks clearly display ethnic bias, and they can\n\nplausibly be understood as displaying religious bias too. We recognize that RLUIPA by\n\nits terms prohibits discrimination “on the basis of religion or religious denomination.” 42\n\nU.S.C. § 2000cc(b)(2). But we do not attempt to disentangle Plaintiffs’ allegations of\n\nreligious and ethnic bias, at least at the motion to dismiss stage where we must view the\n\nalleged facts in Plaintiffs’ favor.\n\n The remarks targeted (1) Ware’s African heritage and that of other congregants,\n\n(2) a Church gathering that (according to the neighbors) involved “dancing” and\n\n“hollering,” and (3) the fact that the Church “branch[ed] out from another church.” J.A.\n\n19 ¶ 108. The first of these topics targets the Church’s multicultural identity. The\n\nsecond targets activities conducted at Church gatherings, which we may infer involved\n\nreligious exercise as defined in RLUIPA. See 42 U.S.C. § 2000cc-5(7). The third targets\n\n\n\n 14\n\fthe Church’s connection to other churches and denominations—a paradigm example of\n\nreligious bias.\n\n Plaintiffs also alleged that they “have faced tremendous opposition based on the\n\nnature of their ministry and the ethnic background of Reverend Ware and the\n\ncongregation” and “their status as African immigrants.” J.A. 27 ¶ 166–67. Though the\n\nChurch is expressly “nondenominational,” J.A. 9 ¶ 15, and has no religious affiliation\n\nexcept its “associat[ion with] churches in Kenya and the Seychelles,” J.A. 10 ¶ 18,\n\nPlaintiffs’ other allegations are drafted in such a way that we can infer their religious\n\npractice is tied to their ethnicity.\n\n Accordingly, when we draw reasonable inferences in Plaintiffs’ favor and consider\n\nRLUIPA’s “very broad protection for religious liberty,” Holt v. Hobbs, 135 S. Ct. 853,\n\n859 (2015) (internal quotation marks omitted), we are convinced that, as alleged, the\n\nneighbors displayed the behavior Congress sought to eradicate from zoning decisions.\n\nRLUIPA is designed to protect “[c]hurches in general, and new, small, or unfamiliar\n\nchurches in particular, [from being] frequently discriminated against” in land use\n\nregulation, including when “zoning board members or neighborhood residents explicitly\n\noffer race or religion as the reason to exclude a proposed church, especially in cases of\n\nblack churches and Jewish shuls and synagogues.” 146 Cong. Rec. S7774 (July 27,\n\n2000) (joint statement of Sen. Hatch and Sen. Kennedy).\n\n Following the neighbors’ remarks, the Board denied the petition. Although the\n\nCounty Director’s statement that she didn’t oppose the petition doesn’t bind the Board, it\n\nis a “factor[] usually considered important” in zoning proceedings, and it “strongly\n\n 15\n\ffavor[s] a decision contrary to the one reached” by the Board. Arlington Heights, 429\n\nU.S. at 267. And although Plaintiffs didn’t allege how often the Board departs from the\n\nCounty Director’s recommendations, the fact that the Board disagreed with a County\n\nofficial who has relevant expertise and a formal role as the Board’s advisor is enough to\n\nraise a plausible suspicion of improper motive.\n\n As Defendants rightly point out, the neighbors’ remarks before the ALJ and the\n\nBoard’s disagreement with the County Director occurred well before the Board decided\n\nto dismiss the second petition. But these events are part of the sequence that led to the\n\nchallenged decision, and Plaintiffs plausibly alleged that they influenced it. This\n\nconnection is strengthened by the neighbors’ ongoing involvement in the dispute, right up\n\nthrough the dismissal of the second petition.\n\n The second irregularity occurred when the Board granted the neighbors’ motion to\n\ndismiss the second petition, contrary to the position of the People’s Counsel (a County\n\nofficial). The People’s Counsel initially sought dismissal based on res judicata and\n\ncollateral estoppel, but later abandoned this posture. The neighbors continued to seek\n\ndismissal on these grounds, and the Board adopted their position. This second\n\nirregularity adds further plausibility to the inference that Defendants dismissed the\n\nsecond petition based on improper motives.\n\n We express no opinion on whether the neighbors’ animus ultimately swayed the\n\nBoard’s decision to dismiss the second petition. Rather, we conclude only that the\n\ncomplaint plausibly alleges a prima facie claim of religious discrimination.\n\n\n\n 16\n\f C.\n\n Plaintiffs also appeal the district court’s dismissal of their First Amendment free\n\nexercise claim and their Fourteenth Amendment equal protection claim, in which they\n\nallege (as in their RLUIPA claims) that Defendants substantially burdened their religious\n\nexercise and discriminated against them on the basis of religion.\n\n We first must determine the correct standard of review. Under the Supreme\n\nCourt’s free exercise doctrine, a neutral government decision of general applicability is\n\nsubject to rational basis review, even where it has the incidental effect of burdening\n\nreligious exercise. Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 879 (1990).\n\nHowever, a decision whose object “is to infringe upon or restrict practices because of\n\ntheir religious motivation” is not neutral and is subject to strict scrutiny. Church of the\n\nLukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 546 (1993). As we\n\nexplained in Section II.B, Plaintiffs have alleged that the object of the Board’s decision\n\nwas to restrict their use of the Property in response to community opposition to the\n\nChurch’s religious denomination. This allegedly discriminatory motive triggers strict\n\nscrutiny.\n\n Similarly, we apply strict scrutiny under the Equal Protection Clause where (as\n\nhere) the challenged action interferes with a fundamental right. Bostic v. Schaefer, 760\n\nF.3d 352, 375 (4th Cir. 2014) (citing Zablocki v. Redhail, 434 U.S. 374, 383 (1978)).\n\nAnd “[u]nquestionably, the free exercise of religion is a fundamental constitutional\n\nright.” Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974); see also Reaching Hearts\n\nInt’l, Inc. v. Prince George’s County, 584 F. Supp. 2d 766, 781 n.9 (D. Md. 2008) (citing\n\n 17\n\fJohnson v. Robison in applying strict scrutiny to an equal protection claim based on\n\nreligious discrimination).\n\n A government decision fails strict scrutiny if it is not narrowly tailored to advance\n\na compelling state interest. Lukumi Babalu Aye, 508 U.S. at 546. While Baltimore\n\nCounty may have a significant interest in finality and economy that would ordinarily be\n\nserved by the doctrines of res judicata and collateral estoppel, the dismissal of Ware’s\n\nsecond petition isn’t narrowly tailored to serve that interest because the second petition\n\ndidn’t seek to revisit the Board’s decision about the first petition. We therefore vacate\n\nthe dismissal of their free exercise and equal protection claims.\n\n D.\n\n Finally, Plaintiffs brought a claim under Article 36 of the Maryland Declaration of\n\nRights, which protects freedom of religion at the state level. The district court had\n\nsupplemental jurisdiction over this state constitutional claim under 28 U.S.C. § 1367(a)\n\nbecause it formed part of the same case or controversy as Plaintiffs’ federal claims.\n\nHowever, after dismissing the federal claims, the district court exercised its discretion\n\nunder 28 U.S.C. § 1367(c)(3) to dismiss the state constitutional claim. 5 Given our\n\ndecision on Plaintiffs’ federal claims, § 1367(c)(3) no longer provides a basis for\n\ndismissing the state constitutional claim. We therefore vacate the dismissal of the state\n\n 5\n The district court also noted that Maryland state law is unsettled regarding\nwhether Article 36 provides a private cause of action. However, the court didn’t\nexpressly invoke 28 U.S.C. § 1367(c)(1), which authorizes it to decline to exercise\nsupplemental jurisdiction over claims that raise novel or complex issues of state law. We\nexpress no opinion about whether dismissal under § 1367(c)(1) is appropriate on remand.\n\n\n 18\n\fconstitutional claim and remand so that the district court may decide whether to retain\n\nsupplemental jurisdiction over it.\n\n\n\n III.\n\n For the foregoing reasons, we vacate the district court’s judgment and remand for\n\nfurther proceedings consistent with this opinion.\n\n VACATED AND REMANDED\n\n\n\n\n 19", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370856/", "author_raw": "DIAZ, Circuit Judge:"}]} | NIEMEYER | AGEE | DIAZ | 1 | {"NIEMEYER": ", Circuit", "AGEE": ", Circuit", "DIAZ": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593603/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,594,017 | UNITED STATES of America, Plaintiff-Appellee, v. Paulette MARTIN, A/K/A Paulette Murphy, A/K/A Paulette Akuffo, A/K/A Paula Murphy, A/K/A Auntie, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Luis Felipe Mangual, Sr., Defendant-Appellant. | United States v. Paulette Martin | 2019-02-26 | 17-6199; 17-6200 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, Motz, Floyd", "parties": "", "opinions": [{"author": "Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-6199\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n\n v.\n\nPAULETTE MARTIN, a/k/a Paulette Murphy, a/k/a Paulette Akuffo, a/k/a\nPaula Murphy, a/k/a Auntie,\n\n Defendant – Appellant.\n\n\nAppeal from the United States District Court for the District of Maryland, at Greenbelt.\nRoger W. Titus, Senior District Judge. (8:04-cr-00235-RWT-1)\n\n\n No. 17-6200\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n\n v.\n\nLUIS FELIPE MANGUAL, SR.,\n\n Defendant – Appellant.\n\n\nAppeal from the United States District Court for the District of Maryland, at Greenbelt.\nRoger W. Titus, Senior District Judge. (8:04-cr-00235-RWT-25)\n\fArgued: December 11, 2018 Decided: February 26, 2019\n\n\nBefore GREGORY, Chief Judge, MOTZ, and FLOYD, Circuit Judges.\n\n\nVacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in\nwhich Judge Motz and Judge Floyd joined.\n\n\nARGUED: Sapna Mirchandani, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\nGreenbelt, Maryland, for Appellant. Ellen Elisabeth Cobb, OFFICE OF THE UNITED\nSTATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda,\nFederal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\nBaltimore, Maryland, for Appellant. Robert K. Hur, United States Attorney,\nStephen M. Schenning, Acting United States Attorney, Baltimore, Maryland,\nDavid I. Salem, Assistant United States Attorney, OFFICE OF THE UNITED STATES\nATTORNEY, Greenbelt, Maryland, for Appellee.\n\n\n\n\n 2\n\fGREGORY, Chief Judge:\n\n Defendants-Appellants Paulette Martin and Luis Felipe Mangual Sr. both filed\n\nmotions for sentence reductions under 18 U.S.C. § 3582(c)(2) and now appeal adverse\n\ndistrict court rulings. Because the district court failed to provide Martin and Mangual\n\nwith individualized explanations for its rulings on their respective motions, we vacate and\n\nremand.\n\n\n\n I.\n\n A.\n\n A jury convicted Martin in 2006 of various drug and drug-related offenses in\n\nviolation of 21 U.S.C. § 846, 21 U.S.C. § 843(b), and 21 U.S.C. § 841(a). Martin served\n\nas a leader in a drug conspiracy for at least seven years—a conspiracy involving a large\n\nquantity of cocaine and heroin—and even though she did not engage in violence, her co-\n\nconspirators carried firearms. Given this information, the Presentence Report calculated\n\nMartin’s adjusted combined offense level as a 44. Martin had only one prior conviction,\n\ndating back to 1986 and therefore had a criminal history category of I. The Sentencing\n\nGuidelines’ calculations recommended Martin face life imprisonment for her crimes.\n\nThe district court noted the severity of Martin’s criminal activity and sentenced her to life\n\nimprisonment, and this Court affirmed Martin’s conviction and sentence. United States\n\nv. Martin, 452 F. App’x 239 (4th Cir. 2011).\n\n\n\n\n 3\n\f In February 2015, Martin filed a pro se motion for a sentence reduction under 18\n\nU.S.C. § 3582(c)(2), seeking the benefit of Amendment 782, * which lowered the base\n\noffense levels applicable to drug offenses by two offense levels. This could afford\n\nMartin sentencing relief if her Guidelines range were recalculated at an adjusted\n\ncombined offense level of 42 instead of her original 44. Martin asserted her eligibility for\n\nreduction based on Amendment 782, but also emphasized her work tutoring other\n\ninmates, the number and variety of courses she completed while incarcerated, and her\n\nexemplary prison record. Martin explained how she lacked any connection to organized\n\ndrug-based criminal enterprises and that she would not be a threat to society at her age.\n\nMartin further contended that she could possibly serve as a mentor to misguided youth\n\nupon her release from prison. In addition to Martin’s pro se motion, the Office of the\n\nFederal Public Defender filed a motion on her behalf, argued that her revised Guidelines\n\nrange after factoring in Amendment 782 would be 360 months to life imprisonment, and\n\nrequested the court to provide a sentence on the low end of that range. The probation\n\nofficer agreed and recommended a reduction in the sentence from life to 360 months.\n\n The Government opposed Martin’s motion and countered both that Martin was\n\nineligible for relief and that the § 3553(a) factors did not weigh in favor of granting the\n\n\n * On November 1, 2014, the Sentencing Commission issued Amendment 782 to\nits Sentencing Guidelines, which lowered the recommended sentences for certain drug\ncrimes, including the crime of which Martin was convicted. See United States\nSentencing Commission, Guidelines Manual, supp. App’x. C, amend. 782 (2014). At the\nsame time, the Commission promulgated another amendment, Amendment 788, which\namended § 1B1.10 of the Guidelines to authorize district courts to apply Amendment 782\nretroactively to reduce the length of certain already imposed sentences.\n\n 4\n\fmotion, emphasizing the court’s comments at sentencing about the seriousness of the\n\ncrimes and the need to protect the public from Martin, a leader of an extensive drug-\n\ntrafficking operation.\n\n Martin’s counsel argued at the hearing that she is eligible for the reduction and\n\nthat the Sentencing Guidelines previously offered only one maximum advisory sentence\n\nto the court, life imprisonment, and that there was nothing to indicate from the sentencing\n\nhearing that a 360-month sentence would not also serve the goals of sentencing. Counsel\n\ninformed the court that Martin’s good behavior had earned her a place in a low security\n\nfacility and that she had earned her GED and become a respected tutor for other inmates.\n\nDespite this productive record, counsel explained, Martin is precluded from earning good\n\ntime credits and participating in other programs because of her life sentence. Counsel\n\nrejected the suggestion that Martin would be a threat to society if released after 360\n\nmonths, considering her history of nonviolence and her age of 84 at the time of her\n\nrelease. Finally, counsel argued that it would be costly and promote no legitimate\n\ngovernmental aim to incarcerate Martin in her advanced years.\n\n In March 2016, the district court denied Martin’s motion for a sentence reduction\n\nby checking the “DENIED” box on the form order. We vacated the judgment and\n\nremanded because we could not determine “whether the court concluded that Martin was\n\nineligible for a sentence reduction or, alternatively, whether the court decided that such a\n\nreduction was unwarranted in light of the § 3553(a) factors and Martin’s post-sentencing\n\nconduct.” United States v. Martin, 669 F. App’x 132, 133 (4th Cir. 2016). This Court\n\nfound that “[b]ecause the parties presented fully developed, nonfrivolous arguments as to\n\n 5\n\fboth steps of the sentence reduction inquiry, we could only speculate as to the basis for\n\nthe district court’s decision.” Id.\n\n Upon remand, the district court stated in an order that it had once again reviewed\n\nMartin’s motion for a sentence reduction, counsel’s correspondence to the court, and the\n\nGovernment’s response in opposition. As an initial matter, the district court found\n\nMartin eligible for relief because the bottom of her Guidelines range had been reduced\n\nfrom life to 360 months under Amendment 782. However, the court determined that a\n\nsentence reduction was not warranted based on its discretion “[a]fter carefully weighing\n\nthe § 3553(a) factors.” The court explained that Martin “ran a large, multi-million-dollar,\n\nmulti-jurisdiction drug operation, spanning Maryland, Virginia, and the District of\n\nColumbia, and operated it for years. The seriousness of her actions and offenses cannot\n\neasily be overstated.” For those reasons and the ones “set forth in the Government’s\n\nResponse,” the court denied Martin’s motion for a sentence reduction. Martin timely\n\nfiled her notice of appeal. This Court has jurisdiction over Martin’s appeal pursuant to 28\n\nU.S.C. § 1291 and 18 U.S.C. § 3742.\n\n B.\n\n In 2006, Mangual entered into a guilty plea agreement for a nonviolent drug\n\noffense in violation of 21 U.S.C. § 846. Mangual admitted that for about two years he\n\nengaged in a drug-trafficking conspiracy involving over 150 kilograms of cocaine and 20\n\nkilograms of heroin. The Presentence Report calculated Mangual’s adjusted combined\n\noffense level as a 36. Mangual had a 1994 drug offense and a criminal history category\n\nof II. His Sentencing Guidelines range was 210 to 262 months’ imprisonment.\n\n 6\n\f The district court sentenced Mangual to 262 months’ imprisonment, the top of the\n\nguidelines range. Mangual’s sentencing transcript is not in the record, and the only\n\nindication this Court has of the district court’s reasoning is a brief note included in the\n\nStatement of Reasons in the court’s Judgement. There, the district court stated that a\n\n“sentence at the top of the guideline range is appropriate because of the large quantity of\n\ndrugs and the defendant’s prior conviction of the same type of offense.”\n\n In April 2015, Mangual filed a pro se motion for a sentence reduction under\n\n§ 3582(c)(2), seeking the benefit of Amendment 782. Mangual contended that after the\n\napplication of Amendment 782, his Sentencing Guidelines range is 168 to 210 months’\n\nimprisonment. In a 2015 letter to the court, Mangual, a 75-year-old inmate at that time,\n\nasserted that, during his 10 years in prison, his sole disciplinary infraction was for\n\nmissing count when he did not hear the count call. He further notified the court that the\n\njail placed him on medical furloughs four times, that he has had open heart surgery, and\n\nthat he is in “chronic care” and taking multiple medications. Mangual explained that the\n\nmother of his children is also sick, and he expressed his desire to spend his last years with\n\nher and their children, 15 grandchildren, and 8 great grandchildren. Mangual said he\n\nexhausted the educational opportunities he had access to while incarcerated. Moreover,\n\nMangual asserted that he has tried to better himself while in jail: he and another inmate\n\n“put together a concept called ‘The People/The Solution,’” which is “an educational and\n\nawareness tool to motivate the people to help others” and thereby help themselves.\n\n On December 14, 2016, the Federal Defender filed a motion on Mangual’s behalf,\n\nurging the court to reduce his sentence to 168 months’ imprisonment, the bottom of his\n\n 7\n\famended Guidelines range. Counsel emphasized that Mangual “was not a leader or\n\nmanager of the conspiracy (of the 31 people charged, he was the 25th named defendant);\n\nhis conduct was not violent (he served as a middleman in drug sales); and he neither used\n\nnor possessed a weapon at any time.” Counsel also observed that Mangual’s post-\n\nsentencing conduct was “outstanding”: he “has built a solid employment record” in\n\nprison; “has completed his court-ordered financial obligations”; and “has a nearly\n\nflawless disciplinary record.” Indeed, due to his exemplary conduct, he has been\n\ndesignated to a minimum-security facility and is eligible to work outside the prison\n\ncompound. Finally, counsel argued that Mangual was unlikely to recidivate due to his\n\n“advanced age, his deteriorating health, and the stable home to which he will be\n\nreleased.”\n\n The probation officer agreed that Mangual was eligible for a sentence reduction\n\nbut recommended a sentence at the top of the amended range—210 months’\n\nimprisonment. Similarly, in a response dated December 16, 2016, the Government did\n\nnot oppose a sentence reduction but objected to the extent of the relief sought by\n\nMangual and urged the court to impose a 210-month sentence. The Government\n\nexplained that it “aims to recommend an amended sentence that is consistent with the\n\noriginal sentence” and, therefore, Mangual “is eligible for a comparable sentence at the\n\ntop of the amended guidelines range.” In a footnote, the Government acknowledged\n\nMangual’s “apparently positive post-sentencing conduct, advanced age, and minimal\n\ncriminal history” but “recommend[ed] a comparable sentence in the interest of fairness\n\nand consistency.”\n\n 8\n\f On December 21, 2016, the district court granted Mangual’s motion for a sentence\n\nreduction but did not reduce the sentence to the extent requested, instead imposing the\n\nsentence recommended by the Government—210 months’ imprisonment. The court used\n\nthe standard form, which included a statement confirming that the court had taken into\n\naccount the policy statement in USSG § 1B1.10 and the sentencing factors in § 3553(a).\n\nThe parties filed motions arguing over the propriety of the district court’s partial grant\n\nbased on the Government’s desire to have a sentence comparable to Mangual’s original\n\nterm of imprisonment. The district court agreed with the Government’s position.\n\nAccordingly, the court declined to modify its prior order. The court entered an order\n\ngranting in part Mangual’s motion for a reduced sentence on February 3, 2017 and\n\nreduced his sentence to 210 months. Mangual timely filed a notice of appeal on February\n\n17, 2017. This Court has jurisdiction over Mangual’s appeal pursuant to 28 U.S.C.\n\n§ 1291 and 18 U.S.C. § 3742.\n\n\n\n II.\n\n In general, a court “may not modify a term of imprisonment once it has been\n\nimposed.” 18 U.S.C. § 3582(c). However, section 3582(c)(2) provides that a district\n\ncourt may reduce a sentence “in the case of a defendant who has been sentenced to a term\n\nof imprisonment based on a sentencing range that has subsequently been lowered by the\n\nSentencing Commission.” The Supreme Court promulgated a two-step process for\n\ndetermining where, and to what extent, a reduction is permissible under section\n\n3582(c)(2).\n\n 9\n\f First, the court is required “to follow the Commission’s instructions in § 1B1.10 to\n\ndetermine the prisoner’s eligibility for a sentence modification and the extent of the\n\nreduction authorized.” Dillon v. United States, 560 U.S. 817, 827 (2010). In particular,\n\nsection “1B1.10(b)(1) requires the court to begin by determining the amended guideline\n\nrange that would have been applicable to the defendant had the relevant amendment been\n\nin effect at the time of the initial sentencing.” Dillon, 560 U.S. 817, 827 (internal\n\nquotation marks omitted). Second, the court is required to “consider any applicable\n\n§ 3553(a) factors and determine whether, in its discretion, the reduction authorized by\n\nreference to the policies relevant at step one is warranted in whole or in part under the\n\nparticular circumstances of the case.” Id.\n\n This Court “review[s] a district court’s grant or denial of a § 3582(c)(2) motion for\n\nabuse of discretion.” United States v. Smalls, 720 F.3d 193, 195 (4th Cir. 2013).\n\nNonetheless, whether a court ruling on a motion to reduce under § 3582(c)(2) must\n\nprovide an individualized explanation is considered de novo by this Court. Smalls, 720\n\nF.3d 193, 195.\n\n\n\n III.\n\n A.\n\n The Supreme Court’s recent holding in United States v. Chavez-Meza provides\n\nguidance regarding the level of detail a sentencing court must provide when evaluating\n\nsection 3582(c)(2) motions to reduce sentences like the ones filed by Martin and\n\nMangual. 138 S. Ct. 1959 (2018). It held that “[a]t bottom, the sentencing judge need\n\n 10\n\fonly set forth enough to satisfy the appellate court that he has considered the parties’\n\narguments and has a reasoned basis for exercising his own legal decisionmaking\n\nauthority.” Id. at 1964 (internal quotation marks and citations omitted). The Supreme\n\nCourt sets forth a fact specific legal standard.\n\n Just how much of an explanation this requires, however, depends, as we\n have said, upon the circumstances of the particular case. In some cases, it\n may be sufficient for purposes of appellate review that the judge simply\n relied upon the record, while making clear that he or she has considered the\n parties’ arguments and taken account of the § 3553(a) factors, among\n others. But in other cases, more explanation may be necessary (depending,\n perhaps, upon the legal arguments raised at sentencing).\n\nId. at 165. Similarly, in the Fourth Circuit, when evaluating the sufficiency of a\n\nsentencing court’s explanation, there is a presumption that the district court sufficiently\n\nconsidered relevant factors in deciding a section 3582(c)(2) motion. United States v.\n\nLegree, 205 F.3d 724, 729-30 (4th Cir. 2000); Smalls, 720 F.3d at 196. Nonetheless, the\n\npresumption is not irrebuttable, and this Court in Legree suggested that a defendant failed\n\nto overcome the presumption because “he point[ed] to no mitigating evidence which was\n\nnot before the sentencing court.” Legree, 205 F.3d 724, 730. Evidence of mitigating\n\nfactors not available at the original sentencing has indeed been used to rebut the Legree\n\npresumption. United States v. Hardy, 665 F. App’x 268, 272 (4th Cir. 2016); United\n\nStates v. McKenzie, 318 F. App’x 202, 204 (4th Cir. 2009).\n\n B.\n\n The district court improperly denied Martin’s motion to reduce her sentence by\n\nfailing to give her an individualized explanation for why it chose to deny her motion.\n\nSmalls, 720 F.3d at 198. The Supreme Court has clarified that the extent of explanation\n\n 11\n\frequired depends on the facts of each case, and “given the simplicity of [Chavez-Meza],\n\nthe judge’s awareness of the arguments, his consideration of the relevant sentencing\n\nfactors, and the intuitive reason why he picked a sentence above the very bottom of the\n\nnew range,” the Court held that “the judge’s explanation (minimal as it was) fell within\n\nthe scope of the lawful professional judgment that the law confers upon the sentencing\n\njudge.” 138 S. Ct. at 1967-68.\n\n In contrast, the complexity of Martin’s case required the district court to provide a\n\nmore robust and detailed explanation for why it denied her motion to reduce. Martin has\n\npresented a mountain of new mitigating evidence that the sentencing court never\n\nevaluated. For example, Martin not only successfully pursued her GED but also became\n\na respected tutor for other inmates and helped incarcerated women follow her footsteps in\n\nachieving their educational goals. Martin exhibited such exemplary behavior while\n\nincarcerated that correctional staff moved her into a low security facility. Martin also\n\nsubmitted documentary evidence that corroborates her coursework and her good\n\nbehavior. Moreover, given her old age and marked rehabilitation, Martin argues that she\n\nis no longer a threat to society.\n\n The district court, during Martin’s remand proceedings, failed to address any of\n\nthis new mitigation evidence. In Chavez-Meza, the defendant’s educational classes and\n\n114-month sentence did not warrant a significant explanation of the district court’s\n\nreasoning regarding the motion to reduce. In Martin’s case, her years of being both a\n\nstudent and now a tutor/instructor to other inmates, coupled with a sentence of life\n\nimprisonment, entitle her to a more robust explanation for why her mitigation evidence\n\n 12\n\fholds no weight. The failure to provide an individualized explanation, especially in light\n\nof the significant amount of mitigation evidence, runs afoul of Chavez-Meza and allows\n\nMartin to rebut the Fourth Circuit’s Legree presumption.\n\n The Supreme Court has made it clear that a “sentence modification is not a plenary\n\nresentencing proceeding. We therefore need not turn a blind eye to what the judge said at\n\npetitioner’s initial sentencing.” Chavez-Meza, 138 S. Ct. at 1967 (internal quotations\n\nomitted). However, Martin does not ask this Court to disregard the old evidence of the\n\nrationale from her original sentence. Rather Martin asks this Court to follow our\n\nprecedent which requires a district court to consider evidence of post-sentencing\n\nmitigation that would be relevant to the § 3553(a) factors.\n\n The explanation the district court provided upon remand was merely a recitation of\n\nMartin’s original criminal behavior. That is not the standard that the Supreme Court and\n\nthe Fourth Circuit articulate for sentence-reduction motions. The district court was\n\ncontent to memorialize Martin’s past transgressions without giving any weight to the\n\nmultitude of redemptive measures that Martin has taken since she was initially sentenced\n\nto life in prison. The Government at oral argument even conceded that Martin’s post-\n\nsentencing behavior is among the best that it has seen. Martin’s journey toward\n\nrehabilitation is especially noteworthy because she was given a life sentence and had no\n\nidea that Amendment 782 would eventually arrive to give her a glimmer of hope. Martin\n\nstrove to better herself and those around her without the prospect of any incentive or\n\nreward. The district court must provide an individualized explanation for why Martin’s\n\nsteps toward rehabilitation are meaningless. On remand, the district court should explain\n\n 13\n\fto Martin why her sentence of life imprisonment for a nonviolent drug offense must\n\nremain undisturbed despite overwhelming evidence of rehabilitation.\n\n C.\n\n Mangual is also entitled to relief under the law of this Circuit and the Supreme\n\nCourt. As an initial matter, Mangual, like Martin, has significant evidence of mitigation\n\nthat was not addressed by the district court when it partially granted his motion. In his\n\nten years of incarceration Mangual has been a model inmate. The only infraction on his\n\ndisciplinary record stems from his failure to hear his name during count call. He has used\n\nhis time while incarcerated to create an educational and awareness tool to help his fellow\n\ninmates help each other. Mangual’s behavior has led to his placement in a minimum-\n\nsecurity facility. Prison officials trust Mangual at such a high level that he is allowed to\n\nwork outside of the prison compound. The evidence of his exemplary conduct must\n\nproperly be factored into the decision regarding his liberty interests. In addition,\n\nMangual argues that he is unlikely to recidivate due to his advanced age, deteriorating\n\nhealth, and stable home upon release. Given that there is no reference to Mangual’s new\n\nmitigation evidence, it is clear that the district court did not comply with the standards set\n\nforth in Chavez-Meza, and Mangual has rebutted the Legree presumption.\n\n Moreover, this Court lacks Mangual’s original sentencing transcript, and this\n\nomission provides another basis for remand given that we cannot conduct meaningful\n\nappellate review without such a transcript. See Chavez-Meza, 138 S. Ct. at 1965. In a\n\nprior decision, this Court found that a defendant rebutted the Legree presumption in a\n\nsimilar situation where the record did not contain the original sentencing transcript.\n\n 14\n\fMcKenzie, 318 F. App’x at 203. Here, without the transcript, this Court is left to\n\nspeculate as to the reasons that led to Mangual’s original sentence. At the initial\n\nsentencing hearing, the court explained in the statement of reasons that a sentence at the\n\ntop of the Guidelines range was appropriate because of the significant quantity of drugs\n\ninvolved in the offense and Mangual’s prior drug conviction. This Court cannot look to\n\nlanguage about drug quantities and ascertain how the original sentencing court’s rationale\n\nwould interact with the host of mitigation evidence that arose post-sentencing. The\n\ndistrict court must provide Mangual an individualized explanation as to why his lengthy\n\nsentence for a nonviolent drug offense must remain only partially reduced given the\n\nsignificant amount of mitigation evidence that Mangual has proffered post sentencing.\n\n Chavez-Meza grants appellate courts broad discretion in reviewing section\n\n3582(c)(2) orders. “If the court of appeals considers an explanation inadequate in a\n\nparticular case, it can send the case back to the district court for a more complete\n\nexplanation.” 138 S. Ct. at 1965. Here, given the complex record full of new mitigation\n\nevidence and the lack of the original sentencing transcript, this Court requires more\n\nexplanation. We cannot conduct a proper appellate review and must remand in order to\n\nensure that Mangual’s acts toward rehabilitation are properly examined and addressed\n\nthrough an individualized explanation.\n\n\n\n IV.\n\n There is no right to a sentence reduction under § 3582(c)(2). However, a district\n\ncourt cannot ignore a host of mitigation evidence and summarily deny a motion to reduce\n\n 15\n\fa sentence and leave both the defendant and the appellate court in the dark as to the\n\nreasons for its decision. This Court makes no assessments as to whether the motions to\n\nreduce appellants’ sentences should have been granted or to what extent they should have\n\nbeen granted. However, the district court must provide a rationale as to why two\n\nindividuals who have placed themselves on a positive life trajectory, despite the\n\nchallenges of a lengthy period of incarceration, should receive no relief for their\n\nrehabilitation. The district court needs to explain to Martin and Mangual why their\n\nattempts at rehabilitation are futile. Accordingly, we vacate the district court’s orders and\n\nremand the case for the district court to provide adequate reasoning for its decisions.\n\n\n\n VACATED AND REMANDED\n\n\n\n\n 16", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371270/", "author_raw": "Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in"}]} | GREGORY | MOTZ | FLOYD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4594017/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,594,024 | UNITED STATES of America, Plaintiff - Appellee, v. Keith Wayne CARVER, Jr., Defendant - Appellant. | United States v. Keith Carver, Jr. | 2019-02-26 | 18-4153 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Wilkinson, Niemeyer, King", "parties": "", "opinions": [{"author": "WILKINSON, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4153\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n\n v.\n\nKEITH WAYNE CARVER, JR.,\n\n Defendant – Appellant.\n\n\n\nAppeal from the United States District Court for the District of South Carolina, at\nGreenville. Timothy M. Cain, District Judge. (6:16-cr-00281-TMC-1)\n\n\nArgued: January 31, 2019 Decided: February 26, 2019\n\n\nBefore WILKINSON, NIEMEYER, and KING, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge\nNiemeyer and Judge King joined.\n\n\nARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\nColumbia, South Carolina, for Appellant. Elizabeth Jeanne Howard, OFFICE OF THE\nUNITED STATES ATTORNEY, Greenville, North Carolina, for Appellee. ON BRIEF:\nSherri A. Lydon, United States Attorney, OFFICE OF THE UNITED STATES\nATTORNEY, Columbia, South Carolina, for Appellee.\n\fWILKINSON, Circuit Judge:\n\n Keith Carver entered a guilty plea in 2016 on two counts: possession of at least\n\nfifteen access devices with intent to defraud and possession of device-making equipment\n\nwith intent to defraud. Later, in 2017, he pled guilty to an Information alleging\n\naggravated identity theft. In this appeal, Carver challenges the validity of the latter guilty\n\nplea. He also challenges various aspects of sentencing for the first two counts, including\n\nthe calculated amount of loss, the number of victims, and the district court’s refusal to\n\ngrant him an acceptance of responsibility reduction. For the following reasons, we affirm.\n\n\n\n I.\n\n What happens in Vegas may stay in Vegas, but during John Emmert’s visit there\n\nin 2015 he learned he was somehow also staying in Greenville, South Carolina—or at\n\nleast, his credit card was. Alarmed, he called the hotel, and hotel staff called the police.\n\nAfter a little detective work, officers Jeffrey Long and Mike Dean obtained a warrant and\n\nsearched the room that Emmert had purportedly used his credit card to pay for. Keith\n\nCarver and Haidee Gillespie were inside, as well as an encoder machine (also called an\n\n“overwriter”), driver’s licenses in various names, banking paperwork, more than fifty gift\n\nand credit cards under various names, drug paraphernalia, and a laptop computer. Later,\n\nCarolyn Root, a recent burglary victim, identified the laptop and some cards and\n\npaperwork as hers. The officers arrested Carver. A grand jury indicted him on three\n\ncounts, and in September 2016, he pled guilty to two counts: possession of at least fifteen\n\naccess devices with intent to defraud in violation of 18 U.S.C. § 1029(a)(2) and (3), and\n\n 2\n\fpossession of device-making equipment with intent to defraud, in violation of 18 U.S.C.\n\n§ 1029(a)(2) and (4).\n\n Carver initially planned to go to trial on a third count for aggravated identity theft\n\nunder 18 U.S.C. § 1028A. Upon reflection, and after learning that going to trial could\n\naffect his prospects for an offense level reduction for acceptance of responsibility, Carver\n\npled guilty to an Information alleging aggravated identity theft (the only difference\n\nbetween the Information and Count 3 of the indictment being the name of the victim).\n\n The Presentence Investigation Report calculated a base offense level of six for\n\nCounts 1 and 2. Because the offense involved the use of device-making equipment, the\n\nPSR added two levels under United States Sentencing Guidelines Manual\n\n§ 2B1.1(b)(11)(A)(i). In addition, the PSR recommended a four-level enhancement\n\nbecause the amount of loss was between $15,000 and $40,000 under U.S.S.G.\n\n§ 2B1.1(b)(1)(C). The amount of loss figure was calculated under U.S.S.G. § 2B1.1 cmt.\n\nn.3(F)(i), which instructs that the loss per access device is always at least $500. Relying\n\non this, the PSR multiplied the number of cards found during the search of Carver’s room\n\n(fifty-three) by $500, then added the amounts which were more than $500 that were\n\ncharged on two devices ($540 and $1,342). The total was $28,382. The PSR next\n\nconcluded the offense involved twenty-seven victims; because this number exceeds ten,\n\nthat conclusion increased Carver’s offense level by two under U.S.S.G.\n\n§ 2B1.1(b)(2)(A)(i). However, because the probation officer concluded Carver had\n\naccepted responsibility, the PSR gave him a two-level reduction under U.S.S.G.\n\n§ 3E1.1(a). The total offense level was therefore twelve in the PSR.\n\n 3\n\f Carver objected to the enhancements for the amount of loss and number of\n\nvictims. The district court held a hearing, at which Detective Mike Dean—one of the\n\nofficers who searched the room—testified. He explained that he found sixty-four cards in\n\nthe hotel room. Forty-four had numbers written on the back, which in his experience is\n\ncommon for fraudulent cards since it helps remind the user that the number on the front\n\nno longer matches what is encoded on the magnetic strip. He ran each card through a card\n\nreader to discern if the magnetic strip had been overwritten. Fifty-one of them had been.\n\nSome of the overwritten cards gave a readout of “E” as part of the code, which he thought\n\nmight mean the strip now had nothing on it or was encoded improperly. Detective Dean\n\ntestified that he found identification documents for eighteen victims, and he identified all\n\neighteen by name. After this hearing, government counsel suggested that each\n\noverwritten card was an unauthorized access device, and so the proper number was fifty-\n\none (not fifty-three). The government also revised its submission for the number of\n\nvictims to eighteen (not twenty-seven). The district court agreed, but this change did not\n\naffect the offense level.\n\n After conducting this hearing and resolving Carver’s objections, the district court\n\nrequested argument on whether to grant an acceptance of responsibility reduction. The\n\nplea transcript for the first two counts showed that Carver had agreed that “[t]here were\n\nover 50 gift cards and credit cards in various names scattered throughout the room ….”\n\nJ.A. 128. The district court concluded, however, that Carver’s remorse was not credible,\n\nthat the sentencing objections were “essentially not warranted,” and that the objection to\n\nthe number of devices was in tension with facts agreed to in the plea transcript. It denied\n\n 4\n\fthe acceptance of responsibility reduction. Carver’s offense level was consequently 14,\n\nhis criminal history category being IV, and he was sentenced to 33 months’ imprisonment\n\non Counts 1 and 2 to run concurrently, at the high end of the Guidelines range. For the\n\nidentity theft charge, Carver received 24 months’ imprisonment, to be served consecutive\n\nto the first 33 months, as required by statute.\n\n\n\n II.\n\n Carver challenges the validity of his guilty plea to the Information by pointing to\n\nvarious putative errors in the Rule 11 proceeding. Carver never objected to these\n\npurported errors, however, nor did he seek to withdraw his guilty plea. Notably, appellant\n\nhere challenges only his second guilty plea. There is no question respecting Counts 1 and\n\n2 of the indictment, only the Information alleging identity theft (which substituted for\n\nCount 3). In the relevant colloquy of February 16, 2017, Carver averred that he had\n\nreviewed his case with counsel, and he answered various questions under oath. He was\n\nforty-five; he attended college for two years; he was taking no medication or drugs.\n\nNeither counsel had any reservations in affirming that he was competent.\n\n The government then read the Information alleging that he knowingly and\n\nunlawfully possessed a means of identification and noting the maximum punishment. The\n\ngovernment likewise read the factual allegations, to which Carver agreed. The court then\n\nasked question after question assuring that Carver understood the nature and gravity of\n\nwhat he gave up by pleading guilty. He was waiving his right to go to trial, to be\n\npresumed innocent, to cross examine witnesses, to demand that the government prove all\n\n 5\n\felements, and to refrain from incriminating himself. J.A. 69-70. He stated that no one had\n\npromised him anything, and that knowing all this, he wished to plead guilty. Carver’s\n\nchallenges on appeal to this proceeding are insubstantial, and none comes close to\n\nmeeting a plain error standard.\n\n\n\n III.\n\n Carver likewise lodges challenges to his sentencing on Counts 1 and 2. He raises\n\nthree arguments: first that the amount of loss caused by his criminal actions was\n\nmiscalculated, second that the number of victims was overstated, and third that the court\n\nerroneously refused to reduce his offense level in light of his acceptance of responsibility.\n\nWe deal with each in turn, holding that they are without merit. Questions of law are\n\nreviewed de novo, but factual findings will stand unless clearly erroneous. United States\n\nv. Horton, 693 F.3d 463, 474 (4th Cir. 2012).\n\n\n\n A.\n\n The first and most substantial objection is that the amount of loss for Counts 1 and\n\n2 was calculated improperly because the government failed to prove that each\n\nfraudulently altered card would actually work. The Guidelines commentary gives a\n\n“Special Rule[]” for “Stolen or Counterfeit Credit Cards and Access Devices.” U.S.S.G.\n\n§ 2B1.1 cmt. n.3(F)(i). That rule is: “loss includes any unauthorized charges made with\n\nthe … unauthorized access device and shall be not less than $500 per access device.” Id.\n\nCarver argues that, because they were not proven to work, not every overwritten card\n\n 6\n\ffound in the hotel room counts as an “unauthorized access device,” and so the $500\n\nminimum should be applied to fewer devices.\n\n In United States v. Onyesoh, 674 F.3d 1157, 1159 (9th Cir. 2012) the Ninth Circuit\n\nheld that a card is not an access device if it is not functional. The court reasoned as\n\nfollows: First, an “access device” is by its statutory definition “any card … account\n\nnumber … or other means of account access that can be used … to obtain money … or\n\nany other thing of value.” 18 U.S.C. § 1029(e)(1). Any device that cannot “be used … to\n\nobtain money” is therefore not an access device at all. Second, an “unauthorized access\n\ndevice” is a subset of all access devices. Therefore, any device that cannot “be used” to\n\nobtain money is not an unauthorized access device either. By this reasoning, the\n\ngovernment would have needed to show which of the fifty-one cards could at that\n\nmoment be used to obtain money, which it did not do—indeed, the district court included\n\nin the total those cards with an “E” readout.\n\n We decline to adopt the Onyesoh usability standard. The full definition of\n\n“unauthorized access device” refutes this argument: “the term ‘unauthorized access\n\ndevice’ means any access device that is lost, stolen, expired, revoked, canceled, or\n\nobtained with intent to defraud.” 18 U.S.C. § 1029(e)(3) (emphasis added). Expired,\n\nrevoked, or canceled cards cannot be used to obtain money, and so Onyesoh would have\n\nthree words in its statutory definition that mean nothing. A better statutory reading is\n\napparent. Congress, mindful of the need to “encompass future technological changes,”\n\nH.R. Rep. No. 98-894, at 19 (1984), wrote broadly to include any device of the general\n\n\n\n 7\n\fsort that people use to get money. The general words “can be used” signify an intent to\n\nexpand the reach of the definition.\n\n This reading is perfectly natural. A salesperson describing the features of a\n\nuniversal remote control might say, “This can be used on any model of television we\n\nsell.” No one would think the salesperson is representing that the remote control would\n\nbe currently functional—it might need batteries, reprogramming, or various other\n\nadjustments before it would work. The promise is that it is the kind of thing that, under\n\nplausible circumstances, could change channels, adjust volume, and so forth on\n\ntelevisions. The same is true of a fraudulently altered card. Even if it could not complete\n\na transaction now, it is the type of thing that could do so, and was altered for precisely\n\nthat purpose.\n\n Reading the phrase “can be used” in this way is consonant with including expired,\n\nrevoked, or canceled devices in the definition of “unauthorized access device.” There is\n\nno need to add an extra element of current functionality that prosecutors must prove in\n\nsentencing, especially when the $500 minimum and capacious definition of “access\n\ndevice” shows that Congress sought to make the calculation straightforward. We\n\ntherefore join the circuits that have rejected the usability standard from Onyesoh. See\n\nUnited States v. Popovski, 872 F.3d 552, 553 (7th Cir. 2017); United States v. Moon, 808\n\nF.3d 1085, 1092 (6th Cir. 2015); see also United States v. Thomas, 841 F.3d 760, 764-65\n\n(8th Cir. 2016) (noting the circuit split and holding that a district court did not commit\n\nplain error by failing to evaluate usability).\n\n\n\n 8\n\f To meet the definition of unauthorized access device under 18 U.S.C.\n\n§ 1029(e)(3), therefore, the government did not need to show that each device was\n\ncurrently functional, but only that it was in principle the sort of thing that people use to\n\nobtain money (like a credit card or bank number). This it did prove. Detective Dean\n\nexamined each card and found that fifty-one were fraudulently overwritten. The district\n\ncourt did not err in accepting these as unauthorized access devices. And even if there\n\nwere some error, any small error would be harmless. The same Guidelines enhancement\n\nwould apply to any amount exceeding $15,000, while the district court calculated an\n\namount more than $10,000 higher than that.\n\n\n\n B.\n\n Carver’s second sentencing objection presented on appeal is that the number of\n\nvictims for Counts 1 and 2 was miscalculated. The argument does not appear to be\n\nspecific to any of the eighteen victims Detective Dean identified before the district court.\n\nInstead, the argument is simply that seeing their names on cards, bank account numbers,\n\nand identification documents is not enough to count them as victims absent corroborating\n\nevidence that they suffered pecuniary loss (which was presented for only two victims).\n\n This argument is meritless. Moreover, it was conceded below. When asked by the\n\ndistrict court whether the number of victims was “under ten or over ten,” J.A. 122,\n\ndefense counsel responded:\n\n I asked him [Detective Dean] to identify the people and he has come up\n with the names. So I got nothing more to say about that part. It is just a\n question of whether you want to accept that testimony as people who they\n\n 9\n\f identify with this particular incident from 2015…. As far as the number of\n victims, he has identified I think 18, anyway, victims in connection with\n this case by name here in the courtroom…. [W]e have clarity, I believe, on\n the victim issue because the officer testified to that and I have nothing to\n refute that. J.A. 122-23.\n\nThis concession is fatal to Carver’s appeal on this ground.\n\n Even on its own terms, Carver’s argument lacks merit. A “victim” is “any person\n\nwho sustained any part of the actual loss ….” U.S.S.G. § 2B1.1 cmt. n.1. The actual loss,\n\nin turn, is, for cases involving an unauthorized access device, “any unauthorized charges\n\nmade with the … device and shall be not less than $500 per access device.” U.S.S.G.\n\n§ 2B1.1 cmt. n.3(F)(i). This provision takes note of the costs these types of crimes cause\n\nthat can be difficult to measure or prove—the cost of taking protective and corrective\n\nmeasures, of harm to one’s credit card rating, and so forth. It makes little sense to say in\n\none breath that the harm is never less than $500, then in the next to say the persons\n\naffected sustained no loss. The district court did not err in concluding that the eighteen\n\npersons identified were victims. The fact that their names were on a card or device here\n\nwas more than enough.\n\n\n\n C.\n\n Carver’s final objection to his sentencing on Counts 1 and 2 is that the district\n\ncourt erred in denying him an acceptance of responsibility reduction under U.S.S.G.\n\n§ 3E1.1(a). The defendant bears the burden of showing “he has clearly recognized and\n\naffirmatively accepted personal responsibility for his criminal conduct,” and this “does\n\n\n\n 10\n\fnot flow automatically from a guilty plea.” United States v. May, 359 F.3d 683, 693 (4th\n\nCir. 2004). We review only for clear error. Id. at 688. There was no clear error here.\n\n The district court properly noted the delay caused by numerous objections and the\n\ndefendant’s seeming contradiction of facts he had previously agreed to. More\n\nimportantly, the district court, which heard from Carver in-person, concluded he “really\n\nis not remorseful for what he has done. I don’t find his testimony that he is sorry for what\n\nhe has done to be credible.” J.A. 148-49. Pleading guilty is not enough, by itself, and we\n\nmust defer to the district court’s credibility determination.\n\n\n\n IV.\n\n Financial fraud is a modern scourge. It preys especially upon the unsophisticated\n\nand vulnerable. As the district court noted, crimes like those in this case harm victims “in\n\nalmost irreparable ways by causing them loss of work, mental anguish, monetary loss,\n\nand loss of peace of mind.” J.A. 152. It raises costs for businesses, which must invest in\n\nsecurity measures. These crimes require time and expertise to investigate and can be\n\ndifficult to unravel and prove. This time, the government has done so, and the district\n\ncourt imposed a just sentence. The judgment is\n\n AFFIRMED.\n\n\n\n\n 11", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371277/", "author_raw": "WILKINSON, Circuit Judge:"}]} | WILKINSON | NIEMEYER | KING | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4594024/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,594,028 | United States v. Antonio Tillmon | 2019-02-26 | 17-4648 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before NIEMEYER, AGEE and DIAZ, Circuit Judges.", "parties": "", "opinions": [{"author": "AGEE, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-4648\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nANTONIO TILLMON,\n\n Defendant - Appellant.\n\n\nAppeal from the United States District Court for the Eastern District of North Carolina, at\nElizabeth City. Malcolm J. Howard, Senior District Judge. (2:15-cr-00009-H-9)\n\n\nArgued: October 31, 2018 Decided: February 26, 2019\n\n\nBefore NIEMEYER, AGEE and DIAZ, Circuit Judges.\n\n\nAffirmed in part and vacated in part by published opinion. Judge Agee wrote the opinion,\nin which Judge Niemeyer and Judge Diaz joined.\n\n\nARGUED: Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina, for\nAppellant. Banumathi Rangarajan, OFFICE OF THE UNITED STATES ATTORNEY,\nRaleigh, North Carolina, for Appellee. ON BRIEF: Kelly Margolis Dagger, ELLIS &\nWINTERS LLP, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United\nStates Attorney, Jennifer P. May-Parker, Acting First Assistant United States Attorney,\nBarbara D. Kocher, Assistant United States Attorney, OFFICE OF THE UNITED\nSTATES ATTORNEY, Raleigh, North Carolina, for Appellee.\n\fAGEE, Circuit Judge:\n\n After being caught in a sting operation aimed at exposing corrupt law enforcement\n\nofficers, Antonio Tillmon was convicted by a jury on multiple counts: conspiracy to\n\ncommit drug trafficking, conspiracy to use firearms while drug trafficking, attempted\n\npossession of heroin with intent to distribute, using or carrying a firearm while drug\n\ntrafficking, and three counts of federal programs bribery. On appeal, Tillmon challenges\n\nthe district court’s denial of his motion for a judgment of acquittal as to these offenses and\n\nits admission of a video-recorded conversation between Tillmon and an undercover agent.\n\nFor the reasons discussed below, we affirm the conspiracy, attempted possession and\n\nfirearms convictions, but vacate the federal programs bribery convictions.\n\n\n\n I.\n\n Tillmon’s prosecution arose from a multi-year FBI investigation into reports of law\n\nenforcement corruption in the counties of Northampton and Halifax, North Carolina. 1 This\n\ninvestigation, “Operation Rockfish,” began in 2013 after the FBI received information that\n\nLann Clanton, a police officer with the Weldon, North Carolina, Police Department, was\n\ninvolved in criminal activity. Operation Rockfish consisted of undercover agents posing as\n\nmembers of a transnational drug trafficking organization (“DTO”) that transported\n\nkilograms of heroin and cocaine to New York City. Part of the DTO’s strategy was\n\n\n\n\n 1\n We recite the facts established at trial in the light most favorable to the\nGovernment. United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).\n 2\n\f“specifically tr[ying] to recruit law enforcement officers for their ability to badge their way\n\nout of legitimate traffic stops by other law enforcement officers.” J.A. 406.\n\n The FBI established a “general template” for the DTO, setting up a warehouse to\n\nprepare “cocaine” and “heroin” for shipment by storing those drugs in hidden\n\ncompartments of vehicles. J.A. 412. No real drugs were used, but a lookalike substance\n\nwas packaged to “look like kilograms of illegal drugs that had been seized in other\n\ninvestigations.” J.A. 411. Ten one-kilogram packages were color-coded to identify the type\n\nof drug each package purportedly contained. Once the packages were loaded into a vehicle\n\nfor transport (“the load vehicle”), team members rode in that vehicle, a scout vehicle that\n\ndrove ahead of it, and a rear guard vehicle that drove behind it.\n\n Once the ersatz DTO was operational, the FBI used a confidential informant to let\n\nClanton know about its existence. Clanton then contacted the DTO, where his first\n\nassignment was to recruit law enforcement officers to implement the DTO’s cover strategy.\n\nClanton’s first recruit was Ikeisha Jacobs, another member of the Weldon Police\n\nDepartment. Clanton and Jacobs then enlisted other current and former law enforcement\n\nand correctional officers to join their teams.\n\n Jacobs recruited Tillmon, a former coworker, for her team. At the time he was\n\nrecruited to the DTO, Tillmon was a police officer with the Windsor, North Carolina,\n\nPolice Department. On August 19, 2014, Jacobs invited Tillmon to join her and other team\n\nmembers for a preparatory meeting. The gathering included Jacobs, two undercover FBI\n\nagents (John and Lisa), and four new recruits (Adrienne Moody, Alaina Sue-Kam-Lang,\n\nCrystal Pierce, and Tillmon). During the meeting, the undercover agents and Jacobs\n\n 3\n\fdescribed the plan for the next day’s transport and explained the DTO’s reason for using\n\nlaw enforcement officers. They gave the team members a cover story to use if police\n\nstopped them during the transport: they were transporting a vehicle that had been sold out\n\nof state. During the meeting, one undercover agent asked whether the recruits carried guns.\n\nTillmon indicated that he would carry his gun. Toward the end of the meeting, the agents\n\ntold the recruits that they did not have to participate in the operation if they wanted out.\n\n The next morning (“the August 2014 transport”), Tillmon picked up Jacobs and Sue-\n\nKam-Lang before driving to a prearranged rendezvous point where they met Lisa and other\n\nteam members. They all then drove to a warehouse in Rocky Mount, North Carolina. Upon\n\narrival, Tillmon helped move a large white cooler from one area of the warehouse to the\n\nback of the load vehicle, a white GMC Acadia. One of the undercover agents, Paul, pulled\n\nout ten packages from underneath the ice and drinks in the cooler, counted them, and put\n\nthem on the ground. Paul handed the packages to John, another agent, who was underneath\n\nthe Acadia putting the packages into a hidden compartment. Tillmon never touched the\n\npackages, but he watched as they were loaded into the compartment in plain view of him\n\nand the other team members. 2 While standing behind the vehicle, Lisa explained to Tillmon\n\nthat they were “starting to move H.” J.A. 591–92. Lisa testified at trial that by “H” she\n\nmeant “heroin,” though she did not clarify her meaning to the team members at the time.\n\n After the packages were stored in the Acadia, it and two other vehicles caravanned\n\nto National Harbor in Maryland. Jacobs drove the load vehicle, two team members drove\n\n\n 2\n The trial evidence shows that Tillmon did not touch, handle, or assist in loading\nthe staged packages into the vehicles during any of the events described.\n 4\n\fthe scout vehicle, and Tillmon and Sue-Kam-Lang followed as the rear guard. When they\n\narrived at National Harbor, the team members met “Tee,” another undercover agent who\n\nwas posing as the supervisor of that portion of the route. Tee and the team boarded an\n\nenclosed car of a Ferris wheel, where Tee paid each member of the group. Tillmon received\n\n$2,000 and then returned to North Carolina.\n\n In October 2014 (“the October 2014 transport”), Jacobs and Tillmon rode together\n\nto the Rocky Mount warehouse. While waiting for drugs to be loaded into the hidden\n\ncompartment of the load vehicle, Tillmon was shown a fake bill of sale that would back\n\ntheir cover story. This time, Tillmon drove the load vehicle to the parking lot of an outlet\n\nmall in Maryland. He then got into a large van, where Tee paid him and the other team\n\nmembers. Tee paid Tillmon $2,000.\n\n In March 2015 (“the March 2015 transport”), Jacobs asked Tillmon to join her a\n\nthird time. When Tillmon arrived at the Rocky Mount warehouse, the agents had a pickup\n\ntruck staged with packages of drugs laid out in plain view on the tailgate. The team\n\nmembers, including Tillmon, walked by the back of the truck as they entered the\n\nwarehouse’s office. Inside, Lisa asked everyone if they had guns; after Sue-Kam-Lang\n\nindicated that she did not have a gun, Tillmon gave her one of his extra guns.\n\n The team exited the office and went back into the main part of the warehouse. As\n\nthe drugs were being loaded into the hidden compartment of the vehicle, Lisa said, “you\n\nguys got to be carrying from now on . . . a million dollars of heroin, you can’t f[***] around\n\nwith that.” Supp. J.A. 1625 at 12:47:16–47:24. She was within three feet of Tillmon as she\n\nspoke.\n\n 5\n\f After the drugs were loaded, the team departed, with Tillmon and Jacobs driving the\n\nrear guard vehicle. After the team left the load vehicle at a carport in Maryland, they met\n\nTee at the same outlet mall parking lot as in October. Each member entered Tee’s vehicle\n\nseparately, where they were paid. As Tillmon was paid $2,500, Tee asked him if he was\n\ncarrying a gun, and Tillmon confirmed he was. Then Tee indicated he was interested in\n\ngetting a small firearm. Tillmon responded, “What [do] you need?” and Tee said he wanted\n\n“a thirty-eight (.38), something small, a revolver that don’t need no shells, know what I\n\nmean?” J.A. 1402. Tillmon recommended a few firearms that would meet Tee’s need to\n\n“just walk right up on ‘em and keep rolling” and “boom-boom and then throw that s[***]\n\naway and [not worry] about it no more.” J.A. 1403–04. Tee asked Tillmon to let him know\n\nif he heard of anything available, and Tillmon replied, “Okay . . . . We’ll talk.” J.A. 1404.\n\nTillmon exited Tee’s vehicle and returned to North Carolina.\n\n In April 2015, Jacobs asked Tillmon to join her again. When they arrived at the\n\nRocky Mount warehouse, the undercover agents arrested them. At the time of his arrest,\n\nTillmon had in his possession his badge, his Windsor police identification, four semi-\n\nautomatic pistols, a .223 caliber rifle, and ammunition for each of the guns. 3\n\n A grand jury indicted Tillmon and fourteen others, including Clanton and Jacobs,\n\nin a fifty-four count indictment. Tillmon was charged in ten of the counts. All other\n\ndefendants negotiated guilty pleas, but Tillmon pleaded not guilty and invoked his right to\n\na jury trial on all charges: (1) one count of conspiracy to distribute and possess with intent\n\n\n 3\n These items, all of which belonged to Tillmon, were found on his person, in his\nbag, and in Moody’s vehicle, in which he had come to the warehouse.\n 6\n\fto distribute controlled substances, namely heroin and cocaine, in violation of 21 U.S.C.\n\n§§ 841(a)(1), 846 (Count 1); (2) one count of conspiracy to use firearms during and in\n\nrelation to a drug trafficking offense, in violation of 18 U.S.C. § 924(o) (Count 2); (3) three\n\ncounts of attempted possession with intent to distribute heroin, in violation of 21 U.S.C.\n\n§§ 841(a)(1), 841(b)(1)(A)(i), 846, and 18 U.S.C. § 2, corresponding to the three transports\n\n(August 2014, Count 28; October 2014, Count 33; and March 2015, Count 48); (4) two\n\ncounts of use and carry of a firearm during and in relation to a drug trafficking crime, in\n\nviolation of 18 U.S.C. §§ 2, 924(c)(1)(A), corresponding to two of the transports (October\n\n2014, Count 34; and March 2015, Count 49); and (5) three counts of federal programs\n\nbribery, in violation of 18 U.S.C. § 666(a)(1)(B), corresponding to each transport (August\n\n2014, Count 32; October 2014, Count 36; and March 2015, Count 54).\n\n At trial, the Government argued that Tillmon conspired with other law enforcement\n\nofficers to use their badges and firearms to assist in transporting a substance they believed\n\nto be heroin out of North Carolina. Because the entire DTO was a sting operation that had\n\nbeen captured in video and audio recordings, the Government introduced into evidence the\n\nrecordings of the preparatory meeting in August 2014 and the interactions at the Rocky\n\nMount warehouse on each transport day.\n\n At the close of the Government’s evidence, Tillmon moved for a judgment of\n\nacquittal on all counts under Federal Rule of Criminal Procedure 29. The district court\n\ndenied the motion on all but one count, granting the motion as to the charge of attempted\n\npossession with intent to distribute heroin based on the August 2014 transport. The district\n\ncourt reasoned that there was insufficient evidence to support the charge because it was\n\n 7\n\fbased solely on Lisa’s reference to “H,” and while she was “probably” talking about\n\nheroin, there was no evidence that anyone specifically identified the substance as heroin.\n\nJ.A. 1057.\n\n Tillmon’s defense centered on his contention that he did not have the requisite intent\n\nor knowledge to commit the crimes. For example, Tillmon testified that he did not recall\n\nany discussion of his police badge or identification card at the preparatory meeting and that\n\nhe did not realize he had a job during the transports or that he would be paid for that job.\n\nHe further testified that he did not hear or misheard Lisa’s statements at the Rocky Mount\n\nwarehouse about transporting heroin. Tillmon stated that he did not have any understanding\n\nof what was happening, only that others were loading something into a vehicle to be\n\ndelivered to Maryland.\n\n During Tillmon’s cross-examination, the Government introduced—over Tillmon’s\n\nobjection—a video recording of the conversation between Tillmon and Tee from the March\n\n2015 transport in which Tee requested Tillmon’s assistance in procuring a small-caliber\n\nfirearm. Tillmon argued that the recording was unfairly prejudicial because it implicated\n\nhim in uncharged violent crimes. The district court overruled the objection, concluding that\n\nany prejudicial effect was overridden by the fact that the video showed there was “a clear\n\nrelationship and friendship” between Tee and Tillmon. J.A. 1001.\n\n The jury found Tillmon guilty on the remaining nine counts. After the verdict,\n\nTillmon renewed his motion for a judgment of acquittal, or, in the alternative, for a new\n\ntrial. The district court denied the motions as to all but two counts, granting the motion for\n\na judgment of acquittal only with respect to the attempted possession with intent to\n\n 8\n\fdistribute heroin and corresponding firearm conviction arising from the October 2014\n\ntransport (Counts 33 and 34). 4 The district court observed that sufficient evidence\n\nsupported the jury’s decision to convict on the conspiracy charges (Counts 1 and 2),\n\nattempted possession charge (Count 48), and firearm charge (Count 49), largely based on\n\nLisa’s reference to the “million dollars[’] worth of heroin” that Tillmon received payment\n\nfor accompanying to Maryland during the March 2015 transport. J.A. 1527. Further, and\n\nin relevant part, the district court concluded sufficient evidence supported the three federal\n\nprograms bribery convictions (Counts 32, 36, and 54) because the record showed Tillmon\n\nand his co-defendants collectively received more than $5,000 for each transport and he was\n\ntold he was transporting drugs valued at more than a million dollars.\n\n Tillmon’s sentencing was affected by two statutory mandatory minimums. Because\n\nthe jury attributed at least 1 kilogram of heroin to Tillmon, the two drug offenses (Counts\n\n1 and 32) carried a statutory mandatory minimum of 120 months’ imprisonment. See 21\n\nU.S.C. § 841(b)(1)(A)(i). In addition, the firearm conviction carried a mandatory minimum\n\nsentence of 60 months’ imprisonment that must be served consecutively to any other\n\nsentence. 18 U.S.C. § 924(c)(1)(A) (stating that a term of imprisonment of “not less than 5\n\n\n\n\n 4\n The district court explained that the Government had not introduced evidence of\nTillmon’s specific intent to transport heroin, as the indictment charged in Count 33.\nSpecifically, none of the recordings regarding the October 2014 transport referenced the\ntype of drugs supposedly being transported even though they showed the staged packages\nbeing loaded into the load vehicle’s fake compartment, and one of the undercover agents\nhad testified that she thought that substance transported during this transport was supposed\nto be cocaine. The Government has not cross-appealed the Court’s decision and thus\nCounts 33 and 34 are not directly at issue on appeal.\n 9\n\fyears” for the possession offense “shall” be imposed “in addition to the punishment\n\nprovided for such . . . drug trafficking crime”).\n\n Although the district court calculated Tillmon’s Guidelines range to be 188 to 235\n\nmonths’ imprisonment for all but the firearm-possession conviction, it granted Tillmon’s\n\nrequest for a downward variance to the statutory mandatory minimums. Accordingly, the\n\ndistrict court sentenced Tillmon to 180 months’ imprisonment consisting of 120 months’\n\nimprisonment for the conspiracy, attempted possession, and federal programs bribery\n\noffenses (Counts 1, 2, 32, 36, 48, and 54), to be served concurrently, and 60 months’\n\nimprisonment for the firearm offense (Count 49), to be served consecutively to the sentence\n\non the other counts.\n\n Tillmon noted a timely appeal, and this Court has jurisdiction pursuant to 28 U.S.C.\n\n§ 1291.\n\n\n\n II.\n\n Tillmon appeals the denial of his renewed motion for a judgment of acquittal on all\n\nseven remaining counts. First, he argues the evidence was insufficient to show his intent to\n\nengage in the drug trafficking offenses, and that if those charges are vacated, then the\n\nfirearms charges must also be vacated. Second, he contends that even if the convictions\n\nstand, the evidence was insufficient to show that the drug crimes involved more than 1\n\nkilogram of heroin, so he should not have been subjected to an enhanced sentencing range.\n\nThird, Tillmon challenges the district court’s admission of the video evidence from the\n\nMarch 2015 transport on the basis that it was cumulative and unfairly prejudicial. Fourth\n\n 10\n\fand lastly, he contends the evidence was insufficient to support several elements of the\n\nfederal programs bribery charges. We address each argument in turn.\n\n The Court reviews de novo the district court’s denial of a Rule 29 motion for a\n\njudgment of acquittal. United States v. Reed, 780 F.3d 260, 269 (4th Cir. 2015). A\n\ndefendant challenging the sufficiency of the evidence “bears a heavy burden.” United\n\nStates v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal citation marks omitted).\n\nThe Court reviews whether there is “substantial evidence . . . to support the jury verdict,”\n\nUnited States v. Samad, 754 F.2d 1091, 1096 (4th Cir. 1984) (internal quotation marks\n\nomitted), meaning that, to reverse, the record must “demonstrate[] a lack of evidence from\n\nwhich a jury could find guilt beyond a reasonable doubt,” United States v. Burgos, 94 F.3d\n\n849, 862 (4th Cir. 1996). Significantly, the jury—not this Court—“weighs the credibility\n\nof the evidence and resolves any conflicts in the evidence presented” when such\n\ndeterminations need to be made. Id.\n\n The Court reviews the district court’s evidentiary decisions for abuse of discretion.\n\nUnited States v. Basham, 561 F.3d 302, 325 (4th Cir. 2009). We “will not vacate a\n\nconviction unless we find that the district court judge acted arbitrarily or irrationally in\n\nadmitting evidence.” Id. at 326 (internal quotation marks omitted).\n\n\n\n III.\n\n A. Attempted Heroin Possession in March 2015 (Count 48)\n\n Because our consideration of the attempted possession offense facilitates review of\n\nthe conspiracy and firearms convictions, we begin with it. Tillmon argues that the\n\n 11\n\fGovernment did not put forward sufficient evidence to establish the necessary mens rea to\n\nsupport his conviction.\n\n It is a federal crime to “knowingly or intentionally . . . possess with intent to . . .\n\ndistribute . . . a controlled substance” like heroin. 21 U.S.C. § 841(a), (b)(1)(A)(i). A\n\nconviction for an attempt to commit this offense, see 21 U.S.C. § 846, “punishes conduct\n\nthat puts in motion events that would, from the defendant’s point of view, result in the\n\ncommission of a crime but for some intervening circumstance.” United States v. Pratt, 351\n\nF.3d 131, 135 (4th Cir. 2003). To convict Tillmon of the charged offense, the Government\n\nhad to prove\n\n that (1) [Tillmon] had the requisite intent to commit a crime; (2) [he]\n undertook a direct act in a course of conduct planned to culminate in his\n commission of the crime; (3) the act was substantial, in that it was strongly\n corroborative of [his] criminal purpose; and (4) the act fell short of the\n commission of the intended crime due to intervening circumstances.\n\nId.\n\n In rejecting Tillmon’s renewed motion for a judgment of acquittal, the district court\n\nconcluded the evidence was sufficient on each element. Specifically, it observed that Lisa\n\npointed to the staged packages being loaded into the vehicle and said that the team was\n\ntransporting a million dollars’ worth of heroin. Then, Tillmon followed the load vehicle to\n\nMaryland, providing protection during the transport.\n\n Tillmon argues that this evidence was insufficient to demonstrate that he attempted,\n\nor aided or abetted the attempt, to possess with intent to distribute heroin in March 2015.\n\nHe argues that Lisa’s comment about the value of the heroin does not show that he heard\n\nher statement or that he believed the group was trafficking heroin. Tillmon also argues that\n\n 12\n\fthere was no evidence that he exhibited guilty knowledge because he was not shown a\n\nsubstance that looked or felt like heroin, nor was there evidence that he directly handled\n\nthe packages or saw their contents. Additionally, Tillmon asserts that he did not take a\n\nsubstantial step towards completion of the offense that strongly corroborated an intent to\n\npossess with the intent to distribute heroin. He argues that neither his presence at the\n\nwarehouse nor his driving from Rocky Mount to Maryland with the team proves a specific\n\nintent to possess with the intent to distribute heroin. Consequently, Tillmon contends, the\n\njury did not have the evidence necessary to convict him.\n\n We disagree with Tillmon. To say that he lacked intent and was “a mere passive\n\nobserver of these goings-on, would defy reason.” See United States v. McLamb, 985 F.2d\n\n1284, 1292 (4th Cir. 1993). At a minimum, the following evidence shows Tillmon’s\n\nculpable intent: (1) he had basic law enforcement drug trafficking training; (2) the fake\n\nheroin was packaged in a manner commonly used to traffic controlled substances; (3) the\n\nstaged packages were in plain view of Tillmon before and while it was secreted into a\n\nhidden compartment of the load vehicle; (4) while standing about three feet from Tillmon,\n\nLisa pointed to the staged packages and said that the team was moving heroin valued at a\n\nmillion dollars; (5) two vehicles accompanied the load vehicle and each team member was\n\npaid thousands of dollars for accompanying the shipment; and (6) Tillmon not only\n\npossessed a firearm for his own use, but also loaned a team member a second firearm\n\nbecause they all had been instructed to carry firearms. From these facts, a jury could\n\nreasonably conclude that Tillmon had the requisite intent to attempt to possess heroin with\n\nthe intent to distribute it.\n\n 13\n\f We also reject Tillmon’s contention that the evidence does not show that his conduct\n\nconstituted an “attempt” to commit the completed act of possession because he did not take\n\nat least one act calculated to culminate in the completed offense. To the contrary, Tillmon\n\ncompleted the offense and the only circumstance that prevented the Government from\n\ncharging Tillmon with actual possession of heroin was that the substance at issue involved\n\nfake heroin instead of real heroin. This was not a case in which some intervening act early\n\nin the planning prevented Tillmon and his co-conspirators from completing their intended\n\nactivity. Rather, they successfully transported the fake substance from North Carolina to\n\nMaryland. And Tillmon willingly participated in doing so—even after Lisa commented in\n\nthe warehouse that the staged packages contained heroin and Tillmon watched the team\n\nmembers stash the packages in the load vehicle, he took his place in the vehicle caravan,\n\nescorted the packages to Maryland, and accepted payment for his part in the scheme.\n\n Tillmon’s arguments misapply the relevant appellate standards. Some of his\n\ncontentions ask the Court to assume the role of the jury and revisit credibility\n\ndeterminations to decide between competing evidence. However, the jury was not required\n\nto believe Tillmon’s defense that he did not understand what the packages were and that\n\nhe did not hear Lisa’s reference to moving heroin. E.g., Burgos, 94 F.3d at 862 (“[T]he\n\njury, not the reviewing court, weighs the credibility of the evidence and resolves any\n\nconflicts in the evidence presented, and if the evidence supports different, reasonable\n\ninterpretations, the jury decides which interpretation to believe.” (internal quotation marks\n\nomitted)).\n\n\n\n 14\n\f Some of Tillmon’s arguments ask us to attach only benign, if not nonsensical,\n\nmeaning to his “presence” at the warehouse and in the transport. But we have previously\n\nrecognized that presence during obvious criminal activity is relevant to the analysis in a\n\npossession offense. E.g., id. at 869 (citing United States v. Figueroa, 720 F.2d 1239, 1246\n\n(11th Cir. 1983) for the proposition that “when the circumstances surrounding a person’s\n\npresence at the scene of conspiratorial activity are so obvious[, the] knowledge of its\n\ncharacter can fairly be attributed to him”). Here, Tillmon participated in the transport after\n\nLisa pointed to the packages and stated that they contained a million dollars of heroin. He\n\nloaned a team member a firearm for protection during the transport and then accepted\n\n$2,500 for his “presence.” Although Tillmon never touched the packages himself, his role\n\nin the transport was more than that of “a mere passive observer.” See McLamb, 985 F.2d\n\nat 1292. And the jury was entitled to conclude that Tillmon believed the staged packages\n\nwere heroin being transported for distribution, and that he possessed those packages\n\nthrough his role as a hired guard during the transport of those packages from North Carolina\n\nto Maryland. See Pratt, 351 F.3d at 136–37 (recognizing that a person’s criminal role in a\n\npossession with intent to distribute offense can take various forms).\n\n Lastly, to the extent that Tillmon argues that the district court’s dismissal of the\n\nother attempted possession counts supports dismissal of this count, he ignores the specific\n\ncircumstances surrounding the district court’s decisions. The dismissals of the other counts\n\nwere not based on a broad assessment of lack of evidence of his intent, but rather on narrow\n\nevidentiary gaps in the Government’s case. All three attempted possession with intent to\n\ndistribute counts alleged not just the baseline offense set out in 18 U.S.C. § 841(a)(1), but\n\n 15\n\falso the aggravated possession with intent to distribute offense for a violation involving\n\nmore than one kilogram of heroin, see § 841(b)(1)(A)(i). See also United States v. Collins,\n\n415 F.3d 304, 312–14 (4th Cir. 2005) (discussing the difference between the baseline\n\noffense and aggravated offense); United States v. Promise, 255 F.3d 150, 152 (4th Cir.\n\n2001) (en banc) (holding that, in light of Apprendi, § 841(b)(1)(A) sets out elements of an\n\naggravated drug trafficking offense that must be found by a jury rather than constituting\n\nmere sentencing factors). The baseline offense does not require proof of the drug type and\n\nweight; in relevant part, it requires only that the defendant knowingly possessed a\n\ncontrolled substance of some kind. United States v. Ali, 735 F.3d 176, 186–88 (4th Cir.\n\n2013) (holding that while 21 U.S.C. § 841(a)(1) “requires specific intent to distribute a\n\ncontrolled substance or to possess with intent to distribute a controlled substance, it does\n\nnot require that the defendant have, within that intent, specific knowledge of the controlled\n\nsubstance[.]”). To convict Tillmon of the aggravated offense, however, the Government\n\nhad to introduce proof that Tillmon’s § 841(a)(1) violation involved at least one kilogram\n\nof heroin. See § 841(b)(1)(A) (stating that the enhanced penalties apply if “any person . . .\n\nviolates subsection (a)” and that violation “involv[ed]” the type and quantity of drugs\n\nlisted). At trial, the Government urged the district court not to dismiss the attempted\n\npossession counts relating to the August and October 2014 transports because there was\n\nsufficient evidence to convict Tillmon of the aggravated charges involving heroin. For\n\nreasons not readily apparent in the record, it did not rely on the fallback position that even\n\nif the evidence did not prove the aggravated offense elements, it was nonetheless sufficient\n\nto convict Tillmon of the attempted § 841(a)(1) baseline offense. The district court in turn\n\n 16\n\fdismissed the counts based on the August 2014 and December 2014 transports because of\n\ninsufficient evidence to conclude that Tillmon believed the staged packages were heroin,\n\nas opposed to some other controlled substance. By contrast, no such gap exists with respect\n\nto the March 2015 evidence. In the warehouse just prior to that transport, Lisa specifically\n\nreferred to the packages as heroin while in Tillmon’s immediate presence.\n\n For these reasons, the district court did not err in denying Tillmon’s renewed motion\n\nfor a judgment of acquittal on Tillmon’s conviction for attempted possession with intent to\n\ndistribute heroin in March 2015.\n\n B. Drug Trafficking Conspiracy (Count 1)\n\n Tillmon also appeals the district court’s denial of his renewed motion for a judgment\n\nof acquittal with respect to his conviction for conspiracy to distribute and possess with\n\nintent to distribute controlled substances, namely heroin and cocaine, in violation of 21\n\nU.S.C. §§ 841(a)(1), 846 (Count 1). He contends the record contains insufficient evidence\n\nof his intent.\n\n To prove conspiracy to possess drugs with an intent to distribute, the Government\n\nmust establish that: “(1) an agreement to possess cocaine [and heroin] with intent to\n\ndistribute existed between two or more persons; (2) the defendant knew of the conspiracy;\n\nand (3) the defendant knowingly and voluntarily became a part of this conspiracy.” Burgos,\n\n94 F.3d at 857. Due to the clandestine nature of a conspiracy, the offense is often proved\n\nby circumstantial evidence and the context in which the circumstantial evidence is adduced.\n\nId. A conspiracy “may be inferred from a development and collocation of circumstances.”\n\nId. at 858 (internal quotation marks omitted). “Circumstantial evidence sufficient to\n\n 17\n\fsupport a conspiracy conviction need not exclude every reasonable hypothesis of\n\ninnocence, provided the summation of the evidence permits a conclusion of guilt beyond a\n\nreasonable doubt.” Id.\n\n The Government must establish proof of each element beyond a reasonable doubt.\n\nId. And although the Government must satisfy its burden of proving a connection between\n\nthe defendant and the conspiracy, it need not prove the defendant “knew the particulars of\n\nthe conspiracy.” Id. Instead, it is sufficient to show that the defendant joined “with an\n\nunderstanding of the unlawful nature thereof and willfully join[ed] in the plan on one\n\noccasion [even if] he played only a minor part.” Id. (internal quotation marks omitted).\n\n Tillmon’s arguments challenging his conviction on Count 1 mirror the arguments\n\nhe made regarding the attempted possession conviction. For example, he contends there\n\nwas no evidence to support that he knew about an agreement to possess with the intent to\n\ndistribute heroin, or that he agreed to join that endeavor. He asserts no one mentioned drug\n\ntrafficking at the preparatory meeting. Further, Tillmon asserts no evidence contradicts his\n\ntestimony that he did not hear Lisa’s reference to heroin during the March 2015 transport.\n\nHe points to the fact that he never saw a substance identified as heroin (because it was all\n\nin packages) and that he never touched the packages. And he points to his taking\n\nphotographs on one of the transports as proof that he lacked a criminal mindset.\n\n We disagree with Tillmon and do not need to add much to our preceding analysis\n\nrejecting his arguments regarding the attempted possession conviction. His arguments are\n\ngrounded primarily in reweighing the credibility of witnesses and choosing between\n\ndifferent interpretations of conflicting evidence, all of which is squarely in the province of\n\n 18\n\fthe jury and not reviewable on appeal. The rest of his arguments challenge minor details\n\nthat do not affect the substantial evidence recounted above showing that he knowingly and\n\nvoluntarily participated in an agreement to possess heroin and cocaine with the intent to\n\ndistribute. In sum, Tillmon met with both undercover agents and co-conspirators at the\n\npreparatory meeting; observed the Rocky Mount warehouse operations on three occasions\n\nin which staged packages of heroin or cocaine were loaded into the hidden compartment\n\nof a vehicle; was trained in drug trafficking techniques; participated in the August 2014,\n\nOctober 2014, and March 2015 transports along with other co-conspirators; heard Lisa\n\nrefer to the packages used during the March transport as “heroin”; and received $2,000\n\n(twice) and $2,500 (once) for his services related to these transports.\n\n To accept Tillmon’s arguments, the jury would have had to believe that he—a\n\ntrained law enforcement officer—did not know what was happening right in front of him.\n\nEven in cases involving defendants without Tillmon’s background and training, we have\n\nrecognized that jurors can find that defendants have the requisite knowledge and intent for\n\nparticipating in a drug trafficking offense based on their knowledge of circumstances that\n\nare “surreptitious and totally distinguishable from open and normal channels of business,”\n\nsuch as drugs packaged for transport and stashed in a hidden compartment of a vehicle. See\n\nAli, 735 F.3d at 188–89. The jury had all the more reason to find Tillmon responsible for\n\nsuch knowledge given his background and training. Further, the jury would have had to\n\nbelieve that Tillmon thought he was paid a total of $6,500 to accompany his friend Jacobs\n\non three innocent drives to Maryland so that he could, on one occasion, take photographs\n\nof the harbor. This conclusion, too, defies common sense. The substantial evidence in the\n\n 19\n\frecord, including audio and video recordings of the events the witnesses described,\n\nsupported the jury’s determination of guilt.\n\n For these reasons, the district court did not err in denying Tillmon’s motion for a\n\njudgment of acquittal with respect to the drug trafficking conspiracy (Count 1).\n\n C. Aggravated Offense Drug Weights (Counts 1 and 48)\n\n Tillmon argues that even if the evidence is sufficient to affirm his convictions for\n\nthe drug conspiracy and attempted possession offenses, he is at least entitled to\n\nresentencing because the evidence does not support the jury’s finding that his offenses\n\ninvolved at least one kilogram of heroin. Again, we disagree.\n\n As noted, while the baseline 21 U.S.C. § 841 offense does not require the\n\nGovernment to prove the quantity of the controlled substance at issue, it does provide for\n\nincreased penalties when certain threshold amounts are established. The “specific threshold\n\ndrug quantities [are] treated as elements of aggravated drug trafficking offenses, rather than\n\nas mere sentencing factors” and thus must be either admitted by the defendant or found by\n\na jury to be “reasonably foreseeable to the individual defendant.” United States v. Brooks,\n\n524 F.3d 549, 557–58 (4th Cir. 2008) (internal quotation marks omitted). Here, the\n\nGovernment had to prove beyond a reasonable doubt that Tillmon was responsible for “one\n\n(1) kilogram or more of heroin,” J.A. 118, the enhanced drug quantity charged in the\n\nindictment. See Promise, 255 F.3d at 156–57. Only then could Tillmon be properly\n\nsubjected to a mandatory minimum sentence of 10 years’ imprisonment and a statutory\n\nmaximum of life. 21 U.S.C. § 841(b)(1)(A)(i).\n\n\n\n 20\n\f Tillmon argues that the evidence did not allow the jury to find him responsible for\n\nan offense involving at least 1 kilogram of heroin. Specifically, he asserts the record lacked\n\nevidence that agents ever told him how many kilograms they expected him to transport,\n\nthat they ever mentioned the word “kilogram” or its variants, or that Tillmon knew how\n\nmuch heroin was in each package.\n\n Tillmon’s argument lacks merit. Trial evidence demonstrated the packages each\n\ncontained roughly one kilogram of fake drugs, consistent with the way drugs are commonly\n\npackaged for distribution. E.g., J.A. 544 (“Anybody who looks at one of those knows that’s\n\na brick or a kilo.”). In addition, testimony established that Tillmon had been trained in drug\n\ninterdiction as part of his law enforcement duties. Further, the record contained evidence\n\nthat ten staged packages were positioned in plain view of Tillmon as they were loaded into\n\nthe load vehicle, and each package weighed one kilogram. All told, this evidence is a\n\nsufficient basis for the jury to have found that Tillmon’s drug offenses involved at least\n\none kilogram of heroin. Therefore, the sentencing enhancement was proper and Tillmon\n\nwas properly subjected to a mandatory minimum sentence of 120 months’ imprisonment\n\nand a maximum term of life for his attempted possession (Count 48) and drug trafficking\n\nconspiracy (Count 1) convictions.\n\n D. Firearms Counts (Counts 2 and 49)\n\n Tillmon also appeals the district court’s denial of his motion for a judgment of\n\nacquittal with respect to his charges for conspiracy to use firearms during and in relation\n\nto a drug trafficking offense, in violation of 18 U.S.C. § 924(o) (Count 2), and use and\n\ncarry of a firearm during and in relation to a drug trafficking crime (attempted possession\n\n 21\n\fon March 2015), in violation of 18 U.S.C. §§ 2, 924(c)(1)(A) (Count 49). But Tillmon’s\n\nsole argument here is that because the evidence was insufficient to support the underlying\n\ndrug trafficking conspiracy (Count 1) and attempted possession with the intent to distribute\n\nheroin (Count 48) convictions, he is also entitled to a judgment of acquittal on the\n\ncorresponding firearms convictions. Put another way, Tillmon does not challenge that he\n\nconspired to use or carry a firearm as part of the drug trafficking conspiracy, or that he used\n\nor carried firearms during the March 2015 transport, only that he did not commit the\n\nunderlying drug offenses and so could not have committed the firearms offenses that\n\nrequired those predicates.\n\n Because the evidence is sufficient to affirm Tillmon’s convictions for the underlying\n\ndrug trafficking offenses, Tillmon’s argument fails. We therefore affirm his convictions\n\nfor the firearms conspiracy (Count 2) and using or carrying a firearm (Count 49).\n\n E. Admission of Video Recording\n\n Tillmon next contends that the district court committed reversible error in admitting\n\na video recording of his conversation with Tee while he was being paid for the March 2015\n\ntransport. Specifically, Tillmon asserts that the video improperly suggested that he was\n\ncomplicit in plotting a murder because Tee said he wanted a firearm to kill someone. 5 On\n\n\n 5\n Tillmon also argues the evidence was needlessly cumulative and suggests the\ndistrict court’s decision is suspect because it had initially ruled the video inadmissible\nduring the Government’s case-in-chief. Even if the evidence was cumulative of other\nevidence in the record, that would not constitute reversible error on its own in this case.\nRule 403 lists cumulativeness as a reason that a district court may decide to rule evidence\ninadmissible; it does not bar evidence merely because it overlaps with prior evidence. See\nFed. R. Evid. 403.\n(Continued)\n 22\n\fthat basis, Tillmon argues the recording was unfairly prejudicial and inadmissible under\n\nFederal Rule of Evidence 403.\n\n Rule 403 states that a district “court may exclude relevant evidence if its probative\n\nvalue is substantially outweighed by a danger of . . . unfair prejudice . . . or needlessly\n\npresenting cumulative evidence.” Fed. R. Evid. 403. “Rule 403 is a rule of inclusion,\n\ngenerally favoring admissibility.” United States v. Udeozor, 515 F.3d 260, 264–65 (4th\n\nCir. 2008) (internal quotation marks omitted). Specifically, we have said that when\n\nconsidering whether evidence is unfairly prejudicial, “damage to a defendant’s case is not\n\na basis for excluding probative evidence because evidence that is highly probative\n\ninvariably will be prejudicial to the defense.” Basham, 561 F.3d at 326 (internal quotation\n\nmarks omitted). Instead, “[u]nfair prejudice speaks to the capacity of some concededly\n\nrelevant evidence to lure the factfinder into declaring guilt on a ground different from proof\n\nspecific to the offense charged.” Id. at 327 (internal quotation marks omitted) (emphasis\n\nadded).\n\n The video evidence was highly probative of Tillmon’s role in the charged conduct\n\nand it specifically rebutted Tillmon’s defense that he did not understand the criminal nature\n\n\n In addition, the record readily explains the district court’s changed admissibility\nrulings. When the Government sought to introduce the exhibit in its case-in-chief, the court\nsustained Tillmon’s challenge to the ability of that witness to authenticate the recording.\nThe court’s decision to sustain Tillmon’s objection related solely to the foundation for its\nintroduction, not whether the recording was admissible on other grounds. By the time the\nGovernment later attempted to introduce the recording to rebut Tillmon’s defense, the\nfoundation for its accuracy had been resolved by intervening testimony. This time,\nTillmon’s objection to the recording’s admissibility was based on Rule 403, giving the\ndistrict court its first opportunity to rule on the admissibility of the recording on that\nground.\n 23\n\fof the underlying events and that he lacked the requisite intent to engage in criminal\n\nconduct. For instance, the recording demonstrated Tillmon’s admission to possessing a\n\nfirearm during the March 2015 transport; his receiving $2,500 for his participation in that\n\ntransport; and his familiarity and rapport with Tee, whom Tillmon believed to be part of\n\nthe DTO. All of these actions are specific to the charged offenses and directly relevant to\n\nthe jury’s determination of Tillmon’s culpability.\n\n Nor was the video unfairly prejudicial. Tillmon and Tee’s recorded conversation\n\nshowed the interactions between Tillmon and another purported member of the DTO in a\n\nway that the other evidence did not. Its probative value—particularly in light of Tillmon’s\n\ndefense that he lacked a culpable intent to engage in drug trafficking offenses—outweighed\n\nany minimal prejudice that arose from the subject matter of their conversation. Moreover,\n\nbecause the jurors also knew that Tee was actually an undercover agent, they knew that his\n\nside of the conversation was role-playing rather than implicating Tillmon in any actual\n\nviolent crime.\n\n For these reasons, the district court did not abuse its discretion in admitting the video\n\nevidence.\n\n F. Federal Programs Bribery (Counts 32, 36, and 54)\n\n Lastly, Tillmon appeals the district court’s denial of his motion for a judgment of\n\nacquittal with respect to the three charges of federal programs bribery, in violation of 18\n\nU.S.C. § 666(a)(1)(B) (Counts 32, 36, and 54).\n\n In relevant part, this statute prohibits individuals who are agents of a local\n\ngovernment agency from “accept[ing] . . . anything of value from any person, intending to\n\n 24\n\fbe influenced or rewarded in connection with any business, transaction, or series of\n\ntransactions of such . . . [government agency] . . . involving any thing of value of $5,000\n\nor more.” Id. § 666(a)(1)(B). As a threshold to liability under this statute, the Government\n\nmust demonstrate that the local government at issue “receive[d], in any one year period,\n\nbenefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy,\n\nloan, guarantee, insurance, or other form of Federal assistance.” § 666(b); see also id.\n\n§ 666(d)(5) (defining “in any one-year period”).\n\n Pointing to the amount he was paid for each individual transport, Tillmon asserts\n\nthe Government failed to proffer sufficient evidence to establish that his services to the\n\nfake DTO were worth at least $5,000. 6\n\n We have not previously considered § 666(a)(1)(B)’s requirement that charged\n\nconduct involve “any thing of value of $5,000 or more.” But the statutory language reveals\n\nthat this element requires proof of the value of whatever was exchanged for the bribe. See\n\n§ 666(a)(1)(B) (requiring that the business, transaction, or series of transactions of the\n\ngovernment agency “involve[d] any thing of value of $5,000 or more”). This has led our\n\nsister circuits to describe the requisite proof as identifying the value of the “subject matter”\n\nof the bribe. United States v. Robinson, 663 F.3d 265, 271–76 (7th Cir. 2011).\n\n The indictment charged Tillmon with accepting cash from the undercover agents\n\nposing as members of the DTO on each of the three transports, with each count\n\ncorresponding to one of the transports, and it identified the subject matter of each of the\n\n\n 6\n Tillmon challenges the sufficiency of the evidence on two other elements of the\noffenses as well, but for the reasons discussed, we need not address those arguments.\n 25\n\fthree bribes as “protecting shipments of purported narcotics.” J.A. 149, 153, 171. As we\n\nhave already recounted, the record depicted what that protection entailed: Tillmon was to\n\naccompany the drugs on a journey up the East Coast, drive or ride in one of the vehicles\n\ncontaining or accompanying the narcotics, and recite a cover story if the caravan was\n\nstopped. And once the drugs were delivered to another member of the DTO in Maryland,\n\nhe was paid—$2,000 in October 2014; $2,000 in December 2014; and $2,500 in March\n\n2015.\n\n Our sister circuits have recognized that one valid method of valuing an intangible,\n\nsuch as a service provided, is the amount of the bribe. E.g., United States v. Hardin, 874\n\nF.3d 672, 676 (10th Cir. 2017); United States v. Fernandez, 722 F.3d 1, 12–13 (1st Cir.\n\n2013) (rejecting the value of the bribe test in favor of the value of the “transaction” test but\n\nacknowledging that the bribe amount “may be relevant [evidence] in determining the value\n\nof the bribe’s objective” when “the subject matter of the bribe is a ‘thing of value’ without\n\na fixed price”); Robinson, 663 F.3d at 271, 275 (“Without excluding other possible\n\nmethods of valuation, we agree that the amount of the bribe may suffice as a proxy for\n\nvalue; at least it provides a floor for the valuation question.”). This approach is akin to\n\n“appraising” the service as an appraiser values a tangible asset—“by looking at how much\n\na person in the market would be willing to pay for” it. United States v. Marmolejo, 89 F.3d\n\n1185, 1194 (5th Cir. 1996).\n\n The Government properly recognizes that using the straightforward bribe-as-proxy\n\nmethod does not satisfy its burden in this case. The Government chose to charge Tillmon\n\nseparately for each of the three transports, meaning that the Government had the burden to\n\n 26\n\fprove that the value of his services on each of the individual transports was $5,000 or more.\n\nUnder the bribe-as-proxy method, the Government’s evidence is insufficient because\n\nTillmon’s aid on each transport was valued at less than $5,000 each time.\n\n Instead, the Government advances three arguments for what other evidence could\n\nhave been used to satisfy its burden: (1) that the amount of the bribes paid to the team as a\n\nwhole on each transport exceeded $5,000 (the “aggregation theory”); (2) that the market\n\nvalue of the drugs being trafficked on each transport exceeded $5,000 (the “market value\n\ntheory”); and (3) that the amount the Town of Windsor paid for public safety in each year\n\nat issue exceeded $5,000 (the “public safety theory”).\n\n Although the Government claims its aggregation theory is merely a variation on the\n\napproved bribes-as-proxy method, it is not the equivalent and we cannot use it here. The\n\nGovernment contends that the jury was permitted to aggregate the bribes paid to all of the\n\nteam members on a particular transport to arrive at the requisite $5,000. To be sure,\n\nemploying that method brings the dollar amount expended on each transport to more than\n\n$5,000. Fatally for the Government, however, the aggregation method does not arrive at an\n\namount that reflects the statutory obligation to produce evidence of the value of the subject\n\nmatter of the bribe charged in the indictment—that is, Tillmon’s “protecting shipments of\n\npurported narcotics.” J.A. 149, 153, 171. The aggregation method conflates the value of\n\nTillmon’s services to the DTO with the value of the team’s services to the DTO. The record\n\ndoes not permit the conclusion that Tillmon single-handedly provided services equal to the\n\namount paid to the team as a whole. And without such evidence demonstrating that\n\nTillmon’s services were worth that amount, the aggregation method is not an acceptable\n\n 27\n\fvaluation method. For these reasons, we reject the aggregation method as an appropriate\n\nvaluation method in this case.\n\n The Government’s proposed market value theory fares no better. As our sister\n\ncircuits have recognized, in some instances, it may be appropriate to look at the market\n\nvalue of the bribe from the perspective of the briber or an interested third party as a means\n\nof valuing the subject matter of the bribe. E.g., Fernandez, 722 F.3d at 15 (approving\n\nvaluation method for votes related to pending legislation by looking to the briber’s\n\nexpected financial gain flowing from the passage of that legislation); United States v.\n\nCurescu, 674 F.3d 735, 738, 741 (7th Cir. 2012) (approving valuation of a bribe given to\n\nfalsely certify that plumbing had been completed by a licensed plumber based on the\n\namount of money the briber did not have to pay a licensed plumber to perform the work);\n\nUnited States v. Hines, 541 F.3d 833, 837 (8th Cir. 2008) (using market value theory to\n\nvalue expedited eviction orders based on the savings to the property owners in avoiding\n\nthe costs typically incurred in eviction). But even then, in addition to evidence of something\n\nhaving value to the briber or a third party, the Government also must come forward with\n\nevidence “linking” that valued item to the services the defendant provided. See United\n\nStates v. Owens, 697 F.3d 657, 661 (7th Cir. 2012). To reiterate, the Government’s\n\nevidence must bear on the value of the subject matter of the bribe, and that obligation is\n\nnot satisfied with evidence of something “to which the subject matter of the bribe is\n\ntangentially related.” Id.\n\n In this case, the Government pointed to something of purported value to the briber—\n\nthe market value of the narcotics—but it failed to put forward any evidence linking that\n\n 28\n\fvalue to Tillmon’s protection of the caravan, the subject matter of the bribe. Specifically,\n\nthe Government relies on Lisa’s statement during the March 2015 transport that the team\n\nwas shipping a million dollars of heroin and argues that because Tillmon was hired to\n\nprotect a million-dollar transport on that occasion and to protect similar package quantities\n\nduring the other two transports, his services on each transport were worth a million dollars.\n\nThe Government then contends that the Court can infer from the evidence that the other\n\ntransports involved similar drug packages and that they also thereby satisfied the $5,000\n\nrequirement. That reasoning is flawed because no evidence in the record links the purported\n\nvalue of the drugs to the value of Tillmon’s protection services. As the record stands, the\n\ntwo are merely tangentially related. The Government could have attempted to provide\n\nevidence sufficient to create the necessary linkage in several ways. For example, it could\n\nhave offered evidence that trafficking organizations typically provide protection with a cut\n\nof the profits from eventual sales. Or it could have offered evidence that the cost of\n\nlegitimate protection for drug transports involving that amount of drugs costs real DTOs\n\n$5,000 or more. But the Government offered no such evidence. In fact, it failed to introduce\n\nany evidence allowing the inference that the value of Tillmon’s services was connected to\n\nthe value of the drugs. Thus, the Government’s market value theory lacks any evidentiary\n\nbasis.\n\n The Government’s third argument, the public safety theory of valuation, can be\n\ndisposed of quickly. For the first and only time in this appeal, the Government mentions in\n\na single sentence of its Response Brief that the $5,000 value of Tillmon’s services could\n\nbe measured based on the Town of Windsor’s annual public safety budget. Setting aside\n\n 29\n\fany concerns regarding the timeliness and adequacy of the Government’s argument, we\n\nobserve that Windsor’s entire public safety budget is unrelated to and would vastly\n\noverstate the value of Tillmon’s services to the DTO. As such, it would be an improper\n\nmeasure of the subject matter of the bribe.\n\n In sum, the Government failed to produce evidence from which a jury could find\n\nthat Tillmon’s services to the DTO had a value of $5,000 or more. Though the Government\n\nmight have satisfied this requirement in several ways, it failed to introduce any evidence\n\nother than the amount Tillmon was paid as a bribe to establish that the value of his\n\nprotection services were worth at least $5,000. And in the absence of evidence to support\n\nthat element of the offense, Tillmon’s convictions for federal programs bribery, Counts 32,\n\n36, and 54, cannot stand and we vacate each of these convictions.\n\n\n\n IV. Conclusion\n\n For the reasons explained above, we affirm Tillmon’s convictions on the drug\n\ntrafficking and firearms offenses (Counts 1, 2, 48, and 49), but we vacate Tillmon’s\n\nconvictions for federal programs bribery (Counts 32, 36, and 54).\n\n As the parties agree, the record shows that Tillmon’s sentence cannot be affected by\n\nthe vacation of his federal programs bribery convictions. After calculating Tillmon’s\n\nGuidelines range, the district court imposed a downward variant sentence of 180 months’\n\nimprisonment—120 months to run concurrently on Counts 1, 2, 48, 32, 36, and 54; and 60\n\nmonths to run consecutively on Count 49. Vacating Tillmon’s federal programs bribery\n\nconvictions does not change his sentence, which is still 120 months’ imprisonment for\n\n 30\n\fCounts 1, 2, and 48, to run concurrently with each other, and 60 months’ mandatory\n\nminimum imprisonment for Count 49, to run consecutively to the others. Because 120\n\nmonths is the statutory mandatory minimum sentence for the drug trafficking conspiracy\n\n(Count 1) and attempted possession (Count 48) convictions, Tillmon cannot be sentenced\n\nto a lower term of imprisonment on the part of the sentence that was running concurrently\n\nwith his sentence for the now-vacated federal programs bribery convictions. Similarly,\n\nTillmon’s consecutive sentence for Count 49 must continue to run consecutively to the\n\nother term of imprisonment. As such, we need not remand for resentencing.\n\n AFFIRMED IN PART\n AND VACATED IN PART\n\n\n\n\n 31", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371281/", "author_raw": "AGEE, Circuit Judge:"}]} | NIEMEYER | AGEE | DIAZ | 1 | {"NIEMEYER": ", Circuit", "AGEE": ", Circuit", "DIAZ": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4594028/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,594,567 | WILLIAMSON FARM, Plaintiff - Appellant, v. DIVERSIFIED CROP INSURANCE SERVICES, A/K/A CGB Diversified Services, Inc., Defendant - Appellee. | Williamson Farm v. Diversified Crop Ins. Servs. | 2019-02-27 | 18-1463 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Keenan, Floyd, Thacker", "parties": "", "opinions": [{"author": "THACKER, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1463\n\n\nWILLIAMSON FARM,\n\n Plaintiff - Appellant,\n\n v.\n\nDIVERSIFIED CROP INSURANCE SERVICES, a/k/a CGB Diversified\nServices, Inc.,\n\n Defendant - Appellee.\n\n\n\nAppeal from the United States District Court for the Eastern District of North Carolina, at\nRaleigh. James C. Dever III, District Judge. (5:17-cv-00513-D; 5:16-mc-00018-D)\n\n\nArgued: December 13, 2018 Decided: February 27, 2019\n\n\nBefore KEENAN, FLOYD, and THACKER, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Thacker wrote the opinion, in which Judge\nKeenan and Judge Floyd joined.\n\n\nARGUED: Matthew William Buckmiller, STUBBS & PERDUE, P.A., Raleigh, North\nCarolina, for Appellant. Roy Jefferson Allen, HUNT ROSS & ALLEN, Clarksdale,\nMississippi, for Appellee. ON BRIEF: Derek M. Crump, BROWN, CRUMP,\nVANORE & TIERNEY, L.L.P., Raleigh, North Carolina, for Appellee.\n\fTHACKER, Circuit Judge:\n\n In this case, Williamson Farm (“Appellant”) challenges the district court’s\n\ndecision to vacate an arbitration award that Appellant won against Diversified Crop\n\nInsurance (“Appellee”), a private insurance company that sold federal crop insurance\n\npolicies to Appellant. Appellant asserts that the district court erred in denying its motion\n\nto confirm the arbitration award and granting Appellee’s motion to vacate on the basis\n\nthat the arbitrator exceeded her powers.\n\n Despite the strong presumption in favor of confirming arbitration awards pursuant\n\nto the Federal Arbitration Act (“FAA”), we hold that Appellee met its heavy burden to\n\nprove that the arbitrator exceeded her powers by awarding extra-contractual damages,\n\ncontrary to both the policy and binding authority from the Federal Crop Insurance\n\nCorporation (“FCIC”). Therefore, we affirm.\n\n I.\n\n A.\n\n Background on the Federal Crop Insurance Program\n\n The policies at issue in this case are federal crop insurance policies, which\n\nAppellee sold pursuant to the Federal Crop Insurance Act (“FCIA”), 7 U.S.C. §§ 1501–\n\n1524, 1531, and accompanying regulations issued by the FCIC. These policies are not\n\ntypical private insurance agreements, so a brief discussion of the federal government’s\n\nrole in crop insurance agreements is necessary.\n\n The federal crop insurance program provides farmers and agricultural entities in\n\nthe United States with crop insurance protection, a venture that was considered too risky\n\n 2\n\ffor traditional private insurers when the FCIA was enacted in 1938. As the Supreme\n\nCourt explained, “the Government engaged in crop insurance as a pioneer. Private\n\ninsurance companies apparently deemed all-risk crop insurance too great a commercial\n\nhazard.” Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 383 n.1 (1947).\n\n To provide this protection to farmers, the FCIA established the FCIC, a\n\ngovernment corporation within the United States Department of Agriculture’s Risk\n\nManagement Agency that administers the federal crop insurance program. 7 U.S.C.\n\n§ 1503. The FCIC does not directly issue crop insurance policies to farmers. Instead, it\n\nrelies on “approved insurance providers” 1 -- private insurers such as Appellee -- to issue\n\nfederal crop insurance policies to farmers like Appellant. 7 U.S.C. § 1502(b)(2). Then,\n\nwhen certain eligibility conditions are met, the FCIC reinsures the approved insurance\n\nproviders’ losses and reimburses their administrative and operating costs.\n\n In order to qualify for reinsurance through the FCIC, approved insurance providers\n\nmust comply with the FCIA and the accompanying regulations issued by the FCIC\n\ngoverning the sale, issuance, and servicing of federal crop insurance policies. 7 C.F.R.\n\n§ 400.168; see also Felder v. Fed. Crop Ins. Corp., 146 F.2d 638, 640 (4th Cir. 1944);\n\nDavis v. Producers Agric. Ins. Co., 762 F.3d 1276, 1284 (11th Cir. 2014). Accordingly,\n\n“even though the crop insurance policy is between the farmer and an approved insurance\n\n\n 1\n Pursuant to the FCIA, “[t]he term ‘approved insurance provider’ means a private\ninsurance provider that has been approved by the [FCIC] to provide insurance coverage\nto producers participating in the Federal crop insurance program established under this\nsubchapter.” 7 U.S.C. § 1502(b)(2).\n\n\n 3\n\fprovider,” the FCIA “establishes the terms and conditions of insurance.” Davis, 762 F.3d\n\nat 1284 (citation omitted).\n\n Indeed, all approved insurance providers issue a uniform policy drafted by the\n\nFCIC known as the “Common Crop Insurance Policy,” the text for which is provided at 7\n\nC.F.R. § 457.8. Both policies at issue in this case mirrored the Common Crop Insurance\n\nPolicy. Additionally, the FCIC sets premium rates for each county and crop insured,\n\nsubsidizes and receives premiums, and pays claims. In short, the FCIC is extensively\n\ninvolved in and exerts control over all aspects of the federal crop insurance program.\n\n The Farm Service Agency (“FSA”), another agency within the Department of\n\nAgriculture, works with the Risk Management Agency and the FCIC to implement the\n\nfederal crop insurance program through FSA’s network of state and county field offices.\n\nAs relevant to this case, insureds and approved insurance providers are required to submit\n\nprogram eligibility, acreage reporting, and other necessary forms to their local FSA office\n\nin order to receive federal crop insurance coverage through the FCIC.\n\n B.\n\n Appellant’s Underlying Policy Claims\n\n This case centers on two policies issued by Appellee to insure Appellant’s 2013\n\ncrops: (1) the Richmond County Policy; and (2) the Montgomery County Policy. Under\n\n\n\n\n 4\n\fthe Richmond County Policy, Appellee listed Farm Number 2172. 2 Under the\n\nMontgomery County Policy, Appellee listed Farm Numbers 1870 and 4168.\n\n For many years, Appellant purchased its crop insurance through insurance agent\n\nLynn Saintsing, until Saintsing sold his agency to Appellee in 2012. 3 During his time as\n\nAppellant’s insurance agent, Saintsing’s regular practice was to help Appellant complete\n\nthe necessary forms and submit them to the proper FSA office to insure Appellant’s\n\nfarms.\n\n It was not unusual for a farm located in one county to be administered by an FSA\n\noffice in another county, based on the owner’s preferences or if the farm’s county did not\n\nhave an FSA office. Such was the case with Appellant’s Farm 2172, which was located\n\nin Montgomery County. In 1996, the Montgomery County FSA office closed, and\n\nadministration of Farm 2172 shifted to Richmond County. Accordingly, since 1996,\n\nFarm 2172 had been listed on forms filed with the FSA office in Richmond County even\n\nthough it was located in Montgomery County. Saintsing was aware of this, since he\n\nhelped Appellant fill out the forms and prepare maps of the farms.\n\n\n\n\n 2\n Farm numbers, which are assigned by the FSA, identify an insured’s farms and\nare used in connection with federal crop insurance policies and FSA forms.\n 3\n It is not clear from the record how many years Appellant purchased its crop\ninsurance through Saintsing, but Appellant’s brief notes that it has farmed on this\nproperty “for decades” and purchased its crop insurance through Saintsing “[d]uring\nmuch of this time.” Appellant’s Br. 3.\n\n\n 5\n\f Prior to Appellee’s acquisition of Saintsing’s insurance agency, Saintsing issued\n\nAppellant a single policy that covered all of Appellant’s crops regardless of the county in\n\nwhich the farm was located.\n\n 1.\n\n Crop Loss Claim: Farm 2172\n\n The trouble began for Appellant after Saintsing sold his business to Appellee in\n\n2012. Unlike the single policy previously issued by Saintsing, Appellee issued Appellant\n\nseparate policies for each county in which a farm was geographically located, regardless\n\nof where the farm was administered. Saintsing -- then an agent for Appellee -- helped\n\nAppellant prepare the necessary forms to be submitted to the FSA. But on those forms,\n\nSaintsing listed Farm 2172 on the Richmond County Policy (where it was administered),\n\nrather than the Montgomery County Policy (where it was geographically located).\n\n In 2013, Appellant experienced crop loss due to deer on Farm 2172 and expected\n\nthis loss to be covered under its crop insurance policy. Therefore, Appellant filed a claim\n\nfor the loss with Appellee. However, Appellee denied the claim “on the technicality that\n\nFarm 2172, located in Montgomery County, was listed on [forms] filed with the FSA in\n\nRichmond County and was therefore listed on the wrong policy.” J.A. 13. 4 As noted,\n\nSaintsing had assisted Appellant in completing these forms and facilitated their filing\n\nwith the FSA.\n\n\n 4\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this\nappeal.\n\n\n 6\n\f 2.\n\n Prevented Planting Claim: Farms 1870 and 4168\n\n Appellant also seeks recovery for a prevented planting claim 5 under the\n\nMontgomery County Policy. The summer of 2013 was excessively rainy. As a result,\n\nAppellant was unable to plant on Farms 1870 and 4168.\n\n During the period that Appellant was unable to plant, another of Appellee’s\n\nagents, Jason Nifong, visited Appellant’s farmland to aid Appellant in preparing its FSA\n\nforms. During this visit, Nifong advised Appellant that it could file a prevented planting\n\nclaim as a result of the rainy weather. Following Nifong’s visit, Appellant chose to file a\n\nprevented planting claim and did not attempt to plant on these farms.\n\n However, in preparing the FSA forms, Nifong failed to note the prevented planting\n\nacres on the correct form, and he did not explain to Appellant that failure to report the\n\nacres on that specific form would bar the prevented planting claim. Ultimately, Appellee\n\ndenied Appellant’s claim based on this failure to report.\n\n C.\n\n Arbitration\n\n Appellant sought arbitration pursuant to Section 20(a) of the policy based on\n\nAppellee’s denials of its crop loss and prevented planting claims. See J.A. 207, § 20(a)\n\n\n 5\n When certain requirements are met, a prevented planting claim allows a\npolicyholder to recover when an insured cause of loss that is general to the surrounding\narea, such as excessive rain, prevents the policyholder (as well as other producers in the\narea) from planting crops on eligible acres.\n\n\n 7\n\f(“If you and we fail to agree on any determination made by us . . . the disagreement must\n\nbe resolved through arbitration . . . .”).\n\n 1.\n\n Crop Loss Claim: Farm 2172\n\n As to Appellant’s crop loss claim for Farm 2172, the arbitrator determined, “[t]he\n\nlack of coverage for Farm 2172 indisputably arose from [Appellee’s] decision to issue\n\ncounty by county policies and its failure, and that of its agents who knew where these\n\nfarms were actually located . . . , to correctly list the farms for crop insurance purposes.”\n\nJ.A. 14. The arbitrator continued, “I conclude that [Appellee] failed to comply with the\n\nterms of [the policy] and that failure resulted in the loss to [Appellant]. [Appellee] left\n\n[Appellant] effectively uninsured for crop year 2013 as to Farm 2172.” Id. The\n\narbitrator further concluded that Appellee engaged in negligence, breach of fiduciary\n\nduty, and constructive fraud. As a result, she awarded Appellant $97,692.39 for\n\nAppellee’s “breach of [the policy] and the failure to pay the claim,” damages which she\n\ntrebled because she concluded that Appellee violated the North Carolina Unfair and\n\nDeceptive Trade Practices Act. Id. Lastly, finding that Appellee failed to attempt to\n\nreasonably settle the claim, the arbitrator awarded Appellant $54,368.87 in attorneys’\n\nfees pursuant to North Carolina law.\n\n 2.\n\n Prevented Planting Claim: Farms 1870 and 4168\n\n As for Appellant’s prevented planting claim for Farms 1870 and 4168, the\n\narbitrator similarly determined that Appellee’s agent was at fault for failing to report the\n\n 8\n\facres on the correct FSA form, and that Appellee’s “actions or lack of action left\n\n[Appellant] effectively uninsured for crop year 2013 as to Farms [1870] 6 and 4168.” J.A.\n\n15. Accordingly, the arbitrator concluded, “I award the amount of $77,668.59 to\n\n[Appellant] for the breach of [the policy] and the failure to pay the claim. I also conclude\n\nthat [Appellee] engaged in negligence, breach of fiduciary duty and constructive fraud.”\n\nId. As with the crop loss claim for Farm 2172, the arbitrator trebled damages pursuant to\n\nthe North Carolina Unfair and Deceptive Trade Practices Act and awarded Appellant\n\n$44,483.63 in attorneys’ fees pursuant to North Carolina law.\n\n 3.\n\n Arbitration Award\n\n After all was said and done, the total arbitration award to Appellant was\n\n$97,692.39 for the crop loss claim for Farm 2172 and $77,668.59 for the prevented\n\nplanting claim for Farms 1870 and 4168 (both of which were to be trebled), $98,852.50\n\nin attorneys’ fees, and $14,994 in reimbursement for arbitration costs and fees.\n\nAccording to Appellant, this amounted to a total arbitration award of $639,929.44.\n\n D.\n\n District Court’s Decision\n\n On May 12, 2016, Appellant filed a motion to confirm the arbitration award in the\n\nUnited States District Court for the Eastern District of North Carolina. And, on June 29,\n\n\n 6\n The arbitrator’s decision occasionally refers to Farm 1870 as Farm 1872 or 1879.\nBased on the record, these references appear to be in error.\n\n\n 9\n\f2016, Appellee filed a competing motion to vacate the arbitration award, asserting that\n\nthe arbitrator exceeded her authority. Additionally, Appellee argued that Appellant failed\n\nto obtain a determination from the FCIC that Appellee failed to comply with the\n\ninsurance policies or FCIC procedures, which it asserted was a prerequisite for the district\n\ncourt to confirm the award.\n\n On July 12, 2016, the district court requested an amicus brief from the FCIC\n\naddressing whether the arbitrator exceeded her authority and whether Appellant was\n\nrequired to obtain an FCIC determination before the district court could confirm the\n\narbitration award. The FCIC filed its amicus brief on August 24, 2016, taking the\n\nposition that the arbitrator exceeded her authority by (1) awarding contractual damages\n\nnot covered by any policy; (2) awarding extra-contractual damages and attorneys’ fees;\n\n(3) failing to obtain and follow binding FCIC interpretations, issued in the form of Final\n\nAgency Determinations (“FADs”); and (4) failing to obtain an FCIC determination prior\n\nto any extra-contractual damages or attorneys’ fees being awarded during judicial review.\n\n On March 26, 2018, the district court granted Appellee’s motion to vacate and\n\ndenied Appellant’s motion to confirm the arbitration award, concluding that the arbitrator\n\nexceeded her powers by (1) impermissibly interpreting the policy rather than obtaining an\n\ninterpretation from the FCIC; and (2) awarding extra-contractual damages. Appellant\n\ntimely appealed on April 25, 2018.\n\n\n\n\n 10\n\f II.\n\n We review the district court’s legal rulings regarding confirmation or vacation of\n\nan arbitration award de novo and the district court’s factual findings, if any, for clear\n\nerror. Norfolk S. Ry. Co. v. Sprint Commc’ns Co., 883 F.3d 417, 422 (4th Cir. 2018).\n\n Pursuant to the FAA, “any judicial review of an arbitration award must be an\n\nextremely narrow exercise.” Long John Silver’s Restaurants, Inc. v. Cole, 514 F.3d 345,\n\n351 (4th Cir. 2008). There is a strong presumption in favor of confirming arbitration\n\nawards under the FAA, and any party seeking to overturn an arbitration award faces a\n\n“heavy burden.” Three S Del., Inc. v. DataQuick Info. Sys., Inc., 492 F.3d 520, 527 (4th\n\nCir. 2007). As we have stated, “in reviewing such an award, ‘a district or appellate court\n\nis limited to determin[ing] whether the arbitrators did the job they were told to do -- not\n\nwhether they did it well, or correctly, or reasonably, but simply whether they did it.’” Id.\n\n(quoting Remmey v. PaineWebber, Inc., 32 F.3d 143, 146 (4th Cir. 1994)). Indeed, “an\n\narbitration award is enforceable even if the award resulted from a misinterpretation of\n\nlaw, faulty legal reasoning or erroneous legal conclusion.” Richmond, Fredericksburg &\n\nPotomac R.R. Co. v. Transp. Commc’ns Int’l Union, 973 F.2d 276, 281 (4th Cir. 1992)\n\n(internal quotation marks omitted).\n\n The FAA provides that a court may only vacate an arbitration award on one of the\n\nfollowing grounds:\n\n (1) where the award was procured by corruption, fraud, or\n undue means;\n\n (2) where there was evident partiality or corruption in the\n arbitrators, or either of them;\n\n 11\n\f (3) where the arbitrators were guilty of misconduct in\n refusing to postpone the hearing, upon sufficient cause\n shown, or in refusing to hear evidence pertinent and material\n to the controversy; or of any other misbehavior by which the\n rights of any party have been prejudiced; or\n\n (4) where the arbitrators exceeded their powers, or so\n imperfectly executed them that a mutual, final, and definite\n award upon the subject matter submitted was not made.\n\nThree S Del., 492 F.3d at 527 (citing 9 U.S.C. § 10(a)). “The permissible common law\n\ngrounds for vacating such an award ‘include those circumstances where an award fails to\n\ndraw its essence from the contract, or the award evidences a manifest disregard of the\n\nlaw.’” Id. (quoting Patten v. Signator Ins. Agency, Inc., 441 F.3d 230, 234 (4th Cir.\n\n2006)).\n\n III.\n\n Appellant asserts that the district court erred in this case by vacating the arbitration\n\naward. Appellant argues that the arbitrator did not exceed her powers by awarding extra-\n\ncontractual damages and attorneys’ fees. In the alternative, Appellant argues that even if\n\nthe arbitrator exceeded her powers in part, we should nevertheless confirm the arbitration\n\naward of contract damages, which were within the arbitrator’s authority to award\n\npursuant to the policy. We address each argument in turn.\n\n A.\n\n Extra-Contractual Damages\n\n The district court vacated the arbitration award after determining that the arbitrator\n\nexceeded her powers by awarding prohibited extra-contractual damages and attorneys’\n\n\n 12\n\ffees. Appellant asserts that the arbitrator acted within her authority in rendering the\n\naward because the arbitrator concluded that Appellee breached the policy, and it was\n\nwithin her power to award extra-contractual damages.\n\n 1.\n\n Policy Interpretation\n\n We turn first to whether the policy unambiguously prohibits the arbitrator from\n\nawarding extra-contractual damages. In arguing that it does, Appellee relies primarily on\n\nSections 20(h) and 20(i) of the policy. These provisions state as follows:\n\n (h) Except as provided in section 20(i), no award or\n settlement in mediation, arbitration, appeal, administrative\n review or reconsideration process or judicial review can\n exceed the amount of liability established or which should\n have been established under the policy, except for interest\n awarded in accordance with section 26.\n\n (i) In a judicial review only, you may recover attorneys fees\n or other expenses, or any punitive, compensatory or any other\n damages from us only if you obtain a determination from\n FCIC that we, our agent or loss adjuster failed to comply with\n the terms of this policy or procedures issued by FCIC and\n such failure resulted in you receiving a payment in an amount\n that is less than the amount to which you were entitled.\n\nJ.A. 209, § 20(h)–(i) (emphases supplied).\n\n Appellee argues that these provisions unambiguously state that the arbitrator\n\ncannot award extra-contractual damages, and such damages may only be awarded by a\n\ncourt upon judicial review and after obtaining an FCIC determination that the agent or\n\nloss adjuster failed to comply with the terms of the policy. Making the same argument in\n\nits amicus brief submitted before the district court, the FCIC explained:\n\n\n 13\n\f According to the clear language of the policy, any extra-\n contractual damages, including damages arising from state\n claims, were only available after this Court was asked to\n review the arbitrator’s award. See 7 C.F.R. § 457.8, ¶ 20(i).\n As noted by FCIC, any extra-contractual claims (i.e.\n negligence, breach of fiduciary duty, constructive fraud,\n unfair and deceptive practices) and attorneys’ fees are limited\n solely to instances where FCIC has determined the insurance\n provider violated its policies and procedures and such\n violation had a monetary impact on the payment of the claim.\n See FCIC Response to Comments, 69 Fed. Reg. 48652-01,\n 48717 (Aug. 10, 2004). Thus, the plain and unambiguous\n terms of section 20(i) of the policy (7 C.F.R. § 457.8, ¶ 20(i)),\n together with the plain and unambiguous language of 7\n C.F.R. § 400.176(b) and 7 C.F.R. § 400.352(b)(4),\n unequivocally dictate that a party can only be awarded extra-\n contractual damages and attorneys’ fees upon petitioning this\n Court for review of the arbitrator’s award and then only after\n obtaining a determination from FCIC.\n\nJ.A. 232–33.\n\n In rendering the award, however, the arbitrator interpreted these provisions\n\ndifferently. The arbitrator concluded:\n\n Section 20(i) does not in fact state that the arbitrator may\n not award attorneys’ fees or punitive, compensatory or other\n damages. Instead it appears to impose a type of condition\n precedent to the ultimate enforceability of such an award by a\n court. Moreover, if the provision has the effect [Appellee]\n claimed, the arbitrator would have little jurisdiction to decide\n anything. That plainly cannot be the case. Notably, the\n Policies are silent on timing, such that the condition precedent\n of FCIC determination could be satisfied post-award but prior\n to enforcement in court.\n\n In addition, Section 20(h) does not expressly exclude any\n theories of liability (such as fraud) or types of damages;\n instead it says that no award can exceed the amount of\n liability established under the policy. It does not expressly\n exculpate insurers from their improper conduct such as fraud\n\n\n 14\n\f or breach of fiduciary duty, conduct that can trigger liability\n beyond liability for breach of contract.\n\nJ.A. 10.\n\n But it does not matter if these policy provisions are as unambiguous as Appellee\n\n(and the FCIC) claims or if the arbitrator’s alternative interpretation is reasonable. This\n\nis because even under the arbitrator’s explanation, these provisions are ambiguous at best.\n\nAs the policy makes clear, the arbitrator was required to obtain and apply the FCIC’s\n\ninterpretation of any ambiguous policy provision, and the arbitrator could not substitute\n\nher own interpretation for that of the FCIC.\n\n As the district court correctly pointed out, “[i]n cases involving federally reinsured\n\ncrop insurance, the insurance contract forms only one part of the agreement between the\n\nparties. The statutes and regulations associated with the federal crop insurance scheme\n\nalso limit the arbitrator’s authority.” J.A. 271 (citing Davis v. Producers Agric. Ins. Co.,\n\n762 F.3d 1276, 1284–85 (11th Cir. 2014)). Significantly, Section 20(a)(1) of the policy -\n\n- the very same section that provides for arbitration -- states that if there is a dispute that\n\n“in any way involves a policy or procedure interpretation,” the parties “must obtain an\n\ninterpretation from FCIC.” J.A. 208, § 20(a)(1) (emphasis supplied). The FCIC’s FADs\n\nare “binding on all participants in the Federal crop insurance program,” including\n\narbitrators. 7 C.F.R. § 400.765(c); see also J.A. 208, § 20(a)(1)(i) (“Any interpretation\n\nby FCIC will be binding in any mediation or arbitration.”). Therefore, the failure to\n\nobtain a required FCIC interpretation “will result in the nullification of any agreement or\n\n\n\n\n 15\n\faward.” J.A. 208, § 20(a)(1)(ii). In short, both the policy and FCIC regulations provide\n\nthat only the FCIC -- and not the arbitrator -- may interpret the policy.\n\n In rendering the award here, the arbitrator pushed back against this restriction by\n\nnoting that if the arbitrator could not interpret the meaning of policy provisions, “the\n\narbitrator would have little jurisdiction to decide anything.” J.A. 10. Indeed, the unusual\n\nworld of federal crop insurance does, in fact, appear to leave very little decision making\n\nauthority to the arbitrator. But as counsel for Appellee stated during oral argument in this\n\ncase, crop insurance “takes everything you know about insurance and turns it on its\n\nhead.” Oral Argument at 19:40–49, Williamson Farm v. Diversified Crop Ins. Servs.,\n\nInc., No. 18-1463 (4th Cir. Dec. 13, 2018), http://www.ca4.uscourts.gov/oral-\n\nargument/listen-to-oral-arguments (hereinafter “Oral Argument”).\n\n 2.\n\n The Distinction Between FCIC Interpretations and FCIC Determinations\n\n In response to Appellee’s argument that the arbitrator was required to obtain an\n\nFCIC interpretation of disputed policy provisions, Appellant asserts, “if an FCIC\n\ndetermination is required before an arbitrator can award monies then the arbitration\n\nprocess is a complete waste of time with no meaning.” Appellant’s Br. 24. Appellant\n\nfurther asserts that, in any event, it did, in fact, seek an FCIC determination and was told\n\nthat the FCIC would not render an opinion until after arbitration.\n\n In both arguments, Appellant conflates the obligation to obtain an FCIC\n\ninterpretation of disputed provisions of the policy pursuant to Section 20(a)(1) -- a\n\nrequirement in any arbitration where the meaning or application of policy provisions are\n\n 16\n\fat issue -- with the requirement to obtain an FCIC determination that there was a failure\n\nto comply with the terms of the policy prior to obtaining attorneys’ fees or extra-\n\ncontractual damages during judicial review pursuant to Section 20(i). FCIC\n\ninterpretations and FCIC determinations, as these terms are described in the policy, are\n\nnot the same thing.\n\n a.\n\n When an FCIC Determination is Required\n\n As to Appellant’s first argument, an FCIC determination that there was a failure to\n\ncomply with the terms of the policy is not required “before an arbitrator can award\n\nmonies.” Appellant’s Br. 24. Pursuant to Section 20(i) of the policy, such\n\ndeterminations are only required (1) during judicial review (after arbitration is\n\ncompleted); and (2) only when an insured is seeking extra-contractual damages. As\n\ndiscussed below, binding FCIC FADs make clear that arbitrators cannot award extra-\n\ncontractual damages; accordingly, arbitrators do not require such an FCIC determination\n\nin order to render their award. 7 Arbitrators do, however, require an FCIC interpretation\n\nbefore rendering an award based on disputed policy language.\n\n\n 7\n In its reply brief, Appellant offers a similar argument that Appellee’s\ninterpretation of 7 C.F.R. § 400.352 -- which preempts state and local laws and\nregulations except where the FCIC makes a determination that the agent or loss adjuster\nfailed to comply with the policy -- “would bar recovery of any damages without an FCIC\ndetermination,” including compensatory damages. Appellant’s Reply Br. 2. Because the\nFCIC has established that arbitrators cannot award damages based on state law claims\nand FCIC determinations are only required during judicial review involving extra-\ncontractual damages, this argument is irrelevant as to the arbitration award.\n\n\n 17\n\f b.\n\n Appellant Requested an FCIC Determination, Not an FCIC Interpretation\n\n As to Appellant’s second argument, Appellant did not request an FCIC\n\ninterpretation -- it requested an FCIC determination. Again, an FCIC interpretation of\n\nthe meaning of disputed policy provisions is a different request -- one which arises at a\n\ndifferent time and in a different proceeding -- than an FCIC determination that an agent\n\nfailed to comply with the terms of the policy. To comply with Section 20(a)(1) of the\n\npolicy, what Appellant (or the arbitrator) needed to request during the arbitration, but did\n\nnot, was an FCIC interpretation of the meaning of the disputed policy provisions.\n\nAppellant’s premature request for an FCIC determination that there was a failure to\n\ncomply with the terms of the policy, pursuant to Section 20(i), is of no consequence to\n\nthe arbitration award. 8\n\n The arbitrator’s explanation as to what specific policy provisions mean\n\n(particularly to the extent they were disputed issues in the arbitration) can only be viewed\n\nas her interpretation of the policy. See, e.g., J.A. 10 (“Section 20(i) does not in fact state\n\nthat the arbitrator may not award attorneys’ fees or punitive, compensatory or other\n\ndamages. Instead it appears to impose a type of condition precedent to the ultimate\n\n\n 8\n We note that our decision in this case does not address whether a claimant could\nrecover purely tort damages against a private insurance company without such an FCIC\ndetermination where misrepresentations or negligence on the part of the insurance agent\nbefore the policy was issued left the claimant effectively uninsured under the federal crop\ninsurance program. Here, Appellant sought contractual damages and participated in\narbitration pursuant to the insurance policy.\n\n\n 18\n\fenforceability of such an award by a court. Moreover, if the provision has the effect\n\n[Appellee] claimed, the arbitrator would have little jurisdiction to decide anything. That\n\nplainly cannot be the case.”). By not obtaining an FCIC interpretation to resolve the\n\nissue but instead interpreting the provisions herself, which was not in her authority to do,\n\nthe arbitrator exceeded her powers.\n\n 3.\n\n Binding FCIC Authority\n\n The arbitrator was obligated to follow any FADs previously issued by the FCIC.\n\nSee J.A. 208, § 20(a)(1)(i), (iii) (“Any interpretation by FCIC will be binding in any\n\nmediation or arbitration . . . . An interpretation by FCIC of a policy provision is\n\nconsidered a determination that is a matter of general applicability.” (emphasis\n\nsupplied)). And the FCIC has addressed whether arbitrators may award extra-contractual\n\ndamages more than once already. Each time, the FCIC has made clear that arbitrators do\n\nnot have the authority to award such damages. Rather, extra-contractual damages and\n\nattorneys’ fees may only be awarded by the court reviewing an arbitrator’s decision. For\n\ninstance, Appellant does not dispute that FAD-193, issued on October 21, 2013, states in\n\nrelevant part:\n\n [T]he reference to “judicial review only” [in Section 20(i)] is\n to clarify that such [extra-contractual] damages can only be\n sought during an appeal to the Courts, after an FCIC\n determination has been obtained, and cannot be awarded in\n arbitration. To obtain a determination that will enable the\n insured to recoup attorney[s’] fees, expenses, or damages\n from the [approved insurance provider], the insured must\n send a request for determination to the [Risk Management\n\n\n 19\n\f Agency] Deputy Administrator of Compliance after the\n insured has filed an appeal for judicial review.\n\nJ.A. 240 (emphasis supplied); Appellee’s Br. 12.\n\n Prior to this, the FCIC also addressed the issue of extra-contractual damages in\n\nFAD-99, issued on May 4, 2009, which states, in relevant part, “it is only in a judicial\n\nreview that producers can recover attorneys’ fees or other expenses, or any punitive,\n\ncompensatory or any other damages from insurance providers.” J.A. 241.\n\n Pursuant to Section 20(a)(1)(i) of the policy, these previously issued FADs -- and\n\nthe conclusion that arbitrators cannot award extra-contractual damages pursuant to\n\nSection 20(i) -- were binding upon the arbitrator in this case.\n\n 4.\n\n The Arbitrator Exceeded Her Powers\n\n Accordingly, the arbitrator exceeded her powers by both (1) interpreting the policy\n\nherself without obtaining an FCIC interpretation for the disputed policy provisions; and\n\n(2) awarding extra-contractual damages, which the FCIC has conclusively stated in\n\nmultiple FADs cannot be awarded in arbitration and can only be sought through judicial\n\nreview. Thus, Appellee met “the heavy burden” to vacate an arbitration award pursuant\n\nto the FAA. MCI Constructors, LLC v. City of Greensboro, 610 F.3d 849, 857 (4th Cir.\n\n2010); see also 9 U.S.C. § 10(a)(4).\n\n\n\n\n 20\n\f B.\n\n Contractual Damages\n\n In the alternative, Appellant argues that even if the arbitrator exceeded her powers\n\nby awarding extra-contractual damages and attorneys’ fees, we should nevertheless\n\nconfirm the arbitration award in part based on contract damages, which were within the\n\narbitrator’s authority to award pursuant to Section 20 of the policy.\n\n Assuming that the arbitrator also awarded contractual damages, 9 it is impossible to\n\ntell from the arbitration award what amount may have stemmed from contractual\n\ndamages and what amount was extra-contractual. For example, in the award as to\n\nAppellant’s crop loss claim for Farm 2172, the arbitrator stated:\n\n The lack of coverage for Farm 2172 indisputably arose\n from [Appellee’s conduct] . . . . The failure of [Appellee] to\n properly handle this and advise [Appellant] breached\n [Appellee’s] fiduciary duty to [Appellant.]\n\n I conclude that [Appellee] failed to comply with the terms\n of [the policy] and that failure resulted in the loss to\n [Appellant.] [Appellee] left [Appellant] effectively uninsured\n for crop year 2013 as to Farm 2172. Accordingly, I award the\n amount of $97,692.39 to [Appellant] for the breach of [the\n policy] and the failure to pay the claim. I conclude that\n [Appellee] engaged in negligence, breach of fiduciary duty\n and constructive fraud.\n\n In addition, [Appellant] has established that [Appellee]\n owed duties distinct and separate from the duties it owed\n under the parties’ contracts; further, [Appellant] has\n\n 9\n Notably, the arbitrator concluded that Appellee “left [Appellant] effectively\nuninsured for crop year 2013,” J.A. 14, 15, which calls into question how Appellee could\nbreach a contract that did not exist.\n\n\n 21\n\f established that [Appellee’s] breach of those duties was\n aggravated by several factors. Accordingly, I conclude that\n [Appellee] engaged in unfair and deceptive practices in or\n affecting commerce . . . . The facts show recklessness and\n wanton disregard by [Appellee], i.e., more than a mere breach\n of contract, warranting an award of treble damages under\n [North Carolina state law.]\n\nJ.A. 14.\n\n Although the arbitrator concluded that Appellee breached the contract, the\n\narbitrator also found Appellee liable for extra-contractual damages, including negligence\n\nand breach of fiduciary duty. Since the arbitrator only provided a single amount of\n\ndamages rather than a breakdown of the award by contract and noncontract claims, we\n\nhave no way to distinguish what amount the arbitrator may have awarded for contractual\n\ndamages (which were within the arbitrator’s authority to award) and what amount the\n\narbitrator awarded for extra-contractual damages (which, for the reasons explained above,\n\nthe arbitrator exceeded her authority in awarding).\n\n Of note, there is no support in the record for Appellant’s assertion at oral argument\n\nthat the arbitrator awarded $97,692.39 in contract damages for the crop loss claim while\n\nextra-contractual damages were awarded in the form of trebled damages and attorneys’\n\nfees. See Oral Argument at 14:51–16:04. To the contrary, the structure of the arbitration\n\naward suggests that the arbitrator intended the award of trebled damages based on\n\nAppellee’s “recklessness and wanton disregard” to be in addition to the contractual and\n\nextra-contractual damages awarded for breach of contract, negligence, breach of fiduciary\n\nduty, and constructive fraud. J.A. 14 (“I conclude that [Appellee] engaged in negligence,\n\nbreach of fiduciary duty and constructive fraud. In addition, . . . [t]he facts show\n\n 22\n\frecklessness and wanton disregard by [Appellee.]” (emphasis supplied)). The same is true\n\nregarding the arbitration award for Appellant’s prevented planting claim for Farms 1870\n\nand 4168. See J.A. 15 (“I also conclude that [Appellant] has engaged in negligence,\n\nbreach of fiduciary duty and constructive fraud. In addition, as to Farms [1870] and\n\n4168, . . . [t]he facts show recklessness and wanton disregard by [Appellant.]” (emphasis\n\nsupplied)).\n\n Accordingly, even to the extent the arbitrator awarded damages for breach of\n\ncontract on either policy (as opposed to extra-contractual damages), the entire award\n\nmust be vacated.\n\n IV.\n\n For these reasons, the judgment of the district court is\n\n AFFIRMED.\n\n\n\n\n 23", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371820/", "author_raw": "THACKER, Circuit Judge:"}]} | KEENAN | FLOYD | THACKER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4594567/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,594,571 | UNITED STATES of America, Plaintiff - Appellee, v. Jesmene LOCKHART, A/K/A Jesmene Laquin-Montre Lockhart, A/K/A Jasmene Lockhart, Defendant - Appellant. | United States v. Jesmene Lockhart | 2019-02-27 | 16-4441 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, Keenan, Floyd", "parties": "", "opinions": [{"author": "BARBARA MILANO KEENAN, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 16-4441\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nJESMENE LOCKHART, a/k/a Jesmene Laquin-Montre Lockhart, a/k/a Jasmene\nLockhart,\n\n Defendant - Appellant.\n\n\nAppeal from the United States District Court for the Western District of North Carolina,\nat Charlotte. Robert J. Conrad, Jr., District Judge. (3:15-cr-00034-RJC-1)\n\n\nArgued: November 15, 2018 Decided: February 27, 2019\n\n\nBefore GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Keenan wrote the opinion stating the judgment of", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371824/", "author_raw": "BARBARA MILANO KEENAN, Circuit Judge:"}, {"author": "the Court. Chief Judge Gregory wrote a separate opinion, concurring", "type": "concurrence", "text": "the Court. Chief Judge Gregory wrote a separate opinion, concurring in the judgment.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371824/", "author_raw": "the Court. Chief Judge Gregory wrote a separate opinion, concurring"}, {"author": "Judge Floyd wrote a separate opinion, concurring", "type": "concurrence", "text": "Judge Floyd wrote a separate opinion, concurring in the judgment.\n\n\nARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH\nCAROLINA, INC., Asheville, North Carolina, for Appellant. Amy Elizabeth Ray,\nOFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for\nAppellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL\nDEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina,\nfor Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED\n\nSTATES ATTORNEY, Charlotte, North Carolina, for Appellee.\n\n\n\n\n 2\n\nBARBARA MILANO KEENAN, Circuit Judge:\n\n Jesmene Lockhart appeals his conviction for possession of a firearm by a\n\nconvicted felon, in violation of 18 U.S.C. § 922(g)(1), and his mandatory minimum 15-\n\nyear sentence of imprisonment imposed under the Armed Career Criminal Act, 18 U.S.C.\n\n§ 924(e) (ACCA). Lockhart contends that the magistrate judge plainly erred by failing to\n\nadvise him during the Rule 11 plea colloquy of his potential exposure to the 15-year\n\nmandatory minimum. Lockhart asserts that if he had been properly informed of his\n\nsentencing exposure, there is a “reasonable probability” that he would not have pleaded\n\nguilty.\n\n Our holding today is restricted by this Court’s decision in United States v.\n\nMassenburg, 564 F.3d 337 (4th Cir. 2009), which imposes an extreme burden on a\n\ndefendant seeking plain error review of a court’s failure to provide correct sentencing\n\ninformation before accepting a guilty plea. Under Massenburg, irrespective of the extent\n\nof the court’s error, a defendant on plain error review affirmatively must show a\n\nreasonable probability that he would not have pleaded guilty if he had been correctly\n\nadvised of his sentencing exposure. See id. at 343-46. The defendant is held to this\n\nstandard even though the Rule 11 error committed by the district court left him in the\n\ndark regarding one of the most critical considerations in the guilty plea calculus, namely,\n\nhis sentencing exposure. But because we are bound by the holding in Massenburg, we\n\nconclude that Lockhart has failed to satisfy his evidentiary burden and we affirm the\n\ndistrict court’s judgment.\n\n\n\n 3\n\n I.\n\n In September 2014, officers with the Charlotte-Mecklenburg Police Department in\n\nNorth Carolina responded to a report of suspicious activity involving individuals in a\n\nparked car. When they arrived at the scene, an officer saw Lockhart sitting in the driver’s\n\nseat of the vehicle. The officer observed Lockhart use his right hand to provide his\n\nidentification, “while reaching down by his left leg with his left hand, where the officer\n\nsaw the butt of [a] gun with a magazine clip.” The officers recovered the loaded handgun\n\nand an additional magazine from the driver’s side of the car, and the authorities later\n\ndetermined that the firearm was stolen.\n\n Lockhart pleaded guilty without a written plea agreement to a single count of\n\npossession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).\n\nDuring the Rule 11 plea colloquy, the magistrate judge asked the government to\n\n“summarize the charge and the penalty.” The government responded that the “maximum\n\npenalty” Lockhart faced was 10 years’ imprisonment. At no time during the plea\n\ncolloquy did the court or the government clarify that Lockhart’s criminal history could\n\nresult in a 15-year mandatory minimum sentence under the ACCA.\n\n The probation officer prepared a presentence report (PSR), and recommended\n\nsentencing Lockhart as an armed career criminal under the ACCA based on three prior\n\nconvictions for North Carolina robbery with a dangerous weapon. In the PSR, the\n\nprobation officer explicitly highlighted the error in the plea colloquy, noting that\n\nLockhart “was informed that his statutory penalties . . . were not more than ten years[’]\n\n\n\n 4\n\nimprisonment,” but that “based on [Lockhart’s] three prior convictions for violent\n\nfelonies, [his] statutory penalties . . . are not less than fifteen years[’] imprisonment.”\n\n Lockhart’s counsel objected to the proposed ACCA designation on the grounds\n\nthat (1) his North Carolina convictions, which were consolidated for judgment, should\n\ncount as a single ACCA predicate, and (2) an ACCA sentence would violate the Eighth\n\nAmendment. Notably, Lockhart did not assert that he previously had been unaware of his\n\npotential ACCA designation, nor did he seek to withdraw his guilty plea.\n\n After overruling the objections of Lockhart’s counsel, the district court concluded\n\nthat Lockhart qualified as an armed career criminal under the ACCA and imposed the\n\nmandatory minimum term of 15 years’ imprisonment. Following the court’s imposition\n\nof sentence, Lockhart’s counsel conferred with the government and informed the court:\n\n I’m going back to his plea colloquy. He didn’t plead to 924(e) [ACCA] it\n was not on the Bill of Indictment. But I went over it beforehand. So I just\n want to put it on the record that he was fully aware of that. I just thought\n about it.\n\nThe government added, “We just wanted to make a record of that.” The district court did\n\nnot ask counsel to elaborate on the issue, and did not confirm with Lockhart whether he\n\nwas aware of his potential ACCA exposure before pleading guilty. Lockhart now\n\nappeals, represented by new appellate counsel.\n\n\n\n II.\n\n Because Lockhart did not seek to withdraw his guilty plea in the district court, we\n\nreview his challenge to his plea for plain error. United States v. McCoy, 895 F.3d 358,\n\n\n 5\n\n364 (4th Cir. 2018). To succeed under plain error review, a defendant bears the burden to\n\nshow that: (1) an error occurred; (2) the error was plain; and (3) the error affected his\n\nsubstantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). This Court retains\n\nthe discretion to correct such an error but will do so “only if the error seriously affects the\n\nfairness, integrity or public reputation of judicial proceedings.” Massenburg, 564 F.3d at\n\n343 (quoting Olano, 507 U.S. at 732) (internal quotation marks omitted).\n\n Lockhart argues that if he had known he would be facing a 15-year minimum\n\nsentence under the ACCA, rather than the 10-year maximum stated at the plea hearing, he\n\nlikely would not have pleaded guilty. Lockhart asserts that the benefit he gained from\n\npleading guilty was “so small as to be virtually non-existent” and, thus, that he would\n\nhave had a strong incentive to request a trial to try to avoid the 15-year ACCA sentence. 1\n\n In response, the government concedes that the magistrate judge committed plain\n\nerror in failing to advise Lockhart of his correct sentencing exposure. Nevertheless, the\n\ngovernment contends that Lockhart has failed to show a “reasonable probability” that he\n\nwould not have pleaded guilty if the court had advised him of his correct sentencing\n\nrange. See United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004). Applying\n\nMassenburg, we agree with the government.\n\n 1\n In support of this argument, Lockhart maintains that: (1) the three-level reduction\nin his Guidelines calculation for acceptance of responsibility reduced the bottom of his\nGuidelines range by only eight months; (2) mitigating factors in his background,\nincluding his youth at the time of the predicate offenses, would have supported a\ndownward variance irrespective whether he pleaded guilty; and (3) if he had not pleaded\nguilty to the felon in possession charge, the government might have offered him a more\nfavorable plea deal for possession of a stolen firearm, in violation of 18 U.S.C. § 922(j),\nwhich charge would not have triggered the ACCA enhancement.\n\n 6\n\n Initially, we agree with the parties that the first two prongs of plain error review\n\nare satisfied here. Under Federal Rule of Criminal Procedure 11, a district court must\n\nadvise a defendant of “any maximum possible penalty” as well as “any mandatory\n\nminimum penalty” before accepting a guilty plea. Fed. R. Crim. P. 11(b)(1)(H), (I). And\n\neven if a district court is not certain whether a defendant will qualify for an enhanced\n\nsentence under the ACCA, the court nevertheless must “anticipate the possibility and\n\nexplain to [the defendant] the sentence that would be applicable if he had prior qualifying\n\nconvictions.” United States v. Hairston, 522 F.3d 336, 340 (4th Cir. 2008); see also\n\nMassenburg, 564 F.3d at 343 (plain error when defendant not advised of potential ACCA\n\nsentence before pleading guilty). As the Supreme Court has explained:\n\n If the judge told the defendant that the maximum possible sentence was 10\n years and then imposed a sentence of 15 years based on ACCA, the\n defendant would have been sorely misled and would have a ground for\n moving to withdraw the plea.\n\nUnited States v. Rodriquez, 553 U.S. 377, 384 (2008). Accordingly, we conclude that by\n\nfailing to inform Lockhart of his potential eligibility for a mandatory minimum 15-year\n\nsentence under the ACCA, the magistrate judge committed error that was plain.\n\n To establish that a Rule 11 error affected his substantial rights, a defendant bears\n\nthe burden to show “a reasonable probability that, but for the error, he would not have\n\nentered the plea.” Dominguez Benitez, 542 U.S. at 83. This standard is a demanding one,\n\nrequiring a defendant to “satisfy the judgment of the reviewing court, informed by the\n\nentire record, that the probability of a different result is ‘sufficient to undermine\n\nconfidence in the outcome’ of the proceeding.” Id. (citations omitted).\n\n\n 7\n\n In Massenburg, 564 F.3d 337, we directly addressed this “reasonable probability”\n\nstandard in the context of incorrect sentencing information provided at a Rule 11 plea\n\ncolloquy. There, in circumstances nearly identical to the case now before us, a district\n\ncourt failed to inform the defendant during his plea colloquy that he might receive an\n\nenhanced ACCA sentence, contrary to later information in the PSR that the defendant’s\n\nrecord qualified him to receive such a sentence. Id. at 340. We declined to impose a\n\npresumption of prejudice for that error, despite the significant increase in sentencing\n\nexposure caused by the ACCA designation. Id. at 341, 344-46. In adopting this\n\napproach, we emphasized that the confines of plain error review reflect the importance of\n\ntimely raising objections in the district court. Id. at 345-46.\n\n In considering whether Massenburg had shown an effect on his substantial rights\n\nfor purposes of plain error review, we reviewed the record in accordance with Supreme\n\nCourt precedent and emphasized three main considerations: (1) whether there were any\n\n“statements on the record . . . suggesting that [the defendant] would not have pleaded\n\nguilty if the district court had properly informed him of the sentencing exposure that he\n\nfaced”; (2) whether the defendant moved to withdraw his guilty plea after learning from\n\nthe PSR that he could be sentenced under the ACCA; and (3) the strength of the\n\ngovernment’s case against him. Id. at 343-44. Applying those factors, we observed that\n\nthere was an “absence of any evidence in the record suggesting that [Massenburg] would\n\nnot have entered his plea in the absence of the error,” and that the government’s evidence\n\nwas strong. Id. at 344. We therefore concluded that Massenburg had not satisfied the\n\n“reasonable probability” standard. Id. at 339, 343-46.\n\n 8\n\n To obtain relief on plain error review, a defendant who has been given materially\n\nincorrect sentencing information at his plea colloquy must show that there is a reasonable\n\nprobability he would not have pleaded guilty if he had been correctly advised. Id. at 343\n\n(citing Dominguez Benitez, 542 U.S. at 83). Under Massenburg, this showing must\n\nappear affirmatively on the record, notwithstanding that the essence of plain error review\n\nis the defendant’s failure to object to such error in the trial court. See id. at 343-44; Fed.\n\nR. Crim. P. 52(b) (“A plain error that affects substantial rights may be considered even\n\nthough it was not brought to the court’s attention.” (emphasis added)); see generally\n\nOlano, 507 U.S. at 733-34. Thus, a defendant who has been misled by the court’s\n\nmisinformation regarding his sentencing exposure effectively is penalized on plain error\n\nreview by the very nature of the court’s plain error.\n\n As a matter of simple logic, the problem created by such an error, namely, the\n\nentry of a guilty plea that is not knowing and voluntary, cannot be cured by contrary\n\ninformation later provided in a PSR. United States v. Goins, 51 F.3d 400, 404 (4th Cir.\n\n1995). A defendant has a right to rely on the accuracy of the information provided by the\n\ncourt on which his plea is based. A plea that is predicated on a defendant’s ignorance of\n\nhis sentencing exposure strikes at the very heart of our criminal justice system. And,\n\nwhile plain error review reflects the defendant’s failure to preserve his objection to the\n\ntrial court’s error, Massenburg strongly suggests that to succeed on plain error review,\n\nthe defendant must have stated on the record in the trial court that the error affected his\n\nplea decision, and that he must have moved to withdraw his plea after learning of his\n\nactual sentencing exposure.\n\n 9\n\n Under Dominguez Benitez, a defendant is not required to make such an affirmative\n\nstatement on the trial record or to move to withdraw his plea after learning of his true\n\nsentencing exposure. Instead, under the Supreme Court’s holding, a defendant who has\n\nbeen advised incorrectly by the court at his Rule 11 hearing can demonstrate an effect on\n\nhis substantial rights by showing based on the totality of the circumstances in the record,\n\nthat there is a reasonable likelihood he would have gone to trial if the court had advised\n\nhim correctly. See 542 U.S. at 83 (holding that a defendant must “satisfy the judgment of\n\nthe reviewing court, informed by the entire record, that the probability of a different\n\nresult is ‘sufficient to undermine confidence in the outcome’ of the proceeding” (citations\n\nomitted)). But this Court in Massenburg has required more. 2\n\n Under Massenburg, we are constrained to conclude that Lockhart has not shown\n\nthat his substantial rights were affected by the district court’s error. As in Massenburg,\n\nLockhart did not make any statement on the record indicating that he would have\n\nproceeded to trial if he had been given the correct sentencing information. See 564 F.3d\n\nat 343-44. Nor did Lockhart express surprise at the statement in the PSR of a potential\n\n\n 2\n Absent the holding in Massenburg, we would further consider whether the\nmagnitude of the present error created a reasonable probability of a different result by\nimpairing Lockhart’s ability to evaluate the relative risks and benefits of pleading guilty\nversus proceeding to trial. See United States v. Rivera-Maldonado, 560 F.3d 16, 17, 20-\n21 (1st Cir. 2009) (vacating guilty plea on plain error review when court informed the\ndefendant that he faced a three-year maximum term of supervised release, when he\nactually faced a maximum term of life, because “the erroneous information dramatically\naltered the sentencing stakes for the defendant”); United States v. Monie, 858 F.3d 1029,\n1032-34 (6th Cir. 2017) (citing Rivera-Maldonado, 560 F.3d at 21) (vacating guilty plea\non plain error review when defendant was not informed of ACCA exposure).\n\n\n 10\n\nACCA designation or seek to withdraw his plea on that basis. And the government\n\nproffered strong evidence supporting the felon in possession charge, based on recovery of\n\na firearm and ammunition from the driver’s side of a vehicle while Lockhart was sitting\n\nin the driver’s seat. Accordingly, bound by the holding of Massenburg, we conclude that\n\nLockhart has failed to demonstrate plain error affecting his substantial rights.\n\n\n\n III.\n\n We affirm the district court’s judgment.\n\n\n\n AFFIRMED\n\n\n\n\n 11", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371824/", "author_raw": "Judge Floyd wrote a separate opinion, concurring"}, {"author": "GREGORY, Chief Judge, concurring", "type": "concurrence", "text": "GREGORY, Chief Judge, concurring in the judgment:\n\n According to the record evidence, Jesmene Lockhart entered into a guilty plea\n\nwithout the district court properly informing him of his true sentencing exposure. In\n\ncontract cases involving a property interest, this Court would likely grant a party in\n\nLockhart’s position rescission based on unilateral mistake. Unfortunately, this is a\n\ncriminal case, and the liberty interests of defendants such as Lockhart are not afforded the\n\nsame level of relief. The majority operates under the mistaken belief that the scales of\n\njustice are constrained by United States v. Massenburg, 564 F.3d 337 (4th Cir. 2009) and\n\nthe circular logic it employs. Consequently, despite the majority’s trepidation about the\n\ninjustice Massenburg represents, it still acquiesces to an analysis that reflexively\n\nprohibits defendants from obtaining a second chance to make an informed choice after\n\nbeing misinformed by the district court.\n\n Massenburg relies on the Supreme Court’s holding in United States v. Dominguez\n\nBenitez, 542 U.S. 74 (2004). There, the Supreme Court held “that a defendant who seeks\n\nreversal of his conviction after a guilty plea, on the ground that the district court\n\ncommitted plain error under Rule 11, must show a reasonable probability that, but for the\n\nerror, he would not have entered the plea. A defendant must thus satisfy the judgment of\n\nthe reviewing court, informed by the entire record, that the probability of a different\n\nresult is sufficient to undermine confidence in the outcome of the proceeding.” 542 U.S.\n\nat 83 (internal quotation marks and citations omitted).\n\n Applying Dominguez Benitez, this Court in Massenburg conducted a plain error\n\nreview of the entire record, examining (1) whether there were any “statements on the\n\n 12\n\nrecord . . . suggesting that [the defendant] would not have pleaded guilty if the district\n\ncourt had properly informed him of the sentencing exposure that he faced”; (2) whether\n\nthe defendant moved to withdraw his guilty plea after learning from the PSR that he\n\ncould be sentenced under the ACCA; and (3) the strength of the government’s case\n\nagainst him. 564 F.3d at 343-44.\n\n Upon a closer examination, the considerations used by this Circuit in Massenburg\n\ncreate a circular logic that prevents defendants from successfully pursuing appellate\n\nrelief. On the one hand, the defendant’s silence at the time of the Rule 11 proceedings\n\ncompels us to use the plain error standard. On the other hand, we use the defendant’s\n\nsilence, as evidenced by lack of statements in the record and a lack of an attempt to\n\nwithdraw the guilty plea, to also deny the defendant relief. It is unjust that the same\n\nsilence that compels this Court to use plain error review also compels us to deny relief\n\nunder that same standard of review. The Massenburg Court also looks at the strength of\n\nthe Government’s case against the defendant. However, Rule 11 cases always occur in\n\nthe context of a defendant taking a guilty plea, and defendants generally do not plead\n\nguilty when the case against them is weak. This is yet another example of how the\n\nMassenburg Court employs a nonsensical rubric against a defendant. As the majority\n\npoints out, defendants seeking relief under plain error review should face a higher\n\nburden, but Massenburg makes this burden impossible to meet.\n\n A proper review of the entire record in this case materially affects the outcome in\n\nLockhart. See Dominguez Benitez, 542 U.S. at 80 (explaining that in assessing the effect\n\nof Rule 11 error, a reviewing court must look to the entire record, not to the plea\n\n\n 13\n\nproceedings alone). The majority notes that at the end of the sentencing hearing\n\nLockhart’s lawyer and the United States Attorney conferred in order to make the court\n\naware that Lockhart was allegedly informed of the ACCA enhancement even though the\n\ncourt had not informed him of it, and the Bill of Indictment did not list it. Though\n\nLockhart’s attorney represented to the court that he had informed Lockhart of his\n\nsentencing exposure, a pro se notice of appeal filed by Lockhart a mere five days later\n\nindicates otherwise. In that notice, Lockhart requested that the court appoint a new\n\nlawyer “because my last lawyer did not____me right.” *\n\n This portion of the record viewed in context indicates Lockhart’s dissatisfaction\n\nwith the advice of his counsel. Indeed, the attorney’s eleventh-hour attempt to address\n\nthe omission of the ACCA enhancement in the Bill of Indictment strongly supports the\n\ninference that Lockhart was not fully or properly advised by the court or his attorney of\n\nthe criminal consequences of his plea. Moreover, the grievance against Lockhart’s\n\nattorney communicated in his pro se notice of appeal can only be related to advice and\n\ncommunication surrounding his guilty plea given that this case never went to trial.\n\n The deficiencies in communication to Lockhart, both by the court and his attorney,\n\nundermine the confidence this Court should have in the integrity of the sentencing court’s\n\nproceedings and strongly suggests that misinformation materially impacted Lockhart’s\n\nsubstantial rights. This is especially true because the ACCA enhancement meant that\n\nLockhart faced a maximum of life imprisonment even with the guilty plea. Given that\n\n *\n The electronic record obfuscates the missing word and the original record was\ndestroyed.\n\n\n 14\n\nLockhart actually faced life imprisonment, rather than the ten years the district court\n\ncommunicated to him, there is a reasonable probability that but for being misinformed, he\n\nwould not have entered into the plea. This satisfies the contested third prong of the plain\n\nerror analysis and demonstrates that the error “affect[ed] the substantial rights” of\n\nLockhart. United States v. Olano, 507 U.S. 725, 732 (1993).\n\n Lockhart entered a guilty plea based on misinformation. It resulted in five\n\nadditional years of jail time but could have resulted in life imprisonment. This Court\n\nchooses to uphold the circular logic of Massenburg and further buttress a system that tells\n\ndefendants that our failure to inform you about your criminal liability does not impact\n\nyour ability to choose to enter a guilty plea or stand trial. The Massenburg Court and\n\nnow the Lockhart Court tells defendants that even if we misinform you, you are still\n\nbetter off taking a plea, a proposition that flies in the face of a criminal justice system\n\nwhere willful, voluntary, and informed choices are the bedrock of a system where\n\ntransparency and accountability are of paramount importance. Nonetheless, given our\n\nflawed precedent, I am constrained to concur in the judgment and deny Lockhart the\n\nopportunity to make a properly informed decision about whether to exercise his\n\nconstitutional right to stand trial. Now may be the time for this Court to remove the\n\ncloud of Massenburg that obscures a better understanding of the Supreme Court’s\n\nholding in Dominguez Benitez so that defendants receive the protections that our\n\nConstitution promises them.\n\n\n\n\n 15", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371824/", "author_raw": "GREGORY, Chief Judge, concurring"}, {"author": "FLOYD, Circuit Judge, concurring", "type": "concurrence", "text": "FLOYD, Circuit Judge, concurring in the judgment:\n\n Like my colleagues, I believe that the outcome of Lockhart’s appeal is constrained by\n\nour decision in United States v. Massenburg, 564 F. 3d 337 (4th Cir. 2009). I also\n\nbelieve that there are sound reasons for this Court to revisit Massenburg and limit its\n\nprecedential scope.\n\n In Massenburg, we correctly stated that in order to prevail on plain-error review, an\n\nappellant like Lockhart must show a “reasonable probability” that he would not have\n\npleaded guilty if he had been correctly informed of his sentencing exposure. 564 F.3d at\n\n343 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)). Personally, I\n\nfind that rule-statement somewhat difficult to reconcile with Massenburg’s analysis.\n\nIndeed, if we were to go through Massenburg and replace each instance of “reasonable\n\nprobability” with “virtual certainty,” it seems to me that the opinion would read quite\n\nwell. Therein lies the problem. Although our opinion in Massenburg correctly recites\n\nthe rule of Dominguez Benitez, its three-factor analysis has the regrettable effect of\n\nsetting the bar too high for appellants in Lockhart’s position.\n\n Were we to apply Dominguez Benitez to this case directly, rather than filtering it\n\nthrough the prism of Massenburg, I cannot help but think that we would have ample\n\nreason to vacate Lockhart’s conviction. After all, unlike in Dominguez Benitez, it is quite\n\neasy to see here how the court’s error during Lockhart’s Rule 11 hearing “could have had\n\nan effect on [Lockhart’s] assessment of his strategic position.” 542 U.S. at 85. Lockhart\n\ntells us that from the start, he expected a sentence at the low end of the recommended\n\nrange. His expectation was not unreasonable, considering the relatively innocuous\n\n\n 16\n\ncircumstances of his offense. Since it was reasonable for him to expect a sentence at the\n\nlow end of the recommended range, it was also reasonable for him to try to shave as\n\nmany years off the low end of the recommended range as possible. A guilty plea would\n\nhave been a rational way to accomplish that goal before he knew that he would be\n\nsentenced as an armed career criminal, but not after.\n\n Consider the percentages. Taking Lockhart’s PSR and the 2016 Sentencing\n\nGuidelines as our benchmark, it appears likely that if Lockhart had not been sentenced as\n\nan armed career criminal, his guilty plea would have dropped the low end of the\n\nrecommended sentencing range from 5.25 years to 3.83 years—a 26.9% reduction. But\n\nbecause Lockhart was sentenced as an armed career criminal, his guilty plea had a much\n\nsmaller effect and made much less sense, given his goal: his plea dropped the low end of\n\nhis sentencing exposure from 15.67 years to 15 years—a mere 4.2% reduction. In\n\nessence, the initial rationale underlying Lockhart’s guilty plea was rendered all-but\n\nnonsensical by his later designation as an armed career criminal. 1\n\n Added to this numerical analysis is the starkly odd behavior of Lockhart’s counsel,\n\nand Lockhart’s apparent displeasure with same (which my colleagues have aptly\n\nhighlighted). These factors convince me that if we were not constrained by Massenburg,\n\nwe would grant relief to Lockhart. This is particularly so given that, as I understand it,\n\n“reasonably probable” does not mean “more likely than not.” See Dominguez Benitez,\n\n 1\n These numbers are necessarily estimates, and I do not mean to suggest that we\nshould use this sort of quantitative analysis to decide all cases like the one at bar. The\npercentages referenced here are useful only insofar as they help to illustrate the logic of\nan argument that Lockhart makes on appeal.\n\n\n 17\n\n542 U.S. at 86–87 (Scalia, J., concurring); Strickland v. Washington, 466 U.S. 668, 693-\n\n94 (1984) (distinguishing between “reasonable probability” and “more likely than not,”\n\nand clarifying that the former is less demanding than the latter).\n\n Finally, I agree with my colleagues that holding a defendant’s silence against him in\n\nthese circumstances is improper. When a defendant, by his apparent silence, fails to\n\npreserve his objection to a mistake made during a Rule 11 hearing, the consequence is\n\nthat we review for plain error. Once we have entered the realm of plain-error review, it\n\nmakes no sense to continue to hold the defendant’s silence against him. Yet Massenburg\n\nurges us to do exactly that. “The defendant failed to register any surprise or dismay on\n\nthe record,” we say. “Therefore, we review for plain error. In reviewing for plain error,\n\nwe note that the defendant expressed neither surprise nor dismay when informed of his\n\nactual sentencing exposure, which weighs against him now.” This is quicksand; we\n\nshould distance ourselves from it.\n\n I believe that our decision in Massenburg has had the unintended effect of chipping\n\naway at our ability to safeguard the legitimacy of criminal-justice proceedings. This case\n\npresents an excellent opportunity for us to do some mild course-correction.\n\n\n\n\n 18", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371824/", "author_raw": "FLOYD, Circuit Judge, concurring"}]} | GREGORY | KEENAN | FLOYD | 1 | {} | 5 | 0 | 0 | 4 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4594571/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,595,199 | SHARP FARMS; Robert W. May ; Tucker Farms Inc.; Worthington Farms, Inc., Objectors-Appellants, v. Teresa M. SPEAKS; Toby Speaks ; Stan Smith; Eddie Brown; Robert Poindexter ; Mike Mitchell; Roy L. Cook; Alex Shugart ; H. Randle Wood; Robin Rogers; Daniel Lee Nelson, Plaintiffs-Appellees, and U. S. Tobacco Cooperative Inc., F/K/A Flue-Cured Tobacco Cooperative Stabilization Corporation, Defendant-Appellee. Dan Lewis, Potential Intervenor-Appellant, v. Teresa M. Speaks; Toby Speaks ; Stan Smith; Eddie Brown; Robert Poindexter ; Mike Mitchell; Roy L. Cook; Alex Shugart ; H. Randle Wood; Robin Rogers; Daniel Lee Nelson, Plaintiffs-Appellees, and U. S. Tobacco Cooperative Inc., F/K/A Flue-Cured Tobacco Cooperative Stabilization Corporation, Defendant-Appellee. | Teresa Speaks v. U. S. Tobacco Cooperative Inc. | 2019-02-28 | 18-1316; 18-1325 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, Thacker, Quattlebaum", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888078/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888079/", "author_raw": ""}, {"author": "Raleigh. James C. Dever, III, District Judge", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1316\n\n\nSHARP FARMS; ROBERT W. MAY; TUCKER FARMS INC.;\nWORTHINGTON FARMS, Inc.,\n\n Objectors - Appellants,\n\n v.\n\nTERESA M. SPEAKS; TOBY SPEAKS; STAN SMITH; EDDIE BROWN;\nROBERT POINDEXTER; MIKE MITCHELL; ROY L. COOK; ALEX SHUGART;\nH. RANDLE WOOD; ROBIN ROGERS; DANIEL LEE NELSON,\n\n Plaintiffs – Appellees,\n\n and\n\nU. S. TOBACCO COOPERATIVE INC., f/k/a Flue-Cured Tobacco Cooperative\nStabilization Corporation,\n\n Defendant – Appellee.\n\n\n\n\n No. 18-1325\n\n\nDAN LEWIS,\n\n Potential Intervenor - Appellant,\n\n v.\n\nTERESA M. SPEAKS; TOBY SPEAKS; STAN SMITH; EDDIE BROWN;\nROBERT POINDEXTER; MIKE MITCHELL; ROY L. COOK; ALEX SHUGART;\nH. RANDLE WOOD; ROBIN ROGERS; DANIEL LEE NELSON,\n\n Plaintiffs – Appellees,\n\n and\n\nU. S. TOBACCO COOPERATIVE INC., f/k/a Flue-Cured Tobacco Cooperative\nStabilization Corporation,\n\n Defendant – Appellee.\n\n\nAppeal from the United States District Court for the Eastern District of North Carolina, at\nRaleigh. James C. Dever, III, District Judge. (5:12-cv-00729-D)\n\n\nArgued: October 31, 2018 Decided: February 28, 2019\n\n\nBefore GREGORY, Chief Judge, THACKER, and QUATTLEBAUM, Circuit Judges.\n\n\nAffirmed in part, reversed and remanded by published opinion. Chief Judge Gregory\nwrote the opinion, in which Judge Thacker and Judge Quattlebaum joined.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372452/", "author_raw": "Raleigh. James C. Dever, III, District Judge"}, {"author": "Judge Quattlebaum wrote a concurring", "type": "concurrence", "text": "Judge Quattlebaum wrote a concurring opinion.\n\n\nARGUED: Charles Alan Runyan, RUNYAN & PLATTE, Beaufort, South Carolina, for\nAppellants. Gary K. Shipman, SHIPMAN & WRIGHT, LLP, Wilmington, North\nCarolina, for Appellees Teresa Speaks, et al. Derek L. Shaffer, QUINN EMANUEL\nURQUHART & SULLIVAN, LLP, Washington, D.C., for Appellee United States\nTobacco Cooperative Inc. ON BRIEF: Andrew S. Platte, RUNYAN & PLATTE,\nBeaufort, South Carolina, for Appellants Sharp Farms, Robert W. May, Tucker\nFarms, Inc., and Worthington Farms, Inc. John L. Coble, MARSHALL, WILLIAMS\n& GORHAM, LLP, Wilmington, North Carolina, for Appellant Dan Lewis.\nWilliam G. Wright, SHIPMAN & WRIGHT, LLP, Wilmington, North Carolina;\nNamon Leo Daughtry, DAUGHTRY, WOODARD, LAWRENCE & STARLING,\nSmithfield, North Carolina, for Appellees Teresa Speaks, et al. Lee M. Whitman,\nTobias S. Hampson, WYRICK ROBBINS, Raleigh, North Carolina; Jonathan Cooper,\nQUINN EMANUEL URQUHART & SULLIVAN, LLP, Washington, D.C., for Appellee\n\n\n 2\n\nUnited States Tobacco Cooperative Inc.\n\n\n\n\n 3\n\nGREGORY, Chief Judge:\n\n This appeal of a class-action settlement concerns a longstanding dispute between\n\nU.S. Tobacco Cooperative, Inc., an agricultural cooperative of flue-cured tobacco\n\ngrowers in North Carolina, and a class of plaintiffs consisting of current and former\n\nCooperative members. From its inception in 1946, the Cooperative administered a\n\nfederal price-support program designed to stabilize tobacco prices for member growers\n\nthrough purchasing their unsold tobacco at a guaranteed minimum price and marketing\n\nthe tobacco to buyers. With a mixed record of success, the price-support program\n\nultimately came to an end in 2004, when Congress enacted the Fair and Equitable\n\nTobacco Reform Act (“FETRA”). By this point, the Cooperative had accumulated a\n\ncapital reserve fund of hundreds of millions of dollars generated from the tobacco the\n\nmembers delivered or the fee assessments they paid to the Cooperative as members\n\nparticipating in the price-support program.\n\n On October 31, 2012, the plaintiffs (“Speaks plaintiffs”) filed a class-action\n\ncomplaint against the Cooperative, seeking a declaratory judgment, distribution of the\n\nreserve funds to members, and judicial dissolution of the Cooperative as an alternative\n\nform of relief. They argued that after Congress enacted FETRA and the price-support\n\nprogram ended, the Cooperative’s primary purpose ceased to exist, and it should be\n\nforced to distribute the reserve funds and be judicially dissolved. The parties eventually\n\nmediated the case in May 2017 and moved for the district court to certify the class and\n\napprove their $24 million settlement as fair, reasonable, and adequate for the class\n\nmembers. The district court did so.\n\n 4\n\n But this is not the whole picture. At the time the Speaks plaintiffs filed their\n\ncomplaint in October 2012, a parallel class action against the Cooperative was making its\n\nway through North Carolina state court. That case was brought several years earlier, and\n\nit included a class of member growers (the “Fisher-Lewis plaintiffs”) who form a subset\n\nof the Speaks class in this appeal but whose claims to the reserve fund are arguably much\n\nstronger than the claims of the Speaks plaintiffs. Indeed, a North Carolina court,\n\nreviewing a proposed settlement for the Fisher-Lewis plaintiffs in 2006, concluded that\n\n$76.8 million in relief was not even in the “ball park” of being fair, reasonable, and\n\nadequate for class members.\n\n The Speaks plaintiffs filed their October 2012 complaint just as the Fisher-Lewis\n\nplaintiffs were gathering momentum—they had substantially survived a motion to\n\ndismiss and moved for class certification before the state court. Acknowledging that the\n\npreexisting Fisher-Lewis proceedings could affect their case, the Speaks plaintiffs then\n\nstayed the case for several years while those proceedings played out. During this time,\n\nthe Fisher-Lewis plaintiffs met with more success, achieving class certification and\n\nsuccessfully defending against the Cooperative’s appeal challenging certification. Within\n\ntwo weeks of the North Carolina Supreme Court’s decision affirming class certification,\n\nhowever, the Speaks parties began their own settlement negotiations. They reached a\n\ntentative settlement for $24 million within five months—a settlement that included the\n\nFisher-Lewis certified class and extinguished its claims.\n\n Before this Court are the Objectors-Appellants—Fisher-Lewis class members who\n\nobjected to the Speaks settlement—and would-be intervenor Dan Lewis. Lewis contends\n\n 5\n\nthat the district court abused its discretion in denying his motion to intervene in Speaks.\n\nBecause he filed his appeal with this Court far beyond the 30-day appeal deadline\n\nprescribed by statute, we must dismiss his appeal for lack of jurisdiction.\n\n The Objectors claim, at bottom, that they got a raw deal. They first contend that\n\nthe district court abused its discretion in certifying the Speaks settlement class under\n\nFederal Rule of Civil Procedure 23(a), arguing that the Speaks class counsel and class\n\nrepresentatives cannot and did not adequately protect their interests in this case. The\n\nObjectors also challenge the district court’s final approval of the $24 million settlement\n\nas fair, reasonable, and adequate under Rule 23(e). Finally, they argue that the district\n\ncourt erred in denying certain Fisher-Lewis class members’ attempts to opt out the entire\n\nFisher-Lewis certified class from Speaks.\n\n We affirm the district court’s denial of the attempted group opt-out. But after a\n\ncareful review of this record—which spans nearly 15 years and 5,000 pages—we cannot\n\nagree that the Objectors’ interests were adequately protected or that a $24 million\n\nsettlement is fair, reasonable, and adequate for the class. For this reason, we reverse the\n\ndistrict court’s order certifying the class and granting final approval of the class-action\n\nsettlement and remand for further proceedings consistent with this opinion.\n\n\n\n\n 6\n\n I.\n\n A.\n\n Historical Background\n\n Created in 1946, U.S. Tobacco Cooperative, Inc. is an agricultural cooperative of\n\nflue-cured tobacco growers organized under the North Carolina Cooperative Marketing\n\nAct. 1 N.C. Gen. Stat. §§ 54-145 to 54-166. The Cooperative’s purpose is to “engage in\n\nany activity involving or relating to the business of receiving, grading, processing,\n\ndrying, packing, storing, financing, marketing, selling, and/or distribution, on a\n\ncooperative basis, of flue-cured tobacco or products or by-products derived therefrom of\n\nits members.” J.A. 345.\n\n Under North Carolina law and the Cooperative’s governing documents, the\n\nCooperative may establish a capital reserve. See N.C. Gen. Stat. § 54-151(5); J.A. 366–\n\n67 (articles of incorporation), J.A. 3200 (1947 bylaws), J.A. 3503–04 (1967 bylaws). In\n\nthe 1970s, the Cooperative’s Board of Directors established such a reserve to “prepare for\n\n[] rainy days” in the event federal subsidies ended. J.A. 3963. The plaintiffs in this\n\nlawsuit are a class of current and former members of the Cooperative who brought an\n\naction for dissolution of the Cooperative and distribution of excess capital reserves. 2 J.A.\n\n262–90.\n\n\n\n 1\n Before changing its name in 2008, the Cooperative was called the Flue-Cured\nTobacco Cooperative Stabilization Corporation.\n 2\n The price-support program was established under a series of federal laws that\nCongress enacted to protect farmers after the Great Depression. See generally Jasper\n(Continued)\n 7\n\n To become a member of the Cooperative, a flue-cured tobacco producer “paid five\n\ndollars . . . in exchange for one share of [the Cooperative’s common] stock.” Fisher v.\n\nFlue-Cured Tobacco Coop. Stabilization Corp., 794 S.E.2d 699, 703 (N.C. 2016)\n\n(“Fisher-Lewis”). According to the Cooperative’s governing documents, this common\n\nstock could be “purchased, owned or held only by producers who shall patronize the\n\ncorporation in accordance with uniform terms and conditions . . . and only such persons\n\nshall be regarded as eligible members of the corporation.” J.A. 346. If the common\n\nstock passed to someone ineligible for membership, that person had “no rights or\n\nprivileges on account of such stock,” and the Cooperative could “purchase such stock at\n\nits book or par value, whichever is less.” J.A. 346–47.\n\n From 1946–2004, the Cooperative administered a federal price-support program\n\nfor flue-cured tobacco for the benefit of its member growers. Under this program,\n\ntobacco producers who could not sell their flue-cured tobacco delivered it to a warehouse,\n\nwhere the Cooperative graded the tobacco and tried to sell it at auction. Fisher-Lewis,\n\n794 S.E.2d at 703. “The auction was subject to a minimum price established annually by\n\nthe United States Department of Agriculture, and the tobacco would not be sold for less\n\nthan that price.” Id. If the Cooperative could not sell the tobacco, it “would process and\n\nstore it, while advancing the minimum price less an administrative fee to the tobacco\n\nproducer.” Id. The Cooperative paid the tobacco producers with loans from the\n\n\nWomach, Cong. Research Serv., Tobacco Price Support: An Overview of the Program\n(Dec. 31, 2005), http://nationalaglawcenter.org/wp-content/uploads/assets/crs/95-129.pdf\n(saved as ECF opinion attachment; viewed 02/28/2019).\n\n 8\n\nCommodity Credit Corporation (“CCC”), an entity owned and operated by the federal\n\ngovernment that assisted in administering the price-support program. Id. Any unsold\n\ntobacco served as collateral for the CCC’s loans. Id.\n\n During the lifetime of the price-support program, the Cooperative accumulated a\n\nreserve of hundreds of millions of dollars from three main sources: (1) the 1967–73 crop\n\nyears; (2) the 1982–84 crop years; and (3) the Fair and Equitable Tobacco Reform Act of\n\n2004 (“FETRA”), Pub. L. No. 108-357, 118 Stat. 1418. See Fisher-Lewis, 794 S.E.2d at\n\n704.\n\n First, during the 1967–73 crop years, the Cooperative “received and stored\n\ntobacco . . . and eventually sold the tobacco at a price higher than necessary to repay the\n\nloans from the CCC,” earning a profit on the resale. Fisher-Lewis, 794 S.E.2d at 704.\n\nThe Cooperative distributed some of these profits to its members in cash and held on to\n\nthe remainder—about $26.8 million—as reserve funds. Id. The Cooperative issued\n\ncertificates of interest in the reserve on a pro rata basis to members whose tobacco had\n\ncreated the surplus during those years. Id.\n\n The second source of the Cooperative’s reserve money was the 1982–84 crop\n\nyears. The Cooperative’s profits from this period stem from the passage of the No Net\n\nCost Tobacco Program Act of 1982 (“NNC Act”), 3 which fundamentally changed the\n\nstructure of the federal price-support system. See Leaf Tobacco Exporters Ass’n, Inc. v.\n\nBlock, 749 F.2d 1106, 1109 (4th Cir. 1984). Before Congress enacted this law, the\n\n\n 3\n Pub. L. No. 97-218, 96 Stat. 197.\n\n 9\n\nCCC’s loans to the Cooperative were “non-recourse” because “[t]he Cooperative’s failure\n\nto earn complete repayment funds [from the member growers] would result in a loss to be\n\nabsorbed by the CCC: the CCC could sell the collateral [i.e., the growers’ unsold\n\ntobacco] for its own account after the loan had matured, but it otherwise had no recourse\n\nagainst either the Cooperative or the individual farmers.” Id. This system changed with\n\npassage of the NNC Act, which applied starting with the 1982 crop year and required\n\nmember growers to pay an assessment to the Cooperative at the time they delivered their\n\ntobacco to serve as additional collateral for the CCC’s loans to the Cooperative, a\n\nmeasure intended to limit the federal government’s losses. Fisher-Lewis, 794 S.E.2d at\n\n703–04. The Cooperative later used the surplus funds collected from the NNC\n\nassessments—funds remaining after the CCC loans had been repaid—to redeem unsold\n\nmember tobacco from the 1982 crop year that the CCC had held as collateral. Id. The\n\nCooperative sold this tobacco and put in the reserve the $110 million in profit that it\n\nearned from the sale. The Cooperative did the same for the 1983 and 1984 crop years.\n\nJ.A. 3966.\n\n Third, the Cooperative added to its reserve fund after Congress enacted FETRA in\n\nOctober 2004 and ended the federal price-support program. See Fisher-Lewis, 794\n\nS.E.2d at 704. In implementing FETRA, the CCC called the Cooperative’s outstanding\n\nloans and took title to the tobacco that had been pledged as collateral for the loans. J.A.\n\n4014. The CCC repaid the loans through selling some of the tobacco as well as taking\n\npossession of the NNC assessments and applying them to the loan balance. J.A. 3966–\n\n67. The CCC returned the remaining tobacco—about 83 million pounds—to the\n\n 10\n\nCooperative, and the Cooperative eventually sold the tobacco for $81 million, adding this\n\nsum to its reserve fund. J.A. 3966–67; see also Fisher-Lewis, 794 S.E.2d at 704.\n\n When the price-support program ended in 2004, the Cooperative began culling its\n\nmembership rolls as part of an effort to develop a business plan that would enable it to\n\nremain financially viable and to continue providing benefits for members at a time when\n\nits primary function—administering price supports—had ceased to exist. J.A. 4708–09.\n\nThis membership reduction occurred in two phases. First, the Cooperative removed\n\nabout 713,072 members listed on the membership rolls who it determined were deceased,\n\nhad stopped farming by 1984, or had no financial relationship with the Cooperative. J.A.\n\n1781, 4709. Second, the Cooperative removed 89,994 of the remaining 90,840 members\n\nwho elected not to sign a marketing agreement with the Cooperative for 2005. J.A. 1781,\n\n2384. In a letter to members, the Cooperative explained that members who decided to\n\nwithdraw their membership by declining to sign the marketing agreement were no longer\n\nentitled to a share of the capital reserve.\n\n In 2004, the Cooperative had about 800,000 members. J.A. 4378. By the time it\n\nfinished culling the rolls, the Cooperative had eliminated 99% of its membership,\n\nreducing the number of members from 803,912 to 846. J.A. 1781. This reduction caused\n\nthe reserve—consisting of more than $300 million—to increase from $427.00 per\n\nmember to $365,000 per member. J.A. 1761.\n\n\n\n\n 11\n\n B.\n\n Parallel Litigation\n\n There are two main lawsuits relevant to this appeal. First is the Fisher-Lewis\n\nproceeding in North Carolina state court. The second—this case—is the Speaks\n\nproceeding in North Carolina federal court. To provide the background necessary for\n\ndisposing of this appeal, we trace the history of each proceeding through the district\n\ncourt’s final approval of the Speaks settlement in February 2018.\n\n 1.\n\n Fisher-Lewis (State Court)\n\n In January 2005, a group of current and former Cooperative members, including\n\nappellant and would-be intervenor Dan Lewis, filed a putative class action in North\n\nCarolina Superior Court after the Cooperative cancelled their memberships and\n\nextinguished their accrued interest in the reserve when they failed to enter into the\n\nmarketing agreement with the Cooperative (“Lewis”). 4 J.A. 4451–52. The plaintiffs\n\nargued that the Cooperative “expelled hundreds of thousands” of members and asserted\n\ncontrol over the reserve fund in a deliberate attempt “to create a ‘last man standing’\n\nscenario in which a few hundred remaining member[s] potentially have the benefit of\n\nhundreds of millions of dollars in assets which have been created through the efforts of\n\nall members[s], including [p]laintiffs.” J.A. 1827. The plaintiffs were represented by\n\n\n\n 4\n See Dan Lewis et al. v. Flue-Cured Tobacco Coop. Stabilization Corp., No. 05\nCVS 188 (N.C. Super. Ct.).\n\n 12\n\nGary K. Shipman and William G. Wright, counsel for the Speaks plaintiffs in this case.\n\nJ.A. 59, 4713.\n\n One month later, in February 2005, another group of farmers filed a similar\n\nlawsuit in North Carolina state court (“Fisher”). 5 These plaintiffs were represented by\n\nC. Alan Runyan and Philip Isley, counsel for Objectors and would-be intervenor Lewis.\n\nJ.A. 4713.\n\n In September 2005, almost nine months after Lewis was filed, the Lewis plaintiffs,\n\nrepresented by Shipman and Wright, entered into a preliminary settlement agreement\n\nwith the Cooperative for $76.8 million in cash and $212 million in book allocations. J.A.\n\n311. But the Fisher plaintiffs, who would be included in the settlement, objected to these\n\nsettlement terms, and the state court in May 2006 denied preliminary approval of the\n\nsettlement without prejudice on the basis that the record was insufficiently developed to\n\nresolve outstanding concerns and that the evidence that had been presented “does not\n\nsupport a finding or conclusion that the proposed Settlement is within the necessary ‘ball\n\npark’ of being fair, reasonable and adequate.” J.A. 311–12. Given the inadequacy of the\n\nrecord, the court ordered the parties to engage in additional discovery on the merits of the\n\nproposed settlement. J.A. 311–12. A few days later, the Cooperative filed a preliminary\n\nnotice of intent to terminate the proposed settlement. J.A. 4455.\n\n In September 2007, Shipman and Wright moved to withdraw as counsel for the\n\nLewis plaintiffs because of disagreements with co-counsel. J.A. 4714. The court granted\n\n 5\n See Kay Fisher et al. v. Flue-Cured Tobacco Coop. Stabilization Corp., No. 05\nCVS 1938 (N.C. Super. Ct.).\n\n 13\n\nthis motion on October 8, 2007. J.A. 4458. Also in October, the Lewis and Fisher\n\nplaintiffs made a settlement offer for both cases, and the parties began settlement\n\nnegotiations that extended through July 2008 and included at least one mediation. J.A.\n\n4458.\n\n The Fisher and Lewis cases were consolidated in May 2009 (“Fisher-Lewis”).\n\nJ.A. 4458. The plaintiffs at this time filed a second amended and consolidated complaint\n\nalleging the following fourteen claims for relief: (1) conversion; (2) breach of contract;\n\n(3) imposition of a constructive trust; (4) accounting; (5) distribution; (6) declaratory\n\njudgment; (7) fraud; (8) in the alternative, fraud in the inducement; (9) ultra vires;\n\n(10) breach of contract; (11) breach of contract accompanied by a fraudulent act;\n\n(12) unfair trade practices; (13) dissolution; and (14) judicial dissolution. J.A. 1837–52.\n\nThe Cooperative filed a motion to dismiss in July 2009.\n\n On March 30, 2012, the North Carolina Superior Court granted the motion to\n\ndismiss on three of the fourteen claims: fraud, fraud in the inducement, and breach of\n\ncontract accompanied by a fraudulent act. J.A. 1860–68. The court otherwise denied the\n\nCooperative’s motion. On July 9, 2012, the Fisher-Lewis plaintiffs filed a third amended\n\nand consolidated complaint, dropping the three claims that had been dismissed and\n\nremoving the claims for dissolution and judicial dissolution. J.A. 1918–52.\n\n Also on July 9, 2012, the Fisher-Lewis plaintiffs filed a motion for class\n\ncertification under Rule 23 of the North Carolina Rules of Civil Procedure. J.A. 1869–\n\n1916. The court granted the motion and certified the Fisher-Lewis class in February\n\n2014. J.A. 2463–78. The Cooperative appealed this decision, and the North Carolina\n\n 14\n\nSupreme Court affirmed the amended certification order on December 21, 2016. See\n\nFisher-Lewis, 794 S.E.2d at 703. The certified Fisher-Lewis class consisted of the\n\nfollowing:\n\n All individuals, proprietorships, partnerships, corporations, or their heirs,\n representatives, executors or assigns, and other proper entities that have\n been members/shareholders of the Flue-Cured Tobacco Cooperative\n Stabilization Corporation . . . at any time from its inception through the end\n of crop year 2004, and any heirs, representatives, executors, successors or\n assigns, and;\n\n (a) had not requested cancellation of their membership and whose\n membership was cancelled by Stabilization without a hearing, and/or\n\n (b) were issued a certificate of interest in capital reserve by Stabilization for\n any of the tobacco crop years between and including 1967–1973, and/or\n\n (c) delivered, consigned for sale, or sold flue-cured tobacco and paid an\n assessment for deposit into the No Net Cost Tobacco Fund or No Net\n Cost Tobacco Account during any tobacco crop years between and\n including 1982–2004.\n\nFisher-Lewis, 794 S.E.2d at 704 (alteration in original).\n\n In upholding class certification, the North Carolina Supreme Court concluded that\n\nthere were no conflicts among this class that would prevent class certification because\n\n“each class member’s share of recovery could be determined fairly based upon that\n\nmember’s patronage interests in [the Cooperative]”—i.e., each member’s profit\n\ncontribution to the Cooperative’s reserve fund. Id. at 708.\n\n 2.\n\n Speaks (Federal Court)\n\n On October 31, 2012, three months after the Fisher-Lewis plaintiffs’ motion for\n\nclass certification in state court, a different group of tobacco growers represented by\n\n 15\n\nShipman and Wright—former Lewis counsel who withdrew in 2007—filed this lawsuit, a\n\nputative class action against the Cooperative in the Eastern District of North Carolina.\n\nJ.A. 32–70. The Speaks plaintiffs brought claims for a declaratory judgment, distribution\n\nto members under N.C. Gen. Stat. § 55A-13-02(c), and an alternative statutory claim for\n\njudicial dissolution of the Cooperative under N.C. Gen. Stat. § 55A-14-30. J.A. 52–59,\n\n4460. The proposed Speaks class encompassed the class certified in Fisher-Lewis.\n\n On December 5, 2012, the parties jointly moved for a temporary stay pending the\n\nstate court’s decision on the class-certification motion in Fisher-Lewis. J.A. 71–73. The\n\ncourt granted the stay on December 17, 2012. J.A. 74–75. For the next five years, the\n\nSpeaks parties continually sought—and were granted—temporary stays, and they\n\noccasionally provided the court with status reports. The Cooperative never filed an\n\nanswer to the complaint, and no adversarial discovery took place. J.A. 9–14. The parties\n\ninformed the court during this period that “[r]esolution of the class issues in [Fisher-\n\nLewis] continues to be relevant to [p]laintiffs in the action before this Court and, if\n\n[d]efendant’s anticipated appeal in [Fisher-Lewis] is rejected or class certification is\n\nupheld on appeal, this federal action may become moot.” J.A. 89.\n\n The North Carolina Supreme Court affirmed class certification in Fisher-Lewis in\n\nlate December 2016, and about two weeks later, on January 4, 2017, the Cooperative’s\n\ncounsel contacted Shipman, counsel for the Speaks plaintiffs, about scheduling a\n\nconference call to discuss next steps in the Speaks case given the recent decision in\n\nFisher-Lewis. J.A. 4464.\n\n\n\n 16\n\n The conference call took place on January 9, 2017, and the discussions led to an\n\nagreement to mediate the Speaks case. J.A. 4464. In the months following the\n\nconference call—while the Fisher-Lewis parties were developing the notice plan—the\n\nCooperative’s counsel and Shipman discussed selection of a mediator and possible dates\n\nfor mediation, developed a list of relevant documents and exchanged them, and set a date\n\nto submit position papers to the mediator. J.A. 4465–68. The parties ultimately selected\n\nthe Honorable Frank Bullock, a retired federal judge, to mediate a session that would take\n\nplace on May 11–12, 2017. J.A. 4716.\n\n On April 20, 2017, the Cooperative’s local counsel explained in an email to the\n\nSpeaks parties that he had communicated a “courtesy ‘heads-up’ to Philip Isley\n\n[plaintiffs’ counsel in Fisher-Lewis]” that the parties had scheduled a mediation in Speaks\n\nfor May 11–12 with Judge Bullock. J.A. 4583. Local counsel further stated in his email\n\nthat “[w]e will let you know if anything gets filed by the [Fisher-Lewis] plaintiffs with\n\n[the Speaks court] concerning the mediation,” and he asked the parties to “please let us\n\nknow if you hear from the [Fisher-Lewis] plaintiffs as well.” J.A. 4583. This courtesy\n\n“heads up” was the first time the Speaks parties informed Fisher-Lewis counsel that\n\nSpeaks was going to be mediated.\n\n On May 5, 2017, Bob Cherry, counsel for the Fisher-Lewis plaintiffs, wrote a\n\nletter to Shipman, counsel for the Speaks plaintiffs, stating that he had been informed that\n\na mediation had been set for May 11 and reminding Shipman that certain class\n\nrepresentatives in Fisher-Lewis were Shipman’s former clients to whom he owed\n\ncontinuing duties under professional-conduct rules. J.A. 720. Cherry indicated that his\n\n 17\n\nletter served as “formal notice” that Shipman’s former clients did not consent to his\n\nrepresenting the Speaks plaintiffs because such a representation “could be materially\n\nadverse” to the interests of the Fisher-Lewis class. J.A. 720–21. Shipman responded that\n\nthe mediation would occur as planned, that parallel state–federal class actions are “not\n\nunique,” and that “both the [Fisher-Lewis] case and the Speaks case are free to proceed\n\nuntil there is a final judgment in one of them.” J.A. 725.\n\n On May 10, the day before the mediation, Cooperative counsel sent an email to\n\nJudge Bullock noting the parallel state and federal class actions and stating that Fisher-\n\nLewis counsel sent a letter “voicing some concern over the upcoming mediation,”\n\nconcern that Cooperative counsel and Shipman “do not share.” J.A. 4585. Cooperative\n\ncounsel also provided the correspondence between Cherry and Shipman as an attachment\n\nto the email.\n\n After two days of mediation, the parties reached a settlement in principle. J.A.\n\n4350. The Cooperative agreed to pay $24 million in exchange for a release of all claims\n\nby the class, including the Fisher-Lewis claims. J.A. 204.\n\n On September 7, 2017, the Speaks plaintiffs filed a motion to certify the class\n\naction and for preliminary approval of the proposed class-action settlement. J.A. 122–92.\n\nThe plaintiffs amended the motion on September 8, filing a stipulation and agreement of\n\nclass-action compromise, settlement, and release. J.A. 193–250. Five days later, on\n\nSeptember 13, 2017, the district court preliminarily approved the settlement and the\n\nnotice plan and scheduled a final fairness hearing for January 19, 2018. J.A. 251–61.\n\n\n\n 18\n\n In the months before the hearing, some class members objected to the settlement,\n\nincluding the Objectors-Appellants Sharp Farms, Robert May, Tucker Farms, and\n\nWorthington Farms. The Objectors are members of the Fisher-Lewis certified class who\n\nwere included in the proposed Speaks settlement class.\n\n 3.\n\n Fisher-Lewis Challenges to Speaks Settlement\n\n As the parties in the Speaks proceedings moved closer to a final settlement in late\n\n2017, the Fisher-Lewis plaintiffs protested the Speaks settlement and the manner in\n\nwhich it was reached.\n\n On September 15, 2017, a week after preliminary approval in Speaks was\n\nrequested and two days after it was granted, Fisher-Lewis class representative Dan Lewis\n\nmoved to intervene in Speaks, contending that the settlement was inadequate primarily\n\nbecause of the earlier settlement valued at $76.8 million in cash and more than $212\n\nmillion in book allocations, “three times the current settlement amount” in Speaks. J.A.\n\n305. On October 2, 2017, the district court denied Lewis’s motion to intervene as\n\nuntimely. The court explained that Lewis had been aware of this lawsuit since at least\n\n2014, and that he knew about the mediation no later than May 5, 2017, but waited to\n\nmove to intervene until after the court preliminarily approved the settlement. J.A. 1296–\n\n99. Lewis subsequently opted himself out of the Speaks class as well as purported to opt\n\nout the entire Fisher-Lewis certified class. J.A. 1603–04.\n\n The Fisher-Lewis plaintiffs separately filed several motions in state court\n\nchallenging Speaks. On September 22, 2017, the plaintiffs filed an order to show cause\n\n 19\n\nor for sanctions, arguing that the Cooperative’s counsel in mediating Speaks had violated\n\nthe court’s case management order from April 2017, North Carolina Rule of Civil\n\nProcedure 23, and the North Carolina Rules of Professional Conduct. J.A. 744–58. On\n\nOctober 13, the state court denied the motion but nevertheless ordered the Cooperative’s\n\ncounsel to produce to Speaks counsel “all communications between it . . . and any\n\nmember of the class in these consolidated cases.” J.A. 1327–28. In explaining this\n\ndirective, the court noted that “this action has been finally upheld as a certified class by\n\nthe North Carolina Supreme Court and is now proceeding to trial,” and indicated that it\n\nwas “concerned that the integrity of the class and the administration of justice has been\n\ncalled into question given the history of the case, the unusual facts of representation of\n\nboth the certified action and the later filed Speaks case, in that the initial counsel in one of\n\nthese consolidated actions is now counsel in the Speaks case.” J.A. 1327.\n\n On November 28, 2017, the Fisher-Lewis plaintiffs filed a motion under North\n\nCarolina Rule of Civil Procedure 23(c) for an order finding that “the settlement reached\n\nin Speaks, insofar as it attempts to bind and preclude this certified [] class, is not\n\napproved,” and finding that the settlement “was reached in a collusive manner to avoid\n\nthe jurisdiction of th[e] court to promote an inadequate settlement.” J.A. 4499. On\n\nJanuary 17, 2018, two days before the final fairness hearing in the Speaks case, the\n\nFisher-Lewis state court issued a lengthy opinion granting in part the Rule 23(c) motion.\n\nJ.A. 4447–90. The court concluded that the Speaks settlement was not fair, reasonable,\n\nand adequate for the Fisher-Lewis class, and that counsel for both parties in Speaks had\n\nviolated Rules 4.1 and 4.2 of the North Carolina Rules of Professional Conduct. J.A.\n\n 20\n\n4477–89. The state court found in particular “ample evidence of collusion between the\n\nparties in Speaks to (a) exclude counsel in [Fisher-Lewis] from participation in the\n\nsettlement of the claims for the class members whom they represent, and [to] [b] mislead\n\nthe members of the [Fisher-Lewis] class as to the true facts of this matter.” J.A. 4487–89.\n\n 4.\n\n Speaks Settlement Approval\n\n The final fairness hearing in Speaks took place on January 19, 2018. On February\n\n20, the district court issued an 82-page opinion certifying the Speaks settlement class and\n\ngranting final approval of the class-action settlement on the basis that it was fair,\n\nreasonable, and adequate for class members. A week later, on February 27, the court\n\nissued an amended final judgment clarifying the opt-out list.\n\n Under the terms of the settlement, the Cooperative will pay into the settlement\n\nfund $24 million—less attorneys’ fees, costs, and incentive awards, capped at $2\n\nmillion—over a five-year period to be held in escrow on behalf of the class. J.A. 4730.\n\nThe final settlement class encompasses the following:\n\n all individuals, proprietorships, partnerships, corporations, and other\n entities that are or were shareholders and/or members of [the Cooperative]\n at any time during the Class Period [i.e., June 1, 1946, through the effective\n date of the settlement in 2018], without any exclusion, including any heirs,\n representatives, executors, powers-of-attorney, successors, assigns, or\n others purporting to act for or on their behalf with respect to [the\n Cooperative] and/or the Settled Claims.\n\n This class definition is broader than the definition of the class certified in Fisher-\n\nLewis. That class included current or former members of the Cooperative from 1946–\n\n2004 and tied recovery to whether the class member’s patronage resulted in a net gain for\n\n 21\n\nthe Cooperative and thus contributed to the reserve. By contrast, the Speaks settlement,\n\nwhich extinguishes the Fisher-Lewis class claims, entitles all current or former\n\nCooperative members from 1946–2018 to a portion of the Cooperative’s reserve funds\n\nirrespective of whether they produced net gains for the reserve. Each member’s share of\n\nthe recovery in Speaks is indeed based on two factors unrelated to the patronage concept.\n\nSee J.A. 4730–31 (describing “Group 1” and “Group 2” claims). The first factor is the\n\nnumber of pounds of tobacco that the member marketed to the Cooperative from 1946–\n\n2018 relative to the total number of pounds from all class members who submit this type\n\nof claim (subject to a $15,000 cap). The second factor is the number of years the member\n\nmarketed and sold tobacco relative to the total number of years of all class members who\n\nsubmit this type of claim. J.A. 4730–31. The Speaks class structure thus allows a class\n\nmember to share in the recovery of the reserve funds even if he contributed no profits to\n\nthe reserve.\n\n On March 21, 2018, the Objectors, represented by Fisher-Lewis counsel, appealed\n\nthe district court’s final order approving the settlement and the amended final judgment\n\nclarifying the opt-out list. J.A. 4797–99. On the same day, Lewis appealed the district\n\ncourt’s order denying his motion to intervene, an order that was entered on October 2,\n\n2017. 6 J.A. 4801–03.\n\n\n\n\n 6\n Lewis’s notice of appeal states that the order denying his motion to intervene was\nentered on October 20, 2017, but the docket sheet indicates that the order was in fact\nentered on October 2, 2017. See J.A. 16.\n\n 22\n\n II.\n\n Analysis\n\n This case presents three main claims of error. First, would-be intervenor\n\nDan Lewis contends that the district court abused its discretion in denying his motion to\n\nintervene. Second, the Objectors argue that the district court abused its discretion in\n\ncertifying the Speaks settlement class under Federal Rule of Civil Procedure 23(a)\n\nbecause the Speaks representatives and class counsel cannot and did not adequately\n\nrepresent the distinct interests of the Fisher-Lewis class members. Finally, the Objectors\n\ncontend that the district court abused its discretion in approving the class settlement as\n\nfair, reasonable, and adequate under Rule 23(e). We address each contention in turn.\n\n A.\n\n Lewis’s Motion to Intervene\n\n In his appeal (No. 18-1325), would-be intervenor Lewis, a Fisher-Lewis class\n\nrepresentative, contends that the district court abused its discretion in denying his motion\n\nto intervene in Speaks. Because Lewis’s appeal of the order denying his motion is\n\nuntimely, we must dismiss the appeal.\n\n The district court’s denial of a motion to intervene is “treated as a final judgment\n\nthat is appealable.” Bridges v. Dep’t of Md. State Police, 441 F.3d 197, 207 (4th Cir.\n\n2006); see also Scott v. Bond, 734 F. App’x 188, 189 n.2 (4th Cir. 2018). Once the\n\ndistrict court enters the order denying intervention, a party has 30 days to file a notice of\n\nappeal. See 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A). He “may not await final\n\n\n\n 23\n\njudgment in the underlying action” to do so. United States v. City of Milwaukee, 144\n\nF.3d 524, 528 (7th Cir. 1998).\n\n Lewis filed his notice of appeal on March 21, 2018, about 170 days after the\n\ndistrict court denied his motion to intervene on October 2, 2017. As the Supreme Court\n\nrecently made clear, “a provision governing the time to appeal in a civil action qualifies\n\nas jurisdictional [] if Congress sets the time.” Hamer v. Neighborhood Hous. Servs. of\n\nChi., 138 S. Ct. 13, 17 (2017); see also Bowles v. Russell, 551 U.S. 205, 211–12 (2007)\n\n(observing “the jurisdictional distinction between court-promulgated rules and limits\n\nenacted by Congress”); United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009)\n\n(recognizing “the jurisdictional nature of statutory time constraints”). Because Lewis’s\n\nappeal of the order denying his motion is governed by the 30-day time period prescribed\n\nin 28 U.S.C. § 2107(a), we lack jurisdiction over his untimely appeal and must dismiss it.\n\nSee Hamer, 138 S. Ct. at 17 (“Failure to comply with a jurisdictional time prescription\n\n. . . deprives a court of adjudicatory authority over the case, necessitating dismissal[.]”).\n\n B.\n\n Class Certification Under Rule 23(a)\n\n The Objectors contend that the district court abused its discretion in certifying the\n\nSpeaks settlement class under Rule 23(a). See Brown v. Nucor Corp., 576 F.3d 149, 152\n\n(4th Cir. 2009) (reviewing a district court’s decision to certify a class for abuse of\n\ndiscretion).\n\n “Rule 23(a) requires that the prospective class comply with four prerequisites:\n\n(1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.”\n\n 24\n\nEQT Prod. Co. v. Adair, 764 F.3d 347, 357 (4th Cir. 2014); Fed. R. Civ. P. 23(a). The\n\nObjectors challenge only the adequacy of representation in this case, arguing that both\n\nSpeaks class counsel and the class representatives were inadequate. 1 William B.\n\nRubenstein, Newberg on Class Actions § 3.52, at 325–26 (5th ed. 2011) (“Although Rule\n\n23(a)(4) provides that a class action may be maintained only if ‘the representative parties\n\nwill fairly and adequately protect the interests of the class,’ courts have long used Rule\n\n23(a)(4) . . . to scrutinize the adequacy of class counsel as well as the adequacy of the\n\nclass representatives.” (footnote omitted) (quoting Fed. R. Civ. P. 23(a)(4))). 7 The\n\nObjectors also separately challenge the district court’s denial of certain Fisher-Lewis\n\nclass representatives’ attempts to opt out the entire Fisher-Lewis certified class from the\n\nSpeaks settlement.\n\n For the reasons that follow, we conclude that the district court abused its discretion\n\nin certifying the settlement class because Speaks class counsel and the class\n\nrepresentatives cannot and did not adequately represent the Fisher-Lewis certified class.\n\nWe therefore reverse that part of the district court’s order certifying the settlement class.\n\nWe hold, however, that the district court did not err in denying the attempted opt-out of\n\nthe entire Fisher-Lewis class, and we therefore affirm the district court’s order in this\n\nrespect.\n\n\n\n 7\n See 1 Newberg on Class Actions § 3:72, at 394 (noting that Congress in 2003\n“adopted Rule 23(g) that creates an explicit textual mooring for the class counsel\nanalysis[,] but most courts continue to employ the substantive standards generated under\nRule 23(a)(4) prior to Rule 23(g)’s adoption in their analysis of counsel’s adequacy”).\n\n 25\n\n 1.\n\n Adequacy of Class Counsel\n\n First, the Objectors contend that the district court abused its discretion in\n\ncertifying the class because Speaks class counsel—Shipman and Wright—did not\n\nadequately and fairly represent the Fisher-Lewis class members who became members of\n\nthe Speaks settlement class. The Objectors argue in particular that the district court\n\n“erroneously refused to consider” the Fisher-Lewis state court’s findings that counsel in\n\nSpeaks colluded to exclude Fisher-Lewis class counsel from participating in the\n\nsettlement mediation and to mislead the Fisher-Lewis class members into believing that\n\nany Speaks settlement would not preclude the Fisher-Lewis class claims. We agree.\n\n In its order approving the settlement, the district court concluded that Speaks class\n\ncounsel “fully and adequately represents the settlement class” primarily because “counsel\n\nhas over twenty-years[’] experience litigating class actions and has expended significant\n\nresources investigating and pursuing the claims in this action.” J.A. 4741–42.\n\nAddressing the collusion argument, the court stated that the Objectors “essentially\n\nsuggest that Judge Bullock was too blind to see collusion at the tip of his nose during the\n\nmediation, or that Judge Bullock was part of the collusion,” arguments that the court\n\nrejected as “insulting” and “baseless.” J.A. 4743. The court emphasized that\n\nJudge Bullock was “an experienced mediator who served with honor and distinction as a\n\n[district judge] for 24 years,” and that he “reviewed briefings submitted by the parties and\n\nfacilitated a two-day intense mediation that resulted in the proposed settlement.” J.A.\n\n\n\n 26\n\n4743. Judge Bullock, in sum, “would not and did not participate in a collusive mediation\n\nor permit one to take place in front of him.” J.A. 4744.\n\n The district court’s reasoning in rejecting the Objectors’ collusion argument rests\n\non two flawed premises. First, the court appears to have regarded the allegations of\n\ncollusion as an attack on the mediator himself and his integrity and intelligence. See,\n\ne.g., J.A. 4743 (stating that “[i]f the parties were going to collude or attempt to collude,\n\nthe last person they would have asked to serve as a mediator is Judge Bullock”); id.\n\n(asserting that “Judge Bullock is as smart and honorable as the universe is large”); id.\n\nn.18 (explaining that Judge Bullock “is one of the most highly respected lawyers, judges,\n\nand mediators in North Carolina’s history”); see also Oral Arg. 35:45–36:05\n\n(Cooperative counsel stating that “there were some traces of that, frankly,” in response to\n\nthis Court’s assertion that the district court seemed to believe that “the mediator was\n\nbeing accused of collusion when the mediator really didn’t have the information in front\n\nof him”). The extent of the district court’s comments defending the mediator’s character\n\nsuggests that this mistaken assumption was a driving force in the court’s rejection of the\n\nserious collusion allegations.\n\n Second, the district court’s analysis erroneously assumes that the mediator had all\n\nthe relevant information on the collusion allegations at the time he presided over and\n\nfacilitated the mediation in May 2017. As an initial matter, and as counsel for the Speaks\n\nplaintiffs acknowledged at oral argument, the mediator did not have the benefit of the\n\nstate court’s January 2018 order extensively documenting what it deemed counsel’s\n\nimproper and unethical conduct, some of which allegedly occurred after the mediation,\n\n 27\n\nduring the summer and fall of 2017. See generally J.A. 4477–90; see also Oral Arg.\n\n24:16–24:37 (Speaks class counsel acknowledging that “the mediation was conducted\n\nprior to the time of [the state court’s] order” and agreeing with this Court’s statement that\n\n“the mediator was not aware” of the violations identified in the order); id. at 35:00–35:07\n\n(Cooperative counsel recognizing the same). Without the state court’s order, the\n\nmediator could not consider in his assessment the full extent of the collusion allegations\n\nand necessarily relied only on information that the parties conveyed before and during the\n\nmediation about events preceding the mediation. That the mediator was present during\n\nthe settlement negotiations thus cannot provide the sole basis on which to reject the\n\nObjectors’ charges of collusion.\n\n Defending the district court’s reasoning, the Cooperative emphasizes that a\n\n“strong presumption against collusion” applies “[w]hen a reputable mediator . . . oversees\n\nsettlement negotiations.” Coop. Br. 33 (citing Jones v. Singing River Health Servs.\n\nFound., 865 F.3d 285, 295–96 (5th Cir. 2017), and D’Amato v. Deutsche Bank, 236 F.3d\n\n78, 85 (2d Cir. 2001)). In this regard, the Cooperative asserts that “[d]uring the\n\nmediation, the parties discussed with Judge Bullock the propriety of proceeding in the\n\nface of the relevant correspondence and interplay with Fisher-Lewis, including in\n\nreference to that litigation’s history and the 2005 settlement offer.” Coop. Br. 16.\n\n Even if we could look past the fact that the mediator could not assess the extensive\n\nstate court findings at the time of the mediation, the record reveals little about the extent\n\nto which the mediator understood and evaluated the Fisher-Lewis class members’\n\nconcerns about collusion. Unlike in the cases the Cooperative cites, for example, the\n\n 28\n\nmediator did not testify by affidavit or at the fairness hearing in this case. See Jones, 865\n\nF.3d at 295 (affidavit); D’Amato, 236 F.3d at 85 (testimony at the fairness hearing). And\n\nthe primary evidence the Cooperative marshals in support of its position consists of an\n\nemail from May 10, the evening before the mediation, in which Cooperative counsel\n\nnotified the mediator of the parallel proceedings, indicated that Fisher-Lewis counsel had\n\nsent a letter to Speaks class counsel “voicing some concern over the upcoming\n\nmediation,” and explained that neither Speaks class counsel nor Cooperative counsel\n\n“share[d] those concerns.” J.A. 4585. On this record, the Cooperative cannot\n\nsuccessfully argue that the mediator’s presence ensured that there was no collusion or\n\nother improper conduct during the settlement of this case.\n\n For these reasons, the district court abused its discretion in rejecting the possibility\n\nof collusion based on the presence of the mediator and concluding that Speaks class\n\ncounsel was adequate under Rule 23(a)(4) without sufficiently grappling with the state\n\ncourt’s detailed order setting forth the allegedly collusive conduct. See In re Payment\n\nCard Interchange Fee & Merch. Disc. Antitrust Litig., 827 F.3d 223, 234–35 (2d Cir.\n\n2016) (“One aspect of the Settlement Agreement that emphatically cannot remedy the\n\ninadequate representation is the assistance of judges and mediators in the bargaining\n\nprocess.”), cert. denied sub nom. Photos Etc. Corp. v. Home Depot U.S.A., Inc., 137 S.\n\nCt. 1374 (2017); In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242,\n\n252–53 (2d Cir. 2011) (concluding that “an intense, protracted, adversarial mediation,”\n\nwith “highly respected and capable” mediators, “does not compensate for the absence of\n\nindependent representation”).\n\n 29\n\n The state court’s order, which was before the district court at the time it approved\n\nthe settlement and is part of the record, found that counsel for both the Speaks plaintiffs\n\nand the Cooperative committed a series of violations in settling this case. Specifically,\n\nthe order concluded in part the following:\n\n • The Speaks parties “intentionally and deliberately negotiated a\n settlement that was intended to resolve the claims of the [Fisher-Lewis]\n class after specifically being advised by the only counsel authorized to\n represent the interests of that class that the Speaks plaintiffs did not have\n the authority to do so nor did they have permission to do so.” J.A. 4470\n ¶ 71.\n\n • Counsel for the Speaks plaintiffs and the Cooperative “violated Rules\n 4.1 and 4.2 of the North Carolina Rules of Professional Conduct in their\n communications with the [Fisher-Lewis] class members.” J.A. 4480 ¶\n 103. See N.C. Rule of Prof’l Conduct 4.2(a) (providing that “a lawyer\n shall not communicate about the subject of the representation with a\n person the lawyer knows to be represented by another lawyer in the\n matter”); N.C. Rule of Prof’l Conduct 4.1 (providing that “a lawyer\n shall not knowingly make a false statement of material fact or law to a\n third person”).\n\n • In drafting the class-action complaint and the amended complaint,\n Speaks class counsel, with Cooperative counsel’s knowledge, attempted\n to “manipulate facts in order to construct and present to the Speaks court\n and public a false narrative as to” the circumstances surrounding the\n state court’s denial of the proposed $76.8 million settlement on the basis\n that there was insufficient evidence that the settlement was fair,\n reasonable, and adequate. J.A. 4483 ¶¶ 110–11.\n\n • Counsel for the Speaks class, with assistance from Cooperative counsel,\n drafted and edited “the Long Form Notice in such a way as, at best, to\n ambiguously state the impact of the settlement on the [Fisher-Lewis]\n class and at worst to intentionally misrepresent” the preclusive effect of\n the Speaks settlement, a violation of Rule 4.1. J.A. 4484–85 ¶ 114.\n\n • The Speaks parties’ actions in setting up and conducting the mediation\n without sufficiently notifying Fisher-Lewis class counsel “demonstrate\n a deliberate attempt to exclude [Fisher-Lewis counsel] from having any\n\n\n 30\n\n meaningful participation in the settlement of their clients’ claims.” J.A.\n 4485–86 ¶ 115.\n\n • “[G]iven the apparent inactivity in Speaks, even after the last of the\n stays in Speaks, the Speaks case served as a convenient placeholder for\n [the Cooperative], so as to be able to negotiate with someone other than\n [Fisher-Lewis counsel]. Simply put, . . . [the Cooperative’s] counsel has\n engaged in attorney shopping.” J.A. 4488 ¶ 121.\n\n • “[T]here is ample evidence of collusion between the parties in Speaks to\n (a) exclude counsel in [Fisher-Lewis] from participation in the\n settlement of the claims for the class members whom they represent,\n and [to] [b] mislead the members of the [Fisher-Lewis] class as to the\n true facts of this matter.” J.A. 4489 ¶ 126.\n\n • In light of these considerations, “the Speaks settlement is not\n reasonable, fair and adequate” for the Fisher-Lewis class members. J.A.\n 4490.\n\n In approving the settlement, the district court acknowledged the state court’s order\n\nbut did not meaningfully grapple with the court’s extensive findings or its conclusions\n\nthat the Speaks parties had engaged in collusive conduct to the detriment of the Fisher-\n\nLewis class members and violated Rules 4.1 and 4.2. See Oral Arg. 23:46–24:10 (Speaks\n\nclass counsel stating that he “totally agree[s]” that the district court did not specifically\n\nmention the ethical violations and conceding that “there is no express discussion about”\n\nthe violations in the order). Instead, the district court downplayed the state court’s order,\n\nasserting that the state court “did not have the benefit of the extensive record that this\n\ncourt has to assess the fairness, reasonableness, and adequacy of the proposed\n\nsettlement.” J.A. 4765. The district court also emphasized that the state court’s order is a\n\n“collateral interlocutory order” that is not binding, and that the order includes no\n\n“analysis of the merits of the underlying federal case, which is the most important factor\n\n\n 31\n\nin considering the fairness, reasonableness, and adequacy of the proposed settlement.”\n\nJ.A. 4766–67. Addressing the state court’s finding that the class notice was misleading,\n\nthe district court stated in a footnote that it “disagrees” without elaborating. J.A. 4778\n\nn.32.\n\n The district court, in failing to engage sufficiently with the merits of the state\n\ncourt’s findings, did not act as a fiduciary of the class and thus abused its discretion in\n\ncertifying the Speaks settlement class under Rule 23(a). See Kaufman v. Am. Express\n\nTravel Related Servs. Co., 877 F.3d 276, 283 (7th Cir. 2017) (“[W]e have repeatedly\n\nstated that district courts should act as the fiduciary of the class, subject to the high duty\n\nof care that the law requires of fiduciaries.” (citation and internal quotation marks\n\nomitted)); Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1078 (2d Cir.\n\n1995) (stating that “the district court has a fiduciary responsibility to ensure that the\n\nsettlement is fair and not a product of collusion, and that the class members’ interests\n\nwere represented adequately” (citation and internal quotation marks omitted)); see also 1\n\nNewberg on Class Actions § 3:72, at 394 (explaining that “judges provide the primary\n\noversight of class counsel, and they have long utilized the adequate representation\n\nrequirement of Rule 23(a)(4) to do so”); 4 William B. Rubenstein, Newberg on Class\n\nActions § 13:40, at 427–30 (5th ed. 2014) (explaining the court’s fiduciary duty during\n\nsettlement).\n\n In arguing that the district court did not abuse its discretion, the Cooperative\n\nasserts that the state court’s findings are not dispositive on collusion. As the Objectors\n\npoint out, however, “[t]he issue here is not whether the district court was bound by the\n\n 32\n\nfindings of collusion by the state court . . . but whether the district court failed to require\n\ncloser scrutiny especially given those findings” and given its duty as a fiduciary to the\n\nabsent class members. See Kaufman, 877 F.3d at 283. The Cooperative further argues\n\nthat, in any event, the district court “expressly considered the state court’s decision,\n\nproperly found it both legally and factually deficient, and rightly declined to follow it.”\n\nCoop. Br. 36. To the contrary, the district court’s rejection of the state court’s order\n\nconsisted largely of conclusory statements and evinced little sustained evaluation of the\n\nserious charges of collusion.\n\n The Cooperative also challenges the state court’s order on the merits, arguing that\n\nthe order “is misconceived in multiple respects.” None of these asserted deficiencies,\n\nhowever, undermines our core conclusion that the district court improperly rejected the\n\ncollusion argument based on the mere presence of the mediator and without adequately\n\naddressing the state court’s findings.\n\n Under these circumstances, we hold that the district court abused its discretion in\n\ncertifying the Speaks settlement class under Rule 23(a). 8\n\n\n 8\n The Objectors separately argue that the North Carolina Supreme Court’s decision\naffirming class certification in December 2016 should have been granted full faith and\ncredit—and thus should have barred class certification in Speaks—because the state court\njudgment “is final on all issues covered by [] certification.” See App. Br. 30–31. As the\nSupreme Court has made clear, however, “[o]rders granting or denying class certification\n. . . are ‘inherently interlocutory.’” Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1706\n(2017) (citation omitted). Contrary to the Objectors’ assertion, then, the district court did\nnot err in declining to give such an interlocutory order full faith and credit in this case.\nSee, e.g., Bryan v. BellSouth Commc’ns, Inc., 492 F.3d 231, 239–40 (4th Cir. 2007)\n(holding under North Carolina law that full faith and credit did not require a federal court\nto give preclusive effect to a non-final and interlocutory state court order); cf. Matsushita\n(Continued)\n 33\n\n 2.\n\n Adequacy of Class Representation\n\n The Objectors also argue that the district court abused its discretion because the\n\nSpeaks class representatives cannot adequately represent the class given certain conflicts\n\nof interest between the Speaks class representatives and the Fisher-Lewis class members.\n\nThis argument also has merit.\n\n “Under the adequacy requirement of Rule 23(a)(4), a district court may certify a\n\nclass only if the class representative ‘will fairly and adequately protect the interests of the\n\nclass.’” Ward v. Dixie Nat. Life Ins. Co., 595 F.3d 164, 179 (4th Cir. 2010) (quoting Fed.\n\nR. Civ. P. 23(a)(4)). “The adequacy inquiry . . . serves to uncover conflicts of interest\n\nbetween named parties and the class they seek to represent.” Amchem Prods., Inc. v.\n\nWindsor, 521 U.S. 591, 625 (1997). “[A] class representative must be part of the class\n\nand ‘possess the same interest and suffer the same injury’ as the class members.” Id. at\n\n625–26 (alteration in original) (quoting East Tex. Motor Freight Sys., Inc. v. Rodriguez,\n\n431 U.S. 395, 403 (1977)). “For a conflict of interest to defeat the adequacy requirement,\n\n‘that conflict must be fundamental.’” Ward, 595 F.3d at 180 (citation omitted). “A\n\nconflict is not fundamental when . . . all class members ‘share common objectives and the\n\n\n\n\nElec. Indus. Co. v. Epstein, 516 U.S. 367, 369 (1996) (concluding that a federal court\nmay not “withhold full faith and credit from a state-court judgment approving a class-\naction settlement”—a final judgment on the merits—“simply because the settlement\nreleases claims within the exclusive jurisdiction of the federal courts”).\n\n 34\n\nsame factual and legal positions [and] have the same interest in establishing the liability\n\nof [defendants].’” Id. (alterations in original) (citation omitted).\n\n The Objectors first contend that conflicts of interest exist between the Speaks class\n\nrepresentatives and the Fisher-Lewis class members because the Fisher-Lewis members’\n\ninterest in the Cooperative’s reserve “is tied and traceable to their patronage gains” while\n\nin the Speaks class all members are entitled to a portion of the reserve funds irrespective\n\nof whether they contributed to the reserve through their patronage. See Fisher-Lewis,\n\n794 S.E.2d at 708 (stating that “each class member’s share of recovery could be\n\ndetermined fairly based upon that member’s patronage interests in defendant”). The\n\nObjectors thus argue that a conflict exists because the legal theory in the Speaks case is\n\nnot tied to each member’s patronage interest and would provide broader relief to the\n\nsettlement class at the expense of the Fisher-Lewis class members with identifiable\n\npatronage interests in the reserve. The Objectors separately argue that a conflict exists\n\nbecause the members’ legal claims are different. Unlike the Fisher-Lewis class, the\n\nSpeaks class seeks recovery based on two weak statutory claims, and these weaknesses,\n\nsay the Objectors, prejudice the Fisher-Lewis class members given their much stronger\n\nclaims.\n\n We agree with the Objectors, and conclude that the district court abused its\n\ndiscretion in certifying the Speaks settlement class given the fundamental conflicts\n\nbetween the Speaks class representatives and the Fisher-Lewis class members. These\n\nconflicts stem from the Cooperative’s structure, the manner in which the reserve was\n\n\n\n 35\n\nestablished, and the divergent legal theories in which the Fisher-Lewis class and the\n\nSpeaks class ground their respective claims.\n\n The vast reserve at the center of these lawsuits exists because of certain members’\n\npatronage during the periods of the Cooperative’s history from 1946–2004 when the\n\nprice-support program was profitable. Consistent with the statutory framework for North\n\nCarolina agricultural cooperatives, the Cooperative’s governing documents recognize that\n\nthis subset of productive members in effect created the reserve, and the Cooperative thus\n\nspecifically gave these members a patronage interest in the reserve through providing that\n\nany excess reserves would be distributed to them in recognition of their contributions.\n\nSee N.C. Gen. Stat. § 54-130 (explaining that such associations “are not organized to\n\nmake profits for themselves, as such, or for their members, as such, but only for their\n\nmembers as producers”); id. § 54-126 (stating that the “net earnings or losses shall be\n\napportioned among the members in accordance with the ratio [of] each member’s\n\npatronage” compared to total patronage and defining patronage as a member’s “amount\n\nof purchases, sales, business, labor, wages or other similar criteria”).\n\n For the 1967–73 crop years, a member’s interest in the reserves was based on a\n\npercentage of his gain. J.A. 2396 (acknowledging that individual member growers\n\ncontributed the reserves and stating that any excess shall be paid “ratably” to patron\n\ncontributors); J.A. 2397 (explaining that the “contribution to [reserves]” would be “just\n\nthe same as if the total of each member’s allocation of profit was delivered to him in cash\n\nand he returned the established percentage to [the Cooperative] as his pro[-]rata\n\ncontribution to” the reserve). Because the Cooperative was able to sell the members’\n\n 36\n\ntobacco for a profit during these years, it “distributed a portion of the net gains to the\n\ngrowers of these crops . . . as cash patronage distributions” and kept the remaining $26.8\n\nmillion for the reserve while issuing certificates of interest to these members for their pro\n\nrata portion of the undistributed net gains. J.A. 2458.\n\n After the No Net Cost Act became law in 1982, a member’s interest in the reserve\n\nwas based on the individual NNC assessments he paid relative to the total assessments\n\npaid during the post-1982 period in which the Cooperative was profitable and building its\n\nreserve. J.A. 859. At oral argument on the proposed Fisher-Lewis settlement in 2005–\n\n2006, counsel for the Cooperative acknowledged that each member’s patronage interest\n\nwas the driving force of this lawsuit. J.A. 1789 (“In this cooperative, as in most\n\ncooperatives, any interest in the equity of the co-op, other than upon dissolution, is\n\ndetermined by each member’s patronage with the co-op over time, and more importantly,\n\nwhether that patronage resulted in profits to the co-op.”); J.A. 4608 (Cooperative counsel\n\nstating in 2010 that the class members’ “argument is that these reserves were derived\n\nfrom their patronage, so whether any individual grower has an interest in any particular\n\npot of money depends on whether the grower contributed to growing the tobacco in\n\nquestion that generated those proceeds”).\n\n This patronage interest in the reserve fund serves as the Fisher-Lewis class\n\nmembers’ theory of their case. Their patronage resulted in profits for the Cooperative,\n\nthey contend, and their corresponding patronage interest was unlawfully extinguished—\n\nin violation of statutory cooperative legal principles as well as common law principles\n\nlike breach of contract—when the Cooperative undertook the membership purge in\n\n 37\n\n2004–2005. The members’ patronage interests in fact provided the basis on which the\n\nstate court in Fisher-Lewis concluded that there were no conflicts of interest within the\n\nclass. See Fisher-Lewis, 794 S.E.2d at 708 (“The trial court did not find that conflicts of\n\ninterest divide the members of the class. Instead, the court concluded that each class\n\nmember’s share of recovery could be determined fairly based upon that member’s\n\npatronage interests . . . .”).\n\n The Speaks class representatives, by contrast, represent a class consisting of all\n\nCooperative members from 1946–2018 irrespective of whether the members produced\n\nany profits for the Cooperative—and thus irrespective of whether they contributed to the\n\nreserve fund. The Speaks settlement indeed proposes to distribute the reserve money to\n\nall members based merely on the number of pounds of tobacco each member marketed to\n\nthe Cooperative and the number of years the member marketed and sold tobacco. But as\n\nthe Objectors assert, “[m]embership alone has never been the basis for any interest in\n\nCooperative reserves. It has always been tied pro rata to a member’s individual interest\n\nin either the tobacco marketed [pre-1982] or the NNC assessment paid [post-1982].”\n\nReply Br. 5 (“Gains have not been paid to, nor interests in the reserve created for, those\n\nwhose tobacco or assessments did not produce them. From [the Cooperative’s] inception\n\nin 1946 through 2004, . . . participation in the reserves was restricted to those whose\n\ncontributions had created them.”). As the Objectors’ expert explained, the Speaks\n\ndistribution plan “actually tak[es] money away from people who have contributed to net\n\npatronage interest” because “[t]he only way that you give money to people who\n\ncontributed zero – that have zero patronage interest is by taking a dollar away from\n\n 38\n\npeople . . . who have generated [a] patronage interest,” a result the expert characterized as\n\n“fairly obviously inequitable.” J.A. 3834.\n\n The Cooperative suggests, and the district court found, that no conflict exists\n\nbecause both classes seek to recover “excess” reserves. Coop. Br. 31–32; J.A. 4737. But\n\nthis reasoning obscures the key distinction between the two classes—the Fisher-Lewis\n\nclass members have taken the position that the Speaks class can claim no legal\n\nentitlement or recognized interest in any “excess” reserves because they have no earned\n\npatronage interest in the reserve based on any profit contribution. Cf. Ward, 595 F.3d at\n\n180 (stating that “[a] conflict is not fundamental when . . . all class members ‘share\n\ncommon objectives and the same factual and legal positions’” (emphasis added) (citation\n\nomitted)). The Fisher-Lewis class members indeed assert a fundamentally different\n\ninterest and a different injury from the Speaks class representatives: they claim an\n\ninterest in the reserve tied specifically to the profits they produced for the Cooperative,\n\nand an injury tied directly to the deprivation of their patronage interest as a result of the\n\n2004–2005 membership purge. Cf. Amchem, 521 U.S. at 625 (stating that a “class\n\nrepresentative must be part of the class and ‘possess the same interest and suffer the same\n\ninjury’ as the class members” (citation omitted)). A settlement involving all Cooperative\n\nmembers would vitiate this interest through awarding to noncontributing members a\n\nportion of the reserve funds that the Fisher-Lewis class members created.\n\n That the Fisher-Lewis class members and the Speaks representatives are pursuing\n\ndifferent legal claims only underscores the conflict of interest between the two.\n\n“Adequacy does not require complete identity of claims or interests between the proposed\n\n 39\n\nrepresentative[s] and the class,” but there must be “sufficient similarity of interest such\n\nthat there is no affirmative antagonism between the representative[s] and the class.” 1\n\nNewberg on Class Actions § 3:58, at 342–44. The different claims of the Speaks\n\nrepresentatives and the Fisher-Lewis class members reflect their different theories of the\n\ncase, and these theories are in tension. The Speaks class members are pursuing claims for\n\nvoluntary distribution or, alternatively, dissolution precisely because—unlike the Fisher-\n\nLewis class members—they can likely claim no legal entitlement to the reserve funds on\n\ncommon law and statutory theories that are grounded in the notion that members’\n\npatronage gives them an interest in all profit that the Cooperative has kept as reserves and\n\nthat the Cooperative has deprived them of this interest.\n\n For these reasons, we hold that the district court abused its discretion in certifying\n\nthe Speaks settlement class in this respect as well.\n\n 3.\n\n Fisher-Lewis Classwide Opt-Out\n\n The Objectors contend that the district court abused its discretion when it certified\n\nthe class after rejecting the attempts of certain Fisher-Lewis class representatives to opt\n\nout the entire Fisher-Lewis class from this case. Finding no merit to this argument, we\n\naffirm the district court’s denial of the class opt-out.\n\n In holding that the Fisher-Lewis representatives could not opt out the entire class,\n\nthe district court first noted that its preliminary approval order “expressly prohibited\n\ngroup or class-wide opt-outs.” J.A. 4740. The court then went on to explain that the Due\n\nProcess Clause prohibits classwide opt-outs because due process “requires that class\n\n 40\n\nmembers be provided notice and an individual choice to proceed as a class member or to\n\nopt-out and avoid being bound by a judgment.” J.A. 4740. For this proposition the court\n\ncited several cases. See Sloan v. Winn Dixie Raleigh, Inc., 25 F. App’x 197, 198 (4th Cir.\n\n2002) (“[C]lass representatives cannot opt out on behalf of other putative class\n\nmembers.”); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1024 (9th Cir. 1998) (“There is\n\nno class action rule, statute, or case that allows a putative class plaintiff or counsel to\n\nexercise class rights en masse, either by making a class-wide objection or by attempting\n\nto effect a group-wide exclusion from an existing class. Indeed, to do so would infringe\n\non the due process rights of the individual class members, who have the right to\n\nintelligently and individually choose whether to continue in a suit as class members.”);\n\nBerry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 412 (2d Cir. 1975) (prohibiting the\n\nplaintiff from opting out prospective class members in shareholder suit before they had\n\nbeen given an opportunity to opt out and stating that “[t]he only way to avoid such chaos\n\nis to require that opting out of a class action, like the decision to participate in it, must be\n\nan individual decision”), abrogated on other grounds by Menowitz v. Brown, 991 F.2d 36\n\n(2d Cir. 1993).\n\n The Objectors recognize that courts have generally held that representatives of a\n\nputative class cannot opt out individual members on due-process grounds, but contend\n\nthat this rule does not apply here because the Fisher-Lewis class is no longer putative and\n\nhas already received notice and been certified. The Objectors argue that “[s]ince the\n\nmembers of the [Fisher-Lewis] class had exercised their rights and [chose] to remain in\n\n[Fisher-Lewis], the class representatives can act to bind those absent class members” and\n\n 41\n\nopt out of Speaks on their behalf. App. Br. 49–50. According to the Objectors, the class\n\nrepresentatives in fact had “the fiduciary duty to represent the legal interests of [Fisher-\n\nLewis] absent class members once they had exercised their due process choice to be part\n\nof the [Fisher-Lewis] certified class.” App. Br. 46.\n\n The Objectors cite no authority for the proposition that the Fisher-Lewis members’\n\nstatus as a certified class creates an exception to the settled rule that the Due Process\n\nClause reposes only in “individual class members . . . the right to intelligently and\n\nindividually choose whether to continue in a suit as class members.” Hanlon, 150 F.3d at\n\n1024 (emphasis added). Even though the Fisher-Lewis class is certified, the policy\n\nconcerns that militate against permitting group opt-outs in the putative class context are\n\npresent here as well—allowing representatives to opt out a group of class members would\n\ndeprive those members of their due-process right to make that choice for themselves and\n\nwould “completely gut the class action mechanism as objectors could dismantle any class\n\naction by removing groups of plaintiffs.” 3 William B. Rubenstein, Newberg on Class\n\nActions § 9:49, at 555 (5th ed. 2013).\n\n In the absence of any authority or policy justification, we see no basis on which to\n\nconclude that the representatives of the Fisher-Lewis certified class can opt out of the\n\nSpeaks case on behalf of the absent Fisher-Lewis class members. See 3 Newberg on\n\nClass Actions § 9:49, at 556–57 (“Courts have permitted representative opt-outs only in\n\nvery rare circumstances, such as when a government official or political subdivision\n\nrequests to opt out on behalf of its constituents.”). As the Cooperative notes, moreover,\n\nthe Objectors’ position presents an unworkable scenario because four of the Fisher-Lewis\n\n 42\n\nclass representatives declined to opt out of Speaks. Compare J.A. 2463 (Fisher-Lewis\n\nrepresentatives), with J.A. 4794 (Speaks opt-outs). Certain Fisher-Lewis representatives\n\nthus attempted to opt out the entire Fisher-Lewis class from Speaks even while other\n\nrepresentatives elected to remain in Speaks.\n\n For these reasons, the district court did not abuse its discretion in rejecting the\n\nFisher-Lewis representatives’ efforts to opt out the entire Fisher-Lewis class from this\n\ncase.\n\n C.\n\n Final Settlement Approval Under Rule 23(e)\n\n Finally, the Objectors challenge the district court’s approval of the $24 million\n\nSpeaks class settlement as fair, reasonable, and adequate. This Court affords the district\n\ncourt’s decision “substantial deference, reversing only ‘upon a clear showing that the\n\ndistrict court abused its discretion in approving the settlement.’” Berry v. Schulman, 807\n\nF.3d 600, 614 (4th Cir. 2015) (quoting Flinn v. FMC Corp., 528 F.2d 1169, 1172 (4th\n\nCir. 1975)). We agree with the Objectors that the district court abused its discretion\n\nunder these circumstances. We therefore also reverse that part of the district court’s\n\norder approving the Speaks class settlement as fair, reasonable, and adequate.\n\n Federal Rule of Civil Procedure 23(e) provides that “[t]he claims, issues, or\n\ndefenses of a certified class—or a class proposed to be certified for purposes of\n\nsettlement—may be settled, voluntarily dismissed, or compromised only with the court’s\n\napproval.” Fed. R. Civ. P. 23(e). Before a court may approve a proposed settlement, it\n\nmust conclude that the settlement is “fair, reasonable, and adequate.” Fed. R. Civ. P.\n\n 43\n\n23(e)(2). In assessing the adequacy of the proposed settlement, courts consider the\n\nfollowing factors: “(1) the relative strength of the plaintiffs’ case on the merits, (2) the\n\nexistence of any difficulties of proof or strong defenses the plaintiffs are likely to\n\nencounter if the case goes to trial, (3) the anticipated duration and expense of additional\n\nlitigation, (4) the solvency of the defendants and the likelihood of recovery on a litigated\n\njudgment, and (5) the degree of opposition to the settlement.” In re Jiffy Lube Secs.\n\nLitig., 927 F.2d 155, 159 (4th Cir. 1991). The most important factors in this analysis are\n\nthe relative strength of the plaintiffs’ claims on the merits and the existence of any\n\ndifficulties of proof or strong defenses. See Berry, 807 F.3d at 614–15.\n\n The Objectors contend only that the district court erred when it concluded that the\n\nSpeaks class claims “are weak[] and the likelihood of recovery if plaintiffs litigated this\n\ncase to final judgment and final appeal is low.” J.A. 4748–49. Specifically, the\n\nObjectors argue that the district court improperly viewed the weakness of the claims and\n\nthe strength of the Cooperative’s defenses by reference to the Speaks class claims without\n\nregard for the much stronger Fisher-Lewis class claims. Although a $24 million\n\nsettlement may be reasonable for the Speaks class members, the Objectors assert, this\n\namount is not reasonable for the Fisher-Lewis class members who form a subset of the\n\nSpeaks class and whose separate claims are extinguished as part of this settlement.\n\n A high-level comparison of the two cases provides a useful starting point for our\n\nanalysis. The Fisher-Lewis claims arose in 2004–2005, when the Cooperative drastically\n\nreduced its membership rolls by 99%—from 803,912 members to 846 members—\n\nthrough removing all members who did not appear on sales bills from 1984–2003 or who\n\n 44\n\ndeclined to sign a marketing agreement with the Cooperative for 2005. J.A. 1781. As the\n\nCooperative stated in a letter to members, anyone whose membership was cancelled lost\n\nall accrued interest in the reserve. See Fisher-Lewis, 794 S.E.2d at 704. The membership\n\nreduction caused the reserve to increase from $427.00 per member to $365,000 for each\n\nof the remaining 846 members. J.A. 1761.\n\n Based on these events, the Fisher-Lewis plaintiffs brought a consolidated suit in\n\nMay 2009 alleging a variety of common law and statutory claims against the\n\nCooperative, including breach of contract, conversion, ultra vires, and unfair trade\n\npractices. J.A. 1837–54. According to the Fisher-Lewis plaintiffs, two related legal\n\ntheories undergird their claims. The first, as we have explained, relies on cooperative\n\nlegal principles. J.A. 1802 n.44. The plaintiffs contend that a cooperative, by its nature,\n\ncannot make profits for itself and must distribute all net earnings pro rata to members\n\nbased on their patronage, or profit contribution, to the cooperative. See N.C. Gen. Stat.\n\n§§ 54-126, 54-130. By retaining a reserve far in excess of what is reasonable—a reserve\n\nthat exists because of members’ patronage—the Cooperative deprives the plaintiffs of\n\ntheir legal interest in the excess portion of the reserve. J.A. 1802 n.44; J.A. 1956 n.7.\n\n The Fisher-Lewis plaintiffs’ second legal theory is tied specifically to the\n\nCooperative’s 2004–2005 membership purge and its decision to expel members who\n\nrefused to sign the new marketing agreement. See Fisher-Lewis, 794 S.E.2d at 704. The\n\nplaintiffs argue that the Cooperative “systematically disenfranchise[d] [p]laintiffs and\n\nother [members] by purging the membership rolls and eliminating” the plaintiffs as\n\nmembers without a hearing. J.A. 1827. Through these actions, the Cooperative\n\n 45\n\n“expelled hundreds of thousands” of members and took control of the reserve in an\n\nattempt “to create a ‘last man standing’ scenario in which a few hundred remaining\n\n[members] potentially have the benefit of hundreds of millions of dollars in assets which\n\nhave been created through the efforts of all” members. J.A. 1827. According to the\n\nplaintiffs, this campaign to eliminate members deprived them of their right to participate\n\nin the “net earnings” derived from their patronage because the Cooperative took the\n\nposition that expelled members would lose any accrued interest they had in the reserve.\n\nJ.A. 1802 n.44.\n\n As the record shows, the Fisher-Lewis plaintiffs met with considerable success\n\nfrom 2012–2016. The plaintiffs largely survived a motion to dismiss, achieved class\n\ncertification, and successfully defended against the Cooperative’s challenge to\n\ncertification before the North Carolina Supreme Court. And these victories all occurred\n\nin the wake of the state court’s conclusion that the record did not support a proposed\n\nsettlement consisting of $76.8 million in cash and $212 million in book allocations\n\nbecause such a settlement was not within the ball park of being fair, reasonable, and\n\nadequate for the Fisher-Lewis class members.\n\n It was only after the Fisher-Lewis plaintiffs survived the motion to dismiss and\n\nmoved for class certification that the Speaks plaintiffs filed their complaint in October\n\n2012. Within two months, however, the Speaks suit was stayed in deference to the\n\nongoing class-certification proceedings in Fisher-Lewis, and the Speaks case remained\n\nstayed until the North Carolina Supreme Court issued its decision in December 2016\n\naffirming class certification. Shortly after this decision, the Speaks parties started\n\n 46\n\nsettlement negotiations, and they reached a tentative settlement within five months, after\n\nhaving conducted essentially no adversarial discovery and without the Cooperative even\n\nhaving filed an answer to the Speaks complaint—a stark contrast to the extensive\n\nmultiyear process in Fisher-Lewis, as the state court properly recognized. See J.A. 4488\n\n(observing that the Fisher-Lewis plaintiffs filed “two complaints, three amended\n\ncomplaints, participated in class discovery, defended class discovery and merits\n\ndiscovery, substantially survived a motion to dismiss, obtained class certification and\n\nsuccessfully defended the same” while the Speaks plaintiffs “filed one complaint and,\n\nwith the input of the [Cooperative], filed an amended complaint, obtained approximately\n\n8 stays of their case, submitted a number of status reports, reviewed documents\n\nvoluntarily provided by the [Cooperative] then mediated and settled their claims”). The\n\nSpeaks settlement amount was $24 million—another stark contrast with Fisher-Lewis,\n\nwhere a $76.8 million settlement was deemed as being not even in the ball park of fair\n\nand adequate.\n\n The Speaks case also involved claims and legal theories different from—and\n\narguably weaker than—the claims in Fisher-Lewis. The Speaks plaintiffs contend\n\nprimarily that after Congress enacted FETRA in 2004 and ended the federal price-support\n\nprogram, the Cooperative’s principal function ceased to exist, and it was thus\n\nunreasonably and unlawfully failing to distribute to members hundreds of millions of\n\ndollars in excess reserves that were not necessary to the Cooperative’s continued\n\nfunctions and activities in a post-FETRA environment. The Speaks plaintiffs do not\n\n\n\n 47\n\nassert the Fisher-Lewis common law and statutory claims for relief based on the\n\nCooperative’s 2004–2005 membership purge and members’ lost patronage interest.\n\n Given this history and the differences between the two cases, we agree with the\n\nObjectors that the strength of the Fisher-Lewis case drove the Speaks settlement\n\nnegotiations, and that the district court erroneously relied on the weaknesses of the\n\nSpeaks claims to justify the $24 million settlement as reasonable for the class when that\n\namount is plainly inadequate for the Fisher-Lewis class members.\n\n In evaluating the adequacy of the $24 million settlement, the district court\n\nconcluded that the Speaks claims were weak for the following reasons. First, the Speaks\n\nplaintiffs provided no authority for the proposition that § 55A-13-02(c)—a statute\n\nauthorizing distributions—requires or forces the Cooperative to make distributions to\n\nmembers. J.A. 4751. Second, FETRA does not provide the plaintiffs with a basis for\n\nrelief because the statute’s plain language “makes clear that the Cooperative was entitled\n\nto retain the proceeds from the sale of the loan tobacco” and because the statute does not\n\ncreate a private right of action. J.A. 4750–51. Third, “[w]ithout statutory or contractual\n\nentitlement to relief, plaintiffs’ claim concerning unreasonable reserves amounts to a\n\nclaim that the Cooperative’s Board breached their fiduciary duties in failing to distribute\n\nreserves.” J.A. 4751–52. The plaintiffs have not shown that a fiduciary relationship\n\nexisted between them and the Board, the court indicated, but even if they could make\n\nsuch a showing, the claim would fall within North Carolina’s business-judgment rule.\n\nJ.A. 4752–53. Fourth, the statutory claim for judicial dissolution under N.C. Gen. Stat.\n\n\n\n 48\n\n§ 55A-14-30 is weak because, among other reasons, the Cooperative is still carrying out\n\nits statutory purpose. J.A. 4754–56.\n\n Despite the district court’s thorough analysis of the claims before it, many of the\n\nweaknesses identified do not apply to the claims of the Fisher-Lewis class members. The\n\nFisher-Lewis plaintiffs did not request judicial dissolution of the Cooperative, for\n\nexample, nor did they seek to force distribution of the Cooperative’s reserves under N.C.\n\nGen. Stat. § 55A-13-02(c), which by its terms merely authorizes distributions. See N.C.\n\nGen. Stat. § 55A-13-02(c) (providing that “a corporation . . . may make distributions to\n\npurchase its memberships” (emphasis added)). The Fisher-Lewis plaintiffs also make no\n\nallegation that FETRA provides a basis for relief. See Def.-Appellant’s Reply Br., Fisher\n\nv. Flue-Cured Tobacco Coop. Stabilization Corp., 2015 WL 275307, at *19 (N.C. filed\n\nJan. 9, 2015) (“Plaintiffs did not plead any claim under FETRA.”).\n\n The district court also reasoned in its analysis that, without a statutory or\n\ncontractual entitlement to relief, the Speaks plaintiffs can allege only a breach-of-\n\nfiduciary-duty claim, which would fall within the business-judgment rule. This\n\nassessment also proves problematic as applied to Fisher-Lewis. First, the Fisher-Lewis\n\nplaintiffs alleged several statutory and contractual claims for relief not present in Speaks,\n\nand these claims survived a motion to dismiss—including a business-judgment-rule\n\ndefense—and were part of the certified case. Second, the state court later ruled that the\n\nFisher-Lewis claims were not derivative in nature and expressly left open the question\n\nwhether the business-judgment rule would apply to the surviving claims. J.A. 4609, 4614\n\n& n.1 (granting partial summary judgment to the plaintiffs on the Cooperative’s twelfth\n\n 49\n\naffirmative defense, which argued that “plaintiffs’ claims are barred for failure . . . to\n\nsatisfy the requirements of the North Carolina statutes applicable to derivative actions”).\n\nFor these reasons, the district court’s business-judgment-rule analysis applies with\n\nconsiderably less force to the Fisher-Lewis claims.\n\n In concluding that the $24 million settlement was adequate, the district court also\n\nindicated that the Cooperative’s defenses were strong, noting in particular that the\n\n“statute of limitations is a substantial barrier to large swaths of plaintiffs’ claims.” J.A.\n\n4756. Again, this reasoning applies with less force to the Fisher-Lewis claims. Those\n\nplaintiffs filed suit in early 2005, shortly after being notified in late 2004 of the\n\nCooperative’s plan to terminate most of its members and retain their accrued patronage\n\ninterests. The claims indeed arose precisely because of the Cooperative’s 2004–2005\n\nmembership purge—the moment when the expelled members lost their interest and the\n\nreserve increased to an unreasonable $365,000 per member—and the claims substantially\n\nsurvived a motion to dismiss. J.A. 1866–67 (dismissing only three of the 14 claims, all\n\ninvolving fraud allegations). In fact, the state court expressly rejected the Cooperative’s\n\nlimitations defense at the motion-to-dismiss stage. J.A. 1866. As the Objectors point\n\nout, moreover, if anyone had a statute-of-limitations problem, it was the Speaks plaintiffs.\n\nThe two Speaks complaints pleaded equitable tolling based on the 2005 Fisher-Lewis\n\nfilings, an acknowledgment that the claims faced a limitations barrier. J.A. 49, 279.\n\n The district court, in approving the $24 million settlement as reasonable, also\n\nrelied on several faulty premises concerning the proposed $76 million settlement. First,\n\nthe court asserted that the state court “did not find that the proposed settlement was\n\n 50\n\nunreasonable” but rather denied preliminary approval “without prejudice” based on\n\ncertain plaintiffs’ objection that discovery on the merits of the settlement was necessary.\n\nJ.A. 4759–60. Although the state court did deny approval without prejudice, the court\n\nindicated in no uncertain terms that the record before it “d[id] not support a finding or\n\nconclusion that the proposed Settlement is within the necessary ‘ball park’ of being fair,\n\nreasonable and adequate” at only $76 million. J.A. 311–12.\n\n Second, the district court, relying on Federal Rule of Evidence 408 and our\n\ndecision in Fiberglass Insulators, Inc. v. Dupuy, 856 F.2d 652 (4th Cir. 1988), concluded\n\nthat a settlement offer does not reflect the relative strength of the plaintiffs’ claims on the\n\nmerits, and that such an offer cannot establish the Cooperative’s liability at trial. J.A.\n\n4760. But the $76 million figure was not merely a settlement offer made in the course of\n\nthe parties’ negotiations. Cf. Fiberglass Insulators, 856 F.2d at 653 (holding that Rule\n\n408 requires excluding “statements made by attorneys in the course of settling prior\n\nrelated litigation between the same parties”). The figure instead was the basis on which\n\nthe court, after briefing and argument, denied preliminary approval for the settlement as\n\nnot fair, reasonable, and adequate for class members. Neither the district court nor the\n\nCooperative points to any authority suggesting that this Court cannot consider the state\n\ncourt’s denial in our review of the Speaks settlement.\n\n Third, the district court deemed the $76 million proposed settlement from 2005–\n\n2006 outdated and irrelevant—and thus an improper benchmark by which to gauge the\n\nreasonableness of the Speaks settlement—both because the Cooperative’s “business\n\nstrategy from 2005 to 2017 has proven reasonable and beneficial” to members and\n\n 51\n\nbecause the litigation risks “have substantially changed in the Cooperative’s favor since\n\n2005.” J.A. 4768.\n\n As an initial matter, even assuming the Cooperative can now—in 2018–2019—\n\njustify its large pool of reserves based on an evolving business strategy undertaken over\n\nthe last fifteen years, the Fisher-Lewis case turns on the reasonableness of the reserve in\n\n2004–2005, when the Cooperative eliminated 99% of members and extinguished their\n\naccrued interest in the reserve. That the Cooperative’s circumstances may have changed\n\nin more recent years has little relevance for the Fisher-Lewis class members and their\n\nclaims.\n\n As to the increased litigation risks for the Fisher-Lewis plaintiffs, the district court\n\ncited the Georgia state court’s 2014 opinion in Rigby as proof that the Speaks plaintiffs\n\nhave a weak case on the merits and would be unlikely to recover more than $24 million if\n\nthe case were litigated to judgment. See Rigby v. Flue-Cured Tobacco Coop.\n\nStabilization Corp., 755 S.E.2d 915 (Ga. Ct. App. 2014); see also Rigby v. Flue-Cured\n\nTobacco Coop. Stabilization Corp., 794 S.E.2d 413 (Ga. Ct. App. 2016). Rigby is\n\nanother case against the Cooperative, with claims similar to the claims in Fisher-Lewis,\n\nand the plaintiffs did not recover anything. But the district court relies heavily on Rigby\n\nwithout giving due regard to the Fisher-Lewis proceedings directly related to this case—\n\nthe Fisher-Lewis plaintiffs largely defeated the Cooperative’s motion to dismiss,\n\nincluding challenges based on the business judgment rule and statute of limitations, the\n\nplaintiffs achieved class certification and beat back the Cooperative’s challenge on\n\nappeal, and they secured summary judgment on the Cooperative’s derivative defense.\n\n 52\n\nFor these reasons, the Rigby decision does not provide a valid basis on which to conclude\n\nthat the $24 million settlement is reasonable and that the $76 million proposed settlement\n\nhas no relevance in our analysis.\n\n In conclusion, the district court stated that although the Fisher-Lewis class asserted\n\nmany state law causes of action not present in Speaks, counsel has failed to explain how\n\nthese causes of action would enable the plaintiffs to obtain relief greater than $24 million\n\n“given that each of these claims appears to rest on the same fundamentally flawed\n\nallegation that the Cooperative unlawfully retained reserves.” J.A. 4768. But as we have\n\nexplained, the Fisher-Lewis claims do not rest on the “same fundamentally flawed\n\nallegation,” and the Fisher-Lewis plaintiffs have detailed at length their separate theory of\n\nthe case based specifically on the events in 2004–2005.\n\n The Cooperative, for its part, protests that the Fisher-Lewis class members have\n\nfailed to identify the amount of reserves that the Cooperative may reasonably retain for\n\nthe members’ benefit. But any lack of clarity in the record on the exact amount of\n\nreasonable reserves is hardly surprising given that this issue was not contested in Speaks\n\nand full merits discovery in Lewis had commenced only in April 2017, a month before\n\nthe Speaks parties mediated the case and arrived at the $24 million figure. J.A. 4465.\n\nThe Cooperative also seizes on a statement from the Objectors’ counsel, made at the\n\nfairness hearing in a colloquy with the court, that the recovery could be “zero” if at trial\n\nthe Cooperative’s entire reserve is deemed reasonable. J.A. 4674. Viewed in its proper\n\ncontext, this statement was nothing more than an acknowledgment from counsel that, if\n\nplaintiffs’ expert determined that the entire reserve was reasonable, it would follow that\n\n 53\n\nthe plaintiffs could not recover any excess reserves. As counsel made clear in the\n\nsubsequent exchange—in which he argued vigorously for a robust recovery—this remark\n\nwas not a concession that the expert would find that the entire reserve was reasonable.\n\n Under these circumstances, we conclude that the district court abused its discretion\n\nin approving the $24 million settlement as fair, reasonable, and adequate.\n\n\n\n III.\n\n Conclusion\n\n To sum up, we hold that the district court abused its discretion in certifying the\n\nSpeaks settlement class under Rule 23(a) and in approving the final settlement as fair,\n\nreasonable, and adequate under Rule 23(e). We dismiss as untimely Lewis’s appeal of\n\nthe order denying his motion to intervene, and we affirm the district court’s denial of the\n\nattempted class opt-outs.\n\n For the foregoing reasons, we reverse the district court’s order certifying the class\n\nand approving the final settlement and remand for further proceedings consistent with\n\nthis opinion.\n\n\n\n AFFIRMED IN PART,\n REVERSED AND REMANDED\n\n\n\n\n 54", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372452/", "author_raw": "Judge Quattlebaum wrote a concurring"}, {"author": "QUATTLEBAUM, Circuit Judge, concurring", "type": "concurrence", "text": "QUATTLEBAUM, Circuit Judge, concurring:\n\n Modern class actions are an important innovation in our legal system. They are a\n\nrare departure from “a principle of general application in Anglo-American jurisprudence\n\nthat one is not bound by a judgment in personam in a litigation in which he is not\n\ndesignated as a party or to which he has not been made a party by service of process.”\n\nHansberry v. Lee, 311 U.S. 32, 40 (1940). When properly employed, class actions\n\nefficiently provide consistent outcomes in resolving large numbers of disputes involving\n\ncommon questions of law or fact.\n\n As with many innovations, however, these benefits come with risks. 1 The very\n\nfeatures of class actions that provide efficiency and consistency at the same time present\n\nserious risks, including the risk of due process violations. For a plaintiff class, absent\n\nclass members’ grievances are litigated not directly by the class members themselves but\n\nby class representatives. Defendants in those actions can be sued by a class of hundreds\n\nor thousands of people who are relieved of their normal responsibility to file and\n\nprosecute their own case. For a defendant class, concerns are arguably even greater with\n\nthe very real possibility that judgments can be entered against absent defendants without\n\nthose defendants receiving notice of the underlying action itself. See 1 Joseph M.\n\nMcLaughlin, McLaughlin on Class Actions § 4:46 (15th ed. 2018).\n\n\n\n\n 1\n One need not look far or long to find current events that illustrate this point.\nRecent news coverage of social media platforms and the opioid crisis underscore the old\ntruth that innovation can be a double-edged sword.\n\n 55\n\n Rule 23 of the Federal Rules of Civil Procedure is a structural safeguard in our\n\nlegal system developed to provide the benefits of class actions while simultaneously\n\navoiding the risks associated with them. As a leading commentator on class actions\n\nexplains, the primary function of Rule 23 “is, through its various parts, to ensure the\n\nprotection of absent class members’ rights and, hence, the justification of the binding\n\neffect of the resulting judgment.” 1 William B. Rubenstein, Newberg on Class Actions\n\n§ 1:10 (5th ed. 2011). Thus, to appropriately strike this balance of maximizing benefits\n\nand minimizing risks, compliance with Rule 23 is necessary.\n\n In this appeal, Objectors challenge a number of the district court’s decisions,\n\nincluding several findings regarding the Rule 23 requirements. Addressing those\n\ndecisions, the majority affirms the district court’s denial of attempted class wide opt-outs\n\nand dismisses an appeal of an order denying a motion to intervene as untimely. Maj. Op.\n\nat 53. The majority reverses the district court’s certification and settlement approval\n\ndecisions, holding that the district court abused its discretion in certifying the Speaks\n\nsettlement class under Rule 23(a) and in approving the final settlement as fair, reasonable\n\nand adequate under Rule 23(e). Maj. Op. at 53. I agree that the district court erred on\n\nthese issues and, therefore, join with the majority in reversing the district court’s order.\n\nHowever, I write separately because, although I agree with the result the majority\n\nreaches, I reach those results for different reasons.\n\n I.\n\n I first address the district court’s finding regarding the adequacy of the class\n\nrepresentatives. Because the district court found the class representatives to be adequate\n\n 56\n\nwhen intra-class conflicts existed regarding the patronage theory of recovery, I join the\n\nmajority in finding that the district court abused its discretion in certifying the Speaks\n\nclass.\n\n In considering the adequacy of the class representatives, we look to Rule 23(a).\n\nThat subsection requires adequacy of class representatives—along with numerosity,\n\ntypicality and commonality—for a class to be certified. Although a district court is rightly\n\nafforded wide discretion in its adequacy determination under Rule 23(a), this discretion is\n\nnot absolute or unlimited. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625–28\n\n(1997) and its progeny make clear that a district court abuses its discretion when it finds\n\nclass representatives to be adequate despite the presence of intra-class conflicts. The\n\nconcerns about intra-class conflicts relate to the same due process concerns identified\n\nabove. “The premise of a class action is that litigation by representative parties\n\nadjudicates the rights of all class members, so basic due process requires that named\n\nplaintiffs possess undivided loyalties to absent class members.” Broussard v. Meineke\n\nDisc. Muffler Shops, Inc., 155 F.3d 331, 338 (4th Cir 1998).\n\n Decisions from the Supreme Court and this Court provide guidance on the issue of\n\nintra-class conflicts. In Amchem, the Supreme Court considered whether a settlement\n\nclass consisting of victims of asbestos exposure satisfied the requirements of Rule 23.\n\n521 U.S. at 591. In considering the requirements of Rule 23(a)(4), the Court emphasized\n\nthe purpose of the adequacy requirement, noting “[t]he adequacy inquiry under Rule\n\n23(a)(4) serves to uncover conflicts of interest between named parties and the class they\n\nseek to represent. [A] class representative must be part of the class and possess the same\n\n 57\n\ninterest and suffer the same injury as the class members.” Id. at 625–26 (citing General\n\nTel. Co. of Sw. v. Falcon, 457 U.S. 147, 157–58 n.13 (1982)) (internal citation omitted)\n\n(internal quotation marks omitted). The Court identified one such intra-class conflict,\n\nfinding that “[i]n significant respects, the interests of those within the single class are not\n\naligned. Most saliently, for the currently injured, the critical goal is generous immediate\n\npayments. That goal tugs against the interest of exposure-only plaintiffs in ensuring an\n\nample, inflation-protected fund for the future.” Id. at 626. In affirming the decision to\n\ndecertify the class in part because of this conflict, the Court concluded “[t]he settling\n\nparties, in sum, achieved a global compromise with no structural assurance of fair and\n\nadequate representation for the diverse groups and individuals affected.” Id. at 627.\n\n Ortiz v. Fibreboard, 527 U.S. 815, 856–58 (1999) affirmed the principle\n\nestablished by Amchem and further explained its meaning. In yet another asbestos case,\n\nthe Supreme Court in Ortiz considered whether a mandatory settlement class certified\n\nunder a limited fund theory satisfied the requirements of Rule 23. Id. at 821. In\n\nconsidering the fairness of the distribution of the settlement fund among class members,\n\nthe Supreme Court applied the adequacy principles set out in Amchem and identified two\n\ntypes of conflicts within the class. First, reiterating its holding in Amchem, the Court\n\nidentified a conflict between class members with present injuries and future injuries. Id.\n\nat 856. The Court noted “it is obvious after Amchem that a class divided between holders\n\nof present and future claims . . . requires division into homogenous subclasses under Rule\n\n23(c)(4)(B).” Id. Second, the Court identified a conflict between class members related to\n\nthe value of individual class members’ claims. Id. at 857. Noting that some class\n\n 58\n\nmembers necessarily had “more valuable claims” than others, the Court found that this\n\nmisalignment of interests required subclasses. Id. According to the Court, both types of\n\nconflict were “well within the requirement of structural protection recognized in\n\nAmchem.” Id.\n\n After Ortiz, it is clear that Amchem extends beyond conflicts between current and\n\nfuture damages. Our Court, a year earlier, recognized this in Broussard v. Meineke Disc.\n\nMuffler Shops, Inc., 155 F.3d 331 (4th Cir 1998). There, this Court followed Amchem in\n\ndetermining a nationwide class of franchise holders was improperly certified. Broussard,\n\n155 F.3d at 337–39. According to this Court, the putative class of franchise holders\n\ncontained “manifest conflicts of interests,” largely driven by class members’ diverging\n\ninterests in the amount and type of recovery. Id. at 338. This Court noted, “The interest of\n\nformer franchisees in damages and of many EDP franchisees in restitution reveals an\n\nobvious initial schism within the putative class regarding the appropriate remedy for [the\n\ndefendant’s] alleged wrongdoing.” Id. In describing the prejudice caused by these\n\nconflicts of interests, this Court observed that the “three distinct groups have potentially\n\ndivergent aims” and that the remedy sought by the plaintiffs “is consistent with–and only\n\nwith–the aims [of one of the groups].” Id. at 339 (internal quotation marks omitted).\n\n Broussard also suggests that intra-class conflicts infringe the due process rights\n\nnot only of absent plaintiff class members but also of defendants. In that case, the\n\npresence of intra-class conflict forced the defendant to respond to inconsistent legal\n\ntheories and damages claims some of which involved individualized considerations. See\n\nid. at 338 (“[O]ne group of [absent plaintiffs] sought to intervene below and appear as\n\n 59\n\namici on appeal, claiming their ongoing business relationship with [the defendant] and\n\ntheir interests in the long-term financial health of the company were imperiled by\n\nplaintiff’s efforts to wring a large damage award out of defendants.”). While the\n\ndefendant in this case did not raise these issues below or on appeal, in the parallel state\n\nproceeding it argued that the differences in arguably a less diverse class prevented class\n\ncertification. 2\n\n Here, the district court concluded that there were no intra-class conflicts in this\n\ncase that precluded certification or necessitated subclasses under Rule 23(a)(4). In\n\nreaching this conclusion, the district court attempted to distinguish Amchem,\n\ncharacterizing the differences in class members as mere differences in damages between\n\nclass members. Because of that, the district court concluded that the differences in class\n\nmembers did not create diverging interests or a fundamental conflict. The district court\n\nnoted “[a]ny differences between class members only arise with respect to the amount of\n\ndamages each member seeks to recover. Such differences do not create adverse or\n\ndiverging interests.” J.A. 4738 (citing In re Pet Food Products Liab. Litig., 629 F.3d 333,\n\n345–46 (3d Cir. 2010) and In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 272–73\n\n(3d Cir. 2009)).\n\n\n\n 2\n In pointing out the Cooperative’s lack of consistency, I note that this\ncharacteristic appears to be contagious in this case. In the parallel state action, the Fisher-\nLewis class was apparently not limited to patronage members, see definition of Fisher-\nLewis class at Fisher v. Flue-Cured Tobacco Coop. Stabilization Corp., 794 S.E.2d 699,\n704 (N.C. 2016), but the class nevertheless argued for certification. It is hard to reconcile\nthat position with the one it takes in this case.\n\n 60\n\n It is clear from the record that the district court gave thoughtful consideration to\n\nthis issue. However, the district court did not address either Ortiz or Broussard.\n\nMoreover, the pertinent issue—the proper scope of Amchem—ultimately is one of law. 3\n\nThe majority in effect concludes that the district court applied Amchem too narrowly. I\n\nagree. In the same way that class certification was improper in Amchem because of\n\ndifferences in the timing of payments, in Ortiz because of the differences in strength of\n\nthe class members’ claims and in Broussard because of inconsistent claims and damages\n\ntheories and the individualized issues among class members, the patronage theory4\n\nasserted by some class members makes the class certification improper in this case. 5\n\n In order to satisfy the requirements of Rule 23(a), Amchem and its progeny require\n\na named class representative to be not only common and typical of those of the entire\n\n\n 3\n While we should defer to the district court on matters within its discretion, an\nappellate court need not defer to a district court’s error of law. Berry v. Schulman, 807\nF.3d 600, 608 (4th Cir. 2015)\n 4\n As described by the majority, the most glaring conflict in the class is the conflict\nbetween class members with traceable patronage interests in the Cooperative’s reserves\nand those class members without such interests. Class members with patronage interests\ncan trace their interest in the Cooperative’s reserves to their individual contributions to\nthe reserves over time, and class members without those patronage interests cannot.\nPatronage interests accrued over time and largely derived from contributions made during\nprofitable years in the Cooperative’s history and from assessments under the No Net Cost\nAct.\n 5\n While typicality and commonality are not specifically raised on appeal, the same\nissues about which the Objectors complain in the class representative argument also\napply to those issues. As the Supreme Court has instructed, typicality, commonality and\nadequacy of class representative often merge into the same or similar analysis. Gen. Tel.\nCo. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). That was in fact the case in\nBroussard.\n\n 61\n\nclass, but also to adequately represent the interests of all. When those requirements are\n\nnot met, the due process rights of the absent class members, as well as defendants, are\n\nprejudiced and classes should not be certified.\n\n II.\n\n Turning next to the district court’s findings regarding the adequacy of class\n\ncounsel under Rule 23(g), I agree with the majority that the district court abused its\n\ndiscretion in finding class counsel to be adequate, but for a different reason. In contrast to\n\nthe majority’s approach, if the issue needs to be reached at all, I would simply find that\n\nthe district court necessarily abused its discretion because it appointed class counsel for a\n\nclass that was improperly certified due to the presence of intra-class conflicts.\n\n Instead of relying upon the inadequacy of class representatives to conclude that\n\ncounsel was therefore inadequate, the majority questions the manner in which the district\n\ncourt evaluated the adequacy of class counsel. The majority finds that “the district court\n\nimproperly rejected the collusion argument based on the mere presence of the mediator”\n\nand “did not meaningfully grapple” with the North Carolina court’s findings about\n\ncollusion. Maj. Op. at 30, 32. Respectfully, the record does not support this conclusion,\n\nand affording the findings of the district court appropriate deference, I cannot agree that\n\nthe district court erred in its findings regarding collusion. I write separately on this issue\n\nto address my disagreement with the majority’s analysis and to illustrate the ways in\n\n\n\n\n 62\n\nwhich the district court meaningfully grappled with the North Carolina court’s findings of\n\ncollusion. 6\n\n As an initial matter, the district court carefully considered Objectors’ arguments\n\nthat the North Carolina court orders were binding on its own analysis of the adequacy of\n\nclass counsel. Regarding the North Carolina court’s certification order, the district court\n\ncorrectly concluded that the certification of the Fisher-Lewis class did not impact the\n\nSpeaks action. Likewise, the district court correctly concluded that the North Carolina\n\ncase management order could not limit the parties or counsel in the Speaks action. In\n\nreaching this decision, the district court noted that the Objectors offered no case law in\n\nsupport of their positions. Finally, the district court concluded that the North Carolina\n\ncourt’s interlocutory order dated January 17, 2018 was not binding on its own analysis.\n\n These decisions are not surprising since, in advancing these arguments, the\n\nObjectors fundamentally mischaracterized the relationship between the two parallel\n\nactions. It is well settled that a parallel action has no effect on a competing action until a\n\n 6\n While I disagree with the majority on this issue, I in no way minimize the\nimportance of allegations and findings about ethical violations. Compliance with the\nRules of Professional Responsibility are fundamental to our profession. My concurrence\nshould not be construed to suggest allegations of ethical misconduct should not be taken\nseriously or carefully evaluated in the appropriate forum. They should. However, those\nfindings were neither binding on the district court nor necessarily relevant to the district\ncourt’s adequacy determination here. See, e.g., W. Morgan-E. Lawrence Water & Sewer\nAuth. v. 3M Co., 737 F.App'x 457, 465 n.10 (11th Cir. 2018) (“Although state ethical\nrules may be relevant to our determination of whether approval of the settlement was\nappropriate, a violation of state ethical rules is neither necessary nor sufficient to\nestablish a violation of federal Rule 23(g).”). What was and remains relevant is whether\nthe district court considered the objections and, in doing so, made decisions for which\nthere is legal and evidentiary support. As noted above, the district did that here.\n\n\n 63\n\nfinal judgment is reached. See 3 William B. Rubenstein, Newberg on Class Actions\n\n§10:33 (5th ed. 2011). That is even true for the certification decision. “A common\n\nmisunderstanding is that certification of a class in one suit somehow forestalls other\n\nrelated cases; in fact, only the preclusive effect of a final judgment can formally achieve\n\nthat end and a decision simply certifying a class is not itself a final judgment.” Id. Simply\n\nput, the North Carolina court’s interlocutory decisions did not apply to the Speaks case.\n\n Turning now to issues raised in the majority’s analysis, the record reveals that the\n\ndistrict court did not improperly reject the collusion argument based on the mere presence\n\nof the mediator and did meaningfully grapple with the North Carolina court’s findings\n\nabout collusion. Regarding the role of the mediator, the district court admittedly viewed\n\nthe mediator as a factor in rejecting the collusion arguments. As the court noted, the\n\nSpeaks settlement was reached after a mediation led by a well-respected North Carolina\n\nmediator. The court correctly cited to authority that stands for the proposition that the\n\npresence of an unbiased mediator is some evidence against the presence of collusion. See\n\nJones v. Singing River Health Servs. Found., 865 F.3d 285, 295 (5th Cir. 2017), cert.\n\ndenied sub nom. Almond v. Singing River Health Sys., 138 S. Ct. 1000 (2018) (“The\n\ninvolvement of an experienced and well-known mediator is also a strong indicator of\n\nprocedural fairness.”) (internal quotation marks omitted).\n\n However, the district court’s decision on alleged collusion was based on more than\n\nthe involvement of the mediator. Despite the district court’s conclusion about the legal\n\neffect of the North Carolina court orders (or lack thereof), the district court nevertheless\n\nconsidered issues they raised concerning the adequacy of class counsel. Specifically,\n\n 64\n\ndespite the majority’s contention to the contrary, the district court considered at length\n\nissues raised by the North Carolina court’s interlocutory order dated January 17, 2018.\n\nAdmittedly, the court’s treatment of the issues raised by the North Carolina order are not\n\nall contained in the same part of the order. However, when the order is considered as a\n\nwhole, it meaningfully grappled with the North Carolina court’s findings cited by the\n\nmajority on pages twenty-nine and thirty above.\n\n Regarding notice, the district court considered the issue of whether the Fisher-\n\nLewis class was adequately notified of the Speaks mediation. For the same reasons set\n\nforth in the preceding paragraphs, the court found that it was. Specifically, the court\n\nrejected “the contention that the Fisher/Lewis class members have some interest, separate\n\nand apart, from the interests of the other class members in this case.” J.A. 4742.\n\n The district court also considered the issue of whether the notices issued in the\n\nSpeaks case adequately described the effect of the Speaks settlement on the Fisher-Lewis\n\nclaims. It reviewed the contents of the actual notices and found the short form notice, the\n\nsettlement website and the long form notice contained the necessary information about\n\nthe effect of the settlement. See J.A. 4779 (“The long form notice also clearly details how\n\nthe Speaks action affects the Fisher/Lewis action . . . . The settlement website, which is\n\nlisted on the short form notice and the media publications, provides additional\n\ninformation about the settlement and the Fisher/Lewis action . . . .”).\n\n The district court also considered the relative inactivity in Speaks prior to the\n\nsettlement. It found that while admittedly there was less formal discovery in the Speaks\n\ncase than the Fisher-Lewis case, there was extensive information discovery and\n\n 65\n\ninformation exchange. See J.A. 4764 (“Here, the parties engaged in informal discovery\n\nand class counsel received numerous documents from the Cooperative . . . . The\n\nmediation process provided class counsel with sufficient information about the merits of\n\nthe case.”)\n\n Last, the district court considered whether the record contained evidence of\n\ncollusion. After reviewing the oral arguments made at two hearings and the extensive\n\nbriefing on this issue, the district court assessed whether actual evidence of collusion had\n\nbeen offered. The court concluded that there was no evidence presented of collusion\n\nbesides the timing of the Speaks settlement.\n\n In sum, the record reveals that the district court erred in appointing class counsel\n\nbut not in the way the majority suggests. The district court erred in appointing class\n\ncounsel for a settlement class that should not have been certified to begin with because\n\nthe class representatives were not adequate. However, its conclusions regarding\n\nallegations of collusion were not error. 7 On this issue, the district court applied the law\n\nreasonably and based its decision on the record before it.\n\n\n\n 7\n Under the abuse of discretion standard, an appellate court gives “substantial\ndeference” to a district court’s certification and settlement decisions, “recognizing that a\n‘district court possesses greater familiarity and expertise than a court of appeals in\nmanaging the practical problems of a class action.’” Berry¸ 807 F.3d at 608 (quoting\nWard v. Dixie Nat’l. Life Ins. Co., 595 F.3d 164, 179 (4th Cir. 2010)). In applying this\nstandard, an appellate court may not substitute its own ideas of fairness for the those of\ndistrict court. Flinn v. FMC Corp., 528 F.2d 1169, 1172 (4th Cir. 1975). Rather, an\nappellate court may reverse a district court’s certification or settlement decision only\nwhen the district court has committed an error of law or a clear error in finding of fact.\nBerry, 807 F.3d at 608.\n\n 66\n\n III.\n\n I turn last to the district court’s finding that the settlement was fair, reasonable and\n\nadequate. Since the class representatives in this case were not adequate, approval of the\n\nsettlement was not appropriate in these circumstances. The Supreme Court has found “[a]\n\nfairness hearing under subdivision (e) can no more swallow the preceding protective\n\nrequirements of Rule 23 in a subdivision (b)(1)(B) action than in one under subdivision\n\n(b)(3).” Ortiz, 527 U.S. at 858–59. In this limited sense, I join the majority in reversing\n\nthe district court’s approval of the settlement. However, I write separately to express my\n\nconcerns about the majority’s reasoning for reversing the district court.\n\n Like a district court’s certification decision, a district court’s approval of a class\n\naction settlement is afforded substantial deference and should be reversed only upon a\n\nclear showing that the district court abused its discretion. Berry, 807 F.3d at 614.\n\n Significantly, the majority does not find fault with the legal factors the district\n\ncourt considered in reaching its decision. And it does not find fault with the district court\n\nin determining the most important of those factors are the relative strength of the\n\nplaintiffs’ claims and the existence of difficulties of proof or strong defenses. It also does\n\nnot object to the way the district court evaluated those issues as they relate to the Speaks\n\nclass. Indeed, the majority describes the district court’s analysis as thorough.\n\n Instead, the majority finds the district court abused its discretion because, to the\n\nmajority, many of the weaknesses the district court found with the Speaks class claims do\n\nnot apply to the Fisher-Lewis class claims or at least apply with less force. Specifically,\n\nthe majority contends that the statute of limitations and business judgment rule defenses\n\n 67\n\nare less compelling as to the Fisher-Lewis class claims than the district court found. The\n\nmajority then criticizes the district court’s reasoning as to why the $76 million settlement\n\noffer from 2005 in the Fisher-Lewis action did not make the settlement here inadequate\n\nand as to why the failure of a case in Georgia with claims very similar to the Fisher-\n\nLewis class claims suggested weaknesses of the claims in this case.\n\n In my view, the majority here deviates from reviewing the district court’s\n\ndecisions under the abuse of discretion standard. Instead, it substitutes its judgment for\n\nthe district court’s. The district court evaluated each claim for relief. It considered the\n\ndefenses faced by the plaintiffs, including the statute of limitations and business\n\njudgment rule defenses. It considered and found persuasive a nearly identical action\n\nbrought in Georgia resulting in no recovery. It considered the $76 million settlement offer\n\nin the North Carolina state case in 2005, determining that offer did not mean the\n\nsettlement here was inadequate because, in its view, the litigation risks surrounding the\n\nclaims have changed significantly since 2005 in favor of the Cooperative.\n\n The district court also considered the differences between the Speaks class claims\n\nand the Fisher-Lewis class claims. Specifically, the court reasoned:\n\n [C]ounsel . . . failed to explain at the fairness hearing or anywhere else how\n including these additional causes of action would provide a route for the\n Fisher/Lewis plaintiffs to litigate that case through final judgment and final\n appeal and recover any greater relief than $24 million, given that each of\n these claims appears to rest on the same fundamentally flawed allegation\n that the Cooperative unlawfully retained reserves.\n\nJ.A. 4768. The court then added “[a]t the fairness hearing, this court asked counsel . . . to\n\ndiscuss the strength of plaintiffs’ claims in Fisher/Lewis and Speaks and explain how\n\n\n 68\n\nplaintiffs in either case could recover anything approaching $24 million if they litigated\n\nto final judgment and final appeal.” J.A. 4770. The district court found the absence of a\n\nmeaningful response significant.\n\n Reasonable minds could of course differ on the strengths and weaknesses of the\n\nSpeaks class claims. Indeed, if one hundred judges or lawyers were asked their views\n\nabout the strengths and weaknesses of the claims here and about an appropriate value of\n\nthe case, there would likely be one hundred different responses. That is why it is critical\n\nthat we steadfastly adhere to the applicable standard of review. Under the abuse of\n\ndiscretion standard, our inquiry is simply whether the district court identified and applied\n\nthe appropriate legal principles and whether it based its decision based on evidence in the\n\nrecord. Here, the district court did that. When that occurs, an appellate court should not\n\nsubstitute its judgment for the district court’s.\n\n As noted above, I agree with the majority that the order approving the class\n\nsettlement should be reversed. However, my agreement is based on the adequacy of the\n\nclass representative issue as described above. My agreement is not based on the district\n\ncourt’s evaluation of the fairness and adequacy of the settlement. In my view, the district\n\ncourt carefully considered the appropriate legal issues and based its decision on a\n\nreasonable interpretation of the record.\n\n IV.\n\n In conclusion, I join the majority in affirming the district court’s denial of\n\nattempted class wide opt-outs and in dismissing the appeal of the order denying the\n\nmotion to intervene. I also join the majority in reversing the district court’s order\n\n 69\n\ncertifying the class and approving the final settlement. While in the end, the majority and\n\nI arrive at the same destination, I arrive by a different path.\n\n\n\n\n 70", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372452/", "author_raw": "QUATTLEBAUM, Circuit Judge, concurring"}]} | GREGORY | THACKER | QUATTLEBAUM | 1 | {} | 5 | 0 | 0 | 3 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4595199/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,595,213 | GATEWAY RESIDENCES AT EXCHANGE, LLC, Plaintiff-Appellant, v. ILLINOIS UNION INSURANCE COMPANY, D/B/A ACE American Insurance Company, D/B/A ACE Environmental, D/B/A ACE USA, D/B/A ACE USA Companies, Defendant-Appellee. | Gateway Residences at Exch., LLC v. Ill. Union Ins. Co. | 2019-02-28 | 18-1491 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Agee, Diaz, Harris", "parties": "", "opinions": [{"author": "DIAZ, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1491\n\n\nGATEWAY RESIDENCES AT EXCHANGE, LLC,\n\n Plaintiff − Appellant,\n\n v.\n\nILLINOIS UNION INSURANCE COMPANY, d/b/a ACE American Insurance\nCompany, d/b/a ACE Environmental, d/b/a Ace USA, d/b/a ACE USA Companies,\n\n Defendant – Appellee.\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nAlexandria. Liam O’Grady, District Judge. (1:17-cv-00629-LO-JFA)\n\n\nArgued: December 12, 2018 Decided: February 28, 2019\n\n\nBefore AGEE, DIAZ, and HARRIS, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Agee and\nJudge Harris joined.\n\n\nARGUED: C. Thomas Brown, SILVER & BROWN, Fairfax, Virginia, for Appellant.\nDouglas Aaron Winegardner, SANDS ANDERSON, PC, Richmond, Virginia, for\nAppellee. ON BRIEF: Eric B. Lawson, SILVER & BROWN, Fairfax, Virginia, for\nAppellant.\n\fDIAZ, Circuit Judge:\n\n Having been awarded more than $900,000 for a contractor’s faulty workmanship,\n\nGateway Residences at Exchange, LLC, sued to collect the judgment from the\n\ncontractor’s liability insurer, Illinois Union Insurance Company. The relevant policy,\n\nhowever, covered only claims reported to the insurer during the policy period, and that\n\npolicy expired 19 months before Illinois Union learned about Gateway’s claim.\n\n That should end this case. But Gateway claims it may nonetheless recover on the\n\npolicy because, by Virginia statute, Illinois Union waived certain defenses by failing to\n\npromptly inform Gateway of its coverage denial. See Va. Code Ann. § 38.2-2226. The\n\ndistrict court was unpersuaded and, for reasons that follow, we affirm.\n\n\n\n I.\n\n A.\n\n This insurance dispute started with two broken generators in an Alexandria,\n\nVirginia, apartment complex. Gateway, the building’s owner, had hired a local\n\ncontractor, Mechanical Design Group (MDG), to provide various engineering and design\n\nservices. Among MDG’s jobs was to install two “life and safety power generators” in the\n\ngarage. J.A. 208. MDG apparently didn’t install the generators very well, though, for\n\nwhen they started up in August 2014, they caught fire, wrecking the generators and\n\ndelaying the 217-unit building’s opening.\n\n\n\n\n 2\n\f Blaming MDG for the damage, Gateway demanded that its contractor “cure the\n\nnegligent design and installation” of the generators. J.A. 209. But it didn’t sue MDG, at\n\nleast initially. And in September 2014, MDG went out of business.\n\n Before starting work on the Gateway project, MDG had bought liability insurance\n\nfrom Illinois Union. Under the policy, Illinois Union had agreed to indemnify MDG for\n\nlegal claims that might arise from the Gateway job. The front page of the policy advised\n\nthat it provided liability coverage “ON A CLAIMS-MADE AND REPORTED\n\nBASIS,” meaning that it covered “ONLY CLAIMS FIRST MADE AGAINST THE\n\nINSURED AND REPORTED TO THE INSURER, IN WRITING, DURING THE\n\nPOLICY PERIOD.” J.A. 256 (typeface in original). To further stress the point, the\n\npolicy made it a “condition precedent to coverage” that any claim be reported to the\n\ninsurer during the policy period. J.A. 259. The policy period began on February 1, 2014,\n\nand ended one year later on February 1, 2015. 1\n\n MDG apparently never told Illinois Union about Gateway’s potential claim before\n\nits insurance policy expired in 2015. Instead, Illinois Union first heard about the\n\ngenerator incident on September 6, 2016, after Gateway notified MDG’s insurers that it\n\nintended to sue. Ten days later, Gateway sued MDG in Virginia state court alleging\n\nnegligence and breach of contract.\n\n\n\n\n 1\n The policy also provided a 60-day “extended reporting period,” subject to\nvarious conditions. J.A. 269. These provisions have no bearing on this appeal.\n\n\n 3\n\f In early October 2016, MDG learned that Illinois Union had denied it coverage for\n\nGateway’s claim. The denial letter, sent by Chubb North American Claims “on behalf\n\nof” Illinois Union, 2 explained that because the claim was first reported in September\n\n2016 there was “no coverage for this matter as no claims were made and reported during\n\nthe policy period.” J.A. 294, 296. A couple of weeks later, Gateway’s counsel received a\n\ncopy of Illinois Union’s denial letter from MDG’s insurance broker. Chubb, however,\n\ndidn’t contact Gateway directly about its coverage denial until January 23, 2017.\n\n In the meantime, Gateway’s lawsuit against MDG proceeded in state court. MDG\n\nnever appeared, so the court entered a default judgment awarding Gateway $910,148 in\n\ndamages and $22,580 in costs and attorneys’ fees.\n\n B.\n\n Having obtained this judgment, Gateway filed the present lawsuit seeking to\n\ncollect from Illinois Union under MDG’s liability policy. Gateway first sued in Virginia\n\nstate court, but Illinois Union removed the case to the U.S. District Court for the Eastern\n\nDistrict of Virginia, invoking that court’s diversity jurisdiction. (Gateway is a citizen of\n\nVirginia and Maryland, whereas Illinois Union is a citizen of Pennsylvania and Illinois.)\n\nGateway moved unsuccessfully to remand. See Gateway Residences at Exch., LLC v. Ill.\n\nUnion Ins. Co., No. 1:17-cv-629, 2017 WL 7805743, at *2 (E.D. Va. Sept. 11, 2017).\n\n Following discovery, the district court granted summary judgment to Illinois\n\nUnion because its policy didn’t cover claims first reported after the policy period ended\n\n 2\n Illinois Union’s parent company, ACE USA, merged with Chubb in 2016.\n\n\n 4\n\fin February 2015. The court also rejected Gateway’s contention that Illinois Union had\n\nwaived this noncoverage argument because it gave Gateway untimely notice of its denial.\n\nGateway Residences at Exch., LLC v. Ill. Union Ins. Co., No. 1:17-cv-629,\n\n2018 WL 1629107, at *2–4 (E.D. Va. Apr. 3, 2018). This appeal followed.\n\n\n\n II.\n\n Gateway challenges the district court’s refusal to remand the case and its entry of\n\njudgment in Illinois Union’s favor. We have reviewed both issues de novo and find no\n\nerror.\n\n A.\n\n Gateway first argues that the district court lacked subject matter jurisdiction and\n\nshould have remanded this case to Virginia state court. It contends that the present suit is\n\na “direct action” against an insurer and that Illinois Union therefore assumes the\n\ncitizenship of its insured under 28 U.S.C. § 1332(c)(1). Were that true, the court would\n\nlack diversity jurisdiction because both Gateway and Illinois Union’s insured, MDG, are\n\ncitizens of Virginia. We disagree, however, that Gateway’s lawsuit is a “direct action.”\n\n Federal courts have original jurisdiction over suits for more than $75,000 between\n\n“citizens of different States.” 28 U.S.C. § 1332(a)(1). For diversity jurisdiction\n\npurposes, a corporation is a citizen of any state in which it is incorporated, plus the state\n\nor foreign country “where it has its principal place of business.” Id. § 1332(c)(1). But\n\n§ 1332(c) has an extra citizenship rule for insurance companies. Namely:\n\n\n\n 5\n\f [I]n any direct action against the insurer of a policy or contract of liability\n insurance . . . to which action the insured is not joined as a party-defendant,\n such insurer shall be deemed a citizen of . . . every State and foreign state of\n which the insured is a citizen.\n\nId. § 1332(c)(1)(A). In other words, if a plaintiff brings a “direct action” against a\n\nwrongdoer’s liability insurer, the insurer assumes the citizenship of the insured. Kong v.\n\nAllied Prof’l Ins. Co., 750 F.3d 1295, 1299 (11th Cir. 2014).\n\n On its face, this language sweeps broadly, potentially covering any lawsuit in\n\nwhich a third party sues a liability insurer over its insured’s conduct. But the unanimous\n\nunderstanding of our sister circuits has been that “direct action” as used in § 1332(c) has\n\na much narrower meaning. Specifically, it refers to a suit in which the plaintiff sues a\n\nwrongdoer’s liability insurer without joining or first obtaining a judgment against the\n\ninsured. Kong, 750 F.3d at 1300; accord Hyland v. Liberty Mut. Fire Ins. Co., 885 F.3d\n\n482, 484–85 (7th Cir. 2018); Rosa v. Allstate Ins. Co., 981 F.2d 669, 675 (2d Cir. 1992);\n\nBeckham v. Safeco Ins. Co. of Am., 691 F.2d 898, 901–02 (9th Cir. 1982); see Velez v.\n\nCrown Life Ins. Co., 599 F.2d 471, 473 (1st Cir. 1979); Henderson v. Selective Ins. Co.,\n\n369 F.2d 143, 149 (6th Cir. 1966); see also 7A Couch on Insurance § 107:4 (3d ed.\n\nupdated 2018) (collecting additional cases).\n\n Section 1332(c)’s legislative history strongly supports this reading. In 1964,\n\nCongress added language to the diversity jurisdiction statute to address “direct action”\n\nlawsuits allowed by the laws of Louisiana and Wisconsin. See S. Rep. No. 88-1308, at\n\n1–2 (1964); see also Velez, 599 F.2d at 473. Under these laws, a plaintiff may sue a\n\ntortfeasor’s liability insurer without joining the tortfeasor as a defendant and establish\n\n\n 6\n\fboth the insured’s liability and the insurer’s obligation in a single suit. See La. Stat. Ann.\n\n§ 22:1269(B); Wis. Stat. Ann. § 632.24. Such statutes often created federal diversity\n\njurisdiction when the insurer’s citizenship was different from the plaintiff’s. And as a\n\nresult, what were essentially tort disputes between local residents would end up in federal\n\ncourt. See H.R. Rep. No. 88-1229, at 1–2 (1964); cf. Lumbermen’s Mut. Cas. Co. v.\n\nElbert, 348 U.S. 48, 56–57 (1954) (Frankfurter, J., concurring) (bemoaning “direct\n\naction” forum-shopping). In response, Congress amended § 1332(c) to provide that the\n\ndefendant insurer adopts the insured’s citizenship in such cases, thereby destroying\n\ndiversity and ensuring that the merits of the tort claim would be resolved in state court.\n\n Given this provision’s background, we agree with the Eleventh Circuit that the\n\n“key feature” of a direct action is “the plaintiff’s ability to skip suing the [tortfeasor] and\n\nsue directly his insurance carrier.” Kong, 750 F.3d at 1300–01 (internal quotation marks\n\nomitted). When a plaintiff must either join the local tortfeasor or first obtain a separate\n\njudgment against it, the lack of diverse citizenship forces the state tort claim into state\n\ncourt. It’s only when the plaintiff skips this step and sues the insurer directly that the\n\nconcerns behind Congress’s “direct action” amendments are implicated. See Kong, 750\n\nF.3d at 1300–01 (no direct action when plaintiff sued insurer after obtaining judgment\n\nfrom insured); Hyland, 885 F.3d at 485 (same).\n\n Under this definition, Gateway’s lawsuit is not a direct action. Virginia doesn’t\n\nhave a direct action statute but instead requires a third-party claimant to first obtain a\n\njudgment against the insured. The claimant may then sue the insurer on the policy to\n\ncollect the judgment. Va. Code Ann. § 38.2-2200; Richmond, Fredericksburg, &\n\n 7\n\fPotomac R.R. Co. v. Hughes-Keegan, Inc., 152 S.E.2d 28, 33–34 (Va. 1967). And that is\n\njust what happened here. Gateway obtained a default judgment against MDG in state\n\ncourt then sued to collect that judgment under Illinois Union’s liability policy. Gateway\n\ndid not (and could not) skip the tortfeasor, the insured. Its present lawsuit is therefore not\n\na direct action within the meaning of § 1332(c)(1).\n\n Gateway’s arguments do not persuade otherwise. First, it notes that we have\n\npreviously used the words “direct action” to describe, under Virginia law, a lawsuit\n\nagainst an insurer to enforce a judgment against its insured. See Morrel v. Nationwide\n\nMut. Fire Ins. Co., 188 F.3d 218, 221–22 (4th Cir. 1999). But in Morrel, we used “direct\n\naction” in the generic sense of a lawsuit filed against an insurer. We did not consider\n\nwhether such a suit fits the technical meaning of § 1332(c). Second, Gateway points us\n\nto a sprinkling of district court cases holding that suits like this one are direct actions\n\nbecause they essentially do “in two steps” what Louisiana’s and Wisconsin’s statutes “did\n\nin one.” See, e.g., Sherman v. Pa. Lumbermen’s Mut. Ins. Co., 21 F. Supp. 2d 543, 544–\n\n45 (D. Md. 1998) (quoting Prendergast v. All. Gen. Ins. Co., 921 F. Supp. 653, 655 (E.D.\n\nMo. 1996)). But these cases, as the weight of contrary circuit precedent shows, are\n\nplainly wrong. It is precisely the first step of suing the insured tortfeasor (or, for that\n\nmatter, the simultaneous step of joining it as a party) that funnels the tort suit into state\n\ncourt and thus eases Congress’s jurisdictional and forum-shopping concerns.\n\n This lawsuit, in sum, is not a direct action for purposes of § 1332(c)(1), and\n\nIllinois Union therefore does not adopt MDG’s Virginia citizenship. Because this lawsuit\n\n\n\n 8\n\finstead pits a Virginia plaintiff against an Illinois defendant, the district court had\n\ndiversity jurisdiction and rightly refused to remand to state court.\n\n B.\n\n On the merits, the district court awarded summary judgment to Illinois Union\n\nbecause its policy covered only claims made and reported during the policy period and\n\nGateway’s claim wasn’t reported until well after the policy had expired. Gateway’s main\n\ncontention on appeal is that, under a Virginia statute, Illinois Union waived that argument\n\nby failing to inform Gateway of its coverage denial within 45 days of receiving the claim.\n\nIllinois Union, in response, says the relevant statute doesn’t apply in this case.\n\n Gateway’s waiver argument invokes Virginia Code Section 38.2-2226. Under this\n\nstatute, an insurer that wants to defend against a third-party claimant based on its\n\ninsured’s breach of the underlying policy must notify the claimant of that intention.\n\nSpecifically, it provides that:\n\n Whenever any insurer on a policy of liability insurance discovers a breach\n of the terms or conditions of the insurance contract by the insured, the\n insurer shall notify the claimant or the claimant’s counsel of the breach.\n Notification shall be given within forty-five days after discovery by the\n insurer of the breach or of the claim, whichever is later.\n\nVa. Code. Ann. § 38.2-2226. Failure to give the required 45 days’ notice “will result in a\n\nwaiver of the defense based on such breach to the extent of the claim by operation of\n\nlaw.” Id.\n\n The statute’s text makes two things clear: it covers denials based on the insured’s\n\n“breach” of the terms and conditions of the policy and applies to arguments properly\n\ncharacterized as waivable “defenses.” Courts have therefore rightly held that that the\n\n 9\n\fstatue (or its precursor) doesn’t apply when an insurer denies coverage because the claim\n\nfalls outside the scope of policy coverage. See Cheatham v. NGM Ins. Co., No.\n\n3:12cv263-HEH, 2013 WL 509049, at *5 (E.D. Va. Feb. 11, 2013); Berry v. State Farm\n\nMut. Auto Ins. Co., 340 F. Supp. 228, 231 (E.D. Va. 1972); Jackson v. Middleton, 90 Va.\n\nCir. 279, 2015 WL 10765161, at *3–4 (Va. Cir. Ct. 2015). The argument that a claim is\n\noutside the scope of coverage is not about an insured’s “breach” of contract. A “breach”\n\nassumes a legal duty on the insured’s part, but the insured obviously has no legal duty to\n\nincur covered claims. Likewise, a denial based on scope of coverage is not a “defense,”\n\nas a “defense” presupposes the insurer’s existing obligation to provide coverage.\n\n With this understanding, we conclude that the statute doesn’t apply in this case.\n\nIllinois Union hasn’t denied coverage because of MDG’s breach. Rather, it asserts—\n\ncorrectly—that the present claim is simply not covered by the policy.\n\n As the policy’s bold, all-caps preface makes clear, Illinois Union sold MDG a\n\n“claims-made-and-reported” policy. This is a type of “claims-made” policy, which\n\ndiffers from an ordinary “occurrence” policy in the type of risk it insures. An occurrence\n\npolicy insures against a specific occurrence (say, a car accident or building fire), and\n\nusually doesn’t depend on when the claim itself is filed. In contrast, under a claims-made\n\npolicy, the making of the claim itself is the peril being insured. First Am. Title Ins. Co. v.\n\nCont’l Cas. Co., 709 F.3d 1170, 1174 n.2 (5th Cir. 2013). Coverage usually attaches to a\n\nclaim made during the policy period regardless of when the events underlying the claim\n\ntook place. Id. See generally 7 Couch, supra, § 102:22 (describing different liability\n\npolicies).\n\n 10\n\f Claims-made-and-reported policies, like the one Illinois Union sold MDG, are a\n\ndistinct brand of claims-made policies. A claims-made-and-reported policy usually\n\n“requires the claim both be made against the insured and reported to the insurer during\n\nthe policy period.” Sherwood Brands, Inc. v. Great Am. Ins. Co., 13 A.3d 1268, 1282\n\n(Md. 2011). If no claim is reported, no coverage is triggered, even if the events\n\nunderlying the claim took place during the policy period. And after the policy expires,\n\n“the insurer’s potential liability ends.” T.H.E. Ins. Co. v. P.T.P. Inc., 628 A.2d 223, 227\n\n(Md. 1993) (quoting St. Paul Fire & Marine Ins. Co. v. House, 554 A.2d 404, 418 (Md.\n\n1989) (Murphy, C.J., dissenting)).\n\n We do not think Virginia Code Section 38.2-2226 applies when, as here, an\n\ninsurer denies coverage under a claims-made-and-reported policy because no claim was\n\nreported during the policy period. Illinois Union’s potential liability under this policy\n\nended when it expired in February 2015, so the policy simply can’t cover a claim first\n\nreported to the insurer a full 19 months later in September 2016. Illinois Union is\n\ntherefore not raising a “defense based on [an insured’s] breach.” Va. Code. Ann. § 38.2-\n\n2226. There was no “breach” because, after February 2015, there was no policy to be\n\nbreached; there is no “defense” because, after February 2015, Illinois Union had no\n\ncoverage obligation to defend against. See T.H.E., 628 A.2d at 227, 230 (holding, under\n\nsimilar Maryland statute, that denial of claim made after expiry of claims-made-and-\n\nreported policy “resulted from the terms of coverage” and “is not attributed to a ‘breach’”\n\nby the insured); Minn. Lawyers Mut. Ins. Co. v. Baylor & Jackson, PLLC, 531 F. App’x\n\n312, 325 (4th Cir. 2013) (Thacker, J., dissenting) (“If [the act triggering coverage]\n\n 11\n\foccurred after the expiration of the liability policy . . . there is simply no policy which the\n\ninsured can breach when it fails to notify the insurer of the claim.”). Because Illinois\n\nUnion’s argument is based on noncoverage, and not on MDG’s breach, Section 38.2-\n\n2226 does not apply. 3\n\n Besides being textually awkward, Gateway’s reading of Section 38.2-2226 would\n\nhave the policy embrace claims it was never intended to cover. In a claims-made-and-\n\nreported policy, the condition that claims be reported during the policy period is an\n\nessential part of the bargain between insurer and insured. See Chas T. Main, Inc. v.\n\nFireman’s Fund Ins. Co., 551 N.E.2d 28, 29–30 (Mass. 1990). For the insurer, claim-\n\ntriggering reporting allows it to “close its books on a policy at its expiration and therefore\n\nattain a level of predictability unattainable under standard occurrence policies.” First\n\nAm., 709 F.3d at 1175 (internal quotation marks omitted). In exchange, the insurer may\n\naccept a lower premium from the insured than it would for an occurrence policy with\n\nenduring liability. Id.; Stine v. Cont’l Cas. Co., 349 N.W.2d 127, 131 (Mich. 1984).\n\n\n\n\n 3\n Gateway puts heavy stock in Section 38.2-2226’s use of the phrase “terms or\nconditions” and language in Illinois Union’s policy that makes reporting a claim during\nthe policy period a “condition precedent to coverage.” J.A. 259 (emphasis added). But\nGateway’s focus on this single word ignores the broader statutory language. The statute\napplies only to “conditions” that can plausibly be “breached,” and where the breach of\nsuch conditions could rightly be understood as a “defense” to coverage. That is not true\nabout the reporting condition in a claims-made-and-reported policy. See Sherwood\nBrands, 13 A.3d at 1288 (where notice of claim under claims-made policy occurs only\nafter expiration, “this non-occurrence of the condition precedent to coverage is not a\n‘breach of the policy’”).\n\n\n 12\n\f Applying Section 38.2-2226 as Gateway urges, however, would expand the policy\n\nto confer benefits that MDG didn’t pay for and that Illinois Union never agreed to\n\nprovide. Though Virginia’s legislature clearly designed Section 38.2-2226 to override\n\ncertain defenses, we doubt it intended the statute to effectively rewrite basic coverage\n\nterms of insurance contracts. Cf. Burns v. Int’l Ins. Co., 929 F.2d 1422, 1424–25 (9th\n\nCir. 1993) (declining, for this reason, to apply a similar California rule to a claims-made\n\npolicy); Zuckerman v. Nat’l Union Fire Ins. Co., 495 A.2d 395, 405–06 (N.J. 1985)\n\n(same under New Jersey law).\n\n Gateway’s effort to shoehorn this dispute into Section 38.2-2226 misconstrues the\n\ninsurance contract at issue. Gateway says its demand on MDG in August 2014 triggered\n\ncoverage under the policy and obligated MDG to report that claim to its insurer. MDG’s\n\nfailure to make that report, Gateway says, was a “breach of the reporting condition.”\n\nAppellant’s Br. at 30. But under Illinois Union’s claims-made-and-reported policy, the\n\nact triggering coverage was not Gateway’s 2014 demand, as Gateway claims, but rather\n\nthe communication of that claim to Illinois Union, which didn’t happen until well after\n\nthe policy expired.\n\n This case might come out quite differently had MDG reported Gateway’s demand\n\nin 2014, or had MDG instead bought an occurrence policy. In those scenarios, coverage\n\nunder the policy would likely have been triggered, leaving Illinois Union to defend,\n\nperhaps, because MDG didn’t give prompt enough notice or failed to fully cooperate with\n\nthe insurer. In similar circumstances, courts have required notice under the statute at\n\nissue. See Morrel, 188 F.3d at 226–27 (insurer waived defense based on insured’s failure\n\n 13\n\fto assist); Fed. Ins. Co. v. Nationwide Mut. Ins. Co., 448 F. Supp. 723, 725–26 (waived\n\ndefense based on insured’s failure to notify “as soon as practicable”). But those are not\n\nthe facts of this case. Here, MDG bought a claims-made-and-reported policy and\n\nreported no claim to Illinois Union during the policy period. MDG did not “breach” the\n\npolicy by not reporting Gateway’s 2014 demand any more than one breaches a fire\n\ninsurance policy by incurring damage from a flood.\n\n Applying the text of the statute to the policy terms MDG and Illinois Union agreed\n\nto, we hold that Section 38.2-2226 does not apply to Illinois Union’s denial of coverage.\n\nIllinois Union may therefore deny Gateway coverage despite allegedly failing to give\n\nnotice. And since the policy by its clear terms does not cover Gateway’s post-\n\ntermination claim, summary judgment for Illinois Union was proper. 4\n\n III.\n\n We hold that the district court had subject matter jurisdiction and properly\n\nawarded summary judgment in Illinois Union’s favor. The judgment of the district court\n\nis therefore\n\n AFFIRMED.\n\n\n\n\n 4\n Given our holding, we do not decide whether Illinois Union complied with\nVirginia’s notice statute because Gateway received actual (though indirect) notice of the\ndenial less than 45 days after making its claim.\n\n\n\n 14", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372466/", "author_raw": "DIAZ, Circuit Judge:"}]} | AGEE | DIAZ | HARRIS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4595213/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,586,728 | United States v. David Hughes | 2019-02-01 | 18-20015 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before REAVLEY, ELROD, and WILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "REAVLEY, Circuit Judge:", "type": "010combined", "text": "REVISED February 1, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 18-20015\n United States Court of Appeals\n Fifth Circuit\n\n FILED\nUNITED STATES OF AMERICA, January 30, 2019\n Lyle W. Cayce\n Plaintiff – Appellee, Clerk\n\nv.\n\nDAVID THOMAS HUGHES,\n\n Defendant – Appellant.\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore REAVLEY, ELROD, and WILLETT, Circuit Judges.\nREAVLEY, Circuit Judge:\n David Thomas Hughes pleaded guilty to bank burglary. He was\nsentenced to 240 months in prison and ordered to pay $189,933.31 in\nrestitution, with interest charged. The judgment provided that $100 was “due\nimmediately” and provided the following payment schedule for the remaining\namount:\n Balance due in payments of the greater of $25 per quarter or 50%\n of any wages earned while in prison in accordance with the Bureau\n of Prisons’ Inmate Financial Responsibility Program. Any balance\n remaining after release from imprisonment shall be paid in equal\n\f No. 18-20015\n monthly installments of $500 to commence 60 days after the\n release to a term of supervision.\n\n Several years later the government discovered that Hughes had\naccumulated $3,464.85—largely prison wages—in his inmate trust account.\nPursuant to 18 U.S.C. §§ 3613(a), 3664(n), and 3664(k), the government moved\nfor the immediate turnover of those funds. Hughes opposed the request and\nfiled a cross-motion to release funds, arguing, inter alia, that the district court\n(1) only required him to make payments in installments and (2) “specifically\ndeclined to order immediate payment of the entire amount.” Agreeing with the\ngovernment, however, the district court ordered the immediate turnover of\n“funds up to the amount of $ 201,493.63,” with a $200 carve out for Hughes’s\ntelephone and commissary needs. Hughes timely appealed.\n On appeal, Hughes argues that the district court erred in granting the\ngovernment’s motion because his criminal judgment required the restitution\nbalance owed beyond $100 to be paid in quarterly installments and did not\norder that the balance be paid immediately. Because the government does not\nallege that he defaulted on his restitution payments, Hughes argues, the\ngovernment lacked the authority to seek immediate payment of the full\nrestitution amount.\n The parties do not cite, and research has not revealed, any binding\nprecedent from this court analyzing a case to Hughes’s, in which the criminal\njudgment included a repayment schedule that began during the term of\nimprisonment but did not state that the full restitution amount was due\nimmediately. Hughes, however, directs us to United States v. Martinez, in\nwhich the Tenth Circuit confronted a structurally similar payment schedule.\n812 F.3d 1200 (10th Cir. 2015). The judgment in Martinez required the\ndefendant to pay “$300 immediately,” with the “balance due” in accordance\nwith an installment schedule. Id. at 1203–04. Although the defendant had\n 2\n\f No. 18-20015\ncomplied with his payment plan, the government nevertheless sought\ngarnishment of his retirement accounts. Id. at 1202.\n The Tenth Circuit concluded that the government lacked the authority\nto garnish the defendant’s retirement accounts because doing so would exceed\nthe terms of the restitution order; it reasoned that:\n By statute, it is the district court—not the government—that\n determines how a defendant is to pay restitution. See [18 U.S.C.] §\n 3664(f)(2) (“[T]he court shall . . . specify in the restitution order the\n manner in which, and the schedule according to which, the\n restitution is to be paid . . . .”) (emphasis added)). Thus, the\n government can enforce only what the district court has ordered\n the defendant to pay. See Enforce, Black’s Law Dictionary 645\n (10th ed. 2014) (defining “enforce” primarily as “[t]o give force or\n effect to [a law]; to compel obedience to [a law]”).\nId. The court rejected the government’s argument that it could enforce the full\namount notwithstanding the installment schedule, construing § 3572(d), which\nprovides that “[a] person sentenced to pay . . . restitution . . . shall make such\npayment immediately, unless, in the interest of justice, the court provides for\npayment . . . in installments,” to imply that the full restitution amount is not\ndue immediately when a court orders repayment pursuant to an installment-\nbased plan. Id. at 1205.\n We are persuaded by the Tenth Circuit’s analysis. When a restitution\norder specifies an installment plan, unless there is language directing that the\nfunds are also immediately due, the government cannot attempt to enforce the\njudgment beyond its plain terms absent a modification of the restitution order\nor default on the payment plan. See § 3572(d)(1); Martinez, 812 F.3d at 1205.\nTurning to Hughes’s order, we find no language directing that the full\nrestitution amount was immediately due or owing, and the government does\n\n\n\n\n 3\n\f No. 18-20015\nnot allege he was in default. 1 Like Martinez, Hughes’s criminal judgment\nspecifies that a small amount ($100) was due immediately, and for the\nremaining balance to be paid in installments. The government cannot enforce\nrestitution payments beyond those terms unless Hughes defaults on his\npayments or the district court modifies the payment schedule.\n The government points to United States v. Ekong, 518 F.3d 285 (5th Cir.\n2007) (per curiam) and United States v. Diehl, 848 F.3d 629 (5th Cir. 2017) in\nsupport of its argument that Hughes’s payment schedule is of no consequence.\nBoth are distinguishable because the judgments in those cases contained\ndifferent language. The payment schedule in Ekong, for example, was\nconditioned on whether a balance remained when the defendant began her\nterm of supervised release. 2 In rejecting the defendant’s argument that the\ngovernment was barred from seeking immediate payment “because the\ncriminal judgment specified that restitution be paid in installments,” we noted\nthat “[t]here [was] nothing in the criminal judgment to the contrary.” Ekong,\n518 F.3d at 286. From this, we infer that the full restitution amount was\ncollectible immediately simply because the payment schedule was never\ntriggered. See id.; see Martinez, 812 F.3d at 1207. Ekong is thus\ndistinguishable.\n\n\n\n\n 1 Although the government argues that it can seek payment beyond the installment\nschedule because the judgment says that “[u]nless the court has expressly ordered\notherwise . . . payment of criminal monetary penalties is due during imprisonment,” this is a\ndefault provision and, as explained, the court expressly ordered otherwise. See United States\nv. Roush, 452 F. Supp. 2d 676, 681 (N.D. Tex. 2006) (“The negative pregnant of that default\nprovision is that if the court has expressly ordered otherwise—as this Court did by checking\nbox D—then payment is not due during imprisonment.”).\n 2 See Martinez, 812 F.3d at 1207 (“If upon commencement of the term of supervised\n\nrelease any part of the restitution remains unpaid, the defendant shall make payments on\nsuch unpaid balance beginning 60 days after the release from custody at the rate of $500 per\nmonth until the restitution is paid in full.”) (quoting Judgment in a Criminal Case at\n6, United States v. Ekong, No. 3:04–CR–030–M (N.D. Tex. Sept. 10, 2004), ECF No. 74).\n 4\n\f No. 18-20015\n And the judgment in Diehl did not specify a payment schedule; rather, it\nprovided that “[i]f the defendant is unable to pay this indebtedness at this\ntime, the defendant shall cooperate fully with the [government] to make\npayment in full as so[o]n as possible, including during any period of\nincarceration.” 848 F.3d at 630. The relevant issue there was whether the\ndefendant’s participation in the BOP’s inmate financial responsibility program\nand adherence to its payment schedule barred the government from enforcing\nthe full restitution amount. Id. at 633. Although we agreed with the decisions\nof other courts “determining that an inmate’s compliance with an IFRP\npayment schedule does not change the fact that the Government may collect\non a criminal monetary penalty immediately,” we noted this would only be the\ncase “where the judgment does not specify a payment schedule.” Id. Indeed, we\nheld the government could demand immediate payment in Diehl because the\njudgment “did not . . . specify installment payments for satisfaction of either\nthe fine or the special assessment as required by 18 U.S.C. § 3572(d) to disrupt\nthe default rule of immediate payment.” Id. at 635. Importantly, we noted that\nthe government’s “enforcement of the order against Diehl’s property, including\nsurplus funds held in his inmate trust account, did not exceed the terms of the\noriginal judgment.” Id. (emphasis added). As discussed, that is not the case\nhere, as the government’s attempt to enforce the full restitution amount\nconflicts with the installment-based directive in Hughes’s original judgment.\n The government argues in the alternative that it is entitled to the funds\nin Hughes’s trust account by virtue of § 3664(n), which provides:\n If a person obligated to provide restitution, or pay a fine, receives\n substantial resources from any source, including inheritance,\n settlement, or other judgment, during a period of incarceration,\n such person shall be required to apply the value of such resources\n to any restitution or fine still owed.\n\n\n\n 5\n\f No. 18-20015\n We do not think the gradual accumulation of prison wages constitutes\n“substantial resources” such that it fits within § 3664(n)’s ambit; rather we\nthink this provision refers to windfalls or sudden financial injections. 3 Indeed,\nin United States v. Scales, we suggested that this provision contemplates\n“unanticipated resources” that become “suddenly available.” 639 F. App’x 233,\n239 (5th Cir. 2016) (per curiam); see also United States v. Bratton-Bey, 564 F.\nApp’x 28, 29 (4th Cir. 2014) (“Additionally, a defendant’s receipt of a windfall\nduring imprisonment triggers an automatic payment requirement.”); United\nStates v. Key, No. 3:12-CV-3026-L, 2013 WL 2322470, at *2 (N.D. Tex. May 28,\n2013) (“There is no indication that Key has received a ‘windfall’ or ‘substantial\nresources’ of the type in section 3664(n).”). 4 Put simply, we think the examples\nlisted in § 3664(n)—“inheritance, settlement, or other judgment”—fit the mold\nof “substantial resources,” but that prison wages do not. As a result, the\ngovernment is not entitled to the immediate turnover of Hughes’s inmate trust\naccount under § 3664(n).\n The government’s final argument arises under § 3664(k), which grants a\ndistrict court the authority to modify a payment schedule upon receiving\nnotification of a “material change in the defendant’s economic circumstances.”\n§ 3664(k); see United States v. Franklin, 595 F. App’x 267, 272 (5th Cir. 2014)\n\n\n\n 3 Although the government urges us to follow United States v. Poff, in which the Ninth\nCircuit concluded that veteran disability benefits deposited into an inmate’s trust account\nconstituted “substantial resources,” we note the Supreme Court recently vacated and\nremanded the judgment in that case. 727 F. App’x 249, 251 (9th Cir. 2018), cert. granted,\njudgment vacated, 18-195, 2019 WL 113040 (U.S. Jan. 7, 2019).\n 4 See also United States v. French, No. 3:09-CV-1657-BF, 2010 WL 11618076, at *1\n\n(N.D. Tex. Aug. 19, 2010) (“Similarly, a windfall during incarceration triggers an automatic\nobligation to pay restitution.”); Roush, 452 F. Supp. 2d at 679 (N.D. Tex. 2006) (“Moreover, a\ndefendant’s receipt of a windfall during imprisonment triggers an automatic payment\nrequirement.”). We also note the Supreme Court recently favored a narrower reading of the\nMVRA. See Lagos v. United States, 138 S. Ct. 1684, 1689 (2018) (“To interpret the statute\nbroadly is to invite controversy on those and other matters; our narrower construction avoids\nit.”).\n 6\n\f No. 18-20015\n(per curiam) (“A district court may adjust a restitution-payment schedule when\nthere has been a ‘material change in the defendant’s economic circumstances\nthat might affect the defendant’s ability to pay restitution.’”). Although it is\ndubious whether the gradual accumulation of prison wages constitutes a\n“material change in the defendant’s economic circumstances,” we note that the\ndistrict court’s turnover order was not based on § 3664(k), and we find no\nlanguage demonstrating that it intended to adjust or modify the payment\nschedule contained in Hughes’s original judgment.\n The district court’s order dated November 27, 2017, is VACATED.\n\n\n\n\n 7", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363981/", "author_raw": "REAVLEY, Circuit Judge:"}]} | REAVLEY | ELROD | WILLETT | 1 | {"REAVLEY": ", Circuit", "ELROD": ", Circuit", "WILLETT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4586728/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,586,730 | ST. BERNARD PARISH, Through the St. Bernard Parish Government, Plaintiff-Appellee, v. LAFARGE NORTH AMERICA, INCORPORATED, Defendant-Appellee, v. Richard T. Seymour; Law Office of Richard T. Seymour, P.L.L.C., Movants-Appellants. | St. Bernard Parish v. Lafarge North America, Inc. | 2019-02-01 | 18-30029 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Stewart, Dennis, Willett", "parties": "", "opinions": [{"author": "DON R. WILLETT, Circuit Judge:", "type": "010combined", "text": "Case: 18-30029 Document: 00514819166 Page: 1 Date Filed: 02/01/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 1, 2019\n No. 18-30029\n Lyle W. Cayce\n Clerk\nST. BERNARD PARISH, Through the St. Bernard Parish Government,\n\n Plaintiff–Appellee,\n\nv.\n\nLAFARGE NORTH AMERICA, INCORPORATED,\n\n Defendant–Appellee,\n\nv.\n\nRICHARD T. SEYMOUR; LAW OFFICE OF RICHARD T. SEYMOUR,\nP.L.L.C.,\n\n Movants–Appellants.\n\n\n Appeal from the United States District Court\n for the Eastern District of Louisiana\n\n\nBefore STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.\nDON R. WILLETT, Circuit Judge:\n When Hurricane Katrina struck in 2005, a barge moored by Lafarge\nwound up at large. According to New Orleans residents then represented by\nRichard T. Seymour, the breakaway barge hurtled through a floodwall,\nunleashing catastrophic flooding in the Lower 9th Ward before finally coming\nto rest atop several homes and a yellow school bus. (It remains disputed\nwhether the barge caused the breach or surfed through it after the floodwall\ngave way.)\n\f Case: 18-30029 Document: 00514819166 Page: 2 Date Filed: 02/01/2019\n\n\n\n No. 18-30029\n Seymour withdrew from the Barge Litigation in 2011. But when it\nsettled several years later, he moved to intervene in this related case to pursue\nhis fees and expenses. We agree with the district court that Seymour’s\nintervention motion was untimely. As to intervention of right, we AFFIRM the\ndistrict court’s order. As to permissive intervention, we DISMISS Seymour’s\nappeal for lack of jurisdiction.\n\n I. BACKGROUND\nA. Factual\n In August 2005, Hurricane Katrina, the most destructive natural\ndisaster in United States history, inflicted cataclysmic damage on New\nOrleans. According to many residents of the Lower 9th Ward, a predominantly\nAfrican-American neighborhood bordering the Industrial Canal, the damage\nwas worsened by a barge that broke free and allided with a floodwall before\ncrashing into the residential streets, unleashing a surge of water that ripped\nhomes from their foundations before scattering them in splinters. 1 The\nresidents alleged that the barge had been improperly moored at a facility\nowned by Lafarge North America, Inc. The district court consolidated many of\nthe resulting cases into the Barge Litigation.\n Appellants Richard T. Seymour and the Law Office of Richard T.\nSeymour, P.L.L.C. represented plaintiffs in the Barge Litigation. Seymour\nperformed significant work in the consolidated cases, as noted in the order\ngranting his motion to withdraw. This work contributed to multiple cases\nincluding, per Seymour, this one. But Seymour never represented a party in\nthis case because this action by St. Bernard Parish against Lafarge was not\nconsolidated into the Barge Litigation.\n\n\n\n 1 See generally St. Bernard Par. v. Lafarge N. Am., Inc., 550 F. App’x 184 (5th Cir.\n2013) (earlier appeal of summary-judgment decision).\n 2\n\f Case: 18-30029 Document: 00514819166 Page: 3 Date Filed: 02/01/2019\n\n\n\n No. 18-30029\nB. Procedural\n In 2011 Seymour withdrew from the Barge Litigation because of a fee\ndispute with Baker Sanders, LLC, a firm that now represents the Parish. In\ngranting Seymour’s motion to withdraw, the district court explicitly recognized\nhis potential claim to fees in the Barge Litigation. The Parish filed this case on\nAugust 23, 2011, the same day Seymour withdrew.\n About six years later, in 2017, the Parish and Lafarge settled this case.\nOn July 20 Parish counsel called Seymour to tell him that the parties had\nreached a settlement. The attorney told Seymour that at most he would be\ncompensated for only some of his expenses. On July 23 Seymour served Baker\nSanders with a Notice of Lien for fees and expenses in this case. Undaunted,\nthe Parish and Lafarge filed a joint stipulation of dismissal with prejudice.\n Seymour, intending to pursue his claim for fees in the district court,\nmoved on August 9 to appear pro hac vice. The district court denied this motion\nwithout prejudice because, before intervening in the case, Seymour would not\nhave been representing anyone. So Seymour moved to intervene on September\n17. Meanwhile, a Baker Sanders attorney had filed an interpleader action in\nNew York state court that named Seymour as a defendant. The interpleader\naction concerned the same funds that Seymour sought to pursue via\nintervention.\n The district court denied Seymour’s motion to intervene as untimely.\nSeymour appealed.\n\n\n\n\n 3\n\f Case: 18-30029 Document: 00514819166 Page: 4 Date Filed: 02/01/2019\n\n\n\n No. 18-30029\n II. JURISDICTION AND STANDARD OF REVIEW\nA. Jurisdiction\n The district court had jurisdiction based on federal question; 2 diversity; 3\nand the Multiparty, Multiforum Trial Jurisdiction Act of 2002. 4\n We have jurisdiction under 28 U.S.C. § 1291 to review the denial of the\nmotion to intervene of right. 5 And we have “provisional jurisdiction” to review\nthe denial of permissive intervention. 6 This means that “[i]f the district court’s\ndenial of permissive intervention does not constitute an abuse of discretion, we\nmust dismiss the appeal for lack of jurisdiction.” 7\nB. Standard of Review\n “A ruling denying intervention of right is reviewed de novo.” 8 But the\ntimeliness of an intervention motion is reviewed for abuse of discretion, so long\nas the district court gave reasons for its determination. 9\n “Denial of permissive intervention, on the other hand, is reviewed for\nclear abuse of discretion.” 10 “Under this standard, the Court will reverse a\ndistrict court decision only under extraordinary circumstances.” 11\n\n III. DISCUSSION\n Federal Rule of Civil Procedure 24 covers two types of intervention, one\nmandatory (“the court must permit”) 12 and the other permissive (“the court\n\n\n\n\n 2 28 U.S.C. § 1331.\n 3 28 U.S.C. § 1332.\n 4 28 U.S.C. § 1369.\n 5 Sommers v. Bank of Am., N.A., 835 F.3d 509, 512 (5th Cir. 2016).\n 6 Id. (quoting Edwards v. City of Houston, 78 F.3d 983, 992 (5th Cir. 1996) (en banc)).\n 7 Id. (quoting Edwards, 78 F.3d at 992).\n 8 Edwards, 78 F.3d at 995.\n 9 Sommers, 835 F.3d at 513; Edwards, 78 F.3d at 1000.\n 10 Edwards, 78 F.3d at 995.\n 11 Id. (quoting Cajun Elec. Power Coop. v. Gulf States Utils., Inc., 940 F.2d 117, 121\n\n(5th Cir. 1991)).\n 12 FED. R. CIV. P. 24(a).\n\n 4\n\f Case: 18-30029 Document: 00514819166 Page: 5 Date Filed: 02/01/2019\n\n\n\n No. 18-30029\nmay permit”). 13 While the provisions cover different situations, both prize\npunctuality, beginning with the same three words: “On timely motion . . . .” 14\nA. Intervention of Right\n Rule 24(a)(2) governs intervention of right based on an interest in the\naction. We have distilled the rule into four elements:\n (1) the application for intervention must be timely; (2) the\n applicant must have an interest relating to the property or\n transaction which is the subject of the action; (3) the applicant\n must be so situated that the disposition of the action may, as a\n practical matter, impair his ability to protect that interest; (4) the\n applicant’s interest must be inadequately represented by the\n existing parties to the suit. 15\n“Failure to satisfy any one requirement precludes intervention of right.” 16\nTimeliness was the only element the district court decided and is the only one\ndisputed here. In evaluating timeliness, a district court should consider four\nfactors:\n (1) The length of time during which the would-be intervenor\n actually knew or reasonably should have known of its interest in\n the case before it petitioned for leave to intervene; (2) the extent of\n the prejudice that the existing parties to the litigation may suffer\n as a result of the would-be intervenor’s failure to apply for\n intervention as soon as it knew or reasonably should have known\n of its interest in the case; (3) the extent of the prejudice that the\n would-be intervenor may suffer if intervention is denied; and\n (4) the existence of unusual circumstances militating either for or\n against a determination that the application is timely. 17\n\n\n\n\n 13 FED. R. CIV. P. 24(b).\n 14 FED. R. CIV. P. 24(a); FED. R. CIV. P. 24(b).\n 15 Sommers, 835 F.3d at 512 (quoting Texas v. United States, 805 F.3d 653, 657 (5th\n\nCir. 2015)).\n 16 Edwards, 78 F.3d at 999 (citation omitted).\n 17 Sommers, 835 F.3d at 512–13 (quoting Ford v. City of Huntsville, 242 F.3d 235, 239\n\n(5th Cir. 2001)).\n 5\n\f Case: 18-30029 Document: 00514819166 Page: 6 Date Filed: 02/01/2019\n\n\n\n No. 18-30029\n 1. Length of Time Elapsed\n Seymour says he moved to intervene less than two months after\nreceiving notice that his claim would not be paid. But the relevant starting\npoint is “not when he knew or should have known that his interests would be\nadversely affected but, instead, when he knew that he had an interest in the\ncase.” 18 Here, Seymour knew that he had an interest in the case when he\nwithdrew in 2011, six years before he moved to intervene.\n Seymour counters that the “timeliness clock” does not begin until a\nmovant knows or should know that his interest is no longer represented by an\nexisting party. 19 But in 2011 he should have also known that no remaining\nparty represented his interest. Although a plaintiff adequately represents his\nattorney’s interest during the attorney-client relationship, 20 no party in a case\nrepresents the interest of a discharged attorney. 21 And in Keith v. St. George\nPacking Co. and Gaines v. Dixie Carriers, Inc., discharged attorneys were\npermitted to intervene when their motions came within a year of being\ndischarged. 22 Here, much more time lapsed—six years from withdrawal to\nintervention. So the first timeliness factor weighs against permitting\nintervention.\n 2. Prejudice to Existing Parties\n Seymour says his intervention will not prejudice other parties because it\nwill not cause burdensome additional proceedings. He says the Parish cannot\n\n\n\n 18 Id. at 513.\n 19 See Edwards, 78 F.3d at 1000.\n 20 Valley Ranch Dev. Co. v. FDIC, 960 F.2d 550, 556 (5th Cir. 1992) (“His interest is\n\nidentical to [the client’s] until the agency relationship is broken.”).\n 21 See Keith v. St. George Packing Co., 806 F.2d 525, 526 (5th Cir. 1986) (“[N]either\n\nparty to the pending action is interested in representing [the attorney’s] interests.”); Gaines\nv. Dixie Carriers, Inc., 434 F.2d 52, 54 (5th Cir. 1970) (“Neither of the existing parties is\nconcerned with protecting the appellant’s interest.”); see also Gilbert v. Johnson, 601 F.2d\n761, 767 (5th Cir. 1979) (holding similar facts indistinguishable from Gaines).\n 22 Keith, 806 F.2d at 525; Gaines, 434 F.2d at 54.\n\n 6\n\f Case: 18-30029 Document: 00514819166 Page: 7 Date Filed: 02/01/2019\n\n\n\n No. 18-30029\nidentify anything it would have done differently had Seymour been a party all\nalong. And his fee is to be taken from the existing settlement pool, not from a\nrenewed settlement negotiation.\n Seymour is correct that opening a fee dispute between the plaintiff, its\ncurrent counsel, and former counsel would not necessarily relitigate the\nunderlying case. But it would at least hold up the distribution of settlement\nfunds, which could have been avoided had Seymour intervened when his\ninterest was no longer represented. So the second timeliness factor is neutral.\n 3. Prejudice to Seymour\n Seymour says he will be prejudiced absent intervention because it will\nbe difficult to pursue his claim elsewhere. He has numerous objections to the\nNew York interpleader action, including lack of personal jurisdiction. And he\nsays that a federal interpleader action is unavailable. But this does not rule\nout other possibilities, such as a state-law action against the Parish or Baker\nSanders to recover for his services. 23 At oral argument Seymour suggested that\nhe preferred not to bring a separate action because it would be difficult to\nobtain discovery of a confidential settlement agreement. 24 But discovery of\nconfidential settlement agreements is generally available under an\nappropriate protective order. 25 So the third timeliness factor weighs against\npermitting intervention.\n\n\n\n 23 See, e.g., Gilbert, 601 F.2d at 767 (Rubin, J., specially concurring) (stating that\nunder Georgia law the attorney “may, however, if discharged from the case by his client, bring\nan action under quantum meruit for the reasonable value of services rendered”).\n 24 Seymour cites Ford, 242 F.3d at 240, for the proposition that the presence of a\n\n“confidentiality order” is a consideration in granting or denying intervention. In Ford we\ngranted a newspaper’s motion to intervene to challenge the confidentiality of a settlement.\n242 F.3d at 241. But Ford did not address the discoverability of a confidential settlement\nagreement in a separate private dispute.\n 25 E.g., Cleveland Const. Inc. v. Whitehouse Hotel Ltd. P’ship, No. Civ.A. 01-2666, 2004\n\nWL 385052, at *1–2 (E.D. La. Feb. 25, 2004); Perez v. State Indus., Inc., 578 So. 2d 1018, 1020\n(La. Ct. App. 1991).\n 7\n\f Case: 18-30029 Document: 00514819166 Page: 8 Date Filed: 02/01/2019\n\n\n\n No. 18-30029\n 4. “Unusual Circumstances”\n Finally, Seymour says that the Parish’s or Baker Sanders’s attempt to\nwithhold his fees, including filing a questionable interpleader action, are\nspecial circumstances that favor intervention. Another special circumstance,\nhe contends: the difficulty of intervening in the Barge Litigation as it stood in\n2011—that is, in multiple fragmented cases.\n The Parish, for its part, cites precedent that moving to intervene after a\ncase is dismissed weighs against timeliness. 26 (We note, though, that the\ndismissal did not deprive the district court of jurisdiction to grant intervention\nor to grant the ultimate relief sought by Seymour. 27) Considering all of this,\nthe fourth factor is neutral.\n * * *\n Viewing the four timeliness factors together, the district court did not\nabuse its discretion in concluding that Seymour’s motion to intervene came too\nlate.\nB. Permissive Intervention\n Like intervention of right, permissive intervention must be timely. 28 As\nSeymour’s motion was untimely, no further analysis is needed. 29 The district\ncourt did not clearly abuse its discretion in denying permissive intervention,\nand this portion of Seymour’s appeal is dismissed for lack of jurisdiction. 30\n\n\n\n\n 26See Sommers, 835 F.3d at 513 (“Though the appellees are incorrect in suggesting\nthat intervention is always improper after a case has been dismissed, they are accurate in\nasserting that it is a factor weighing against timeliness.”).\n 27 See id.; United States v. Transocean Air Lines, Inc., 356 F.2d 702, 705 (5th Cir. 1966)\n\n(“[A] perfected charging lien of attorneys cannot be defeated by a dismissal by stipulation\nunder Rule 41.”).\n 28 FED. R. CIV. P. 24(b).\n 29 See, e.g., Lucas v. McKeithen, 102 F.3d 171, 173 (5th Cir. 1996) (denying\n\nintervention of right and dismissing permissive intervention based on timeliness).\n 30 See Sommers, 835 F.3d at 512.\n\n 8\n\f Case: 18-30029 Document: 00514819166 Page: 9 Date Filed: 02/01/2019\n\n\n\n No. 18-30029\n IV. CONCLUSION\n We AFFIRM the district court’s decision as to intervention of right and\nDISMISS Seymour’s appeal for lack of jurisdiction as to permissive\nintervention.\n\n\n\n\n 9", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363983/", "author_raw": "DON R. WILLETT, Circuit Judge:"}]} | STEWART | DENNIS | WILLETT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4586730/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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4,586,916 | United States v. City of Meridian | 2019-02-01 | 17-60805 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before REAVLEY, ELROD, and HIGGINSON, Circuit Judges.", "parties": "", "opinions": [{"author": "JENNIFER WALKER ELROD, Circuit Judge:", "type": "010combined", "text": "Case: 17-60805 Document: 00514819440 Page: 1 Date Filed: 02/01/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 17-60805 United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 1, 2019\nUNITED STATES OF AMERICA,\n Lyle W. Cayce\n Plaintiff – Appellant, Clerk\n\n\nv.\n\nLAUDERDALE COUNTY, MISSISSIPPI; JUDGE VELDORE YOUNG-\nGRAHAM, In her official capacity; and JUDGE LISA HOWELL, In her\nofficial capacity,\n\n Defendants – Appellees.\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Mississippi\n\n\nBefore REAVLEY, ELROD, and HIGGINSON, Circuit Judges.\nJENNIFER WALKER ELROD, Circuit Judge:\n This case presents a question of statutory interpretation. The question\nis whether the phrase “officials or employees of any governmental agency with\nresponsibility for the administration of juvenile justice,” as it is used in 34\nU.S.C. § 12601(a), includes the judges of a county youth court. Holding that it\ndoes not, we AFFIRM the judgment of the district court.\n I.\n As this is a question of statutory interpretation, we begin with the text\nof the statute. In 1994, Congress passed the Violent Crime Control and Law\n\f Case: 17-60805 Document: 00514819440 Page: 2 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nEnforcement Act. 1 Relevant to this case are the provisions found in Title XXI,\n§ 210401, 108 Stat. 2071, now codified at 34 U.S.C. § 12601. That section,\nenacted under a title heading of “State and Local Law Enforcement,” and a\nsubtitle heading of “Police Pattern or Practice,” reads as follows:\n (a) Unlawful conduct\n It shall be unlawful for any governmental authority, or any agent\n thereof, or any person acting on behalf of a governmental\n authority, to engage in a pattern or practice of conduct by law\n enforcement officers or by officials or employees of any\n governmental agency with responsibility for the administration of\n juvenile justice or the incarceration of juveniles that deprives\n persons of rights, privileges, or immunities secured or protected by\n the Constitution or laws of the United States.\n (b) Civil action by Attorney General\n Whenever the Attorney General has reasonable cause to believe\n that a violation of paragraph (1) 2 has occurred, the Attorney\n General, for or in the name of the United States, may in a civil\n action obtain appropriate equitable and declaratory relief to\n eliminate the pattern or practice.\n34 U.S.C. § 12601.\n\n\n\n\n 1 Pub. L. No. 103-322, 108 Stat. 1796 (1994).\n\n 2 The reference to “paragraph (1)” is presumably a scrivener’s error that should read\n“paragraph (a)”—as there does not appear to be a paragraph (1) in the associated statutory\nscheme to which it could plausibly be referring, and it appears quite clear that the intended\nreference was to paragraph (a). See also Holloway v. United States, 526 U.S. 1, 19 n.2 (1999)\n(Scalia, J., dissenting) (noting that a scrivener’s error in a statute may only properly be\ncorrected by a court when the text is devoid of any plausible purpose for being written in that\nmanner); United States v. X-Citement Video, Inc., 513 U.S. 64, 82 (1994) (Scalia, J.,\ndissenting) (“[T]he sine qua non of any ‘scrivener’s error’ doctrine . . . is that the meaning\ngenuinely intended but inadequately expressed must be absolutely clear; otherwise we might\nbe rewriting the statute rather than correcting a technical mistake.”).\n\n 2\n\f Case: 17-60805 Document: 00514819440 Page: 3 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\n II.\n The United States Department of Justice initiated this litigation in\nOctober 2012. In its complaint, the United States alleged, inter alia, 3 that\nLauderdale County and its two Youth Court judges 4 operated a “school-to-\nprison pipeline” and, through their administration of the juvenile justice\nprocess, were engaged in patterns or practices that denied juveniles their\nconstitutional rights under the Fourth, Fifth, and Fourteenth Amendments.\n Before we further address the litigation underlying this appeal, it will be\nuseful to offer some background on the Lauderdale County Youth Court, its\njudges, and its procedures. In Mississippi, county youth courts are divisions of\nthe county courts, and the judges of the county courts are also the judges of the\nyouth courts. Miss. Code Ann. § 43-21-107. County judges are elected for\nterms of four years, and the Governor has authority to fill vacancies by\nappointment. Id. §§ 9-9-5, 9-7-1, 9-1-103. Lauderdale County is authorized\ntwo county judges. Id. § 9-9-18.3. When a juvenile is charged with offenses\nunder youth court jurisdiction, he or she is brought before an intake officer of\nthe court who establishes jurisdiction and recommends whether informal\nresolution or custody is warranted. Id. § 43-21-357. If the juvenile is placed\ninto custody, he or she must be brought before a youth court judge within 48\nhours—excluding weekends and holidays—for a probable cause determination.\nId. § 43-21-301. If needed, the juvenile is appointed a guardian ad litem and/or\n\n\n\n 3 In the same complaint, the government also made allegations against the City of\nMeridian, through the Meridian Police Department, and the state of Mississippi, through its\nDivision of Youth Services. However, those allegations are not part of the appeal before us.\n\n 4 The complaint and initial litigation named Judges Frank Coleman and Veldore\nYoung-Graham as defendants in their official capacities. During the course of this litigation,\nJudge Coleman was replaced by Judge Lisa Howell on the Youth Court, and the parties agree\nthat she should be substituted in as a party to this appeal. We have therefore adjusted the\nstyle of the case to replace Judge Coleman with Judge Howell.\n 3\n\f Case: 17-60805 Document: 00514819440 Page: 4 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\ndefense counsel. Id. §§ 43-21-121, 43-21-201. If the juvenile is held in custody,\nan adjudicatory hearing must be held within 21 days, with a few exceptions.\nId. § 43-21-551. If the juvenile is adjudicated to be delinquent or in need of\nsupervision, a disposition hearing must then be scheduled within 14 days. Id.\n§ 43-21-601. If the disposition requires detention, the detention cannot exceed\n90 days. Id. § 43-21-605(1)(l). To perform the work of the youth courts, the\nyouth court judges may appoint intake officers, guardians ad litem, defense\ncounsel, and prosecutors. Id. §§ 43-21-119 (intake officers); 43-21-117\n(prosecutors); 43-21-121 (guardians ad litem); 43-21-201 (defense counsel).\nThe county board of supervisors controls the funding and budget for county\nyouth courts. Id. § 43-21-123.\n The government brought this action against Lauderdale County and its\nYouth Court judges under 34 U.S.C. § 12601 (formerly codified at 42 U.S.C.\n14141). By way of alleged constitutional violations, the government alleges\nthat the Lauderdale County judges: delay detention hearings for longer than\n48 hours; do not base their detention determinations on whether probable\ncause exists; do not consistently provide defense counsel; do not clearly\narticulate the standards for school suspensions; do not conduct hearings that\ndetermine whether violations occurred but instead “exist solely to determine\npunishment[;]” and do not allow juveniles sufficient access to their attorneys. 5\n By way of relief, the complaint filed by the United States seeks: (1) a\ndeclaration that constitutional violations are occurring; (2) an injunction\nagainst said unconstitutional practices; (3) an order requiring the defendants\n“to promulgate and effectuate” policies more protective of constitutional rights;\n\n\n\n 5 This list is by no means exclusive of all the alleged constitutional violations pleaded\nby the government in their complaint, but it summarizes the judges’ alleged constitutional\nviolations that were briefed by the government on appeal.\n\n 4\n\f Case: 17-60805 Document: 00514819440 Page: 5 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\n(4) an order directing the creation of “alternatives to detention and juvenile\njustice processes for children,” as well as the “review and expungement of\nyouth records[;]” (5) for the court to retain jurisdiction until the defendants\nfully comply; and (6) “any such additional relief as the interests of justice\nrequire.” Though not the basis of our decision, we share the concerns expressed\nby the district court that the government appears to be seeking remedies that\nwould not only exceed the authority of the Youth Court judges, but also dictate\nhow the Youth Court judges shall perform their adjudicatory functions when\nenforcing state law. 6 Accord ODonnell v. Harris Cty, 892 F.3d 147, 155 (5th\nCir. 2018) (holding that the judge of a county court may be liable under 42\nU.S.C. § 1983 when acting as a policymaker for the county, but not when\n“acting in his or her judicial capacity to enforce state law” (quoting Johnson v.\nMoore, 958 F.2d 92, 94 (5th Cir. 1992))).\n The litigation underlying this appeal was tied up in motions, discovery,\nand settlement discussions for years. The judges first moved to dismiss this\nlitigation on Younger abstention grounds, but that argument was rejected by\nthe district court. The judges next moved to dismiss on the grounds of the\nRooker-Feldman doctrine and judicial immunity. In September 2017, the\ndistrict court rejected the Rooker-Feldman argument, but granted the motion\nto dismiss on the bases that the plain statutory language of 34 U.S.C. § 12601\ndid not encompass youth court judges, and also that the judges were entitled\nto judicial immunity with respect to the claims raised. The government timely\n\n\n\n\n 6 At oral argument, the government averred that, at least as applied to the judges, it\nis only seeking remedies that are “procedural” in nature. Oral Argument at 15:30, 16:10.\nUnited States v. Lauderdale Cty, (No. 17-60805), http://www.ca5.uscourts.gov/oral-argument-\ninformation/oral-argument-recordings. However, the government subsequently declined\nmultiple opportunities to explain, precisely, the nature of the remedies it is seeking against\nthe judges. See, e.g., id. at 18:30, 19:55, 21:40.\n\n 5\n\f Case: 17-60805 Document: 00514819440 Page: 6 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nappeals the statutory interpretation and judicial immunity determinations. As\nfar as we are aware, this is the first—and thus far the only—Section 12601\nclaim brought against the judges of a youth court (or any court) to be resolved\nin the federal courts through adjudication.\n III.\n The government contends that the district court erred in its conclusion\nthat 34 U.S.C. § 12601 does not encompass the Lauderdale County Youth\nCourt judges. 7 Boiled down to its core, the argument between the parties is\nwhether the phrase “officials or employees of any governmental agency with\nresponsibility for the administration of juvenile justice,” when viewed in the\ncontext of 34 U.S.C. § 12601, should include the judges of the Youth Court. To\nput an even finer point on the argument, the question is whether the Youth\nCourt should be considered an “agency” under the statute.\n We review questions of statutory interpretation de novo. Matter of\nGlenn, 900 F.3d 187, 189 (5th Cir. 2018). “The task of statutory interpretation\nbegins and, if possible, ends with the language of the statute.” Trout Point\nLodge, Ltd. v. Handshoe, 729 F.3d 481, 486 (5th Cir. 2013). “When the\nlanguage is plain, we ‘must enforce the statute’s plain meaning, unless\nabsurd.’ ” Id. (quoting In re Nowlin, 576 F.3d 258, 261–62 (5th Cir. 2009)); see\nalso BedRoc Ltd. v. United States, 541 U.S. 176, 183 (2004) (“The preeminent\ncanon of statutory interpretation requires [the court] to ‘presume that [the]\n\n\n\n\n 7We note that the district court framed its analysis by: first holding that the judges\nhad judicial immunity against the claims made against them in this case; and then holding\nthat that judicial immunity was not overcome by 34 U.S.C. § 12601, as that statute does not\napply to the judges. However, the question of judicial immunity as to specific claims need\nnot be reached if the judges are not proper defendants under the statute to begin with.\nAccordingly, on appeal, both the government and the judges in this case correctly present the\nquestion as: first, whether the statute applies to judges; and second, if it does, whether the\njudges have judicial immunity against the specific claims made.\n 6\n\f Case: 17-60805 Document: 00514819440 Page: 7 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nlegislature says in a statute what it means and means in a statute what it says\nthere.’ ” (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54 (1992))).\n Because 34 U.S.C. § 12601 does not define how the term “agency” is used\nin the statute, we “look first to the word’s ordinary meaning.” Schindler\nElevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 407 (2011). The\ngovernment enters this analysis at a disadvantage. The Supreme Court has\nobserved that “[i]n ordinary parlance, . . . courts are not described as\n‘departments’ or ‘agencies’ of the Government.” Hubbard v. United States, 514\nU.S. 695, 699 (1995). In fact, the Supreme Court has noted that “it would be\nstrange indeed to refer to a court as an ‘agency.’ ” Id. Even setting that\nprecedent aside, a common sense understanding of the word “agency” would\nseem to require, at least when the word is used in the ordinary sense, that\nthere be a principal on behalf of whom the agent acts. See Agency, Black’s Law\nDictionary (6th ed. 1990). The government does not identify what principal\nthe Youth Court judges would be acting as agents for.\n The fact that the word “agency” is not normally understood to include\nthe courts does not mean that Congress could not have enacted a statute that\nincludes them in the definition. Indeed, Congress has enacted several other\nstatutes that do just that. See, e.g., 22 U.S.C. § 6106(1) 8 (defining “agency” for\nthe purposes of the Mansfield Fellowship Program to include “any court of the\njudicial branch”); 5 U.S.C. § 3371(3) 9 (defining “[f]ederal agency” for the\npurposes of a statute governing employee assignments between the federal and\nstate governments to include “a court of the United States”). But this fact also\ncuts against the government here. Given that Congress, when it so chooses,\n\n\n 8 Pub. L. 103-236, § 257, 108 Stat. 432 (1994).\n\n 9 Pub. L. 91-648, § 402(a), 84 Stat. 1920 (1971), amended by Pub. L. 95-454, § 603(a),\n92 Stat. 1189 (1978).\n\n 7\n\f Case: 17-60805 Document: 00514819440 Page: 8 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nknows how to deviate from the ordinary usage of “agency” by expressly defining\nthe term to include courts, the fact that Congress did not do so in this statute\nweighs against deviating from the ordinary usage here. 10 Accord Whitfield v.\nUnited States, 543 U.S. 209, 216 (2005) (noting, in the context of a different\nstatutory interpretation question, that the inclusion of an overt act\nrequirement in other statutes clearly demonstrated Congress “knows how to\nimpose such a requirement when it wishes to do so”); Dole Food Co. v.\nPatrickson, 538 U.S. 468, 476 (2003) (noting that “[w]here Congress intends to\nrefer to ownership in other than the formal sense, it knows how to do so”). But\nsee 5 U.S.C. § 551(1)(B) 11 (defining “agency” for the purposes of the\nAdministrative Procedure Act to explicitly exclude the courts).\n Recognizing that the ordinary usage of “agency” will not lead to its\ndesired outcome, the government maintains that we must view the word in the\ncontext of the rest of the statute. See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004)\n(“[W]e construe language in its context and in light of the terms surrounding\nit”); Deal v. United States, 508 U.S. 129, 132 (1993) (observing the\n“fundamental principle of statutory construction (and, indeed, of language\nitself) that the meaning of a word cannot be determined in isolation, but must\nbe drawn from the context in which it is used”). See also Antonin Scalia &\nBryan A. Garner, Reading Law: The Interpretation of Legal Texts, 69 (2012)\n(“Words are to be understood in their ordinary, everyday meanings—unless\nthe context indicates that they bear a technical sense.”). So we now turn to the\ncontext.\n\n\n\n 10 The statute now codified at 22 U.S.C. § 6106(1) (expressly defining “agency” to\ninclude “any court” for the purposes of that act) and the statute now codified at 34 U.S.C.\n§ 12601 (not expressly defining “agency” to include courts for the purpose of that act) were\nboth passed in 1994 by the same Congress.\n\n 11 Pub. L. 89–554, 80 Stat. 381 (1966).\n 8\n\f Case: 17-60805 Document: 00514819440 Page: 9 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\n We will begin our contextual analysis by looking at the title and subtitle\nof the statutory section enacting this text. While section headings are not\ncontrolling, they can be used as evidence when interpreting the operative text\nof the statute. See Yates v. United States, 135 S. Ct. 1074, 1083 (2015)\n(plurality op.); id. at 1089–90 (Alito, J., concurring in the judgment);\nAlmendarez–Torres v. United States, 523 U.S. 224, 234 (1998) (“the title of a\nstatute and the heading of a section are tools available for the resolution of a\ndoubt about the meaning of a statute” (internal quotation marks omitted)). As\nalready noted, 34 U.S.C. § 12601 was enacted under the title heading of “State\nand Local Law Enforcement,” and the subtitle heading of “Police Pattern or\nPractice.” Pub. L. No. 103-322, § 210401, 108 Stat. 2071. Those headings do\nnot support the government’s argument that the statute is intended to include\njudges. 12\n We next address the question of superfluity. “It is ‘a cardinal principle\nof statutory construction’ that ‘a statute ought, upon the whole, to be so\nconstrued that, if it can be prevented, no clause, sentence, or word shall be\nsuperfluous, void, or insignificant.’ ” TRW Inc. v. Andrews, 534 U.S. 19, 31\n(2001) (quoting Duncan v. Walker, 553 U.S. 167, 174 (2001)). See also Asadi v.\nG.E. Energy (USA), L.L.C., 720 F.3d 620, 622 (5th Cir. 2013) (“In construing a\n\n\n 12 The government argues that we should disregard those titles based on its assertion\nthat, after the titles were written, the text was modified by an amendment whose sponsor\nmade a single statement purportedly suggesting an intent to include juvenile court systems.\nWe reject this argument. In construing a statute, it is our duty to evaluate the text that was\nactually enacted into law by both houses of Congress and the President. We will not go down\nthe rabbit hole of attempting to divine the intent of Congress as a whole based on a single\nstatement by a single Senator. Accord Blanchard v. Bergeron, 489 U.S. 87, 99 (1989) (Scalia,\nJ., concurring) (“I decline to participate in this process. It is neither compatible with our\njudicial responsibility of assuring reasoned, consistent, and effective application of the\nstatutes of the United States, nor conducive to a genuine effectuation of congressional\nintent[.]”); Texas v. United States Envtl. Prot. Agency, 829 F.3d 405, 422 n.27 (5th Cir. 2016)\n(declining to consider a single comment in a House Report because “[w]e do not consider\npassing commentary in the legislative history . . . when the statutory text itself yields a single\nmeaning”).\n 9\n\f Case: 17-60805 Document: 00514819440 Page: 10 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nstatute, a court should give effect, if possible, to every word and every provision\nCongress used.”). 34 U.S.C. § 12601 refers to “pattern[s] or practice[s] of\nconduct by law enforcement officers or by officials or employees of any\ngovernmental agency with responsibility for the administration of juvenile\njustice or the incarceration of juveniles[.]” (emphasis added). The government\nargues in its opening brief on appeal that the second clause would be rendered\nsuperfluous if we interpret Section 12601 to encompass only law enforcement\npersonnel. However, that is not the only alternate reading of the statute. As\nthe government rightly concedes in its Reply Brief, the second clause would\nstill encompass more than law enforcement personnel even if not read to\ninclude youth court judges. The “incarceration of juveniles” language would\nclearly still include the personnel of the juvenile detention facilities, and, as\nthe original parties to this litigation demonstrate, the “administration of\njuvenile justice” language would still include, just to name a few examples,\nboth Lauderdale County and Mississippi’s Division of Youth Services. Thus,\nexcluding the judges of the Youth Court from Section 12601 would not render\nportions of the statute superfluous.\n The judges, for their part, raise a noscitur a sociis argument. “[W]e rely\non the principle of noscitur a sociis—a word is known by the company it\nkeeps—to ‘avoid ascribing to one word a meaning so broad that it is\ninconsistent with its accompanying words, thus giving unintended breadth to\nthe Acts of Congress.’ ” Yates, 135 S. Ct. at 1085 (plurality op.) (quoting\nGustafson v. Alloyd Co., 513 U.S. 561, 575 (1995)). See also Scalia & Garner,\nReading Law at 195 (“When several [words] are associated in a context\nsuggesting that the words have something in common, they should be assigned\na permissible meaning that makes them similar.”). The judges argue that the\nprinciple of noscitur a sociis weighs towards interpreting the clause “conduct\nby law enforcement officers” as limiting the meaning of “any governmental\n 10\n\f Case: 17-60805 Document: 00514819440 Page: 11 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nagency” to entities that are similar to law enforcement agencies. However, on\nthis point the judges’ argument holds little water. As the government correctly\npoints out, noscitur a sociis “is invoked when a string of statutory terms raises\nthe implication that the ‘words grouped in a list should be given related\nmeaning.’ ” S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 378 (2006)\n(quoting Dole v. Steelworkers, 494 U.S. 26, 36 (1990)). The statutory text\n“conduct by law enforcement officers or by officials or employees of any\ngovernmental agency” does not contain a string of terms; rather, it contains\ntwo independent clauses separated by a disjunctive “or.” See Encino\nMotorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018) (noting that “or” is\n“almost always disjunctive” (quoting United States v. Woods, 571 U.S. 31, 45\n(2013))). As such, the noscitur a sociis argument does not support the judges’\nargument that Section 12601 should be interpreted to exclude judges—though\nits rejection does not necessarily lend weight to the government’s counter-\ncontention that Section 12601 must be interpreted to include them. On net,\nthis argument is a wash.\n We now turn to the government’s argument that “governmental agency”\nshould not be viewed in isolation, but instead should be interpreted as modified\nby the clause “with responsibility for the administration of juvenile justice.”\nSee, e.g., Leocal, 543 U.S. at 9 (“we construe language . . . in light of the terms\nsurrounding it”). See also Scalia & Garner, Reading Law at 167 (noting that\n“the judicial interpreter [must] consider the entire text, in view of its structure\nand of the physical and logical relation of its many parts”). The government\nasserts that the modifying phrase “with responsibility for the administration\nof juvenile justice” should be interpreted to include juvenile courts within the\nmeaning of “governmental agency.” However, this argument is weak for the\nsame reason that the superfluity argument fails. Even though juvenile courts\n\n\n 11\n\f Case: 17-60805 Document: 00514819440 Page: 12 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nare indeed entities with responsibility for administering juvenile justice, 13 not\nall entities are “agencies.” There is no shortage of non-adjudicatory entities\nwith responsibility for the administration of juvenile justice—most, if not all,\nof which are more amenable to the ordinary understanding of the word\n“agency” than is a court. It seems quite reasonable to infer that Congress was\nreferring to those non-adjudicatory entities when enacting the phrase\n“governmental agency with responsibility for the administration of juvenile\njustice[,]” and we see little support for the government’s argument that by\nadding such language Congress deviated from the ordinary usage of the term\n“agency.” As such, the government’s invocation of the modifying phrase “with\nresponsibility for the administration of juvenile justice” is weak evidence for\nthe proposition that the word “agency” should be interpreted outside its\nordinary meaning.\n The government also makes the related argument that the phrase\n“governmental agency” should be interpreted to include juvenile courts\nbecause the phrase is modified by the word “any.” Specifically, the government\nappears to argue that by using the phrase “any governmental agency,” what\nCongress intended to say was “all governmental entities.” This argument is\njust like the previous one, but weaker still. “Entity” is still not a synonym for\n“agency.” It is quite reasonable to infer that Congress, by use of the word “any,”\nwas referring to any agency ordinarily referred to as an agency. As such, use\nof the word “any” to modify “governmental agency” is also weak evidence for\nthe proposition that the phrase should be interpreted outside its ordinary\nmeaning.\n\n\n\n\n 13 See Court, Black’s Law Dictionary (6th ed. 1990) (defining “court” as “a body\norganized to administer justice[.]”).\n 12\n\f Case: 17-60805 Document: 00514819440 Page: 13 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\n Finally, we will address the purpose argument. Congress’s stated\npurpose in authorizing the Attorney General to bring lawsuits under Section\n12601 was “to eliminate the pattern or practice” of denying juveniles their\nconstitutional and statutory rights. 34 U.S.C. § 12601(b). The government\nargues that because juvenile courts are a central part of the juvenile justice\nsystem, interpreting Section 12601 to exclude juvenile courts would “effectively\nvitiate” the purpose of the statute. See also Scalia & Garner, Reading Law at\n63 (“A textually permissible interpretation that furthers rather than obstructs\nthe document’s purpose should be favored.”). However, “no law pursues its\npurpose at all costs, and . . . the textual limitations upon a law’s scope are no\nless a part of its ‘purpose’ than its substantive authorizations.” Rapanos v.\nUnited States, 547 U.S. 715, 752 (2006) (plurality op.). 34 U.S.C. § 12601 has\na clear textual limitation in the form of the word “agency.” Moreover, given\nthat the government can presumably still bring Section 12601 lawsuits against\nmany other entities in the juvenile justice system without stretching the\nordinary meaning of any words—including counties, city councils, mayors,\npolice commissioners, correctional facilities, and youth services—we think it\nstrains credulity to say that Congress’s purpose in enacting the statute would\nbe vitiated unless the word “agency” was interpreted outside of its ordinary\nmeaning.\n Therefore, we decline to interpret the word “agency,” as it is used in 34\nU.S.C. § 12601, to encompass the Youth Court. As such, the district court did\nnot err in dismissing the Section 12601 claims brought against the Lauderdale\nCounty Youth Court judges.\n IV.\n We now turn to two residual matters raised by the parties. First, we\nconsider the question of judicial immunity. The parties dedicate considerable\nportions of their briefs disputing whether or not the Youth Court judges should\n 13\n\f Case: 17-60805 Document: 00514819440 Page: 14 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nhave judicial immunity against the specific claims made against them in his\nlawsuit. However, because we hold that the text of 34 U.S.C. § 12601 is not\napplicable to the judges of the Youth Court, we do not reach the question of\njudicial immunity as to any of the specific claims raised in this case. 14\n Second, we consider the question of whether this lawsuit can continue\nagainst Lauderdale County if the Youth Court judges are excluded. Before the\ndistrict court, the government argued that Lauderdale County was\nindependently liable under Section 12601 because of its budgetary authority\nover the Youth Court and its alleged failure to provide indigent juveniles with\nadequate representation. However, on appeal, the government changed course\nand now only argues that dismissal of the County follows dismissal of the\njudges, and that reversing the latter also requires reversing the former. 15\nMoreover, at oral argument, counsel for the government conceded that it did\nnot brief an independent basis for continuing the litigation against the County,\nand stated that if the judges are deemed to be outside of Section 12601 then\nthe claims against the County should also be dismissed. Oral Argument at\n59:00. We take the government at its word.\n Therefore, because we hold that the district court did not err in\ndismissing the lawsuit against the judges on the basis that they are outside\nthe scope of Section 12601, and because the government has affirmatively\n\n\n 14We likewise do not consider the district court’s determinations regarding the\nYounger abstention and Rooker-Feldman arguments.\n\n 15 In a letter filed with the court after oral argument, the government argues that if\nwe interpret Section 12601’s use of the phrase “governmental agency” to exclude the Youth\nCourt, then we should remand to determine whether public defenders and non-judicial court\npersonnel can be held liable under the statute. However, not only did the government fail to\nmake that argument in its briefs, but it has also not named these persons as defendants in\nthis litigation. As such, we decline the government’s invitation to remand for that purpose,\nand leave it be addressed in future cases where the issue is squarely raised and litigated.\nSee, e.g., Sindhi v. Raina, 905 F.3d 327, 334 (5th Cir. 2018) (noting that issues not briefed\nwill not be considered on appeal).\n 14\n\f Case: 17-60805 Document: 00514819440 Page: 15 Date Filed: 02/01/2019\n\n\n\n No. 17-60805\nwaived any other argument for continuing the lawsuit against the County, we\naffirm the dismissal of this litigation as it pertains to Lauderdale County. See\nUnited States v. Young, 872 F.3d 742, 747 (5th Cir. 2017) (“Waiver is the\n‘intentional relinquishment or abandonment of a known right.’ ” (quoting\nUnited States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006))).\n The judgment of the district court is AFFIRMED.\n\n\n\n\n 15", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364169/", "author_raw": "JENNIFER WALKER ELROD, Circuit Judge:"}]} | REAVLEY | ELROD | HIGGINSON | 1 | {"REAVLEY": ", Circuit", "ELROD": ", Circuit", "HIGGINSON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4586916/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,586,919 | Joseph Dacar v. Saybolt L.P. | 2019-02-01 | 16-20751 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before DAVIS, JONES, and HIGGINSON, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 1, 2019\n No. 16-20751\n Lyle W. Cayce\n Clerk\nJOSEPH DACAR, individually and for similarly situated people; JASON\nWHITELAW; DAVID TARDIFF, et al\n\n Plaintiffs - Cross-Appellees\n\nLYLE DEROCHE; FELTON RAVIA,\n\n Plaintiffs - Appellants Cross-Appellees\nv.\n\nSAYBOLT, L.P.,\n\n Defendant - Appellee Cross-Appellant\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n ______________________\n\n ON PETITION FOR REHEARING and\n PETITION FOR REHEARING EN BANC\n\nBefore DAVIS, JONES, and HIGGINSON, Circuit Judges.\nPER CURIAM:\n The petition for panel rehearing filed by Saybolt, L.P., is DENIED, and\nno member of this panel nor judge in regular active service on the Court having\nrequested that the Court be polled en banc, Saybolt’s petition for rehearing en\nbanc is also DENIED.\n\n\n\n 1\n\f No. 16-20751\n The Court, however, amends its opinion by adding the following footnote\nat the end of the third paragraph of section IV:\n Because this damages model has not been adequately briefed, we\n leave for another day whether such a model, or any other damages\n model, may be appropriate in cases in which an employer fails to\n satisfy the requirements allowing use of the FWW method.\n\n\n The Court further substitutes the last footnote of its opinion with the\nfollowing footnote:\n As set forth above, a plaintiff is entitled to overtime pay for any\n week in which he worked in excess of 40 hours. To determine the\n amount of overtime compensation due, the district court should\n first determine a plaintiff’s regular hourly rate of pay by dividing\n the total amount of remuneration paid in a workweek (including\n incentive payments) by the total number of hours intended to be\n compensated (which, in this case, is the total number of hours\n actually worked) in that workweek. See 29 C.F.R. § 778.207(b).\n The district should then compute the overtime rate by multiplying\n the regular rate times 1.5. The overtime rate should then be\n multiplied by the number of overtime hours worked in the\n workweek to arrive at the total amount of overtime compensation\n due for that week. Finally, that total amount should be reduced\n by the amount of overtime pay the plaintiff has already received\n from Saybolt for that workweek. See 29 U.S.C. § 207(h) (describing\n which sums may be creditable toward overtime compensation).\n The remainder is the amount of overtime compensation due to the\n plaintiff.\n\n\n\n\n 2", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364172/", "author_raw": "PER CURIAM"}]} | DAVIS | JONES | HIGGINSON | 1 | {"DAVIS": ", Circuit", "JONES": ", Circuit", "HIGGINSON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4586919/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,586,920 | Alexandro PUGA; Norma Puga, Plaintiffs - Appellees v. RCX SOLUTIONS, INCORPORATED, Defendant - Appellant | Alexandro Puga v. About Tyme Transport, Inc | 2019-02-01 | 17-41282 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Stewart, King, Owen", "parties": "", "opinions": [{"author": "CARL E. STEWART, Chief Judge", "type": "010combined", "text": "Case: 17-41282 Document: 00514820085 Page: 1 Date Filed: 02/01/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 17-41282 United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 1, 2019\nALEXANDRO PUGA; NORMA PUGA,\n Lyle W. Cayce\n Plaintiffs - Appellees Clerk\n\n\nv.\n\nRCX SOLUTIONS, INCORPORATED,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore STEWART, Chief Judge, and KING and OWEN, Circuit Judges.\nCARL E. STEWART, Chief Judge:\n RCX Solutions, Incorporated is a licensed motor carrier that contracted\nwith a driver, Ronald Brown, to transport a load across Texas. During his\ndrive, Brown crossed the median into oncoming traffic and crashed into\nAlexandro Puga’s truck, leaving Puga with significant injuries. The Pugas\nsued. After a week-long trial with expert testimony, a jury found RCX liable\nfor Brown’s negligence and awarded Mr. Puga a variety of damages and his\nwife, Norma Puga, loss of consortium damages.\n RCX now launches a multitude of challenges at the district court’s\nhandling of the case. RCX claims that the district court wrongly interpreted\nthe Federal Motor Carrier Safety Regulations because it failed to take account\n\f Case: 17-41282 Document: 00514820085 Page: 2 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nof regulatory amendments. RCX contends that this misinterpretation\nsubjected RCX to liability where none should exist. RCX also argues that the\ndistrict court used faulty jury instructions, improperly allowed the Pugas’\nexpert to testify, and upheld an excessive jury award for Mrs. Puga’s loss of\nconsortium. Finally, RCX claims that the district court erred in not applying\na settlement credit to the final damages award. After reviewing the record, we\nAFFIRM the district court’s rulings with respect to all issues except the\nsettlement credit. We REVERSE and REMAND to the district court for the\nsole purpose of calculating the appropriate settlement credit amount and\nmodifying its final judgment accordingly.\n I.\n Sunset Transportation entered into a brokerage account with L’Oreal.\nIn its role as a broker, Sunset was responsible for choosing a motor carrier for\nindividual L’Oreal shipments on a load-by-load basis. Sunset chose RCX to\ntransport the L’Oreal load involved in the accident. RCX did not have a\ncontract with L’Oreal.\n When it came time for RCX to transport L’Oreal’s load, RCX ran into\nequipment problems. So RCX contacted Ronald Brown to transport the load.\nConveniently, Brown already had an RCX trailer in his possession. RCX had\nleased the trailer from another company, Xtra Lease, and RCX assumed\nresponsibility for the trailer’s operation under the lease agreement. The bill of\nlading listed RCX as the carrier for the load. Brown also signed the bill of\nlading, apparently on behalf of RCX. 1\n\n\n\n\n 1 RCX claims, however, that Brown was employed by About Tyme, another carrier.\nRCX had a trailer interchange agreement with About Tyme, under which they could use the\nother company’s trailers. And About Tyme’s logo was also on the trailer when the accident\noccurred. Brown had also listed About Tyme in his logbook.\n 2\n\f Case: 17-41282 Document: 00514820085 Page: 3 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\n While transporting the load, Brown swerved across the median into\noncoming traffic, hitting Alexandro Puga’s truck. Brown did not survive the\naccident. Mr. Puga suffered a variety of injuries, including burns on large\nparts of his body and fractures in his spine, legs, pelvis, and fingers. Mr. Puga\nwas still undergoing treatment and surgeries two-and-a-half years after the\naccident.\n Following the accident, Mr. Puga and his wife, Norma, sued RCX, About\nTyme, and Xtra Lease, claiming that Brown’s negligent driving caused Mr.\nPuga’s injuries. Prior to trial, RCX filed a motion under Rule 50(a) of the\nFederal Rules of Civil Procedure, requesting the court to enter judgment as a\nmatter of law because the Pugas lacked sufficient evidence for a jury to find\nthat (1) Brown was employed by RCX and (2) Brown acted negligently when\nthe crash occurred. The district court denied the motion.\n At trial, the Pugas designated Trooper Andrew Smith as an expert\nwitness. Smith was the first responder to the accident and saw the explosion\nfrom the accident from afar. RCX sought to exclude Smith’s testimony\nregarding the cause of the accident. The district court denied RCX’s motion.\n The trial concluded with a jury verdict in favor of the Pugas. The jury\ndetermined that RCX was “using motor vehicle(s) it did not own to transport\nproperty under an arrangement with Ronald Brown.” As a result, the jury\nawarded the Pugas a variety of damages. The jury specifically awarded Mrs.\nPuga damages for loss of consortium, $1.6 million for past loss of consortium\nand $1.8 million for future loss of consortium.\n After the trial, RCX filed a renewed Rule 50(b) motion, again requesting\njudgment as a matter of law, this time because amendments to Federal Motor\nCarrier Regulations precluded the jury from finding for the Pugas. The district\ncourt again denied the motion and entered judgment in favor of the Pugas.\nRCX now appeals.\n 3\n\f Case: 17-41282 Document: 00514820085 Page: 4 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\n II.\n RCX first argues that federal law does not allow courts to hold motor\ncarriers liable for the acts of independent contractors, a concept both parties\nrefer to as the statutory-employee doctrine. RCX raised this argument for the\nfirst time in its post-verdict Rule 50(b) motion.\n Rule 50(a) of the Federal Rules of Civil Procedure allows a party to move\nfor judgment as a matter of law at trial before the jury renders its verdict.\nUnder Rule 50(a), the movant must “specify the judgment sought and the law\nand facts that entitle the movant to the judgment.” Fed. R. Civ. P. 50(a)(2). If\nthe pre-verdict motion is denied, then the party can renew its motion under\nRule 50(b). But the renewed Rule 50(b) is “technically only a renewal of the\n[Rule 50(a) motion for judgment as a matter of law].” Mozingo v. Correct Mfg.\nCorp., 752 F.2d 168, 172 (5th Cir. 1985) (internal quotation marks and citation\nomitted). As a result, courts prohibit parties from using a Rule 50(b) motion\nto “assert a ground that was not included in the [original] motion.” Id.; see also\nIn re Isbell Records, Inc., 774 F.3d 859, 867 (5th Cir. 2014) (“By not raising this\nargument at trial or in its Rule 50(a) motion, [the appellant] has waived its\nright to bring a Rule 50(b) motion on this ground.”); Arsement v. Spinnaker\nExpl. Co., 400 F.3d 238, 247 (5th Cir. 2005) (“If a party fails to raise an issue\nin its Rule 50(a)(1) motions at trial, it may not do so in its post-trial Rule 50(b)\nmotion.”) (citation omitted); 9B Charles Alan Wright & Arthur K. Miller,\nFederal Practice and Procedure § 2537 (3d ed. 2018) (“[T]he district court only\ncan grant the Rule 50(b) motion on the grounds advanced in the preverdict\nmotion, because the former is conceived of as only a renewal of the latter.”).\n This rule makes sense in light of Rule 50(b)’s purposes. Rule 50(b) is\ndesigned to prevent a litigant from ambushing both the district court and\nopposing counsel after trial. See Dimmitt Agri Indus., Inc. v. CPC Int’l. Inc.,\n679 F.2d 516, 521 (5th Cir. 1982) (“The rationale for the rule that a [Rule 50(b)\n 4\n\f Case: 17-41282 Document: 00514820085 Page: 5 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nmotion] cannot assert a ground not included in a motion for directed verdict is\nobviously to avoid ‘ambushing’ the trial court and opposing counsel.”) (internal\nquotation marks and citation omitted); Quinn v. Sw. Wood Prods., Inc., 597\nF.2d 1018, 1025 (5th Cir. 1979) (“When a claimed deficiency in the evidence is\ncalled to the attention of the trial judge and of counsel before the jury has\ncommenced deliberations, counsel still may do whatever can be done to mend\nhis case. But if the court and counsel learn of such a claim for the first time\nafter verdict, both are ambushed and nothing can be done except by way of a\ncomplete new trial. It is contrary to the spirit of our procedures to permit\ncounsel to be sandbagged by such tactics or the trial court to be so put in\nerror.”). By requiring a litigant to raise all arguments in its initial Rule 50(a)\nmotion, the trial court is able to “re-examine the question of evidentiary\ninsufficiency as a matter of law if the jury returns a verdict contrary to the\nmovant,” and opposing counsel is alerted to any “insufficiency before the case\nis submitted to the jury,” giving the opposing party a chance to cure any defects\nin its legal theories or proof should the motion have merit. Scottish Heritable\nTr., PLC v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th Cir. 1996) (internal\nquotation marks and citation omitted).\n Here, RCX did not argue that the statutory-employee doctrine was\noverruled in its Rule 50(a) motion, precluding it from raising the argument in\nits Rule 50(b) motion. In its oral Rule 50(a) motion, RCX argued that judgment\nas a matter of law was appropriate because the record contained insufficient\nevidence to determine that (1) Brown was a statutory employee of RCX and (2)\nBrown acted negligently when the accident occurred. Even in its earlier\nsummary judgment briefing, RCX only attacked the evidentiary bases for\ndetermining that Brown was an employee of RCX. At no time prior to its Rule\n50(b) motion did RCX argue that the entire statutory-employee doctrine is now\ndefunct. By failing to raise this argument in its initial Rule 50(a) motion, RCX\n 5\n\f Case: 17-41282 Document: 00514820085 Page: 6 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nwaived it. 2 See McCann v. Tex. City Ref., Inc., 984 F.2d 667, 672-73 (5th Cir.\n1993) (denying a post-judgment challenge when the party’s argument differed\nfrom its 50(a) motion); Allied Bank-West., N.A. v. Stein, 996 F.2d 111, 115 (5th\nCir. 1993) (overturning grant of judgment as a matter of law on different\nground than that in the initial directed verdict); Sulmeyer v. Coca Cola Co.,\n515 F.2d 835, 846 (5th Cir. 1975) (holding that plaintiff could not receive post-\njudgment relief on claims it did not raise at trial or in its original Rule 50\nmotion).\n Accordingly, we AFFIRM the district court’s decision to deny RCX’s Rule\n50(b) motion.\n III.\n RCX next argues that the district court used improper jury instructions.\nMore specifically, RCX argues that the district court’s jury instructions were\nincorrect because they did not require the jury to find that RCX met the\ndefinition of “motor carrier.”\n This court reviews jury instructions under a two-prong standard of\nreview. “First, the challenger must demonstrate that the charge as a whole\ncreates substantial and ineradicable doubt whether” the instructions “properly\nguided” the jury “in its deliberations.” Pelt v. U.S. Bank Tr. Nat. Ass’n, 359\nF.3d 764, 767 (5th Cir. 2004) (quoting Johnson v. Sawyer, 120 F.3d 1307, 1315\n(5th Cir. 1997)). Second, even if the court finds that the jury instructions were\n\n\n 2 RCX argues that it can raise and appeal a purely legal issue in a Rule 50(b) motion\neven though it did not raise that issue in its original Rule 50(a) motion. But RCX provides\nno support for this proposition. In fact, the case it cites cuts the opposite direction. In Feld\nMotor Sports, this court held that it could only review an appeal of a district court’s purely\nlegal conclusions if the challenging party “sufficiently preserved [it objections] in a Rule 50\nmotion.” Feld Motor Sports, Inc. v. Traxxas, L.P., 861 F.3d 591, 596 (5th Cir. 2017). The\ncourt later reaffirmed the rule that a party only “sufficiently preserve[s]” an argument using\nRule 50 when it raises the argument in a Rule 50(a) and then renews it in a Rule 50(b) motion.\nId. Here, as detailed above, RCX did not sufficiently preserve its statutory-employee\narguments.\n 6\n\f Case: 17-41282 Document: 00514820085 Page: 7 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nerroneous, it will not reverse if it determines, “based upon the entire record,\nthat the challenged instruction could not have affected the outcome of the\ncase.” Id. (quoting Sawyer, 120 F.3d at 1315).\n RCX’s arguments do not raise any doubt about the district court’s jury\ninstructions. 3 The district court instructed the jury to determine whether RCX\nwas “using motor vehicle(s) it did not own to transport property under an\narrangement with Ronald Brown.” RCX correctly points out that this\ninstruction does not follow the federal definition of motor carrier. The federal\ndefinition of a motor carrier is “a person providing motor vehicle transportation\nfor compensation.” 49 U.S.C. § 13102(14). But this definition of motor carrier\nis overbroad for this case because it does not distinguish between (1) a motor\ncarrier using its own equipment and (2) a motor carrier using leased\nequipment. That distinction matters.\n The relevant federal regulations only apply to motor carriers who use\nleased equipment. As Section 14102 makes clear, the Secretary of\nTransportation can only issue regulations requiring a motor carrier to “have\n\n\n\n 3There are three main statutes at issue here. First, the definition of motor carrier:\n“The term ‘motor carrier’ means a person providing motor vehicle transportation for\ncompensation.” 49 U.S.C. § 13102(14). Second, the definition of broker:\n\n The term “broker” means a person, other than a motor carrier or an employee\n or agent of a motor carrier, that as a principal or agent sells, offers for sale,\n negotiates for, or holds itself out by solicitation, advertisement, or otherwise\n as selling, providing, or arranging for, transportation by motor carrier for\n compensation.\n\n49 U.S.C. § 13102(2).\n\n Third, the statute giving the Secretary of Transportation the power to regulate motor\ncarriers who lease trucking equipment: “The Secretary may require a motor carrier providing\ntransportation subject to jurisdiction under subchapter I of chapter 135 that uses motor\nvehicles not owned by it to transport property under an arrangement with another party.”\n49 U.S.C. § 14102(a).\n\n 7\n\f Case: 17-41282 Document: 00514820085 Page: 8 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\ncontrol of and be responsible for” how employees operate equipment if the\nmotor carrier “uses motor vehicles not owned by it to transport property under\nan arrangement with another party.” 49 U.S.C. § 14102(a) (emphasis added).\nThe district court rightly based its jury instructions on this section because it\nexcludes carriers using their own trucking equipment. Without a finding that\nthe motor carrier used a leased vehicle, the regulations would not apply.\n RCX’s arguments to the contrary are unconvincing. RCX first argues\nthat the instructions did not require the jury to find that RCX was acting as a\nmotor carrier. Second, and relatedly, RCX argues that the instructions are so\nbroad that they wrap in brokers, as well as motor carriers. We disagree. The\nmain difference between a motor carrier and a broker is the actual operation\nof the leased equipment. This difference stands out when looking at the\ndefinitions of motor carrier and broker in the Act. While a broker is responsible\nfor “providing, or arranging for, transportation by motor carrier,” 49 U.S.C. §\n13102(2), a motor carrier provides “motor vehicle transportation,” 49 U.S.C. §\n13102(14). Put briefly, a motor carrier transports, and a broker provides a\nmotor carrier. Because the jury here determined that RCX used motor vehicles\nto transport property, it necessarily determined that RCX was a motor carrier.\nConsequently, the jury also necessarily determined that RCX did not act as a\nbroker who merely provided access to a motor carrier.\n In sum, the district court did not err. On the contrary, the district court\nclosely examined the statute, avoided the obvious, overbroad definition of\nmotor carrier, and picked out the correct, limited definition. We AFFIRM the\ndistrict court’s jury instructions.\n IV.\n RCX next challenges the district court’s decision to admit State Trooper\nSmith as an expert witness on accident investigation. According to RCX,\nSmith’s opinion was irrelevant because he testified that he (1) could not find\n 8\n\f Case: 17-41282 Document: 00514820085 Page: 9 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nany defects on the road, (2) could not find any skid marks on the road, (3) did\nnot determine how fast Brown was driving, and (4) did not know the weight of\nthe trailer or its contents. 4\n A trial court’s decision to admit expert evidence is reviewed for abuse of\ndiscretion. Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir.\n2007) (citation omitted). The trial judge has “wide latitude in determining the\nadmissibility of expert testimony, and the discretion of the trial judge and his\nor her decision will not be disturbed on appeal unless manifestly erroneous.”\nWatkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997) (internal quotation\nmarks and citation omitted); see also Whitehouse Hotel Ltd. P’ship v. Comm’r,\n615 F.3d 321, 330 (5th Cir. 2010). A manifest error is one that “is plain and\nindisputable, and that amounts to a complete disregard of the controlling law.”\nGuy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004) (internal\nquotation marks and citation omitted); see also SEC v. Life Partners Holdings,\nInc., 854 F.3d 765, 775 (5th Cir. 2017).\n Rule 702 of the Federal Rules of Evidence governs the admissibility of\nexpert testimony and reports. When evaluating expert testimony, the\noverarching concern is generally whether the testimony is relevant and\nreliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).\nTo be reliable, expert testimony must “be grounded in the methods and\nprocedures of science and . . . be more than unsupported speculation or\nsubjective belief.” 5 Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012)\n\n\n\n\n 4 Both parties implicitly assume that an accident investigator can serve as an expert\nwitness. Because RCX merely attacks Smith’s opinion and does not challenge the idea that\nan accident investigator can serve as an expert at all, we reserve that more fundamental\nquestion for a later date.\n 5 Courts also look to Dabuert’s list of non-exclusive factors when determining whether\n\ntestimony is reliable:\n\n 9\n\f Case: 17-41282 Document: 00514820085 Page: 10 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\n(internal citation omitted). To be relevant, the expert’s “reasoning or\nmethodology [must] be properly applied to the facts in issue.” Id. (internal\ncitation omitted).\n When performing this analysis, the court’s main focus should be on\ndetermining whether the expert’s opinion will assist the trier of fact. See Peters\nv. Five Star Marine Serv., 898 F.2d 448, 449 (5th Cir. 1990) (citing Fed. R. Evid.\n702 advisory committee’s notes (1972)). Assisting the trier of fact means “the\ntrial judge ought to insist that a proffered expert bring to the jury more than\nthe lawyers can offer in argument.” Salas v. Carpenter, 980 F.2d 299, 305 (5th\nCir. 1992) (internal quotation marks and citation omitted). As this court has\nnoted, however, the “helpfulness threshold is low: it is principally . . . a matter\nof relevance.” E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d 444, 459 n.14 (5th\nCir. 2013) (en banc) (internal quotation marks and citations omitted).\n As a general rule, questions relating to the bases and sources of an\nexpert’s opinion affect the weight to be assigned that opinion rather than its\nadmissibility. See Rock v. Arkansas, 483 U.S. 44, 61 (1987). Particularly in a\njury trial setting, the court’s role under Rule 702 is not to weigh the expert\ntestimony to the point of supplanting the jury’s fact-finding role—the court’s\nrole is limited to ensuring that the evidence in dispute is at least sufficiently\nreliable and relevant to the issue so that it is appropriate for the jury’s\nconsideration. See Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1391-92\n(Fed. Cir. 2003). At no point should the trial court replace “the adversary\n\n\n\n (1) whether the theory or technique has been tested; (2) whether the\n theory or technique has been subjected to peer review and publication; (3) the\n known or potential rate of error of the method used and the existence and\n maintenance of standards controlling the technique’s operation; and (4)\n whether the theory or method has been generally accepted by the scientific\n community.\n\n Arkema, Inc., 685 F.3d at 459.\n 10\n\f Case: 17-41282 Document: 00514820085 Page: 11 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nsystem.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249-50 (5th Cir. 2002). As\nthe Supreme Court explained, “[v]igorous cross-examination, presentation of\ncontrary evidence, and careful instruction on the burden of proof are the\ntraditional and appropriate means of attacking shaky but admissible\nevidence.” Daubert, 509 U.S. at 596; see also Mathis v. Exxon Corp., 302 F.3d\n448, 461 (5th Cir. 2002). While the district court must act as a gatekeeper to\nexclude all irrelevant and unreliable expert testimony, “the rejection of expert\ntestimony is the exception rather than the rule.” Fed. R. Evid. 702 advisory\ncommittee’s notes (2000) (internal citations omitted).\n Here, RCX only challenges the relevance of Smith’s opinion. 6 But its\narguments are not persuasive. The district court did not abuse its discretion\nin allowing Smith to offer an expert opinion on the cause of the accident—\nSmith considered an appropriate amount of physical evidence at the scene of\nthe crime to offer his opinion, and RCX had ample opportunity to show the jury\nany flaws in his opinion.\n No Fifth Circuit case applies Rule 702 and Daubert to an accident\ninvestigator. 7 But the majority of in-circuit district courts choose to admit\n\n\n\n 6RCX does not challenge Smith’s qualifications. Officer Smith has worked on accident\ninvestigations since he became a Texas State Trooper in 2010. He received training on\naccident investigation when he became a trooper. He also took an advanced course on\naccident investigation. He has investigated “[o]ver a hundred” accidents.\n\n 7 Smith offered testimony as an accident investigator, not an accident recreator, which\nrequires additional training and attention to detail. Accident investigation merely consists\nof “responding to the scene, looking at the evidence, taking statements from witnesses,\nmaking a preliminary determination about what may have been a contributing factor to the\ncrash, [and] writing [and] submitting the initial crash report.” Stevens Transp., Inc. v. Glob.\nTransp., LLC, No. 6:15-CV-552-MHS-JDL, 2016 WL 9244669, at *3 (E.D. Tex. May 24, 2016)\n(internal citations omitted).\n\n While this court has held that an investigating officer may not offer lay testimony on\ncausation, Duhon v. Marceaux, 33 F. App’x 703 (5th Cir. 2002) (unpublished), lay opinions\nare analyzed differently than expert opinions. See generally Smith v. Progressive Cty. Mut.\n 11\n\f Case: 17-41282 Document: 00514820085 Page: 12 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\naccident investigators as experts. 8 District courts use a contextual analysis\nwhen making this determination, looking to see if the investigating officer\nbases his opinion on a sufficient amount of physical evidence from the accident.\n For example, in Stevens, the district court allowed an officer to testify\nbased on “the position of Defendants’ trailer after the accident, the tire marks\nvisible at the scene, and his conversation at the scene with . . . the driver of\nPlaintiffs’ tractor-trailer.” Stevens, 2016 WL 9244669, at *4. Another court\nallowed an expert to testify based on his “his accident report, some photographs\nand his notes.” Vigil, 2007 WL 2778233, at *4. Yet another court allowed an\ninvestigating officer to testify as an expert because, even though he “did not\ntake any measurements or photographs, or speak to any witnesses to the\naccident, he did personally survey the accident scene, talk to the other officers\non the scene, and subsequently reviewed photographs of the scene.” Main,\n2011 WL 11027844, at *4. The only case to exclude an expert involved\nmarkedly different facts. In that case, the officer could not determine which\nlane the driver was in, expressed doubts about his qualifications, and could not\n\n\n\nIns. Co., No. 11-CV-872, 2012 WL 702061, at *2 (E.D. La. Mar. 1, 2012) (discussing the\ndifferences between lay and expert opinion testimony for investigating officers).\n\n 8 See, e.g., Stevens Transport, 2016 WL 9244669, at *2-4 (permitting DPS lead\ninvestigator to offer expert opinion on the cause of the accident); Cartwright v. Am. Honda\nMotor Co., Inc., No. 9:09-CV-2015, 2011 WL 3648565, at *4 (E.D. Tex. Aug. 15, 2011)\n(permitting investigating officer to offer an expert opinion regarding the cause of the\naccident); Vigil v. Michelin N. Am., Inc., No. EP-05-CV-001-KC, 2007 WL 2778233, at *4\n(W.D. Tex. Aug. 23, 2007) (permitting the investigating officer to offer expert opinion on the\ncause of the accident); Martin v. Pride Offshore Co., No. 97-CV-3754, 1999 WL 4921, at *1\n(E.D. La. Jan. 6, 1999) (permitting an investigating officer to offer expert testimony on the\ncause of the accident), aff’d, 198 F.3d 241 (5th Cir. 1999); Main v. Eichorn, No. W-10-CV-158,\n2011 WL 11027844, at *3 (W.D. Tex. Mar. 10, 2011) (allowing an investigating officer to\ntestify as an expert); but see Koenig v. Beekmans, No. 5:15-CV-00822-RCL-RBF, 2018 WL\n358307, at *5 (W.D. Tex. Jan. 9, 2018) (excluding an accident investigator who admitted that\nhe was simply “speculating as to who was in whose lane.”).\n\n\n 12\n\f Case: 17-41282 Document: 00514820085 Page: 13 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nsay with any certainty whether the defendant caused the accident. Koenig,\n2018 WL 358307, at *5.\n Here, Smith considered numerous facts and did not state that he was\nspeculating about the cause of the accident. Smith was driving some distance\nbehind Brown when the accident occurred and saw it happen from afar. He\nfound wet, dark conditions. He determined which lane Brown was using. He\ndetermined that Brown was talking on his cell phone. He examined marks in\nthe median showing the path of Brown’s truck. He took photographs of the\nscene. He spoke to witnesses. He determined that Brown hydroplaned based\non skid marks. He determined based on experience and training that Brown\nmust have been driving too fast or used faulty evasive maneuvers to cross the\nmedian and end up on the other side of the road. He also relied on an accident\nreconstruction put together by another expert. Smith also admitted on cross-\nexamination that he did not examine Brown’s truck, the brakes, the weight of\nthe truck, or attempt to estimate his speed. But he stuck to his opinion that\nBrown must have been driving too fast for the conditions or taken a faulty\nevasive maneuver.\n In sum, Smith’s opinion was based on a multitude of facts. It did not\ntake into account every possible explanation for the accident, and some\nmeasurements were missing. But he was the closest to the scene when the\naccident happened, observed the conditions on the road, knew Brown was\ntalking on the phone, and looked at various tire markings in the median and\non the pavement. Numerous district courts have allowed an investigating\nofficer to testify as an expert based on less. If Smith missed any important\nfacts, the oversight should go to the weight of his opinion, not its admissibility.\nWe AFFIRM the district court’s decision to allow Smith to testify as an expert\nwitness on causation.\n\n\n 13\n\f Case: 17-41282 Document: 00514820085 Page: 14 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\n V.\n Next, RCX argues that the district court erroneously affirmed the jury’s\naward of consortium damages to Mrs. Puga.\n This court reviews the district court’s decision to deny a motion for a new\ntrial or remittitur for abuse of discretion. 9 Salinas v. O’Neill, 286 F.3d 827,\n830 (5th Cir. 2002) (“We review denial of remittitur for abuse of discretion”);\nEiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995) (“The\ndecision to grant or deny a motion for new trial or remittitur rests in the sound\ndiscretion of the trial judge; that exercise of discretion can be set aside only\nupon a clear showing of abuse”); Brooks v. Great Lakes Dredge-Dock Co., 754\nF.2d 539, 541 (5th Cir. 1985) (“The standard of review of the denial of such a\nmotion is whether the district court abused its discretion.”).\n The Supreme Court of Texas defines loss of consortium as the loss of\ncompanionship, emotional support, love, felicity, and sexual relations\n\n\n\n 9 This court has not spoken definitively about the appropriate standard of review for\noverturning a jury’s award of damages. There are three that stand out in the case law. See\ngenerally Foradori v. Harris, 523 F.3d 477, 504 (5th Cir. 2008) (discussing the three different\nstandards). The first is abuse of discretion. Salinas, 286 F.3d at 830 (“We review denial of\nremittitur for abuse of discretion.”) (internal citation omitted); see also Foradori, 523 F.3d at\n503 (reviewing other cases). The second is the “strongest showing” standard. Lebron v.\nUnited States, 279 F.3d 321, 325 (5th Cir. 2002) (internal citation omitted); see also Enter.\nRef. Co. v. Sector Ref. Inc., 781 F.2d 1116, 1118 (5th Cir. 1986); Dixon v. Int’l Harvester Co.,\n754 F.2d 573, 590 (5th Cir. 1985); Caldarera v. E. Airlines, Inc., 705 F.2d 778, 784 (5th Cir.\n1983); Shows v. Jamison Bedding, Inc., 671 F.2d 927, 934 (5th Cir. 1982); Bridges v.\nGroendyke Transp., Inc., 553 F.2d 877, 880 (5th Cir. 1977); Wackman v. Rubasmen, 602 F.3d\n391, 405 (5th Cir. 2010); Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1378 (5th\nCir. 1992). The third standard is the “shocks the conscience” standard. Caldarera, 705 F.2d\nat 784 (internal citation and quotation marks omitted); see also Wackman, 602 F.3d at 404-\n05; Allen v. Seacoast Prods., Inc., 623 F.2d 355, 364 (5th Cir. 1980); Bridges, 553 F.2d at 880);\nWilliams v. Chevron U.S.A., Inc., 875 F.2d 501, 506 (5th Cir. 1989) (quoting Caldarera, 705\nF.2d at 784); see also Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293\nF.3d 912, 924 (5th Cir. 2002) (citing Caldarera, 705 F.2d at 784).\n\n Because RCX challenges the district court’s decision to affirm the jury’s award, as\nopposed to directly challenging the jury’s award, we apply the abuse of discretion standard.\nMcCaig v. Wells Fargo Bank (Tex.), N.A., 788 F.3d 463, 482 (5th Cir. 2015).\n 14\n\f Case: 17-41282 Document: 00514820085 Page: 15 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nnecessary to a successful marriage. Glasscock v. Armstrong Cork Co., 946 F.2d\n1085, 1089 (5th Cir. 1991) (citing Whittlesey v. Miller, 572 S.W.2d 665, 666\n(Tex. 1978)). Damages for loss of consortium are non-pecuniary damages,\nwhich “do not require certainty of actual monetized loss.” Waste Mgmt. of Tex.,\nInc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 153 (Tex. 2014). They\nare, instead, “measured by an amount that a reasonable person could possibly\nestimate as fair compensation.” Id. (internal quotation marks and citation\nomitted).\n While “translating the subjective nature of this loss into monetary\nterms” is difficult, Texas courts trust “the ability of the jury to calculate an\nappropriate award based on the evidence.” Id. at 1089 (citing P.T. & E. Co. v.\nBeasley, 698 S.W.2d 190, 196 (Tex. App.—Beaumont 1985)); Whittlesey, 572\nS.W.2d at 667 (“[T]he issue generally must be resolved by the impartial\nconscience and judgment of jurors who may be expected to act reasonably,\nintelligently and in harmony with the evidence.” (internal quotation marks and\ncitation omitted)). Even so, this trust is limited—juries cannot simply pull a\nnumber out of a hat. All damages must be tied to some evidence. Enright v.\nGoodman Distrib., Inc., 330 S.W.3d 392, 403 (Tex. App.—Houston [14th Dist.]\n2010) (citing First State Bank v. Keilman, 851 S.W.2d 914, 930 (Tex. App.—\nAustin 1993, writ denied)). Direct evidence, however, is not required. A jury\ncan infer loss of consortium damages “from [indirect] evidence showing the\nnature and extent of a spouse’s injuries.” Glasscock, 946 F.2d at 1090. 10 When\nconsidering indirect evidence, juries can rely on “(1) the nature of the marital\n\n\n\n 10 See also Elizondo v. Krist, 338 S.W.3d 17, 29 (Tex. App.—Houston [14th Dist.] 2010),\naff’d, 415 S.W.3d 259 (Tex. 2013) (“[T]estimony that the primary victim’s injuries interfere\nwith family activities is sufficient.”); Wal–Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328\n(Tex. 1993) (holding that testimony that, as a result of wife’s injuries, couple no longer\nengages in their former outdoor activities and that travel has become difficult is “at least\nsome evidence” of loss-of-consortium damages).\n 15\n\f Case: 17-41282 Document: 00514820085 Page: 16 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\nrelationship prior to the spouse’s injury, (2) the deterioration of the marital\nrelationship following the injury, and (3) the extent and duration of the\nspouse’s injuries.” Id. (citing Whittlesey, 572 S.W.2d at 667; Monsanto Co. v.\nJohnson, 675 S.W.2d 305, 312 (Tex. App.—Houston [1st Dist.] 1984)).\n When determining the excessiveness of a jury verdict, courts “must\nreview each case on its own facts.” Moore v. M/V ANGELA, 353 F.3d 376, 384\n(5th Cir. 2003) (citing Winbourne v. E. Airlines, Inc., 758 F.2d 1016, 1018 (5th\nCir. 1984)). Past verdicts can “provide an objective frame of reference, but they\ndo not control our assessment of individual circumstances.” Wheat v. United\nStates, 860 F.2d 1256, 1259-60 (5th Cir. 1988). If an award “exceeds the bounds\nof any reasonable recovery, we must suggest a remittitur ourselves or direct\nthe district court to do so.” Caldarera, 705 F.2d at 784 (internal citation\nomitted).\n This court uses the “maximum recovery rule” to determine whether an\naward is excessive. Under the maximum recovery rule, this court “will decline\nto reduce damages where the amount awarded is not disproportionate to at\nleast one factually similar case from the relevant jurisdiction.” Lebron, 279\nF.3d at 326 (internal citations and quotations omitted). We measure\ndisproportionality by applying a percentage enhancement to past similar\nawards. This enhancement is 50% for jury trials. See Salinas, 286 F.3d at 831\n& n.6 (noting 50% enhancement has been applied only in jury trials); see also\nMoore, 353 F.3d at 384. Refusing to overturn jury awards that are within 150%\nof the highest comparable award prevents the court from substituting its own\nopinion for that of a jury. The relevant jurisdiction for purposes of the\nmaximum recovery rule “is the state providing the substantive law for the\nclaim.” Vogler, 352 F.3d at 156. Here, the relevant jurisdiction consists of\nTexas loss of consortium cases and “Fifth Circuit cases applying Texas [loss of\nconsortium] law.” Id.\n 16\n\f Case: 17-41282 Document: 00514820085 Page: 17 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\n The jury awarded Mrs. Puga $1.8 million for her future loss of\nconsortium and $1.6 million for her past loss of consortium. Applying the\nmaximum recovery rule, neither award is clearly excessive.\n The award for future loss of consortium falls within this court’s 50%\nmultiplier. The highest decision we found awarded a wife $1 million for loss of\nfuture consortium in a case where the husband did not die. 11 Reeder v. Allport,\n218 S.W.3d 817, 820 (Tex. App.—Beaumont 2007) (affirming a jury’s award of\n“$1,000,000 for future loss of consortium.”); accord Lebron v. United States, 279\nF.3d 321, 327 (5th Cir. 2002) (basing a maximum recovery rule finding in a\nloss-of-consortium case on the “the highest award” the court could find). That\nverdict was rendered in 2007 dollars. Accounting for inflation, that award is\nover $1.2 million in 2018 dollars. 12 Cf. Ledet v. Smith Marine Towing Corp.,\n455 F. App’x 417, 423 (5th Cir. 2011) (unpublished) (accounting for inflation\nwhen applying the maximum recovery rule to a prior jury verdict). The jury’s\n$1.8 million verdict falls within 150% of the prior award over $1.2 million.\n\n\n\n\n 11 We found other verdicts that were higher, but we do not rely on these verdicts\nbecause a higher court reversed them. The higher courts did not reverse because the jury\nawards were excessive—they reversed for other reasons. See, e.g., U-Haul Int’l, Inc. v.\nWaldrip, 322 S.W.3d 821, 857 (Tex. App.—Dallas 2010) (affirming the jury’s award of a $1.6\nmillion future consortium loss), aff’d in part, rev’d in part on other grounds, 380 S.W.3d 118\n(Tex. 2012); Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 459 (Tex. App.—Dallas 2007) (reversing\na jury’s $2 million loss of consortium claim, but on other grounds). While this court on one\nother occasion relied on a partially reversed jury verdict, we specifically affirmed the lower\ncourt’s loss of spousal consortium ruling, which makes it distinguishable from the cases\nabove. See Vogler, 352 F.3d at 157 (relying on the jury’s award in Douglass v. Delta Air Lines,\nInc., 709 F. Supp. 745 (W.D. Tex. 1989), aff’d in part, rev’d in part, 897 F.2d 1336 (5th Cir.\n1990)).\n\n 12We performed this conversion using the Bureau of Labor Statistics’s CPI Inflation\nCalculator, available at https://data.bls.gov/cgi-bin/cpicalc.pl. See Ledet, 455 F. App’x at 423\nn.1 (using the Bureau of Labor Statistics’s CPI Inflation Calculator).\n\n 17\n\f Case: 17-41282 Document: 00514820085 Page: 18 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\n The parties did not point us to a factually similar case that specifically\ngranted past loss of consortium damages. 13 See Vogler, 352 F.3d at 156-57, 157\nn.7 (finding that prior cases were not factually similar when they did not\ndistinguish between past and future loss of consortium). In our own research,\nhowever, we found a case in which the plaintiff-husband, like here, survived\nan accident but suffered physically and emotionally from his injuries. See W.\nStar Transp., Inc. v. Robison, 457 S.W.3d 178, 189 (Tex. App.—Amarillo 2015)\n(upholding a past loss of consortium award of $250,000 where the husband\nsuffered a traumatic brain injury that would “significantly affect him for the\nremainder of his life”). In Robison, the jury awarded the plaintiff’s wife\n$250,000 for past loss of consortium on January 18, 2013. Adjusting for\ninflation, that award translates to roughly $272,750.00. And adding our 150%\nmultiplier to that number, the maximum recovery rule limits Mrs. Puga’s\nrecovery to $409,125.00.\n Accordingly, we AFFIRM the district court’s decision to affirm the jury’s\naward of future consortium damages. However, we REVERSE the district\ncourt’s decision to affirm the jury’s award of past consortium damages and\nREMAND for the exact calculation of Mrs. Puga’s maximum recovery in light\nof West Star Transportation, Inc. v. Robison, 457 S.W.3d 178.\n\n\n\n\n 13 The largest award we found for loss of past consortium was $300,000. Douglass,\n709 F. Supp. at 763 (W.D. Tex. 1989). That award was rendered in 1989. Converted to 2018\ndollars, $300,000 translates to roughly $625,000. Douglass, however, is not factually similar.\n\n The most important reference point for determining factual similarity is whether the\nprimary victim lived or died. For example, in Lebron, this court merely looked to see whether\nthe child in past cases had died or lived when determining the correct comparison point for\nparental loss of consortium. Lebron, 279 F.3d at 327; see also Moore, 353 F.3d at 384\n(“Poignant factual distinctions are that Plaintiff herein lost no other family member from this\naccident”). The facts here do not mirror Douglass. In Douglass, the father died in a plane\ncrash. Mr. Puga lived. The difference between life and death makes the cases meaningfully\ndifferent.\n 18\n\f Case: 17-41282 Document: 00514820085 Page: 19 Date Filed: 02/01/2019\n\n\n\n No. 17-41282\n VI.\n Finally, RCX argues that it is entitled to a settlement credit under Texas\nlaw—an issue the district court did not consider. The Pugas agree that RCX\nis entitled to a settlement credit. See RSR Corp. v. Int’l Ins. Co., 612 F.3d 851,\n862 (5th Cir. 2010) (applying a settlement credit in a Texas law diversity case).\n We, therefore, REVERSE the district court’s decision not to apply a\nsettlement credit and REMAND for the district court to calculate the\nappropriate settlement credit amount and modify the final judgment\naccordingly.\n VII.\n For the foregoing reasons, we AFFIRM the district court’s choice of jury\ninstructions; we AFFIRM that Trooper Smith was properly admitted to testify\nas an expert on accident investigation; and we AFFIRM the district court’s\ndecision to uphold the jury’s award for past and future loss of consortium. We\nalso REMAND to the district court so that it can calculate the settlement credit\nto which RCX is entitled and modify its final judgment accordingly.\n\n\n\n\n 19", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364173/", "author_raw": "CARL E. STEWART, Chief Judge"}]} | STEWART | KING | OWEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4586920/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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8,619,565 | UNITED STATES of America v. LAUDERDALE COUNTY, MISSISSIPPI Judge Veldore Young-Graham, in Her Official Capacity and Judge Lisa Howell, in Her Official Capacity | United States v. Lauderdale Cnty. | 2019-02-01 | No. 17-60805 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Elrod, Higginson, Reavley", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8598815/", "author_raw": ""}]} | ELROD | HIGGINSON | REAVLEY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8619565/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,587,291 | In the MATTER OF: ONDOVA LIMITED COMPANY, Debtor Jeffrey Baron, Appellant v. Daniel J. Sherman ; Munsch, Hardt, Kopf & Harr, P.C.; Liberty Mutual Insurance Company, Appellees | Baron v. Sherman (In Re Ondova Ltd. Co.) | 2019-02-04 | 18-10182 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Reavley, Elrod, Willett", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 18-10182 Document: 00514821265 Page: 1 Date Filed: 02/04/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 18-10182 United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 4, 2019\nIn the Matter of: ONDOVA LIMITED COMPANY\n Lyle W. Cayce\n Debtor Clerk\n\n\n-----------------------------------------------\n\nJEFFREY BARON,\n\n Appellant\n\nv.\n\nDANIEL J. SHERMAN; MUNSCH, HARDT, KOPF & HARR, P.C.; LIBERTY\nMUTUAL INSURANCE COMPANY,\n\n Appellees\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\nBefore REAVLEY, ELROD, and WILLETT, Circuit Judges.\nPER CURIAM:\n Jeffrey Baron appeals the district court’s dismissal under Federal Rule\nof Civil Procedure 12(b)(6) of his bankruptcy “adversary proceeding” against\nDaniel J. Sherman, the trustee responsible for administering the bankruptcy\n\f Case: 18-10182 Document: 00514821265 Page: 2 Date Filed: 02/04/2019\n\n\n\n No. 18-10182\nestate of Ondova Limited Company. Baron also appeals the denial of his\nmotion for leave to amend. We review both de novo. 1\n To survive a motion to dismiss, a complaint must contain sufficient facts\nto state a claim for relief that is plausible on its face. 2 And while we must accept\na plaintiff's factual allegations as true, we are not bound to accept as true “a\nlegal conclusion couched as a factual allegation.” 3\n The district court considered and adopted Bankruptcy Judge Jernigan’s\nmeticulous and well-reasoned 55-page Report and Recommendation. The\ndistrict court granted Trustee Sherman’s motion to dismiss because—as the\ncourt-appointed trustee and an arm of the court—Sherman was entitled to\nabsolute immunity for all actions taken pursuant to a court order, and entitled\nto qualified immunity for all other acts within the scope of his trustee duties.\nBaron’s claims against Trustee Sherman’s attorneys (the law firm Munsch\nHardt Kopf & Harr, P.C.) also failed because the attorneys were covered by\nboth derivative trustee immunity and independent attorney immunity.\nBaron’s claim that Trustee Sherman breached his fiduciary duty also failed\nbecause he did not plausibly plead gross negligence. Finally, the district court\ndenied Baron’s motion to amend his complaint on futility grounds.\n We agree with the district court’s analysis of Trustee Sherman’s\nimmunity. Trustees are entitled to absolute immunity for all actions taken\npursuant to a court order. 4 And while this circuit does not have controlling\nprecedent on the issue, numerous sister circuits have held that trustees have\n\n\n\n 1 While a denial of leave to amend is generally reviewed for abuse of discretion,\nbecause the district court based its denial for leave to amend solely on futility, review is de\nnovo. City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010) (“The “de novo\nstandard of review [is] identical, in practice, to the standard used for reviewing a dismissal\nunder Rule 12(b)(6).”).\n 2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).\n 3 Papasan v. Allain, 478 U.S. 265, 286 (1986).\n 4 Boullion v. McClanahan, 639 F.2d 213, 214 (5th Cir. 1981).\n\n 2\n\f Case: 18-10182 Document: 00514821265 Page: 3 Date Filed: 02/04/2019\n\n\n\n No. 18-10182\nqualified immunity for personal harms caused by actions taken within the\nscope of their official duties. 5 Only ultra vires actions—actions that fall outside\nthe scope of their duties as trustees—are not entitled to immunity. There is no\ncompelling reason to depart from our sister circuits’ sensible approach. We\nthus hold that bankruptcy trustees in the Fifth Circuit are entitled to qualified\nimmunity for personal harms caused by actions that, while not pursuant to a\ncourt order, fall within the scope of their official duties.\n Here, Baron has not plausibly alleged any actions not covered by\nabsolute or qualified immunity, either in his original complaint or in his\nproposed amended complaint. His factual allegations on appeal are limited to\nSherman’s decision to seek a receivership over him, alleged falsehoods or\nmisrepresentations during the receivership process, and subsequent use of the\nreceivership to liquidate assets. However—as acknowledged by Bankruptcy\nJudge Jernigan—all property seizures that Baron complains of were done\nunder the Receivership Order and were actions taken by the receiver rather\nthan the trustee. As Judge Jernigan also notes, between the date Sherman was\nappointed trustee and the date Baron filed his adversary proceeding, the\nbankruptcy court entered approximately 147 orders in the Ondova Bankruptcy\nCase. Trustee Sherman was acting “under the supervision and subject to the\norder of the bankruptcy judge”—and thus entitled to absolute immunity 6—for\nvirtually all of his tenure as trustee.\n\n\n\n\n 5 See, e.g., Grant, Konvalinka & Harrison, PC v. Banks (In re McKenzie), 716 F.3d 404,\n413 (6th Cir.), cert denied, 134 S. Ct. 444 (2013); Sierra v. Seeber, 966 F.2d 1444 (4th Cir.\n1992); Phoenician Mediterranean Villa, LLC v. Swope (In re J & S Props., LLC), 545 B.R. 91,\n104 (Bankr. W.D. Pa. 2015) (“When not acting pursuant to an order of court, a bankruptcy\ntrustee is generally afforded qualified immunity.”), aff’d, 554 B.R. 747 (W.D. Pa. 2016), aff’d,\n872 F.3d 138 (3d Cir. 2017).\n 6 Boullion, 639 F.2d at 213\n\n\n 3\n\f Case: 18-10182 Document: 00514821265 Page: 4 Date Filed: 02/04/2019\n\n\n\n No. 18-10182\n Even when Trustee Sherman was not acting pursuant to a court order,\nhe was still entitled to qualified immunity for actions taken within the scope\nof his official duties. Seeking a receivership is sometimes a necessary step in\nadministering the estate. And we have previously weighed in on this very\nreceivership. 7 While we found that the receivership was without jurisdiction,\nwe also held that it was pursued without malice. 8 And we have already\nawarded a remedy. 9 Baron disagrees with Trustee Sherman’s decision to\npursue a receivership and alleges that Sherman made misleading statements\nduring the receivership process, but these allegations—even when assumed to\nbe true—cannot transform them into ultra vires actions that remove Trustee\nSherman’s qualified immunity.\n Second, we agree with the district court that this immunity extends to\nTrustee Sherman’s attorneys under both a derivative theory of judicial\nimmunity 10 and under the separate doctrine of attorney immunity 11 for\nessentially the same reasons articulated by the district court.\n Third, we agree with the district court’s analysis of Baron’s claims for\nbreach of fiduciary duty. Baron fails to plausibly allege facts sufficient to\nsupport a finding of gross negligence, either in his original complaint or in his\nproposed amended complaint.\n\n\n\n\n 7 Netsphere, Inc. v. Baron, 703 F.3d 296 (5th Cir. 2012).\n 8 Id. at 313 (“[W]e hold . . . that in creating the receivership ‘there was no malice nor\nwrongful purpose, and only an effort to conserve property in which [the court] believed’ it was\ninterested in maintaining for unpaid attorney fees and to control Baron's vexatious litigation\ntactics.” (alteration in original) (quoting W.F. Potts Son & Co. v. Cochrane, 59 F.2d 375, 377–\n78 (5th Cir. 1932))).\n 9 Id. at 313–14.\n 10 See In re DeLorean Motor Co., 991 F.2d 1236, 1241 (6th Cir. 1993).\n 11 See Troice v. Proskauer Rose, L.L.P., 816 F.3d 341, 349 (5th Cir. 2016) (holding that\n\nattorneys are entitled to immunity under Texas law from suit by non-clients, unless the\nattorney’s conduct “d[oes] not involve the provision of legal services” or is “entirely foreign to\nthe duties of any attorney”).\n 4\n\f Case: 18-10182 Document: 00514821265 Page: 5 Date Filed: 02/04/2019\n\n\n\n No. 18-10182\n Finally, while we review de novo the denial of a motion to amend, Baron\nhas failed to raise the new causes of action contained within his proposed\namended complaint in his briefs or argue that the district court erred in finding\nthese claims unsuccessful. “It is a well worn principle that the failure to raise\nan issue on appeal constitutes waiver of that argument.” 12 Baron has thus\nwaived the issue, and we will not disturb the district court’s finding of futility.\n\n * * *\n We AFFIRM both the district court’s dismissal under Rule 12(b)(6) and\nthe denial of leave to file an amended complaint.\n\n\n\n\n United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (citing United States v.\n 12\n\nThibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)).\n 5", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364544/", "author_raw": "PER CURIAM"}]} | REAVLEY | ELROD | WILLETT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587291/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,443,865 | PLANNED PARENTHOOD OF GREATER TEXAS FAMILY PLANNING AND PREVENTATIVE HEALTH SERVICES, INC. Planned Parenthood San Antonio Planned Parenthood Cameron County Planned Parenthood Gulf Coast, Inc Planned Parenthood South Texas Surgical Center Jane Doe 1 Jane Doe 2 Jane Doe 4 Jane Doe 7 Jane Doe 9 Jane Doe 10 Jane Doe 11 v. Charles SMITH, in His Official Capacity as Executive Commissioner of HHSC Sylvia Hernandez Kauffman, in Her Official Capacity as Acting Inspector General of HHSC | Planned Parenthood of Greater Tex. Family Planning & Preventative Health Servs., Inc. v. Smith | 2019-02-04 | No. 17-50282 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415292/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443865/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||||
4,587,545 | Planned Parenthood of Grt TX v. Charles Smi | 2019-02-05 | 17-50282 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before STEWART, Chief Judge, JONES, SMITH, DENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, and ENGELHARDT, Circuit Judges.", "parties": "", "opinions": [{"author": "Judge Oldham is recused and did not participate in this decision", "type": "010combined", "text": "IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n _____________________ FILED\n February 4, 2019\n No. 17-50282\n Lyle W. Cayce\n _____________________ Clerk\n\n\nPLANNED PARENTHOOD OF GREATER TEXAS FAMILY PLANNING\nAND PREVENTATIVE HEALTH SERVICES, INC; PLANNED\nPARENTHOOD SAN ANTONIO; PLANNED PARENTHOOD CAMERON\nCOUNTY; PLANNED PARENTHOOD GULF COAST, INC; PLANNED\nPARENTHOOD SOUTH TEXAS SURGICAL CENTER; JANE DOE #1;\nJANE DOE #2; JANE DOE #4; JANE DOE #7;\nJANE DOE #9; JANE DOE #10; JANE DOE #11,\n\n Plaintiffs - Appellees\nv.\n\nCHARLES SMITH, in his official capacity as Executive Commissioner of\nHHSC; SYLVIA HERNANDEZ KAUFFMAN, in her official capacity as\nActing Inspector General of HHSC,\n\n Defendants - Appellants\n\n __________________________\n\n Appeal from the United States District Court for the\n Western District of Texas\n __________________________\n\n (Opinion January 17, 2019, 5 Cir., 2019, ___ F.3d ___)\n\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, CLEMENT,\nOWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON,\nCOSTA, WILLETT, HO, DUNCAN, and ENGELHARDT, Circuit Judges. 1\n\n\n\n\n 1 Judge Oldham is recused and did not participate in this decision.\n\fBY THE COURT:\n\n A majority of the circuit judges in regular active service and not\ndisqualified having voted in favor, on the Court’s own motion, to rehear this\ncase en banc,\n IT IS ORDERED that this cause shall be reheard by the court en banc\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\nbriefing schedule for the filing of supplemental briefs.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364798/", "author_raw": "Judge Oldham is recused and did not participate in this decision"}]} | STEWART | JONES | SMITH | 2 | DENNIS; CLEMENT; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; HO; DUNCAN; ENGELHARDT | {"STEWART": ", Chief", "JONES": ", Circuit", "SMITH": ", Circuit", "DENNIS": ", Circuit", "CLEMENT": ", Circuit", "OWEN": ", Circuit", "ELROD": ", Circuit", "SOUTHWICK": ", Circuit", "HAYNES": ", Circuit", "GRAVES": ", Circuit", "HIGGINSON": ", Circuit", "COSTA": ", Circuit", "WILLETT": ", Circuit", "HO": ", Circuit", "DUNCAN": ", Circuit", "ENGELHARDT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587545/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,587,638 | UNITED STATES of America, Plaintiff-Appellee v. Milo EADEN, Defendant-Appellant | United States v. Milo Eaden | 2019-02-05 | 18-50379 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Jolly, Jones, Dennis", "parties": "", "opinions": [{"author": "E. GRADY JOLLY, Circuit Judge:", "type": "010combined", "text": "Case: 18-50379 Document: 00514823508 Page: 1 Date Filed: 02/05/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 18-50379 FILED\n February 5, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n Plaintiff - Appellee\n\nv.\n\nMILO EADEN,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\nBefore JOLLY, JONES, and DENNIS, Circuit Judges.\nE. GRADY JOLLY, Circuit Judge:\n The question of first impression presented in this sentencing appeal\nconcerns the effect of a defendant’s possession of ammunition alone, as opposed\nto a firearm, during a drug trafficking offense. Milo Eaden appeals his four-\nlevel sentencing enhancement pursuant to U.S.S.G. § 2k2.1(b)(6)(B) for using\nor possessing ammunition in connection with another felony offense. Eaden\nargues that he did not possess the ammunition “in connection with” his felony\ndrug trafficking activities. For the reasons that follow, we hold that the district\ncourt clearly erred in imposing the enhancement under these facts. We\ntherefore vacate Mr. Eaden’s sentence and remand for resentencing.\n\f Case: 18-50379 Document: 00514823508 Page: 2 Date Filed: 02/05/2019\n\n\n\n No. 18-50379\n I.\n Police officers executed a search warrant of Eaden’s home after making\na controlled purchase of crack cocaine from Eaden at his residence. During\ntheir search, the officers found 5.5 grams of crack cocaine and 19 rounds of\nammunition. No firearm was found on Eaden’s person or in his home. The\nammunition was “easily accessible and stored in close proximity to” the\ncocaine. These words are the only description of how the ammunition was\nconnected to the drug transaction. The record certainly does not indicate that\nthe ammunition was in plain sight during the controlled purchase. Eaden\nactually claimed that he found the ammunition in the dumpster behind his\nhouse months earlier and brought it home. Eaden had previously been\nconvicted, in 2003, of delivering cocaine in violation of Texas law and had been\nsentenced to ten years in Texas prison for this felony offense. As to the present\noffense, Eaden was charged in federal court with possession of ammunition as\na felon and he pleaded guilty to this charge. We are now only concerned with\nhis sentence as enhanced by his possession of the ammunition.\n The Presentence Report (PSR) assigned a base offense level of fourteen,\nadded a four-level enhancement pursuant to U.S.S.G. § 2k2.1(b)(6)(B) 1 for\nusing or possessing the ammunition in connection with another felony offense,\nand reduced by three levels for acceptance of responsibility, bringing his total\noffense level to fifteen. Eaden objected to the four-level enhancement, arguing\nthat his possession of ammunition was not connected with his drug trafficking\nbecause the ammunition did not facilitate or have the potential to facilitate the\n\n\n\n\n 1 U.S.S.G. § 2k2.1(b)(6)(B) reads in relevant part: “If the defendant . . . used or\npossessed any firearm or ammunition in connection with another felony offense; . . . increase\nby 4 levels.”\n\n 2\n\f Case: 18-50379 Document: 00514823508 Page: 3 Date Filed: 02/05/2019\n\n\n\n No. 18-50379\ndrug trafficking offense nor was the possession of the ammunition and drug\ntrafficking part of a common scheme or plan.\n Noting the lack of Fifth Circuit precedent on this point, the PSR rejected\nEaden’s objections by relying on the text of § 2k2.1(b)(6)(B), the provision’s\napplication note, and the Sixth Circuit’s opinion in United States v. Coleman,\n627 F.3d 205 (6th Cir. 2010). Following Coleman, the PSR extended the Sixth\nCircuit’s “fortress theory”—which traditionally applies only to firearms—to\nsituations where only ammunition is present. Thus, the PSR found that,\nbecause the ammunition “potentially emboldened Eaden in the knowledge that\nhe was one step closer to having a fully-loaded firearm to protect himself and\nhis illegal drugs, and the ammunition potentially served as notice to potential\nbuyers that he was one step closer to having a fully-loaded firearm,” the\npossession alone was connected with the drug trafficking offense.\n The PSR maintained its recommended final offense level of fifteen which,\ncoupled with Eaden’s criminal history category of II, resulted in an advisory\nguidelines range of twenty-one to twenty-seven months of imprisonment. Had\nthe PSR sustained Eaden’s objection to the four-level enhancement, his total\noffense level would have been eleven, carrying a guidelines range of ten to\nsixteen months.\n At his sentencing hearing, Eaden objected to the PSR’s imposition of the\nfour-level enhancement for substantially the same reasons—possessing\nammunition alone does not facilitate drug trafficking absent possession of a\nfirearm. The government responded by resting on the PSR’s reasoning and\nhad “no additional information it can provide.” The district court overruled\nEaden’s objection because it found that his possession of the ammunition was\n“part of the same course of conduct or common scheme or plan as the\ndefendant’s possession of the ammunition facilitated or had the potential to\n\n\n 3\n\f Case: 18-50379 Document: 00514823508 Page: 4 Date Filed: 02/05/2019\n\n\n\n No. 18-50379\nfacilitate his drug trafficking crime offense.” Eaden now appeals the district\ncourt’s application of § 2k2.1(b)(6)(B)’s four-level enhancement.\n II.\n On appeal, Eaden argues that the district court erred in holding that his\npossession of ammunition was “in connection with” his drug trafficking\nactivities. Although the application notes to the Guidelines provide for a\npresumption of facilitation when a firearm is possessed in close proximity to a\ndrug trafficking offense, Eaden contends that the presumption should not\napply here because his possession of ammunition alone does not have the\npotential to facilitate trafficking activities. The government argues that we\nshould adopt the Sixth Circuit’s conclusion in Coleman and effectively hold\nthat the possession of ammunition alone creates a presumption that it\nfacilitates or potentially facilitates felony drug trafficking. The government\nargues that the ammunition brought Eaden “one step closer to possessing a\nfully-loaded firearm.” The government also argues that the ammunition\nfacilitated the drug trafficking by serving to intimidate potential threats to his\ntrafficking operation. Both parties acknowledge that we are presented with a\nquestion of first impression in this circuit.\n III.\n This court reviews a district court’s interpretation or application of the\nguidelines de novo and its factual findings for clear error. See United States v.\nCisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The district court’s\ndetermination of the relationship between ammunition and another offense is\nmost usually a factual finding. See United States v. Coleman, 609 F.3d 699,\n708 (5th Cir. 2010). “A factual finding is clearly erroneous when the reviewing\ncourt on the entire evidence is left with the definite and firm conviction that a\nmistake has been committed.” Id.\n\n\n 4\n\f Case: 18-50379 Document: 00514823508 Page: 5 Date Filed: 02/05/2019\n\n\n\n No. 18-50379\n This appeal presents three questions that we must address. First,\nwhether possession of ammunition alone can facilitate drug trafficking for\npurposes of U.S.S.G. § 2k2.1(b)(6)(B), a question of first impression in this\ncircuit. Second, whether there is a presumption that the possession of\nammunition alone facilitates a drug trafficking offense for purposes of U.S.S.G.\n§ 2k2.1(b)(6)(B), again, a question of first impression in this circuit. Third, in\nthe light of our answer to the first two questions, whether the four-level\nenhancement was properly applied to Eaden.\n A.\n We first determine if U.S.S.G. § 2k2.1(b)(6)(B)’s four-level enhancement\ncan be applied to a defendant who possessed only ammunition. Section\n2k2.1(b)(6)(B) provides for a four-level enhancement if the defendant “used or\npossessed any firearm or ammunition in connection with another felony\noffense.” Application Note 14(A) provides that the term “in connection with”\nmandates that “the firearm or ammunition facilitated, or had the potential of\nfacilitating, another felony offense.”\n We hold that possession of ammunition alone, under appropriate\ncircumstances not present in this case, certainly may be sufficient for the four-\nlevel enhancement. By using the disjunctive “or,” the guidelines plainly read\nto allow for the enhancement when the defendant possesses a loaded gun, an\nunloaded gun, or ammunition alone. That much is clear: ammunition alone\ncan facilitate a drug offense. The more nuanced question will be under what\ncircumstances and, absent a presumption, this question necessarily must be\ndecided on a case by case basis.\n B.\n We now turn to the second question of first impression for this court:\nwhether, as is true with a firearm, there is a presumption of facilitation when\nammunition alone is present at the time of the drug trafficking offense; or\n 5\n\f Case: 18-50379 Document: 00514823508 Page: 6 Date Filed: 02/05/2019\n\n\n\n No. 18-50379\nwhether the district court must make an affirmative finding that Eaden’s\nammunition facilitated his drug trafficking offense. 2\n In the context of drug offenses, facilitation can be presumed when (1) a\nfirearm was possessed (2) in close proximity to contraband during a drug\ntrafficking offense. See, e.g., United States v. Anderson, 559 F.3d 348, 358 (5th\nCir. 2009) (“When a loaded firearm is found in close physical proximity to\nnarcotics, readily available to the defendant, a connection will usually be\nfound.”). However, this presumption is only available when both conditions\nare present—a firearm and a trafficking offense. This common sense rule is\nsupported by the text of § 2k2.1(b)(6)(B), its Application Note, and our holding\nin United States v. Jeffries, 587 F.3d 690 (5th Cir. 2009).\n The text of § 2k2.1(b)(6)(B) states that the enhancement applies when\nthe defendant (1) “used or possessed any firearm or ammunition” (2) “in\nconnection with another felony offense.” As noted above, Application Note\n14(A) clarifies that “in connection with” means “facilitated, or had the potential\nof facilitating.” Therefore, for the enhancement to apply, the government must\nshow evidence of both (1) possession of a firearm or ammunition and (2) that\nthe firearm or ammunition facilitated or had the potential to facilitate the\nother offense. Application Note 14(B) instructs us, however, that “in the case\nof a drug trafficking offense in which a firearm is found in close proximity to\ndrugs . . . application of subsection[] (b)(6)(B) is warranted because the\npresence of a firearm has the potential of facilitating another felony offense.”\nApplication Note 14(B)—addressed specifically to the drug trafficking\n\n\n 2 In this circuit, there is a presumption of facilitation when the defendant possesses a\nfirearm during a drug trafficking offense and no presumption of facilitation when the\ndefendant possesses a firearm along with only user amounts of narcotics. See United States\nv. Jeffries, 587 F.3d 690, 692–93 (5th Cir. 2009). Here we address a third situation—when\nthe defendant possesses ammunition and no gun during a drug trafficking offense—and hold\nthat there is no presumption.\n\n 6\n\f Case: 18-50379 Document: 00514823508 Page: 7 Date Filed: 02/05/2019\n\n\n\n No. 18-50379\ncontext—states only that “the presence of the firearm” inherently “has the\npotential of facilitating” and makes no reference to ammunition. 3 We see no\nreason in the text of the Guideline, or its explanatory notes, to expand this\npresumption beyond possession of a firearm during a drug trafficking offense.\n The correctness of this holding is illustrated by our reasoning in Jeffries.\nThere we considered whether the enhancement presumptively applied to a\ndefendant who possessed a firearm during a drug possession offense. We noted\nthat Application Note 14(B) instructs courts to apply the enhancement\n“automatically” when a “firearm is found in close proximity to drugs” during a\ntrafficking offense but when drug trafficking is not present, “no presumption\nis made.” 587 F.3d at 692–93. Therefore, the Jeffries court declined to extend\nApplication Note 14(B)’s presumption of facilitation to a nontrafficking offense.\nSee id. at 694 (“[T]he nexus cannot simply be presumed, as appears to have\nbeen the case here.”). Here, similarly, we see no rationale to extend the\npresumption of facilitation to situations in which there is a drug transaction\nbut no firearm—only ammunition. The text of Application Note 14(B) is\nlimited—it only applies when both trafficking and a firearm are present.\nEaden did not possess a firearm during his drug trafficking offense and, as in\nJeffries, we see no reason to judicially expand the scope of Application Note\n14(B)’s presumption of facilitation.\n C.\n Thus far we have held, first, that the possession of ammunition alone\nmay be connected with a drug trafficking offense, qualifying a defendant for\nthe four-level sentencing enhancement; and second, that there is no\n\n\n 3 The omission of the term “ammunition” is particularly important considering that\nApplication Note 14(A)—directly preceding Note 14(B) and containing no presumption—uses\nthe term “firearm or ammunition,” indicating that the drafters purposefully excluded\nammunition from Note 14(B)’s presumption of facilitation.\n\n 7\n\f Case: 18-50379 Document: 00514823508 Page: 8 Date Filed: 02/05/2019\n\n\n\n No. 18-50379\npresumption of facilitation regarding the possession of only ammunition. Now\nwe apply these principles to this case.\n Stripped of a presumption of facilitation, the government must present\nfacts or circumstances demonstrating that the possession of ammunition\nfacilitated or had the potential to facilitate the other offense. 4 See Jeffries, 587\nF.3d at 692, 694–95 & n.9 (the “specific facts of th[e] case” must demonstrate\nthat the firearm or ammunition in question “emboldened” the offense or served\nto “protect” contraband to satisfy the “critical step” of establishing a “nexus\nbetween the firearm possession and the drug possession”). 5 Ammunition has\nthe potential to facilitate a trafficking operation when it is displayed or\nbrandished in a manner that has the potential to embolden the trafficker and\nprotect his operation by implying that he has a gun, thereby deterring buyers,\nco-conspirators, or competitors from taking adverse action.\n For ammunition to have such a deterrent effect to potential threats, it\nwould, inter alia, be necessary that it be in plain sight to purchasers or others\n\n\n 4 Indeed, in its brief, the government purports to agree in principle, saying:\n When the defendant possesses a firearm in close proximity to drugs,\n there is a presumption that the firearm has the potential to facilitate\n his drug trafficking offense. USSG § 2K2.1 (n.14(B)). This presumption\n likely does not apply when the defendant possesses only ammunition,\n in which case the district court must make an affirmative finding that\n the ammunition facilitated the drug trafficking offense. See United\n States v. Jeffries, 587 F.3d 690, 694 (5th Cir. 2009).\n 5 Despite conceding that there is no presumption of facilitation for ammunition alone,\nthe government spends much of its brief arguing that this court should adopt the Sixth\nCircuit’s rationale in United States v. Coleman, 627 F.3d 205 (6th Cir. 2010). There, the court\nheld that possession of ammunition alone facilitated a drug trafficking offense because the\nammunition “emboldened” the defendant “in the knowledge that he was one step closer to\nhaving a fully-loaded firearm to protect himself and his illegal drugs.” Id. at 212. This\nrationale establishes the functional equivalent of the presumption we have rejected above\nand we respectfully decline to import it into this circuit’s jurisprudence. See id. at 216\n(Gillman, J. concurring in part and dissenting in part) (“Many things could in theory put a\nperson ‘one step closer’ to having a firearm, such as applying for a firearms permit, having a\nholster, possessing a laser scope, or earning money to be able to purchase a weapon.”).\n\n 8\n\f Case: 18-50379 Document: 00514823508 Page: 9 Date Filed: 02/05/2019\n\n\n\n No. 18-50379\ninvolved in the trafficking. Turning to the facts of the present case, the PSR\nindicates that its only item of evidence to show facilitation is that the\nammunition was “easily accessible and stored in close proximity to the illegal\ndrugs.” The record does not demonstrate that the ammunition was kept in\nplain sight, either during the controlled purchase or at any other time. In\nshort, the government has pointed to no facts or circumstances that indicate\nthat Eaden possessed the ammunition “in connection with” his drug trafficking\noffense.\n IV.\n To sum up: we have held that possession of ammunition alone may,\nunder appropriate circumstances, be sufficient to show facilitation for purposes\nof § 2k2.1(b)(6)(B)’s four-level enhancement. But we have further held that\npossession of ammunition alone does not enjoy a presumption that it was\nconnected with a drug trafficking offense. In this context, to demonstrate\nfacilitation, the government must adduce facts tending to show that the\nammunition facilitated or had the potential to facilitate the drug trafficking\noffense. We have respectfully declined to adopt the Sixth Circuit’s path to\nshowing facilitation set out in Coleman for the reasons stated above. Because\nwe find that the record here shows that the government produced no facts\ntending to show that Eaden’s mere possession of ammunition alone was\nconnected with his drug trafficking activities, the application of\n§ 2k2.1(b)(6)(B)’s four-level enhancement was clear error. Accordingly, we\nVACATE the district court’s sentence and REMAND for resentencing not\ninconsistent with this opinion.\n VACATED AND REMANDED.\n\n\n\n\n 9", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364891/", "author_raw": "E. GRADY JOLLY, Circuit Judge:"}]} | JOLLY | JONES | DENNIS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587638/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,587,643 | Steve Vic PARKER, Also Known as Jerry Wilson, Petitioner-Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee | Steve Parker v. Lorie Davis, Director | 2019-02-05 | 15-20451 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "King, Higginson, Costa", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 15-20451 Document: 00514823639 Page: 1 Date Filed: 02/05/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 15-20451 February 5, 2019\n Lyle W. Cayce\nSTEVE VIC PARKER, also known as Jerry Wilson, Clerk\n\n\n Petitioner - Appellant\n\nv.\n\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\n\n Respondent - Appellee\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore KING, HIGGINSON, and COSTA, Circuit Judges.\nPER CURIAM:\n Steve Vic Parker appeals the district court’s dismissal of his habeas\npetition as successive. Because we find that Parker’s previous habeas petition\nchallenged a judgment distinct from the one he challenges in the present\nhabeas petition, we REVERSE and REMAND.\n I.\n In 1991, Steve Vic Parker 1 was convicted in a Texas state court of\nunauthorized use of a motor vehicle (“UUMV”) and sentenced to 20 years in\n\n\n 1 Parker has in various proceedings been referred to as “Jerry Wilson,” his alias.\nBecause it does not affect the issues on appeal, we use the name “Parker” throughout this\nopinion.\n\f Case: 15-20451 Document: 00514823639 Page: 2 Date Filed: 02/05/2019\n\n\n\n No. 15-20451\nthe custody of the Texas Department of Criminal Justice (“TDCJ”) with a\nmaximum discharge date of March 17, 2016. In the years that followed, Parker\nwas released to mandatory supervision and returned to prison several times,\nalthough the record does not reflect that he was convicted of any crimes during\nthis time period. That is, until 2010, when, while on mandatory supervision,\nParker was convicted of two counts of theft of less than $1,500, for which he\nreceived two seven-year sentences to run consecutively with the 20-year\nUUMV sentence. 2 Following his 2010 conviction, his mandatory supervision on\nhis 1991 UUMV conviction and sentence was revoked and he returned to\nprison.\n In April 2013, Parker filed a 28 U.S.C. § 2254 application (“2013 habeas\npetition”) arguing that he had accumulated enough time on his 20-year\nsentence for it to expire and his new seven-year sentence to begin. 3 He also\nargued that the State violated the Ex Post Facto Clause by refusing to release\nhim from custody for the 20-year sentence. The district court, considering only\nParker’s Ex Post Facto argument, concluded that TDCJ’s calculation of his\nsentence did not violate the Ex Post Facto Clause. It therefore dismissed the\npetition with prejudice and denied a certificate of appealability (“COA”). This\ncourt dismissed Parker’s untimely appeal.\n Shortly after Parker filed his 2013 habeas petition, TDCJ incorrectly\nrecalculated Parker’s sentence to reflect the seven-year sentences as running\nconcurrently with the 20-year sentence, rather than consecutively, and\nreleased Parker to mandatory supervision. Roughly three months later, TDCJ\n\n\n\n\n 2 Although not entirely clear from the record, it appears that the two seven-year\nsentences were to run concurrently with one another.\n 3 The parties dispute the precise judgment or judgments challenged by Parker’s 2013\n\nhabeas petition. We discuss the matter in detail below.\n 2\n\f Case: 15-20451 Document: 00514823639 Page: 3 Date Filed: 02/05/2019\n\n\n\n No. 15-20451\ncorrected this error and returned Parker to TDCJ custody via an erroneous-\nrelease warrant.\n In 2015, Parker filed the instant habeas petition. The main thrust of\nParker’s argument was that (1) his two seven-year sentences should have\nstarted as soon as he returned to prison in 2010 and (for reasons unclear) both\nhis seven-year sentences had ceased to operate or were otherwise void under\nvarious clauses of the U.S. Constitution; and (2) his rearrest and reprocessing\nin 2013, as well as the circumstances surrounding them, violated his right to\ndue process under the Fourteenth Amendment. Upon TDCJ’s motion for\nsummary judgment, the district court determined that Parker’s petition was\nsuccessive and thus required authorization from this court to proceed. The\ncourt therefore granted TDCJ’s motion for summary judgment and dismissed\nParker’s petition without prejudice. It also denied a COA. This court thereafter\ngranted a COA on the issue of “whether Parker’s § 2254 application was\nsuccessive as to the judgments underlying the seven-year theft sentences.”\nAfter the COA had been granted and briefing submitted in this appeal, this\ncourt discovered, and TDCJ confirmed, that Parker had been released to\nmandatory supervision on his 2010 theft convictions and sentences.\n II.\n The district court dismissed Parker’s challenge to his seven-year\nsentences because it determined that his petition was successive. The\nAntiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires\nauthorization from the court of appeals before a habeas petitioner may file an\napplication that is “second or successive.” 28 U.S.C. § 2244(b)(3). If a second or\nsuccessive application is filed in a district court without authorization by the\ncourt of appeals, the district court must dismiss the application. Magwood v.\nPatterson, 561 U.S. 320, 331 (2010). An application “is not second or successive\nsimply because it follows an earlier federal petition.” Crone v. Cockrell, 324\n 3\n\f Case: 15-20451 Document: 00514823639 Page: 4 Date Filed: 02/05/2019\n\n\n\n No. 15-20451\nF.3d 833, 836 (5th Cir. 2003) (quoting In re Cain, 137 F.3d 234, 235 (5th Cir.\n1998)). The Supreme Court has explained that “the phrase ‘second or\nsuccessive’ must be interpreted with respect to the judgment challenged,”\nrather than the stretch of confinement being served by the petitioner.\nMagwood, 561 U.S. at 332-33.\n The parties do not dispute that Parker’s current petition challenges his\ntwo seven-year sentences. The State argues that the current petition is\nsuccessive because Parker’s 2013 petition challenged both his 20-year sentence\nand his two seven-year sentences. Specifically, the State characterizes Parker’s\n2013 petition as challenging “the stacking order in his seven-year theft\nsentences.” As the State acknowledges, this analysis is somewhat complicated\nby the convoluted nature of Parker’s pleadings. Opaque as his pleadings may\nbe though, the State’s characterization of Parker’s 2013 petition misses the\nmark. Parker’s 2013 petition contended that his 20-year sentence had expired\nby the time he filed the petition. 4 Although Parker acknowledges the existence\nof the 2010 convictions in this 2013 petition, nowhere therein can we discern\nanything resembling a challenge to the validity of those convictions or the\nstacking order making the seven-year sentences run consecutively with the 20-\nyear sentence. Moreover, since we are bound to accord pro se habeas petitions\nliberal treatment, we will not strain to find a stray pleading of Parker’s to use\nagainst him. See, e.g., Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th Cir. 1988).\nAccordingly, we understand Parker’s 2013 petition to challenge only his 20-\nyear sentence; his current petition challenging his seven-year sentences\nconcerns a new judgment and is therefore not successive.\n\n\n\n\n 4 In relevant part, his 2013 petition states: “The appl. has surpassed the maximum\nterm of his (20) twenty year sentence under this cause that he is currently serving. In direct\nviolation of the Ex Post Facto Clause and Due Process of Law.”\n 4\n\f Case: 15-20451 Document: 00514823639 Page: 5 Date Filed: 02/05/2019\n\n\n\n No. 15-20451\n This conclusion is not altered by the fact that, as the district court noted,\nParker “knew the facts necessary to challenge the administration of his\nconsecutive sentences before he filed his previous federal petition in 2013.” We\nhave previously considered, and rejected, this approach to successiveness\nwhere separate judgments are challenged. In Hardemon v. Quarterman, 516\nF.3d 272 (5th Cir. 2008), the petitioner had been charged in separate\nindictments of one count of sexual assault of a child and two counts of\naggravated sexual assault of a child. Id. at 273. He was convicted on all three\ncounts and given separate sentences for each. Id. In his first federal petition,\nHardemon challenged his conviction for sexual assault of a child, which the\ndistrict court rejected on the merits. Id. at 274. In his second petition, he\nchallenged his conviction of one of the counts of aggravated sexual assault of a\nchild—undisputedly a separate judgment. Id. The district court rejected the\npetition as successive and Hardemon appealed. Id.\n On appeal, we framed the question presented as “whether the\nprohibition against successive § 2254 petitions requires a prisoner to challenge\nall judgments from a single court in a single habeas petition.” Id. at 273. Prior\nto that case, we had held that a habeas petitioner’s second petition was\nsuccessive because he “knew of all of the facts necessary to raise [the claim\nraised in his second petition] before he filed his initial federal petition.” Crone,\n324 F.3d at 837. Seizing on this language, the State in Hardemon argued on\nappeal that Hardemon’s petition was similarly successive because he knew the\nfacts necessary to challenge his conviction of aggravated sexual assault of a\nchild at the time he filed his first petition. 516 F.3d at 275. We rejected this\nargument, finding that the principle espoused in Crone was inapplicable to\nHardemon’s case because Crone involved separate petitions challenging the\nsame judgment. Id. We then concluded that “Hardemon was permitted, but not\nrequired, to challenge his separate convictions in a single § 2254 petition.” Id.\n 5\n\f Case: 15-20451 Document: 00514823639 Page: 6 Date Filed: 02/05/2019\n\n\n\n No. 15-20451\nat 276. Here, as discussed, Parker’s current petition and his 2013 petition\nchallenge different judgments. The district court therefore erred in concluding\nthat Parker’s challenge to his 2010 sentence was successive.\n The remainder of Parker’s claims relate to events that took place after\nhis 2013 release and rearrest. The district court did not consider these claims\nin its dismissal of Parker’s petition. Roughly speaking, Parker argues that he\nwas owed a hearing following his rearrest and that the denial of such a hearing\nviolated his due-process rights. The State argues that these claims are now\nmoot because “the only remedy for [such] claims is re-release to mandatory\nsupervision”—i.e., putting Parker in precisely the position he is in right now.\n We need not reach the question of mootness, however, for our jurisdiction\nis otherwise lacking. A COA in this case was granted only as to the\nsuccessiveness of Parker’s challenge to his seven-year sentence, not his due-\nprocess challenge related to the circumstances surrounding his rearrest. This\ncourt has jurisdiction to consider only the issues specified in a COA. See 28\nU.S.C. § 2253(c)(1)(A); Sixta v. Thaler, 615 F.3d 569, 573 (5th Cir. 2010).\nParker has not asked this court to expand the scope of the already-granted\nCOA, and in his prior request to this court for a COA, Parker did not in any\nway allude to the due-process issues he now raises in his briefing. He has\ntherefore waived any request for a COA on that issue, and we are without\njurisdiction to consider his remaining claims. Hughes v. Johnson, 191 F.3d 607,\n613 (5th Cir. 1999) (“Issues not raised in the brief filed in support of [a] COA\napplication are waived”).\n III.\n For the foregoing reasons, we REVERSE the judgment of the district\ncourt and REMAND for proceedings consistent with this opinion.\n\n\n\n\n 6", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364896/", "author_raw": "PER CURIAM"}]} | KING | HIGGINSON | COSTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587643/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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4,587,644 | Planned Parenthood of Grt TX v. Charles Smi | 2019-02-05 | 17-50282 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, and ENGELHARDT, Circuit Judges.", "parties": "", "opinions": [{"author": "Judge Oldham is recused and did not participate in this decision", "type": "010combined", "text": "IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n\n _____________________\n Fifth Circuit\n\n FILED\n February 4, 2019\n No. 17-50282\n _____________________ Lyle W. Cayce\n Clerk\n\n\nPLANNED PARENTHOOD OF GREATER TEXAS FAMILY PLANNING\nAND PREVENTATIVE HEALTH SERVICES, INC; PLANNED\nPARENTHOOD SAN ANTONIO; PLANNED PARENTHOOD CAMERON\nCOUNTY; PLANNED PARENTHOOD GULF COAST, INC; PLANNED\nPARENTHOOD SOUTH TEXAS SURGICAL CENTER; JANE DOE #1;\nJANE DOE #2; JANE DOE #4; JANE DOE #7;\nJANE DOE #9; JANE DOE #10; JANE DOE #11,\n\n Plaintiffs - Appellees\nv.\n\nCHARLES SMITH, in his official capacity as Executive Commissioner of\nHHSC; SYLVIA HERNANDEZ KAUFFMAN, in her official capacity as\nActing Inspector General of HHSC,\n\n Defendants - Appellants\n\n __________________________\n\n Appeal from the United States District Court for the\n Western District of Texas\n __________________________\n\n (Opinion January 17, 2019, 5 Cir., 2019, ___ F.3d ___)\n\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN,\nELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA,\nWILLETT, HO, DUNCAN, and ENGELHARDT, Circuit Judges. 1\n\n\n\n\n 1 Judge Oldham is recused and did not participate in this decision.\n\fBY THE COURT:\n\n A majority of the circuit judges in regular active service and not\ndisqualified having voted in favor, on the Court’s own motion, to rehear this\ncase en banc,\n IT IS ORDERED that this cause shall be reheard by the court en banc\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\nbriefing schedule for the filing of supplemental briefs.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364897/", "author_raw": "Judge Oldham is recused and did not participate in this decision"}]} | STEWART | JONES | SMITH | 2 | DENNIS; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; HO; DUNCAN; ENGELHARDT | {"STEWART": ", Chief", "JONES": ", Circuit", "SMITH": ", Circuit", "DENNIS": ", Circuit", "OWEN": ", Circuit", "ELROD": ", Circuit", "SOUTHWICK": ", Circuit", "HAYNES": ", Circuit", "GRAVES": ", Circuit", "HIGGINSON": ", Circuit", "COSTA": ", Circuit", "WILLETT": ", Circuit", "HO": ", Circuit", "DUNCAN": ", Circuit", "ENGELHARDT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587644/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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4,587,645 | In the MATTER OF: SNEED SHIPBUILDING, INCORPORATED, Debtor New Industries, Incorporated, Appellant v. Allison D. Byman, Chapter 11 Trustee of Sneed Shipbuilding, Incorporated; Estate of Martin M. Sneed, Sr., Appellees | New Indus., Inc. v. Byman (In Re Sneed Shipbuilding, Inc.) | 2019-02-05 | 18-40350 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before KING, HIGGINSON, and COSTA, Circuit Judges.", "parties": "", "opinions": [{"author": "GREGG COSTA, Circuit Judge:", "type": "010combined", "text": "Case: 18-40350 Document: 00514823377 Page: 1 Date Filed: 02/05/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-40350 February 5, 2019\n Lyle W. Cayce\nIn The Matter of: SNEED SHIPBUILDING, INCORPORATED, Clerk\n\n\n Debtor\n\n\nNEW INDUSTRIES, INCORPORATED,\n\n Appellant\n\nv.\n\nALLISON D. BYMAN, Chapter 11 Trustee of Sneed Shipbuilding,\nIncorporated; ESTATE OF MARTIN M. SNEED, SR.,\n\n Appellees\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore KING, HIGGINSON, and COSTA, Circuit Judges.\nGREGG COSTA, Circuit Judge:\n In bankruptcy, the right to appeal must sometimes give way to a\nheightened interest in finality. Perhaps the most prominent example is\nequitable mootness, a judicially created doctrine preventing appeals that\nthreaten to unravel a particularly interrelated confirmation plan. See In re\nManges, 29 F.3d 1034, 1038–39 (5th Cir. 1994). Bars on appeals can also be\n\f Case: 18-40350 Document: 00514823377 Page: 2 Date Filed: 02/05/2019\n\n\n\n No. 18-40350\nfound in the Bankruptcy Code, such as the statute that prevents “reversal or\nmodification on appeal of an authorization . . . of a sale or lease of [estate]\nproperty” unless that order was stayed pending appeal. 11 U.S.C. § 363(m);\nsee also In re UNR Indus., Inc., 20 F.3d 766, 769 (7th Cir. 1994) (“Several\nprovisions of the Bankruptcy Code of 1978 provide that courts should keep\ntheir hands off consummated transactions.”).\n The bankruptcy trustee in this case invokes both equitable and statutory\nmootness to try and block an appeal of a bankruptcy court’s approval of a sale\nof key estate assets, including a settlement necessary to facilitate the\ntransaction. Equitable mootness is inappropriate here, but we conclude that\nsection 363(m) made the bankruptcy court’s approval the final word on the\nsubject when the objector did not obtain a stay of that ruling.\n I.\n Sneed Shipbuilding owned two shipyards in Texas, including one in\nChannelview. It filed for bankruptcy in 2016 and, after reorganizing turned\ntumultuous, the court appointed a trustee. The trustee then filed a complaint\nagainst the probate estate of Sneed Shipbuilding’s longtime principal Martin\nSneed and several other Sneed family members. The complaint alleged that\nMartin attempted to fraudulently transfer ownership of the Channelview\nshipyard to himself, among other fraudulent activities. It sought to avoid\n(bankruptcy-speak for “undo”) those transactions and have the court declare\nthat Sneed Shipbuilding was the true titleholder to the Channelview shipyard.\n While the bankruptcy progressed slowly, operations at the Channelview\nshipyard ground to a halt as a barebones staff serviced the one remaining\ncustomer. Conversion to Chapter 7 and liquidation loomed as a real and\nunpleasant possibility, so the trustee tried to sell the shipyard. San Jac Marine\nwas interested in purchasing it, but only if the bankruptcy estate and Martin’s\nprobate estate resolved their dispute over the title. To get clean title, the\n 2\n\f Case: 18-40350 Document: 00514823377 Page: 3 Date Filed: 02/05/2019\n\n\n\n No. 18-40350\ntrustee had two undesirable options: years of litigation against the probate\nestate, during which the shipyard would lose much of its value, or settlement\nwith the probate estate on unfavorable terms. She chose the latter.\n The sale to San Jac Marine was made conditional on bankruptcy\napproval of the settlement. The parties structured the settlement and sale\ntogether along these lines: San Jac Marine paid Sneed Shipbuilding nearly $15\nmillion and the trustee used those funds to ensure that the title it transferred\nwas clean; encumbrances from a secured creditor, the debtor-in-possession’s\nlender, and property taxes were all paid off. In addition, Martin’s probate\nestate gave up both its claim to the Channelview property and any other claims\nin the bankruptcy for about $8 million and the trustee’s agreement to release\nany other avoidance actions. All told the settlement and sale looked something\nlike this:\n\n\n\n\n 3\n\f Case: 18-40350 Document: 00514823377 Page: 4 Date Filed: 02/05/2019\n\n\n\n No. 18-40350\n The bankruptcy court approved the settlement and sale in a single\norder, finding its provisions “non-severable and mutually dependent.” New\nIndustries, an unsecured creditor which claimed that Sneed Shipbuilding owed\nit $550,000 from a construction contract, unsuccessfully objected to the\ndisbursement of funds to the probate estate. It did not seek a stay of the court’s\napproval of the transaction.\n New Industries appealed. The trustee asked the district court to dismiss\nthe appeal, citing both equitable mootness and 11 U.S.C. § 363(m). The district\ncourt dismissed the appeal as moot without identifying whether it was\napplying equitable or statutory mootness.\n II.\n The parties focus on whether equitable mootness applies. This doctrine\nallows courts to abstain from appeals of plan confirmation orders, allowing the\ninterrelated web of parties to rely on a final decision. See In re Pacific Lumber\nCo., 584 F.3d 229, 240 (5th Cir. 2009). As many courts have noted, equitable\nmootness is not constitutional mootness. In a sense, the bankruptcy doctrine\npresents the opposite concern of Article III mootness. A case is not equitably\nmoot because an appellate reversal would have no effect; it is equitably moot\nwhen a reversal might have too much effect. See Pacific Lumber, 584 F.3d at\n240; In re Continental Airlines, 91 F.3d 553, 569 (3rd Cir. 1996) (Alito, J.,\ndissenting). Without an express basis in the Bankruptcy Code, equitable\nmootness is controversial. Compare In re One2One Communications, LLC, 805\nF.3d 428, 441 (3rd Cir. 2015) (Krause, J., concurring); In re Continental\nAirlines, 91 F.3d at 569 (Alito, J., dissenting), with In re Tribune Media Co.,\n799 F.3d 272, 287–88 (3rd Cir. 2015) (Ambro, J., concurring); see also UNR, 20\nF.3d at 769 (rejecting the “equitable mootness” label as misleading, but\nagreeing that “a plan of reorganization, once implemented, should be disturbed\nonly for compelling reasons”).\n 4\n\f Case: 18-40350 Document: 00514823377 Page: 5 Date Filed: 02/05/2019\n\n\n\n No. 18-40350\n We are more hesitant to invoke equitable mootness than many circuits,\ntreating it as a “scalpel rather than an axe.” Pacific Lumber, 584 F.3d at 240;\nsee also 7 COLLIER ON BANKRUPTCY ¶ 1129.09 (16th ed. 2018) (referring to this\ncircuit’s “willingness to tolerate the possibility that reversal will disrupt the\nplan” as a “deep divide” between us and other circuits). Equitable mootness\ntypically requires a reorganization plan that is at least “substantially\nconsummated.” In re Hilal, 534 F.3d 498, 500 (5th Cir. 2008); see also In re\nSan Patricio Cnty. Cmty. Action Agency, 575 F.3d 553, 558 (5th Cir. 2009)\n(declining to find dispute over settlement agreement equitably moot, without\ndeciding as a categorical matter whether the doctrine could apply in a Chapter\n7 liquidation). That end stage of the Chapter 11 process must be reached\nbecause the concern of equitable mootness is that appellate reversal might\nundermine the plan and the parties’ reliance on it. In re SI Restructuring, Inc.,\n542 F.3d 131, 135–36 (5th Cir. 2008). But Sneed Shipbuilding’s bankruptcy\ncase has never reached that stage because no plan has been proposed.\n We recognize that some courts outside our circuit have employed\nequitable mootness when reviewing settlement agreements, not just plan\nconfirmations, in particularly messy cases. See, e.g., In re Delta Airlines, Inc.,\n374 B.R. 516, 522–525 (S.D.N.Y. 2007). But that just highlights the second\nreason why equitable mootness should not apply to the order that New\nIndustries appeals: this settlement and sale were not sufficiently complex.\nEquitable mootness is aimed at limiting review of complex plans whose\nimplementation has substantial secondary effects. See, e.g., Tribune, 799 F.3d\nat 274, 281 (finding moot an appeal of $7.5 billion reorganization involving 243\ndifferent classes of creditors). Appellate intervention into reorganization plans\nof such complexity may affect many innocent third parties. See Manges, 29\nF.3d at 1042–43. Our ability to produce a single graphic to illustrate the\nChannelview transaction demonstrates that this case does not rise to that level\n 5\n\f Case: 18-40350 Document: 00514823377 Page: 6 Date Filed: 02/05/2019\n\n\n\n No. 18-40350\nof complexity. Reversal on appeal would only affect a few third parties, all of\nwhom participated in the bankruptcy court. This does not appear to be the\ncase to expand equitable mootness into new frontiers.\n III.\n That is especially so because the trustee also raised the possibility of\nmootness under section 363(m). The statute limits the ability of appellate\ncourts to review the sale of estate property when the order approving the\ntransaction is not stayed. 11 U.S.C. § 363(m); see also In re Ginther Trusts,\n238 F.3d 686, 689 (5th Cir. 2001) (holding that section 363(m) even prevented\nappeals to determine whether the bankruptcy court lacked jurisdiction). A\ndifferent motivation than complexity motivates section 363(m) mootness: the\nneed to encourage parties to bid for estate property. See In re Bleaufontaine,\nInc., 634 F.2d 1383, 1389 n.10 (5th Cir. 1981) (“If deference were not paid to\nthe policy of speedy and final bankruptcy sales, potential buyers would not\neven consider purchasing any bankrupt’s property.”). The statute assures\npurchasers that once the bankruptcy court approves the sale and it is\nconsummated (that is, the order is not stayed), then no appellate court can\nlater second-guess the deal. The cost, of course, is disposing of the full judicial\nreview for legal accuracy that typically follows a trial court’s ruling. But\nCongress thought that trade was worth making to encourage buyers to come\nto the table ready to revitalize useful assets, as those buyers might otherwise\nstay away when a transaction remains shrouded in legal uncertainty. The\nBankruptcy Code thus entrusts review of a sale solely to the bankruptcy court’s\nin-the-moment judgment unless a stay is obtained that prevents the sale from\nclosing prior to appellate review.\n Recognizing this role of section 363(m), New Industries says it does not\nchallenge the sale of the property but only challenges the disbursement of cash\nto the probate estate. But it does not cite any authority that would allow us to\n 6\n\f Case: 18-40350 Document: 00514823377 Page: 7 Date Filed: 02/05/2019\n\n\n\n No. 18-40350\nperform this isolated analysis. Paying off the probate estate was an essential\nfeature of the sale. And when creditors have tried to cut off part of a sale and\nchallenge it elsewhere, courts have found their appeals moot. See In re Trism,\nInc., 328 F.3d 1003 (8th Cir. 2003) (challenge to release of avoidance action\nthat was essential to sale of estate assets); In re Ala. Aircraft Indus., Inc., 464\nB.R. 120 (D. Del. 2012) (dispute over creation of litigation trust with funds from\nsale of estate assets). Without the more than $8 million payment, the probate\nestate would not have released its claim that it owned the Channelview\nshipyard. And without that release, San Jac Marine likely would have walked\naway from the deal. As the bankruptcy court noted, there is no way to sever\nthe settlement from the sale; they are mutually dependent. Congress has\nordered us not to review such decisions by the bankruptcy court when they are\nnot stayed. This case is moot.\n ***\n We AFFIRM the district court’s dismissal of the appeal.\n\n\n\n\n 7", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364898/", "author_raw": "GREGG COSTA, Circuit Judge:"}]} | KING | HIGGINSON | COSTA | 1 | {"KING": ", Circuit", "HIGGINSON": ", Circuit", "COSTA": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587645/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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8,443,890 | In the MATTER OF: SNEED SHIPBUILDING, INCORPORATED, Debtor New Industries, Incorporated v. Allison D. Byman, Chapter 11 Trustee of Sneed Shipbuilding, Incorporated Estate of Martin M. Sneed, Sr. | New Indus., Inc. v. Byman (In re Sneed Shipbuilding, Inc.) | 2019-02-05 | No. 18-40350 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Costa, Higginson, King", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415320/", "author_raw": ""}]} | COSTA | HIGGINSON | KING | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443890/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,588,150 | Nicole C. WITTMER, Plaintiff-Appellant v. PHILLIPS 66 COMPANY, Defendant-Appellee | Nicole Wittmer v. Phillips 66 Company | 2019-02-06 | 18-20251 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "James, Higginbotham, Elrod", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887973/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887974/", "author_raw": ""}, {"author": "JAMES C. HO, Circuit Judge:", "type": "010combined", "text": "Case: 18-20251 Document: 00514825287 Page: 1 Date Filed: 02/06/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-20251 February 6, 2019\n Lyle W. Cayce\nNICOLE C. WITTMER, Clerk\n\n\n Plaintiff - Appellant\n\nv.\n\nPHILLIPS 66 COMPANY,\n\n Defendant - Appellee\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\nJAMES C. HO, Circuit Judge:\n Over the past two years, three circuits have construed Title VII of the\nCivil Rights Act of 1964 to prohibit employers from discriminating on the basis\nof either sexual orientation or transgender status. See Zarda v. Altitude\nExpress, Inc., 883 F.3d 100 (2nd Cir. 2018) (en banc); EEOC v. R.G. & G.R.\nHarris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); Hively v. Ivy Tech\nCmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc).\n The district court here examined these recent out-of-circuit rulings,\nfound them “persuasive,” and thus “assume[d]” that Title VII prohibits\ntransgender discrimination, in a published opinion. Wittmer v. Phillips 66 Co.,\n304 F. Supp. 3d 627, 634 (S.D. Tex. 2018). In doing so, the district court\nexpressly stated that “the Fifth Circuit has not yet addressed the issue.” Id.\n\n Case: 18-20251 Document: 00514825287 Page: 2 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\n But we have addressed the issue. In Blum v. Gulf Oil Corp., 597 F.2d\n936 (5th Cir. 1979), we expressly held that Title VII does not prohibit\ndiscrimination on the basis of sexual orientation. Yet the district court did not\nmention, let alone distinguish, Blum. Most notably, it did not contend that\nTitle VII applies to transgender status but not sexual orientation. To the\ncontrary, the court concluded that the “same” analysis applies to transgender\nstatus and sexual orientation alike. Wittmer, 304 F. Supp. 3d at 634.\n Blum remains binding precedent in this circuit to this day. Our sister\ncircuits—including those favorably quoted in the district court’s published\nopinion—recognize Blum as our precedent. See Zarda, 883 F.3d at 107–8\n(recognizing historic “consensus among our sister circuits” foreclosing sexual\norientation claims under Title VII, including Blum); Hively, 853 F.3d at 341–\n42 (“recognizing . . . Fifth Circuit’s precedent in Blum”); see also Evans v. Ga.\nReg’l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017) (Blum is “binding precedent”\nthat “forecloses” sexual orientation discrimination claims under Title VII).\n Other district courts within the Fifth Circuit have likewise repeatedly\nacknowledged that Blum is binding circuit precedent. See, e.g., O’Daniel v.\nIndus. Serv. Solutions, 2018 WL 265585, *7 (M.D. La. Jan. 2, 2018) (“The Fifth\nCircuit has specifically held that discharge based upon sexual orientation is\nnot prohibited by Title VII . . . . Blum is binding precedent”); Berghorn v. Texas\nWorkforce Comm’n, 2017 WL 5479592, *4 (N.D. Tex. Nov. 15, 2017) (“The\ncourt . . . is bound by Fifth Circuit precedent, not Seventh Circuit precedent.”).\n We nevertheless affirm the district court on other grounds. The district\ncourt correctly granted summary judgment for the employer, because the\nemployee failed to present sufficient evidence to support a prima facie case of\ndiscrimination, and because the employee failed to present a genuine issue of\nmaterial fact concerning pretext.\n\n\n 2\n\n Case: 18-20251 Document: 00514825287 Page: 3 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\n I.\n Nicole Wittmer, a transgender woman, applied for an Instrument and\nReliability Engineer position with Phillips 66 in 2015. Phillips 66 conducted\nfour interviews, including an in-person interview on August 3.\n During these interviews, Phillips 66 asked about Wittmer’s current\nemployment with Agrium. They discussed on-going projects at Agrium that\nwould require significant future travel to Canada as the reason Wittmer was\nlooking for a new job. On August 10, Phillips 66 offered Wittmer the job,\ncontingent on passing certain background checks.\n On September 2, Ellen Fulton, Phillips 66’s Human Resources Manager,\ninformed Wittmer that the background check uncovered a discrepancy:\nAgrium terminated Wittmer on July 28, with pay continuing through\nAugust 2.\n In response, Wittmer acknowledged the discrepancy, but did not think\n“it was that big of a deal.” Wittmer sent Fulton the July 28 termination letter\nfrom Agrium, clearly stating that their employment relationship ended on July\n28.\n Fulton and several other Phillips 66 executives conferred on\nSeptember 8. Everyone at the meeting agreed that the offer of employment\nshould be rescinded due to Wittmer’s misrepresentations.\n On September 10, Wittmer sent an unsolicited email to Fulton and\nanother Phillips 66 employee, accusing them of transgender discrimination.\nFulton responded that Phillips 66 was unaware of Wittmer’s transgender\nstatus prior to the email, and that in any event, the information would not\naffect Phillips 66’s decision.\n On September 14, Fulton formally rescinded the offer of employment.\nFulton explained that it was due to the discrepancies revealed during the\nbackground check after the initial conditional offer.\n 3\n\n Case: 18-20251 Document: 00514825287 Page: 4 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\n A year later, in October 2016, Wittmer filed a charge of discrimination\nwith the EEOC against Phillips 66. Wittmer claimed that Phillips 66 rescinded\nits offer because of transgender discrimination. The EEOC issued a right-to-\nsue letter.\n II.\n Wittmer sued Phillips 66 under Title VII for discrimination on the basis\nof transgender status. Without distinguishing or even mentioning Blum,\nWittmer claimed that Title VII prohibits transgender discrimination.\n Phillips 66 took no position on whether Title VII prohibits transgender\ndiscrimination. Instead, Phillips 66 moved for summary judgment on the\ngrounds that (1) Wittmer failed to state a prima face case of discrimination on\nthe basis of transgender status, and (2) Wittmer failed to present a genuine\nissue of material fact that the non-discriminatory reason offered by Phillips 66\nwas pretextual.\n The district court granted summary judgment to Phillips 66 on both\ngrounds. Wittmer appealed.\n On appeal, Phillips 66 continues to take no position on whether Title VII\nprohibits discrimination on the basis of transgender status. It instead seeks\naffirmance on the specific evidentiary grounds on which it prevailed in the\ndistrict court.\n This appeal nevertheless attracted substantial amicus attention on the\nquestion of whether Title VII prohibits transgender discrimination. The EEOC\nfiled an amicus brief that took no position whether the judgment below should\nbe affirmed or reversed. The EEOC simply asked this court to hold that Title\nVII does indeed prohibit discrimination on the basis of transgender status.\nSimilarly, various organizations, led by the National Center for Lesbian\nRights, filed an amicus brief that, like EEOC, concluded that Title VII\nprohibits transgender discrimination, and took no position on the judgment.\n 4\n\n Case: 18-20251 Document: 00514825287 Page: 5 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\n The EEOC requested the opportunity to participate in oral argument.\nWe granted the request. In addition, we appointed Adam Mortara as amicus\ncuriae to brief and argue the contrary interpretation of Title VII—just as the\nSecond Circuit did in Zarda. The EEOC subsequently withdrew its request to\nparticipate in oral argument, due to the government shutdown. So the\nNational Center amici asked us if they could take the EEOC’s place at the\npodium. We granted that request as well. 1\n III.\n Summary judgment is appropriate “if the movant shows that there is no\ngenuine dispute as to any material fact and the movant is entitled to judgment\nas a matter of law.” FED. R. CIV. P. 56(a).\n Title VII prohibits employment discrimination against “any individual\n. . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). To\nestablish a prima facie case of discrimination, the plaintiff must either present\ndirect evidence of discrimination or, in the absence of direct evidence, rely on\ncircumstantial evidence using the McDonnell Douglas burden-shifting\nanalysis. Under McDonnell Douglas, the plaintiff carries the burden to prove\nthat (1) he belongs to a protected class; (2) he applied for and was qualified for\nthe position; (3) he was rejected despite being qualified; and (4) others similarly\nqualified but outside the protected class were treated more favorably.\nMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See also Willis v.\nCoca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006).\n If a plaintiff establishes a prima facie case, the burden shifts to the\nemployer to show it had a legitimate, nondiscriminatory reason for rescinding\n\n\n\n 1We thank Mr. Mortara for his public service in accepting the court’s appointment.\nWe also thank the National Center amici for participating in oral argument under these\nunusual circumstances. All of the amici provided the court with excellent legal analysis and\nadvocacy.\n 5\n\n Case: 18-20251 Document: 00514825287 Page: 6 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\nthe offer. McDonnell Douglas, 411 U.S. at 802. If the employer can show a\nlegitimate, non-discriminatory reason for not hiring the plaintiff, the\npresumption of discrimination disappears, and the burden shifts back to the\nplaintiff to show either that the proffered reason was a pretext for\ndiscrimination, or that the plaintiff’s protected status was another motivating\nfactor for the decision. Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir.\n2007). To overcome a legitimate, nondiscriminatory reason for termination,\nthe plaintiff must show something beyond disagreement with the employer’s\ndecision. Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005)\n(“Disparate treatment of similarly situated employees is one way to\ndemonstrate unlawful discrimination and retaliation.”).\n Wittmer’s claim fails at both steps. To begin with, Wittmer failed to\nestablish a prima facie case of discrimination. Specifically, Wittmer did not\npresent evidence that any non-transgender applicants were treated better, as\nrequired under the fourth prong of McDonnell Douglas. See Rogers v. Pearland\nIndep. Sch. Dist., 827 F.3d 403, 408–09 (5th Cir. 2016) (upholding summary\njudgment for failing the fourth prong of the prima facie case).\n In addition, Phillips 66 identified a legitimate, non-discriminatory\nreason for rescinding the offer—namely, Wittmer’s misrepresentations.\nWittmer’s own deposition testimony confirms the misrepresentations about\nmaintaining an on-going employment relationship with Agrium, and\nvoluntarily departing Agrium to avoid substantial travel to Canada. And\nPhillips 66 offered evidence that it decided to rescind the offer due to the\ndiscrepancies uncovered in the background check—and that it did so two days\nbefore anyone at the company ever learned of Wittmer’s transgender status.\n So Wittmer’s claim fails for two reasons, separate and apart from our\nholding in Blum. First, Wittmer failed to satisfy the plaintiff’s burden to\npresent a prima facie case under the fourth prong of McDonnell Douglas. And\n 6\n\n Case: 18-20251 Document: 00514825287 Page: 7 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\nsecond, Wittmer did not present a genuine issue of material fact that the non-\ndiscriminatory reason offered by Phillips 66 was pretextual. The district court\nwas therefore correct to enter summary judgment for Phillips 66.\n The judgment is affirmed.\n\n\n\n\n 7\n\n Case: 18-20251 Document: 00514825287 Page: 8 Date Filed: 02/06/2019\n\n\n\n No. 18-20251", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365403/", "author_raw": "JAMES C. HO, Circuit Judge:"}, {"author": "PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring", "type": "concurrence", "text": "PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:\n\n I concur fully in the dismissal of Wittmer’s Title VII claim on the grounds\nstated in the majority opinion. Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir.\n1979), was decided decades before Lawrence v. Texas, 539 U.S. 558 (2003),\ninvalidated laws criminalizing same-sex sexual conduct, and we have never\nsince relied on Blum for its holding that Title VII does not cover sexual\norientation discrimination. Neither party, in the district court or this court,\nrelied on or questioned Blum’s continued vitality—so, wisely I think, we do not\nreach here to resolve Blum’s endurance or the question of whether Title VII\ntoday proscribes discrimination against someone because of sexual orientation\nor transgender status. We do not because we cannot, even with elegant asides.\n\n\n\n\n 8\n\n Case: 18-20251 Document: 00514825287 Page: 9 Date Filed: 02/06/2019\n\n\n\n No. 18-20251", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365403/", "author_raw": "PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring"}, {"author": "JAMES C. HO, Circuit Judge, concurring", "type": "concurrence", "text": "JAMES C. HO, Circuit Judge, concurring:\n\n For four decades, it has been the uniform law of the land, affirmed in\neleven circuits, that Title VII of the 1964 Civil Rights Act prohibits sex\ndiscrimination—not sexual orientation or transgender discrimination.\n But that uniformity no longer exists today. Three circuits to date have\nconstrued Title VII to prohibit sexual orientation or transgender\ndiscrimination. And now a district court in our circuit has issued a published\nopinion declaring those rulings “persuasive”—and thus the “assume[d]” law of\nour circuit—without mentioning our own circuit precedent to the contrary.\nWittmer v. Phillips 66 Co., 304 F. Supp. 3d 627, 634 (S.D. Tex. 2018).\n The majority opinion makes plain what should go without saying—that\nour precedent remains binding in this circuit. I write separately to explain\nwhy our precedent is also correct as a matter of faithful legal interpretation.\nOnly the Supreme Court can resolve this circuit split, of course. But because\nthe EEOC has asked us to address this issue—and because the district court\nputs the law of our circuit into question—further discussion is warranted.\n I.\n Since 1964, Title VII has prohibited employers from “discriminat[ing]”\nagainst any individual with respect to employment “because of such\nindividual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).\n Whether this language applies to sexual orientation or transgender\ndiscrimination is a question of statutory interpretation that has deeply divided\nrespected jurists in other circuits in recent years. Compare, e.g., Hively v. Ivy\nTech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc); id. at 352\n(Posner, J., concurring); id. at 357 (Flaum, J., concurring); Zarda v. Altitude\nExpress, Inc., 883 F.3d 100 (2nd Cir. 2018) (en banc); id. at 132 (Jacobs, J.,\nconcurring); id. at 135 (Cabranes, J., concurring); id. at 135 (Sack, J.,\nconcurring); id. at 136 (Lohier, J., concurring); with Hively, 853 F.3d at 359\n 9\n\n Case: 18-20251 Document: 00514825287 Page: 10 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\n(Sykes, J., dissenting); Zarda, 883 F.3d at 137 (Lynch, J., dissenting); id. at\n167 (Livingston, J., dissenting); id. at 169 (Raggi, J., dissenting).\n As a matter of ordinary usage, the term “sex,” of course, does not mean\n“sexual orientation” or “transgender status.” “In common, ordinary usage in\n1964—and now, for that matter—the word ‘sex’ means biologically male or\nfemale . . . . To a fluent speaker of the English language—then and now—the\nordinary meaning of the word ‘sex’ does not fairly include the concept of ‘sexual\norientation.’ The two terms are never used interchangeably, and the latter is\nnot subsumed within the former; there is no overlap in meaning.” Hively, 853\nF.3d at 362–63 (citations omitted) (Sykes, J., dissenting).\n But what does it mean to “discriminate because of sex”? There are two\ncompeting schools of thought. Under the longstanding view, universally\naccepted by federal circuits for forty years, Title VII prohibits employers from\nfavoring men over women, or vice versa. By contrast, under the approach\nrecently adopted in three circuits, Title VII does more than prohibit favoritism\ntoward men or women—it requires employers to be entirely blind to a person’s\nsex. See, e.g., Hively, 853 F.3d at 345 (“[H]olding all other things constant and\nchanging only her sex, [would] she [] have been treated the same way?”).\n A brief example will illustrate the meaningful difference between these\ntwo visions. Separate bathrooms for men and women are of course ubiquitous\nin our society. They are prevalent not because they favor one sex over another,\nbut because they protect the privacy of both sexes. So separate bathrooms are\npermitted under the anti-favoritism theory of Title VII. But they are unlawful\nunder the blindness approach to Title VII, because separate bathrooms are\nobviously not blind to sex.\n These competing visions of Title VII similarly diverge on the issue of\ntransgender and sexual orientation discrimination. Imagine that a company\ndiscriminates against transgender women. Is that “discrimination because of\n 10\n\n Case: 18-20251 Document: 00514825287 Page: 11 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\nsex”? The anti-favoritism theory would say no, not if the company also\ndiscriminates against transgender men. After all, that would not be favoring\nmen over women, or women over men—it would be favoring non-transgender\npersons over transgender persons. So too as to sexual orientation: A company\nthat refuses to hire either gay men or lesbian women is not favoring men over\nwomen, or vice versa—it is favoring straight men and women over gay men\nand lesbian women. The blindness theory, by contrast, would hold that Title\nVII prohibits both transgender and sexual orientation discrimination. Because\nunder that theory, it would not matter that the company isn’t favoring men\nover women, or women over men. All that matters is that company policy\ntreats people differently based on their sex: Because only women, not men,\nmay identify as women—and only women, not men, may marry men—just as\nonly women, not men, may use women’s bathrooms.\n Neither of these competing theories appears to be foreclosed under the\nliteral terms of Title VII. How, then, should a dutiful textualist proceed? When\nstatutory text permits two very different interpretations, how do you decide?\nFor a number of reasons, the traditional interpretation should prevail.\n A.\n Although judges in other circuits are divided over their interpretation of\nTitle VII, they are united as to the original public meaning of Title VII.\n No one seriously contends that, at the time of enactment, the public\nmeaning and understanding of Title VII included sexual orientation or\ntransgender discrimination. To the contrary, there is a judicial consensus that\nthe public meaning of Title VII in 1964 did not include sexual orientation or\ntransgender discrimination. See, e.g., Hively, 853 F.3d at 345 (adopting\ninterpretation of Title VII that “the Congress that enacted the Civil Rights Act\nin 1964 . . . may not have realized or understood”); id. at 355 (Posner, J.,\nconcurring) (“A broader understanding of the word ‘sex’ in Title VII than the\n 11\n\n Case: 18-20251 Document: 00514825287 Page: 12 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\noriginal understanding is thus required in order to be able to classify the\ndiscrimination of which Hively complains as a form of sex discrimination.”); id.\nat 362 (Sykes, J., dissenting) (“Is it even remotely plausible that in 1964, when\nTitle VII was adopted, a reasonable person competent in the English language\nwould have understood that a law banning employment discrimination\n‘because of sex’ also banned discrimination because of sexual orientation? The\nanswer is no, of course not.”); Zarda, 883 F.3d at 137 (Lynch, J., dissenting)\n(“Of course, today’s majority does not contend that Congress literally\nprohibited sexual orientation discrimination in 1964. . . . [A]ny such contention\nwould be indefensible.”). 1\n This consensus about the original understanding of Title VII is further\nbolstered by four decades of case law. During that time, every federal circuit\nto address the issue—including the First through Eleventh Circuits—rejected\nattempts to construe Title VII to prohibit discrimination on the basis of either\nsexual orientation or transgender status. See, e.g., Dillon v. Frank, 952 F.2d\n403, *4 (6th Cir. 1992) (unpublished table) (“The circuits are unanimous in\nholding that Title VII does not proscribe discrimination based on sexual\nactivities or orientation.”); Hively, 853 F.3d at 361 (Sykes, J., dissenting) (“This\ninterpretation has been stable for many decades and is broadly accepted; all\n\n\n\n 1 Original public meaning is not to be confused with the subjective intent of legislators.\nOpponents of the traditional view of Title VII point out that members of Congress in 1964\nwould not have expected it to prohibit sexual harassment, including same-sex sexual\nharassment—yet that is how courts have construed it today. See Oncale v. Sundowner\nOffshore Services, Inc., 523 U.S. 75 (1998). But for originalists, the point is not whether\nmembers of Congress subjectively intended that result—rather, the point is whether they\nshould have expected it, in light of the words of the statute as they were generally understood\nat the time. In short, our lodestar is original public meaning, not original intent. It should\nsurprise no one that a statute drafted to eradicate sex discrimination in the workplace would\nlater be unanimously construed by the Supreme Court to reach workplace conduct that\npressures members of one sex out of the workplace, but not the other. See Meritor Sav. Bank,\nFSB v. Vinson, 477 U.S. 57 (1986). That of course says nothing about whether Title VII also\nforbids sexual orientation and transgender discrimination.\n 12\n\n Case: 18-20251 Document: 00514825287 Page: 13 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\ncircuits agree that sexual-orientation discrimination is a distinct form of\ndiscrimination and is not synonymous with sex discrimination.”). 2\n It was not until 40 years after Congress enacted Title VII that a federal\ncourt of appeals first construed it to prohibit transgender discrimination\n(Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004))—and 53 years after\nenactment that a federal court of appeals first construed it to prohibit sexual\norientation discrimination (Hively, 853 F.3d 339).\n If the first forty years of uniform circuit precedent nationwide somehow\ngot the original understanding of Title VII wrong, no one has explained how.\n B.\n The traditional understanding of Title VII is further bolstered by other\nestablished principles of statutory interpretation.\n\n\n 2 See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999)\n(‘‘[W]e regard it as settled law that . . . Title VII does not proscribe harassment simply\nbecause of sexual orientation.’’); Simonton v. Runyon, 232 F.3d 33, 35 (2nd Cir. 2000) (‘‘The\nlaw is well-settled in this circuit and in all others to have reached the question that . . . Title\nVII does not prohibit harassment or discrimination because of sexual orientation.”); Bibby v.\nPhila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3rd Cir. 2001) (“It is clear . . . that Title VII\ndoes not prohibit discrimination based on sexual orientation.”); Wrightson v. Pizza Hut of\nAm., 99 F.3d 138, 143 (4th Cir. 1996) (‘‘Title VII does not afford a cause of action for\ndiscrimination based upon sexual orientation.’’), abrogated on other grounds by Oncale, 523\nU.S. 75; Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (“Discharge for\nhomosexuality is not prohibited by Title VII.”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757,\n762 (6th Cir. 2006) (‘‘[S]exual orientation is not a prohibited basis for discriminatory acts\nunder Title VII.’’); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984) (“While\nwe recognize distinctions among homosexuals, transvestites, and transsexuals, we believe\nthat the same reasons for holding that the first two groups do not enjoy Title VII coverage\napply with equal force to deny protection for transsexuals.”); Williamson v. A.G. Edwards &\nSons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (‘‘Title VII does not prohibit discrimination against\nhomosexuals.’’); Sommers v. Budget Mktg, Inc., 667 F.2d 748, 750 (8th Cir. 1982)\n(“[D]iscrimination based on one’s transsexualism does not fall within the protective purview\nof [Title VII].”); DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 329–30 (9th Cir. 1979) (“Title\nVII’s prohibition of ‘sex’ discrimination applies only to discrimination on the basis of gender\nand should not be judicially extended to include sexual preference such as homosexuality.”);\nHolloway v. Arthur Andersen & Co., 566 F.2d 659, 661 (9th Cir. 1977) (“Title VII does not\nembrace transsexual discrimination.”); Medina v. Income Support Div., 413 F.3d 1131, 1135\n(10th Cir. 2005) (‘‘Title VII’s protections . . . do not extend to harassment due to a person’s\nsexuality.”); Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017) (following Blum).\n 13\n\n Case: 18-20251 Document: 00514825287 Page: 14 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\n As the Supreme Court has repeatedly observed, Congress “does not alter\nthe fundamental details of a regulatory scheme in vague or ancillary\nprovisions—it does not, one might say, hide elephants in mouseholes.”\nWhitman v. Am. Trucking Ass’n, 531 U.S. 457, 468 (2001). See also, e.g.,\nGonzales v. Oregon, 546 U.S. 243, 267 (2006) (same).\n The Court typically invokes the “elephants” canon when it is asked to\nconstrue an ambiguous statute to reach a matter of great policy consequence.\nAs the Court explained, Congress at times drafts statutes that are “susceptible\nto more precise definition and open to varying constructions, and thus\nambiguous in the relevant sense.” Id. at 258. When faced with such ambiguous\nprovisions, “our inquiry into whether Congress has directly spoken to the\nprecise question at issue is shaped, at least in some measure, by the nature of\nthe question presented.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S.\n120, 159 (2000) (emphasis added). “Congress is more likely to have focused\nupon, and answered, major questions, while leaving interstitial matters to\nanswer themselves in the course of the statute’s daily administration.” Id.\n For example, in Gonzales v. Oregon, the Court rejected an interpretation\nof the Controlled Substances Act that would have given the Attorney General\nthe power to regulate drugs used in physician-assisted suicide. The Court\nnoted that “[t]he importance of the issue of physician-assisted suicide, which\nhas been the subject of an ‘earnest and profound debate’ across the country,\nmakes the oblique form of the claimed delegation all the more suspect.” 546\nU.S. at 267 (quoting Washington v. Glucksberg, 521 U.S. 702, 735 (1997)).\n Similarly, in FDA v. Brown & Williamson, the Court rejected a reading\nof the Food, Drug, and Cosmetic Act that would have given the FDA the power\nto regulate tobacco. The Court said that “we are confident that Congress could\nnot have intended to delegate a decision of such economic and political\nsignificance to an agency in so cryptic a fashion.” 529 U.S. at 160. See also\n 14\n\n Case: 18-20251 Document: 00514825287 Page: 15 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\nMCI v. AT&T, 512 U.S. 218, 231 (1994) (“It is highly unlikely that Congress\nwould leave the determination of whether an industry will be entirely, or even\nsubstantially, rate-regulated to agency discretion—and even more unlikely\nthat it would achieve that through such a subtle device as permission to\n‘modify’ rate-filing requirements.”); Brannan v. Stark, 342 U.S. 451, 463 (1952)\n(“We do not think it likely that Congress, in fashioning this intricate . . .\nmachinery, would thus hang one of the main gears on the tail pipe.”).\n The elephants canon easily applies here. No one could seriously dispute\nthe importance of the issues presented in this case, as reflected by the amicus\nand en banc attention these issues have attracted in other circuits.\n What’s more, this case is about more than sexual orientation or\ntransgender discrimination. If we accept the blindness theory of Title VII,\nwhat else are employers prohibited from doing?\n As I noted earlier, employers would also be forbidden from maintaining\nseparate bathrooms and changing rooms for men and women—even though the\npurpose of separate bathrooms and changing rooms is not favoritism toward\neither sex, but respect for the privacy of employees and customers of both sexes.\nNo one to my knowledge has suggested how the blindness theory of Title VII\ncould prohibit transgender and sexual orientation discrimination, while still\nallowing employers to maintain separate bathrooms for men and women. That\nis presumably because no such limiting principle exists.\n In Zarda, for example, Judge Lynch stated that surely “Title VII . . . does\nnot prohibit an employer from having separate men’s and women’s toilet\nfacilities.” 883 F.3d at 150 (Lynch, J., dissenting). Indeed, it was precisely for\nthat reason that he rejected the blindness view of Title VII. See id. at 151 (“it\nis not the case that any employment practice that can only be applied by\nidentifying an employee’s sex is prohibited,” including separate bathrooms).\n\n\n 15\n\n Case: 18-20251 Document: 00514825287 Page: 16 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\n Notably, the majority in Zarda responded to Judge Lynch by conceding\nthat, under their view of Title VII, “employer policies regarding sex-segregated\nbathrooms” would indeed “discriminate[] because of sex.” Id. at 118. The\nmajority tried to avoid employer liability for separate bathrooms by suggesting\nthat bathroom assignments are not significant enough to constitute terms and\nconditions of employment protected under Title VII. Id. at 118–19. But that\nonly begs the question: What if an employee is fired for using the wrong\nbathroom or changing room? The majority does not say.\n To their credit, the National Center amici conceded during oral\nargument that, under their theory of Title VII, employers would indeed be\nforbidden from maintaining separate bathrooms and changing rooms for men\nand women. Oral Arg. 27:40–28:17.\n So this case does not simply concern sexual orientation and transgender\ndiscrimination. It affects every American who uses the restroom at any\nrestaurant, buys clothes at any department store, or exercises at any gym.\nWhat’s more, because federal statutes governing educational institutions\nemploy language indistinguishable from Title VII, this debate also affects\nvirtually every school, college, dormitory, athletic activity, and locker room in\nAmerica. See, e.g., Title IX of the Education Amendments Act of 1972, 20\nU.S.C. § 1681(a) (“No person in the United States shall, on the basis of sex, be\nexcluded from participation in, be denied the benefits of, or be subjected to\ndiscrimination under any education program or activity receiving Federal\nfinancial assistance.”).\n Under the elephants canon, significant policy issues must be decided by\nthe people, through their elected representatives in Congress, using clearly\nunderstood text—not by judges, using “oblique,” “cryptic,” or “subtle” statutory\nparsing. Gonzales, 546 U.S. at 267; Brown & Williamson, 529 U.S. at 160;\nMCI, 512 U.S. at 231. That principle surely applies here, considering the\n 16\n\n Case: 18-20251 Document: 00514825287 Page: 17 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\nrevolutionary social change that would be brought about under the blindness\napproach to Title VII.\n C.\n The traditional interpretation of Title VII is also the only reading that\ncomports with common usage.\n When construing statutes, courts presume that lawmakers use words in\nlight of their natural and ordinary meaning, rather than resort to more cryptic\nformulations. See, e.g., Smith v. United States, 508 U.S. 223, 228 (1993)\n(“When a word is not defined by statute, we normally construe it in accord with\nits ordinary or natural meaning.”).\n If Congress had meant to prohibit sexual orientation or transgender\ndiscrimination, surely the most straightforward way to do so would have been\nto say so—to add “sexual orientation” or “transgender status” or “gender\nidentity” to the list of classifications protected under Title VII. It would defy\ncommon sense to imagine that lawmakers labored to assemble a majority\ncoalition to eradicate sexual orientation and transgender discrimination from\nthe workplace—only to select the most oblique formulation they could think of\n(“because of sex”) and then hope for the best that courts would understand\nwhat they meant.\n By the same token, any legitimate theory of interpretation must account\nfor the possibility that lawmakers might ultimately decide to prohibit sex\ndiscrimination, but not sexual orientation or transgender discrimination. And\nthe most obvious way to implement that policy judgment is to do exactly what\nCongress did in 1964: prohibit discrimination on the basis of sex, without the\nneed for an exemption for, or any other reference to, sexual orientation or\ntransgender status.\n This is not just common usage in 1964—it is common usage today.\nCounsel for the National Center amici acknowledged as much during oral\n 17\n\n Case: 18-20251 Document: 00514825287 Page: 18 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\nargument. When asked about a hypothetical company that hires equally\nbetween men and women, but refuses to hire any transgender men or women,\ncounsel agreed that, as a matter of common parlance, we would call that\ncompany today transphobic, not sexist. Oral Arg. 25:10–25:35.\n Similarly, both Congress and various state legislatures have expressly\nprohibited sexual orientation and gender identity discrimination by using the\nterms “sexual orientation” and “gender identity,” as Judge Sykes cataloged in\nHively. 853 F.3d at 363–64 (Sykes, J., dissenting). “This uniformity of usage\nis powerful objective evidence that sexual-orientation discrimination is broadly\nrecognized as an independent category of discrimination and is not\nsynonymous with sex discrimination.” Id. at 364–65. 3\n II.\n Opponents of the traditional approach to Title VII nevertheless contend\nthat their position is compelled by the Supreme Court’s decision in Price\nWaterhouse v. Hopkins, 490 U.S. 228 (1989). See, e.g., Hively, 853 F.3d at 342.\n Under this theory, sex stereotyping is per se unlawful under Price\nWaterhouse, regardless of whether it is ultimately used to favor one sex over\nanother. Accordingly, transgender discrimination must now be treated as per\nse unlawful under Title VII as well. After all, transgender discrimination\ntargets transgender men and women precisely because they do not conform\nwith sex stereotypes as to how they should identify themselves. And so too\nwith sexual orientation discrimination, which likewise targets gay men and\n\n\n\n\n 3 See, e.g., Violence Against Women Act, 34 U.S.C. § 2291(b)(13)(A) (prohibits federally\nfunded programs and activities from discriminating “on the basis of actual or perceived race,\ncolor, religion, national origin, sex, gender identity, . . . sexual orientation, or disability”);\nMatthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 18 U.S.C. § 249(a)(2)(A)\n(imposes heightened punishment for causing or attempting to cause bodily injury “to any\nperson, because of the actual or perceived religion, national origin, gender, sexual orientation,\ngender identity, or disability of any person”).\n 18\n\n Case: 18-20251 Document: 00514825287 Page: 19 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\nlesbian women because they do not conform with sex stereotypes. See, e.g., id.\n(“[A]ll gay, lesbian and bisexual persons fail to comply with the sine qua non\nof gender stereotypes—that all men should form intimate relationships only\nwith women, and all women should form intimate relationships only with\nmen.”).\n But here’s the problem with this theory: Price Waterhouse doesn’t make\nsex stereotyping per se unlawful under Title VII. To the contrary, under Price\nWaterhouse, sex stereotyping is actionable only to the extent it provides\nevidence of favoritism of one sex over the other.\n The plurality opinion of Justice Brennan, for example, spoke of\nprohibiting not all sex stereotypes per se, but only “disparate treatment of men\nand women resulting from sex stereotypes.” Id. at 251 (emphasis added). See\nalso id. (“An employer who objects to aggressiveness in women but whose\npositions require this trait places women in an intolerable and impermissible\ncatch 22: out of a job if they behave aggressively and out of a job if they do not.\nTitle VII lifts women out of this bind.”) (citations and quotations omitted).\n Similarly, the concurring opinion of Justice O’Connor observed that sex\nis a “human characteristic[] of which decisionmakers are aware and about\nwhich they may comment in a perfectly neutral and nondiscriminatory\nfashion.” Id. at 277 (emphasis added). “What is required is . . . direct evidence\nthat decisionmakers placed substantial negative reliance on an illegitimate\ncriterion in reaching their decision.” Id.\n And Justice Kennedy noted on behalf of three dissenting justices that\n“Title VII creates no independent cause of action for sex stereotyping.\nEvidence of use by decisionmakers of sex stereotypes is, of course, quite\nrelevant to the question of discriminatory intent. The ultimate question,\nhowever, is whether discrimination caused the plaintiff’s harm.” Id. at 294.\n\n\n 19\n\n Case: 18-20251 Document: 00514825287 Page: 20 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\n III.\n Opponents of the traditional view of Title VII also claim their position is\ncompelled by an analogy to race, and specifically, to interracial marriage.\n Put simply, their point is this: Title VII requires blindness to race—so\nwhy doesn’t it also require blindness to sex? For example, courts have\nconstrued Title VII to forbid employers from discriminating against employees\nfor being in an interracial marriage. See, e.g., Holcomb v. Iona College, 521\nF.3d 130 (2nd Cir. 2008); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d\n888 (11th Cir. 1986). Why, then, doesn’t Title VII also require employers to be\nblind to sex as well—which would prohibit discrimination on the basis of same-\nsex marriage, sexual orientation, and transgender status? See, e.g., Hively,\n853 F.3d at 342 (alleging “sharp tension” between lack of Title VII protection\nfor sexual orientation and legal protection for interracial marriage).\n But the analogy fails for one simple reason: The Supreme Court has\nanalyzed interracial marriage differently from same sex marriage.\n The Court has condemned laws against interracial marriage, not only\nbecause of our constitutional commitment to color blindness, but because\nprohibitions on interracial marriage are racist, pure and simple. As the Court\nput it, “[t]here is patently no legitimate overriding purpose independent of\ninvidious racial discrimination which justifies this classification.” Loving v.\nVirginia, 388 U.S. 1, 11 (1967) (emphasis added). See also Hively, 853 F.3d at\n348 (“[M]iscegenation laws . . . are (and always were) inherently racist.”); id.\nat 368 (Sykes, J., dissenting) (“[M]iscegenation laws are inherently racist.”).\n By contrast, the Court did not establish a right to same-sex marriage\nbased on sex discrimination at all, let alone based on blindness to sex. To be\nsure, the plaintiffs in Obergefell made the argument—indeed, they devoted an\nentire subsection of their brief to the argument that traditional marriage laws\nare not blind to sex. Brief for Petitioners, Obergefell v. Hodges, 135 S. Ct. 2584\n 20\n\n Case: 18-20251 Document: 00514825287 Page: 21 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\n(2015), available at 2015 WL 860738, *48. Yet not a single justice endorsed\nthat theory. Instead, the Supreme Court held that traditional marriage laws\ndiscriminate on the basis of sexual orientation, not sex. As Judge Sykes put it\nin Hively, “far from collapsing the well-understood distinction between sex\ndiscrimination and sexual-orientation discrimination, the Court actually\npreserved it.” 853 F.3d at 372 (Sykes, J., dissenting).\n IV.\n It took an act of Congress to prohibit race and sex discrimination in\nprivate employment nationwide—a landmark achievement in our nation’s\nhistory. So too it will take an act of Congress if the people wish to prohibit\ntransgender and sexual orientation discrimination across the country as well.\nSee, e.g., Zarda, 883 F.3d at 166 (Lynch, J., dissenting) (“[I]t is the prerogative\nof Congress or a state legislature to decide whether private employers may\n[discriminate].”).\n Running the gauntlet of Article I, Section 7 of the Constitution is arduous\nwork, to be sure. But it is necessary for the people to ensure that the\nprotections sought in this case are not just legitimate, but lasting.\n Moreover, it is worth remembering what Congress has already achieved\nby enacting the 1964 Civil Rights Act. As the court-appointed amici reminds\nus: Title VII protects every American, regardless of sexual orientation or\ntransgender status. It simply requires proof of sex discrimination, as distinct\nfrom sexual orientation or transgender discrimination. If you can demonstrate\nthat your employer will hire transgender men but not transgender women, or\ngay men but not lesbian women, or vice versa, you may well have a claim of\nsex discrimination.\n In sum, Title VII prohibits sex discrimination, full stop. And it applies\nthe same rules to everyone, without regard to sexual orientation or\ntransgender status. For example, in O’Daniel v. Industrial Service Solutions,\n 21\n\n Case: 18-20251 Document: 00514825287 Page: 22 Date Filed: 02/06/2019\n\n\n\n No. 18-20251\n2018 WL 265585, *7 (M.D. La. Jan. 2, 2018) (appeal pending), the district court\nheld that a straight employee has no Title VII claim for sexual orientation\ndiscrimination by a lesbian supervisor. See also Medina, 413 F.3d at 1133–35\n(same). The same rules apply to Bonnie O’Daniel as to Nicole Wittmer.\n ***\n Under our Constitution, contentious policy disputes are resolved by the\npeople, through their elected representatives in Congress. And when a\nparticular policy position garners enough support to leap the hurdles of Article\nI, Section 7, it becomes the law of the land.\n For our system to work, however, we must share a common language.\nWhen the American people come to a consensus, there must be a way to reduce\nthe agreement to words that we can all understand and accept—both today\nand in the years to come. We must have confidence that our words will be\nfaithfully construed in the future, consistent with our common understanding.\n That confidence is lost if the people undertake to debate difficult issues,\naccept the daunting task of forging compromise, and then reduce that\ncompromise to legislation—only to have courts surprise the people with rulings\nthat bear no resemblance to our common language. I agree with Judge Lynch\nthat “we need to respect the choices made by Congress about which social\nproblems to address, and how to address them.” Zarda, 883 F.3d at 166\n(Lynch, J., dissenting). We should not “impos[e] on a half-century-old statute\na meaning of ‘sex discrimination’ that the Congress that enacted it would not\nhave accepted.” Hively, 853 F.3d at 357 (Posner, J., concurring).\n I join in the decision to affirm the district court. But I do so with concern\nthat the people are losing faith in their institutions—and that our courts are\ngiving the people reason to do so.\n\n\n\n\n 22", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365403/", "author_raw": "JAMES C. HO, Circuit Judge, concurring"}]} | JAMES | HIGGINBOTHAM | ELROD | 1 | {} | 5 | 0 | 0 | 3 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588150/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,588,151 | Kymberli GARDNER, Plaintiff - Appellant v. CLC OF PASCAGOULA, L.L.C., Doing Business as Plaza Community Living Center, Defendant - Appellee | Kymberli Gardner v. CLC of Pascagoula, L.L.C. | 2019-02-06 | 17-60072 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "King, Dennis, Costa", "parties": "", "opinions": [{"author": "GREGG COSTA, Circuit Judge:", "type": "010combined", "text": "Case: 17-60072 Document: 00514825674 Page: 1 Date Filed: 02/06/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-60072 February 6, 2019\n Lyle W. Cayce\nKYMBERLI GARDNER, Clerk\n\n\n Plaintiff - Appellant\n\nv.\n\nCLC OF PASCAGOULA, L.L.C., doing business as Plaza Community Living\nCenter,\n\n Defendant - Appellee\n\n\n\n Appeal from the United States District Court\n for the Southern District of Mississippi\n\n\nBefore KING, DENNIS, and COSTA, Circuit Judges.\nGREGG COSTA, Circuit Judge:\n The opinion previously issued in this case is withdrawn, and the\nfollowing opinion is substituted in its place.\n Claims of sexual harassment typically involve the behavior of fellow\nemployees. But not always. Because the ultimate focus of Title VII liability is\non the employer’s conduct—unless a supervisor is the harasser, a plaintiff\nneeds to show that the employer knew or should have known about the hostile\nwork environment yet allowed it to persist, see Vance v. Ball State Univ., 570\nU.S. 421, 427 (2013) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 789\n\f Case: 17-60072 Document: 00514825674 Page: 2 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\n(1998)) 1—nonemployees can be the source of the harassment. See 29 C.F.R.\n§ 1604.11(e) (“An employer may . . . be responsible for the acts of non-\nemployees, with respect to sexual harassment of employees in the workplace,\nwhere the employer (or its agents or supervisory employees) knows or should\nhave known of the conduct and fails to take immediate and appropriate\ncorrective action.”).\n Customers are one example of third-party harassers. See generally Lori\nA. Tetreault, Liability of Employer, Under Title VII of Civil Rights Act of 1964\n(42 U.S.C.A. §§ 2000e et seq.) for Sexual Harassment of Employee by Customer,\nClient, or Patron, 163 A.L.R. FED. 445 (2000). A leading case on third-party\nharassment addressed whether Pizza Hut could be liable for customers’\nharassment of a waitress. Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1067,\n1072 (10th Cir. 1998). Casinos seem especially susceptible to these claims, as\none case addresses a high roller’s harassment of a cocktail waitress and\nanother a card player’s harassment of a blackjack dealer. See generally Oliver\nv. Sheraton Tunica Corp., 2000 WL 303444 (N.D. Miss. Mar. 8, 2000) (former);\nPowell v. Las Vegas Hilton Corp., 841 F. Supp. 1024 (D. Nev. 1992) (latter).\n This case presents one of the more challenging situations in which to\napply this principle that an employer can be liable for a hostile work\nenvironment created by nonemployees: a nurse alleges that an assisted living\nfacility allowed such an environment to continue by not preventing a resident’s\n\n\n 1 Even when a supervisor is the harasser, liability flows from agency principles that\nrender the employer liable. Vance, 570 U.S. at 428–29. One of those situations is when a\nsupervisor’s harassing behavior resulted in an adverse “tangible employment decision.” Id.\nLiability attaches in that situation because that injury “requires an official act of the\nenterprise” that will usually be “documented in official company records” and often “subject\nto review by higher level supervisors.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761–\n62 (1998). Absent that type of employment consequence, the company will be liable for a\nsupervisor’s harassment only “if the employer is unable to establish an affirmative defense”\nthat considers whether the employer took preventative or corrective measures to combat the\nharassment. Vance, 570 U.S. at 429–30 (citing Ellerth and Faragher).\n 2\n\f Case: 17-60072 Document: 00514825674 Page: 3 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\nrepetitive harassment. The unique nature of that workplace is an important\nconsideration. As we and other courts have recognized, the diminished\ncapacity of patients influences whether the harassment should be perceived as\naffecting the terms and conditions of employment. We must decide when the\nallegations of harassment nonetheless become so severe or pervasive that fact\nissues exist requiring a jury to decide the question.\n I.\n Kymberli Gardner worked as a Certified Nursing Assistant at an\nassisted living facility operated by CLC of Pascagoula, d/b/a Plaza Community\nLiving Center, from 2012 until she was fired in 2015. 2 Gardner is an\nexperienced health aide. Before working for CLC, she was a caregiver for\nseveral facilities and in-home care providers, two of which specialized in care\nfor the mentally disabled. Gardner was trained in defensive and de-escalation\ntactics for aggressive patients. As one might expect, during her years as a\ncaregiver she often worked with patients who were “either physically\ncombative or sexually aggressive.”\n But what she experienced with one patient at the CLC facility rose to a\nnew level. J.S. was an elderly resident who lived at Plaza between 2006 and\n2014. He had a reputation for groping female employees and becoming\nphysically aggressive when reprimanded. J.S. had been diagnosed with a\nvariety of physical and mental illnesses including dementia, traumatic brain\ninjury, personality disorder with aggressive behavior, and Parkinson’s\nDisease. J.S.’s long history of violent and sexual behavior toward both patients\nand staff included the following:\n\n\n\n\n In light of the summary judgment posture, we recite these facts taking competing\n 2\n\nevidence in the light most favorable to Gardner.\n 3\n\f Case: 17-60072 Document: 00514825674 Page: 4 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\n • J.S. had to be transferred from his initial residence wing because he\n had become “combative” and had physically assaulted his bedridden\n roommate during a dispute over a television.\n • J.S. was much more aggressive and sexually inappropriate towards\n his female caregivers than even other problematic nursing home\n residents; he would sexually assault them by grabbing their\n “breast[s], butts, thighs, and try[ing] to grab [their] private areas.”\n • J.S. asked for explicit sexual acts on a regular basis and made lewd\n sexual comments toward female staff. He asked female employees to\n engage in sexual activity with him “[a]ll the time.”\n Gardner, who became responsible for J.S.’s care, experienced these types\nof inappropriate behavior from J.S. “[e]very day.” Gardner reported that J.S.\nwould physically grab her and make repeated sexual comments and requests.\nShe and other CLC employees documented J.S.’s behavior by routinely\nrecording it on his chart and making complaints to supervisors.\n As a result, J.S.’s behavior was not a secret to those who ran the assisted\nliving facility. Brandy Gregg, Gardner’s former supervisor and now the\ndirector of nursing, had witnessed J.S.’s behaving in a sexually inappropriate\nmanner and also received complaints from nurses to that effect. These\nconcerns led administrators to transfer J.S. to a new wing. But they were not\nalways responsive to the complaints. They declined, for example, to have him\nundergo a psychiatric evaluation after he assaulted his roommate. J.S. later\nassaulted a CLC employee and was sent for evaluation, but subsequently\nreturned to CLC. And when Gardner attempted to discuss her concerns about\nJ.S.’s behavior, Gregg laughed, and Administrator Teri Reynolds told Gardner\nto “put [her] big girl panties on and go back to work.”\n So Gardner continued to care for J.S., which ultimately resulted in the\nincident that led to her termination. It began when Gardner was trying to help\nJ.S. attend a therapy session. As she was assisting J.S. out of bed, he began\ntrying “to grope” her and then tried to touch Gardner’s left breast while she\nwas bent over. When she tried to move out of the way, J.S. punched her on the\n 4\n\f Case: 17-60072 Document: 00514825674 Page: 5 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\nside of her breast. Gardner then laid him down on the bed and left the room\nto get help. Janice Watkins, another nursing assistant, joined Gardner and\nthe two again attempted to help J.S. out of bed and into a chair. At this point\nJ.S. punched Gardner a second time. Gardner removed herself from J.S’s\nimmediate area at which point he began to grab Watkins’ “private area.”\nGardner sought help from the nurse on duty, Judy Toche. Gardner, Toche, and\nWatkins were able to get J.S. into his wheelchair. Gardner then moved to\nmake the bed, but J.S. punched her a third time.\n What Gardner did in response is disputed. Gregg’s typed summary of\nevents, as well as the deposition testimony of Toche, and Toche’s “nurse’s\nnotes” from the day of the incident claim that Gardner “swung her own fist\nover [J.S.’s] head” and that her arm “brushed the top of his head.” Watkins,\non the other hand, asserts in both her deposition and her written witness\ninterview statement that Gardner “[went] up with her hand as if she was going\nto hit [patient]” but “didn’t hit [patient] at all.” Gardner says she did not swing\nat J.S. during the incident. Gardner also reportedly made two statements as\nshe was leaving J.S.’s room. Watkins testifies Gardner said, “I am not doing\nshit else for [patient] at all.” Gardner also reportedly said, “I guess I’m not the\nright color,” presumably because Toche, a white nurse, was able to calm J.S.\nwhereas Gardner, a black nursing assistant, could not. After the incident,\nGardner spoke with both Toche and Teri Reynolds, then the facility\nadministrator, about her assignment to care for J.S. Gardner refused to care\nfor him due to the continued harassment and asked to be reassigned. Her\nrequest was denied.\n Gardner then left work and went to the emergency room that evening\ndue to injuries she sustained. She did not return to work for three months\n\n\n\n\n 5\n\f Case: 17-60072 Document: 00514825674 Page: 6 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\nduring which time she received workers’ compensation. 3 Shortly after\nreturning from leave, Gardner was fired. Gregg, Gardner’s supervisor at the\ntime, says Gardner was fired for three reasons: (1) insubordination (refusing\nto care for J.S.); (2) violating J.S.’s resident rights (by swearing in front of him\nand making a “racist type statement[],” apparently the one about her not being\nthe “right color”); and (3) attacking J.S. (swinging over his head).\n As for J.S., nothing happened to him immediately after the incident with\nGardner. But another altercation later that same day with a resident resulted\nin his being sent for a psychiatric evaluation and then moved to an all-male\n“lockdown” unit in nearby Biloxi.\n Gardner sued, asserting multiple claims under Title VII. CLC moved for\nsummary judgment and to strike certain affidavit testimony. Gardner also\nmoved to strike portions of affidavit and deposition testimony. The district\ncourt denied Gardner’s motion to strike, and denied in part and granted in part\nCLC’s motion to strike. 4 The lower court then granted summary judgment in\nfavor of CLC on all claims. Gardner’s appeal pursues only her claims of hostile\nwork environment and retaliation. 5\n\n\n\n\n 3 Gregg and the contemporaneous incident report say that Gardner had been\nsuspended. But the report from CLC’s internal investigation contradicts that claim as it says\nthat Gardner’s “separation from her employment was held pending her completion of her\nworkmen’s compensation.” Gardner’s affidavit also asserts she was never informed she had\nbeen suspended. We assume for purposes of summary judgment that Gardner was not\nsuspended and was on workers’ compensation during her three-month absence.\n 4 Gardner appeals some of those evidentiary rulings. We conclude that the district\n\ncourt did not abuse its discretion striking portions of her affidavit as speculative. And we\nneed not decide whether the district court erred in considering Gregg’s testimony about the\nreasons for the termination as that issue does not affect our ruling.\n 5 While Gardner purports to appeal her sex discrimination claim based on disparate\n\ntreatment in addition to the one alleging hostile work environment, she has not sufficiently\nbriefed that claim.\n 6\n\f Case: 17-60072 Document: 00514825674 Page: 7 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\n II.\n The district court concluded that a hostile workplace did not exist. It\nexplained that it was “not clear to the Court that the harassing comments and\nattempts to grope and hit are beyond what a person in Gardner’s position\nshould expect of patients in a nursing home.” CLC defends the grant of\nsummary judgment on that ground as well as on one the district court did not\nreach: whether the company knew about the harassment and failed to take\nremedial action. The other elements of a Title VII hostile work environment\nclaim—that Gardner is a member of a protected class who was subject to some\nharassment on the basis of her sex—are not disputed. Royal v. CCC & R Tres\nArboles, L.L.C., 736 F.3d 396, 401 (5th Cir. 2013).\n A.\n Our de novo review of the grant of summary judgment leads us to a\ndifferent conclusion given that all inferences must be viewed in Gardner’s favor\nat this stage. See Williams v. Hampton, 797 F.3d 276, 282 (5th Cir. 2015);\nBurnett Ranches, Ltd. v. United States, 753 F.3d 143, 146 (5th Cir. 2014). To\nget past summary judgment, Gardner need not make it “clear” that she was\nsubject to actionable harassment; she of course only needs to show that a jury\ncould reach that conclusion based on its view of the evidence.\n Title VII does not prohibit all harassment. Meritor Sav. Bank, FSB v.\nVinson, 477 U.S. 57, 67 (1986). It makes harassing conduct unlawful when it\nresults in the employer “discriminat[ing] against any individual with respect\nto his compensation, terms, conditions, or privileges of employment, because of\nsuch individual’s race, color, religion, sex, or national origin.” 42 U.S.C.\n§ 2000e–2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–23 (1993); Meritor,\n477 U.S. at 64–67. This statutory language “is not limited to ‘economic’ or\n‘tangible’ discrimination.” Id. at 64. Instead, “the phrase ‘terms, conditions,\nor privileges of employment’ evinces a congressional intent ‘to strike at the\n 7\n\f Case: 17-60072 Document: 00514825674 Page: 8 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\nentire spectrum of disparate treatment of men and women’ in employment,\nwhich includes requiring people to work in a discriminatorily hostile or abusive\nenvironment.” Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 64). Title\nVII is violated “when the workplace is permeated with ‘discriminatory\nintimidation, ridicule, and insult,’ . . . that is ‘sufficiently severe or pervasive\nto alter the conditions of the victim’s employment and create an abusive\nworking environment. Id.; Shepherd v. Comptroller of Pub. Accounts, 168 F.3d\n871, 874 (5th Cir. 1999). The Supreme Court set the “severe or pervasive”\nstandard as a “middle path between making actionable any conduct that is\nmerely offensive and requiring the conduct to cause a tangible psychological\ninjury.” Harris, 510 U.S. at 21. A plaintiff “must subjectively perceive the\nharassment as sufficiently severe or pervasive, and this subjective perception\nmust be objectively reasonable.” Frank v. Xerox Corp., 347 F.3d 130, 138 (5th\nCir. 2003).\n As a starting point, the multiple years of unwanted sexual grabbing and\nexplicit comments Gardner endured could certainly be deemed severe and\npervasive harassment—only one of those is necessary, Lauderdale v. Tex. Dep’t\nof Criminal Justice, 512 F.3d 157, 163 (5th Cir. 2007)—if the harasser were\nsomeone without any mental impairments. Cherry v. Shaw Coastal, Inc., 668\nF.3d 182, 189 (5th Cir. 2012) (hostile work environment when plaintiff was\nsubject to multiple months of unwanted sexual grabbing and explicit\ncomments); Harvill, v. Westward Commc’ns, L.L.C., 433 F.3d 428, 435 (5th Cir.\n2005) (finding severe or pervasive harassment when, over seven months, a\ncoworker grabbed a female employee, fondled her breasts and patted her\nbuttocks “numerous times,” and rubbed his body against the plaintiff).\n The complication is the one we have already mentioned: the source of the\nharassment is the resident of an assisted living facility who suffers from\ndementia. We have twice confronted hostile work environment claims based\n 8\n\f Case: 17-60072 Document: 00514825674 Page: 9 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\non the behavior of patients towards caregivers. The first case involved home\nhealth services. We held that the verbal harassment, which included the\npatient repeatedly propositioning the plaintiff for sex and calling her\ndisparaging names, was not sufficiently severe or pervasive. Cain v. Blackwell,\n246 F.3d 758, 760–61 (5th Cir. 2001). We reached the same conclusion in the\nnext case when a nursing home patient repeatedly directed racial slurs at a\nnurse’s assistant. E.E.O.C. v. Nexion Health at Broadway, Inc., 199 F. App’x\n351, 353 (5th Cir. 2006). 6 Although the verbal harassment was “quite\noffensive,” the comments did not rise to the level of actionable conduct because\nthey were not “physically threatening or humiliating” and did not “pervade the\nwork experience of a reasonable nursing home employee, especially\nconsidering their source.” Id. at 353–54. We recognized, however, that there\nis not a categorical bar on hostile environment claims arising from harassment\nby patients. See id. at 353 (“Cain does not establish a bright-line rule that\nemployees who care for disabled, elderly patients can never succeed on a Title\nVII claim.”). 7 The “specific circumstances” of such claims “must be judged to\ndetermine whether a reasonable person would find the work environment\nhostile or abusive” taking due account of the “unique circumstances involved\nin caring for mentally diseased elderly patients.” Id.\n Other circuits have found triable hostile work environment claims when\npatients engaged in the physical harassment absent in Nexion and Cain. The\n\n\n 6 Although Nexion is not binding, we address it because the district court relied on it\nin granting summary judgment, and it illustrates the range of conduct courts have considered\nin this area.\n 7 The district court thought Nexion “indicates that the default is no viable Title VII\n\nclaim in such situations.” Nexion did not create a default presumption against Title VII\nliability when the harasser is suffering from mental disability. Its statement that there is no\n“bright-line rule” does the opposite of setting any hard and fast rule. The Nexion language\nemphasizes what is true of most areas of the law—the outcome will depend on the facts of\nindividual cases. So while a diminished mental condition of the harasser is an important\nconsideration, it does not preclude liability.\n 9\n\f Case: 17-60072 Document: 00514825674 Page: 10 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\nEighth Circuit reversed a grant of summary judgment when a mentally\nhandicapped, teenage resident of a care facility “pushed [a female caregiver]\nagainst a door, forced her right hand above her head, pulled open her jeans and\nher blouse, grabbed her left breast, and pushed his weight and erect penis\nagainst her stomach.” Crist v. Focus Homes, Inc., 122 F.3d 1107, 1108 (8th Cir.\n1997). The Tenth Circuit also rejected a district court’s granting judgment as\na matter of law for the hospital when a patient “knocked [a psychologist] to the\nground, undressed her and digitally penetrated her, bit and choked her, and\nrepeatedly threatened to kill her.” Turnbull v. Topeka State Hosp., 255 F.3d\n1238, 1242–43 (10th Cir. 2001).\n J.S.’s conduct is more severe than the nonphysical harassment held to\nbe insufficient in Cain and Nexion 8 but not as severe as the potentially life-\nthreatening sexual assaults in Crist or Turnbull. But the latter situation does\nnot set a floor for actionable conduct. Harris, 510 U.S. at 22 (explaining that\nTitle VII does not require harassment to “seriously affect employees’\npsychological well-being”). So the question remains whether the conduct here,\nwhich falls in the middle of this continuum, is enough. And that, as we have\nsaid, involves the difficult line-drawing problem of what separates legally\nactionable harassment from conduct that one should reasonably expect when\nassisting people suffering from dementia.\n We conclude that the evidence of persistent and often physical\nharassment by J.S. is enough to allow a jury to decide whether a reasonable\n\n\n\n\n 8 It is also more severe and pervasive than the conduct in an Illinois federal case the\ndistrict court relied on. Pickett v. Sheridan Health Care Ctr., 2008 WL 719224, at *4 (N.D.\nIll. Mar. 14, 2008), aff’d, 610 F.3d 434 (7th Cir. 2010). Pickett considered conduct from a\nresident that happened three times over eight months. More importantly, Pickett refrained\nfrom deciding whether the conduct was severe or pervasive, and instead granted summary\njudgment in favor of the defendant because it took several steps to mitigate the harassing\nbehavior. Id. at *5. As will be discussed, CLC did not take those measures.\n 10\n\f Case: 17-60072 Document: 00514825674 Page: 11 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\ncaregiver on the receiving end of the harassment would have viewed it as\nsufficiently severe or pervasive even considering the medical condition of the\nharasser. The frequency and nature of the conduct, along with its effect on\nGardner’s employment, would allow (but not require) that finding. Id. at 23\n(finding that “the frequency of the discriminatory conduct; its severity;\nwhether it is physically threatening or humiliating, or a mere offensive\nutterance; and whether it unreasonably interferes with an employee’s work\nperformance” are factors that influence whether harassment can be described\nas “hostile” or “abusive”); see also Turner v. Baylor Richardson Med. Ctr., 476\nF.3d 337, 347–48 (5th Cir. 2007). J.S.’s inappropriate conduct occurred daily.\nHis conduct was far more severe than other residents’ and consisted of physical\nsexual assault and violent outbursts. J.S.’s physical assault on Gardner took\nhis behavior outside the realm of a “mere offensive utterance.” And his actions\ninterfered with her work performance, leaving Gardner unable to work for\nthree months. A jury could conclude that an objectively reasonable caregiver\nwould not expect a patient to grope her daily, injure her so badly she could not\nwork for three months, and have her complaints met with laughter and\ndismissal by the administration. Cf. Aguiar v. Bartlesville Care Ctr., 2011 WL\n1461541, at *5 (10th Cir. Apr. 18, 2011) (finding sufficient severity when a\npatient repeatedly engaged in unwanted touching of a nurse assistant,\n“interfered with her work, and eventually assaulted her” with a medicine cart).\n It is important to note that a finding that a patient’s harassment rises to\na level of severity or pervasiveness that affects the terms and conditions of\nemployment does not alone render the nursing home liable. As we mentioned\nat the outset, liability when such a claim is based on the behavior of someone\nother than a supervisor requires showing that the employer knew or should\nhave known of the hostile work environment but failed to take reasonable\nmeasures to try and stop it. Royal, 736 F.3d at 401. CLC did not argue in its\n 11\n\f Case: 17-60072 Document: 00514825674 Page: 12 Date Filed: 02/06/2019\n\n\n\n No. 17-60072\nsummary judgment motion that it was entitled to judgment as a matter of law\non this element of Gardner’s claim. We thus have no occasion to consider it.\n We reverse the entry of summary judgment on Gardner’s harassment\nclaim.\n III.\n Gardner also appeals the grant of summary judgment on her retaliation\nclaim. It requires her to show that “(1) she engaged in activity protected under\nTitle VII, (2) an adverse employment action occurred, and (3) there was a\ncausal connection between her protected activity and the adverse employment\ndecision.” Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992).\n The district court analyzed the retaliation issue under the McDonnell-\nDouglas burden shifting framework used for cases relying on circumstantial\nevidence. Gardner does not contest that ruling, so it is affirmed.\n Her position all along, however, has been that she can prove retaliation\nvia direct evidence. As the district court did not consider her argument based\non direct evidence, we will allow it to consider that argument in the first\ninstance on remand.\n * * *\n\n REVERSED IN PART, AFFIRMED IN PART, and REMANDED for\nfurther proceedings consistent with this opinion.\n\n\n\n\n 12", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365404/", "author_raw": "GREGG COSTA, Circuit Judge:"}]} | KING | DENNIS | COSTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588151/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,588,549 | Lonnie Kade WELSH, Plaintiff - Appellant v. CORRECT CARE, L.L.C. ; Marsha McLane, TCCO Executive Director; Michael Searcy; Bill Vanier; Janie Salazar ; Mary Leaks; Brian Thomas, in His Individual Capacity as Director of TCCC; Amy Goldstein, in Her Individual Capacity as Head of Clinical Operations at TCCC; Christopher Woods, in His Individual Capacity as Security Director at TCCC, Defendants - Appellees | Lonnie Welsh v. Correct Care. L.L.C. | 2019-02-07 | 17-11522 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Davis, Dennis, Jones", "parties": "", "opinions": [{"author": "JAMES L. DENNIS, Circuit Judge:", "type": "010combined", "text": "Case: 17-11522 Document: 00514827110 Page: 1 Date Filed: 02/07/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 17-11522 FILED\n February 7, 2019\n Lyle W. Cayce\nLONNIE KADE WELSH, Clerk\n\n Plaintiff - Appellant\n\nv.\n\nCORRECT CARE. L.L.C.; MARSHA MCLANE, TCCO Executive Director;\nMICHAEL SEARCY; BILL VANIER; JANIE SALAZAR; MARY LEAKS;\nBRIAN THOMAS, in his Individual Capacity as Director of TCCC; AMY\nGOLDSTEIN, in her Individual Capacity as Head of Clinical Operations at\nTCCC; CHRISTOPHER WOODS, in his Individual Capacity as Security\nDirector at TCCC,\n\n Defendants - Appellees\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\nBefore DAVIS, JONES, and DENNIS, Circuit Judges.\nJAMES L. DENNIS, Circuit Judge:\n Lonnie Kade Welsh appeals from an order dismissing his case with\nprejudice after his attempt to dismiss unilaterally without prejudice. Because\nthe dismissal with prejudice was erroneous, we VACATE and REMAND.\n I.\n Welsh filed a state court action against Correct Care, L.L.C., Marsha\nMcLane, Michael Searcy, and others, in which he alleged constitutional\nviolations and other wrongs inflicted on him while he was in the custody of the\n\f Case: 17-11522 Document: 00514827110 Page: 2 Date Filed: 02/07/2019\n\n\n No. 17-11522\n\nTexas Civil Commitment Office. After removing the case to federal court,\ndefendants McLane and Searcy filed a partial motion to dismiss. McLane also\nfiled an answer. Welsh then filed an amended complaint, which no defendant\nanswered.\n Months later, Welsh moved to dismiss his action without prejudice.\nAfter a clerical error, the court entered a nunc pro tunc 1 order dismissing the\ncase “with prejudice” on the ground that at least one defendant—McLane—\nhad answered. Welsh appeals, arguing that he was entitled to voluntary\ndismissal without prejudice and without a court order.\n II.\n A plaintiff may unilaterally dismiss his action without prejudice by filing\na “notice of dismissal before the opposing party serves either an answer or a\nmotion for summary judgment.” FED. R. CIV. P. 41(a)(1)(A)(i). If the defendant\nhas filed an answer or a motion for summary judgment, however, Rule 41(a)(2)\npermits dismissal at the plaintiff’s request “only by court order, on terms that\nthe court considers proper.” Id. 41(a)(2). Unless otherwise stated in the order,\na dismissal under either subsection is without prejudice. Id. 41(a)(1)(B),\n41(a)(2). We review the district court’s decision for abuse of discretion. See\nElbaor v. Tripath Imaging, Inc., 279 F.3d 314, 318 (5th Cir. 2002).\n A.\n Federal Rule of Civil Procedure 41(a)(1)(A)(i) grants Welsh an absolute\nright to dismiss his lawsuit before the defendant has filed an answer or a\nsummary judgment motion. Defendant McLane filed an answer to Welsh’s\nearlier complaint, 2 but he did not answer Welsh’s later-filed amended\n\n 1 “Nunc pro tunc” translates literally to “now for then” and “denotes an order having\nretroactive legal effect through a court’s inherent power.” 60 C.J.S. Motions and Orders § 52,\nat 61 (2012).\n 2 Welsh filed an original petition and an amended petition in state court. McLane\n\nanswered the amended petition, which will be referred to as the “earlier complaint.”\n\n\n 2\n\f Case: 17-11522 Document: 00514827110 Page: 3 Date Filed: 02/07/2019\n\n\n No. 17-11522\n\ncomplaint. We must, therefore, determine whether filing an answer to the\nearlier complaint, but not to the amended complaint, is sufficient to preclude\nthe plaintiff from voluntarily dismissing his claim as a matter of right under\nRule 41(a)(1)(A)(i).\n The Fourth Circuit addressed this issue in Armstrong v. Frostie Co. and\ndetermined that a plaintiff was barred from unilaterally dismissing his\ncomplaint under Rule 41(a)(1)(A)(i) where a defendant filed an answer to the\nplaintiff’s original complaint but not to his amended complaint. 453 F.2d 914,\n916 (4th Cir. 1971). The court reasoned that Rule 41(a)(1)(A)(i) “is designed to\npermit a disengagement of the parties at the behest of the plaintiff only in the\nearly stages of a suit, before the defendant has expended time and effort in the\npreparation of his case” and the filing of an amended complaint “increased\nrather than nullified [the defendant’s] burden.” Id. Others have agreed. See\nUniversidad Cent. Del Caribe, Inc. v. Liaison Comm. on Med. Educ., 760 F.2d\n14, 18 (1st Cir. 1985) (noting that Armstrong stands for the proposition that “a\nplaintiff cannot supersede the cutting off of its right to give notice of voluntary\ndismissal by filing an amended complaint after an answer or motion for\nsummary judgment has been filed by the defendant”); Baiul v. NBC Sports,\n708 F. App’x 710, 713 (2d Cir. 2017) (“[N]o new right of dismissal is created by\nthe filing of an amended complaint, even one with substantially new\nallegations.”); see also 9 WRIGHT & MILLER, FEDERAL PRACTICE AND\nPROCEDURE § 2363, at 122 (3d ed. Supp. 2018) (“Multiple courts have held that\nan answer to the plaintiff’s original complaint is sufficient to preclude\ndismissal by notice even though the defendant has not submitted an answer to\nthe plaintiff’s amended complaint.”); cf. Van-S-Aviation Corp. v. Piper Aircraft\nCorp., 551 F.2d 213, 220 (8th Cir. 1977) (“The purpose of Rule 41(a)(1)[(A)](i)\nis to fix the point at which the resources of the court and the defendant are so\n\n\n\n 3\n\f Case: 17-11522 Document: 00514827110 Page: 4 Date Filed: 02/07/2019\n\n\n No. 17-11522\n\ncommitted that dismissal without preclusive consequences can no longer be\nhad as of right.”).\n We agree with the Fourth Circuit’s reasoning and hold that the filing of\nan amended complaint does not revive the plaintiff’s absolute right to dismissal\nunder Rule 41(a)(1)(A)(i). See Armstrong, 453 F.2d at 916. Because McLane\nfiled an answer to Welsh’s earlier complaint, Welsh cannot utilize Rule\n41(a)(1)(A)(i)’s voluntary dismissal without a court order as to that defendant.\nHowever, the Rules permit voluntary dismissal by notice and without a court\norder of any defendant who has not served an answer, which in this case is all\ndefendants except McLane. See FED. R. CIV. P. 41(a)(1)(a)(i); Plains Growers\nBy & Through Florists’ Mut. Ins. Co. v. Ickes-Braun Glasshouses, Inc., 474 F.2d\n250, 255 (5th Cir. 1973). Therefore, Welsh is entitled to dismissal by notice\nunder Rule 41(a)(1)(A)(i) without prejudice and without a court order against\nall defendants other than McLane.\n B.\n Because McLane filed an answer, the district court’s dismissal of Welsh’s\nclaim against him falls under Rule 41(a)(2), which allows the court to impose\nconditions on the dismissal. The district court dismissed Welsh’s claim with\nprejudice. A plaintiff typically “has the option to refuse a Rule 41(a)(2)\nvoluntary dismissal and to proceed with its case if the conditions imposed by\nthe court are too onerous.” Mortgage Guar. Ins. Corp. v. Richard Carlyon Co.,\n904 F.2d 298, 301 (5th Cir. 1990). Thus, “before requiring a Rule 41(a)(2)\ndismissal to be with prejudice, a court must allow a plaintiff the opportunity\nto retract his motion to dismiss” rather than accept the dismissal with\nprejudice. Bell v. Keystone RV Co., 628 F.3d 157, 163 n.4 (5th Cir. 2010).\nWhere, as here, the plaintiff was not given the chance to withdraw the motion\nand reject the condition of dismissal with prejudice, a remand is in order. See\n\n\n\n 4\n\f Case: 17-11522 Document: 00514827110 Page: 5 Date Filed: 02/07/2019\n\n\n No. 17-11522\n\nMortgage Guar., 904 F.2d at 301 (citing Lau v. Glendora Unified School\nDistrict, 792 F.2d 929, 931 (9th Cir. 1986)). Therefore, we find that the district\ncourt abused its discretion when it dismissed Welsh’s case with prejudice\nwithout giving him the chance to reject or accept the dismissal. See id.\n ***\n To summarize, as to all non-answering defendants, Welsh is entitled to\nunconditional dismissal by notice under Rule 41(a)(1)(A)(i) without prejudice\nand without a court order. See FED. R. CIV. P. 41(a)(1)(A)(i); Plains Growers,\n474 F.2d at 255. As to defendant McLane, Welsh is entitled to dismissal by\nmotion under Rule 41(a)(2) “on terms that the court considers proper” with the\nopportunity to retract his motion to dismiss if he finds the court’s conditions\ntoo onerous. See FED. R. CIV. P. 41(a)(2); Mortgage Guar., 904 F.2d at 301.\nAccordingly, we VACATE the district court’s order and REMAND for further\nproceedings consistent with this opinion.\n\n\n\n\n 5", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365802/", "author_raw": "JAMES L. DENNIS, Circuit Judge:"}]} | DAVIS | DENNIS | JONES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588549/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,588,550 | Kymberli Gardner v. CLC of Pascagoula, L.L.C. | 2019-02-07 | 17-60072 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before KING, DENNIS, and COSTA, Circuit Judges.", "parties": "", "opinions": [{"author": "GREGG COSTA, Circuit Judge:", "type": "010combined", "text": "Case: 17-60072 Document: 00514827002 Page: 1 Date Filed: 02/07/2019\n\n\n\n\n REVISED February 7, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 17-60072 FILED\n February 6, 2019\n Lyle W. Cayce\nKYMBERLI GARDNER, Clerk\n\n Plaintiff - Appellant\n\nv.\n\nCLC OF PASCAGOULA, L.L.C., doing business as Plaza Community Living\nCenter,\n\n Defendant - Appellee\n\n\n\n Appeal from the United States District Court\n for the Southern District of Mississippi\n\n\nBefore KING, DENNIS, and COSTA, Circuit Judges.\nGREGG COSTA, Circuit Judge:\n The opinion previously issued in this case is withdrawn, and the\nfollowing opinion is substituted in its place.\n Claims of sexual harassment typically involve the behavior of fellow\nemployees. But not always. Because the ultimate focus of Title VII liability is\non the employer’s conduct—unless a supervisor is the harasser, a plaintiff\nneeds to show that the employer knew or should have known about the hostile\nwork environment yet allowed it to persist, see Vance v. Ball State Univ., 570\nU.S. 421, 427 (2013) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 789\n\f Case: 17-60072 Document: 00514827002 Page: 2 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\n(1998)) 1—nonemployees can be the source of the harassment. See 29 C.F.R.\n§ 1604.11(e) (“An employer may . . . be responsible for the acts of non-\nemployees, with respect to sexual harassment of employees in the workplace,\nwhere the employer (or its agents or supervisory employees) knows or should\nhave known of the conduct and fails to take immediate and appropriate\ncorrective action.”).\n Customers are one example of third-party harassers. See generally Lori\nA. Tetreault, Liability of Employer, Under Title VII of Civil Rights Act of 1964\n(42 U.S.C.A. §§ 2000e et seq.) for Sexual Harassment of Employee by Customer,\nClient, or Patron, 163 A.L.R. FED. 445 (2000). A leading case on third-party\nharassment addressed whether Pizza Hut could be liable for customers’\nharassment of a waitress. Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1067,\n1072 (10th Cir. 1998). Casinos seem especially susceptible to these claims, as\none case addresses a high roller’s harassment of a cocktail waitress and\nanother a card player’s harassment of a blackjack dealer. See generally Oliver\nv. Sheraton Tunica Corp., 2000 WL 303444 (N.D. Miss. Mar. 8, 2000) (former);\nPowell v. Las Vegas Hilton Corp., 841 F. Supp. 1024 (D. Nev. 1992) (latter).\n This case presents one of the more challenging situations in which to\napply this principle that an employer can be liable for a hostile work\nenvironment created by nonemployees: a nurse alleges that an assisted living\nfacility allowed such an environment to continue by not preventing a resident’s\n\n\n 1 Even when a supervisor is the harasser, liability flows from agency principles that\nrender the employer liable. Vance, 570 U.S. at 428–29. One of those situations is when a\nsupervisor’s harassing behavior resulted in an adverse “tangible employment decision.” Id.\nLiability attaches in that situation because that injury “requires an official act of the\nenterprise” that will usually be “documented in official company records” and often “subject\nto review by higher level supervisors.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761–\n62 (1998). Absent that type of employment consequence, the company will be liable for a\nsupervisor’s harassment only “if the employer is unable to establish an affirmative defense”\nthat considers whether the employer took preventative or corrective measures to combat the\nharassment. Vance, 570 U.S. at 429–30 (citing Ellerth and Faragher).\n 2\n\f Case: 17-60072 Document: 00514827002 Page: 3 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\nrepetitive harassment. The unique nature of that workplace is an important\nconsideration. As we and other courts have recognized, the diminished\ncapacity of patients influences whether the harassment should be perceived as\naffecting the terms and conditions of employment. We must decide when the\nallegations of harassment nonetheless become so severe or pervasive that fact\nissues exist requiring a jury to decide the question.\n I.\n Kymberli Gardner worked as a Certified Nursing Assistant at an\nassisted living facility operated by CLC of Pascagoula, d/b/a Plaza Community\nLiving Center, from 2012 until she was fired in 2015. 2 Gardner is an\nexperienced health aide. Before working for CLC, she was a caregiver for\nseveral facilities and in-home care providers, two of which specialized in care\nfor the mentally disabled. Gardner was trained in defensive and de-escalation\ntactics for aggressive patients. As one might expect, during her years as a\ncaregiver she often worked with patients who were “either physically\ncombative or sexually aggressive.”\n But what she experienced with one patient at the CLC facility rose to a\nnew level. J.S. was an elderly resident who lived at Plaza between 2006 and\n2014. He had a reputation for groping female employees and becoming\nphysically aggressive when reprimanded. J.S. had been diagnosed with a\nvariety of physical and mental illnesses including dementia, traumatic brain\ninjury, personality disorder with aggressive behavior, and Parkinson’s\nDisease. J.S.’s long history of violent and sexual behavior toward both patients\nand staff included the following:\n\n\n\n\n In light of the summary judgment posture, we recite these facts taking competing\n 2\n\nevidence in the light most favorable to Gardner.\n 3\n\f Case: 17-60072 Document: 00514827002 Page: 4 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\n • J.S. had to be transferred from his initial residence wing because he\n had become “combative” and had physically assaulted his bedridden\n roommate during a dispute over a television.\n • J.S. was much more aggressive and sexually inappropriate towards\n his female caregivers than even other problematic nursing home\n residents; he would sexually assault them by grabbing their\n “breast[s], butts, thighs, and try[ing] to grab [their] private areas.”\n • J.S. asked for explicit sexual acts on a regular basis and made lewd\n sexual comments toward female staff. He asked female employees to\n engage in sexual activity with him “[a]ll the time.”\n Gardner, who became responsible for J.S.’s care, experienced these types\nof inappropriate behavior from J.S. “[e]very day.” Gardner reported that J.S.\nwould physically grab her and make repeated sexual comments and requests.\nShe and other CLC employees documented J.S.’s behavior by routinely\nrecording it on his chart and making complaints to supervisors.\n As a result, J.S.’s behavior was not a secret to those who ran the assisted\nliving facility. Brandy Gregg, Gardner’s former supervisor and now the\ndirector of nursing, had witnessed J.S.’s behaving in a sexually inappropriate\nmanner and also received complaints from nurses to that effect. These\nconcerns led administrators to transfer J.S. to a new wing. But they were not\nalways responsive to the complaints. They declined, for example, to have him\nundergo a psychiatric evaluation after he assaulted his roommate. J.S. later\nassaulted a CLC employee and was sent for evaluation, but subsequently\nreturned to CLC. And when Gardner attempted to discuss her concerns about\nJ.S.’s behavior, Gregg laughed, and Administrator Teri Reynolds told Gardner\nto “put [her] big girl panties on and go back to work.”\n So Gardner continued to care for J.S., which ultimately resulted in the\nincident that led to her termination. It began when Gardner was trying to help\nJ.S. attend a therapy session. As she was assisting J.S. out of bed, he began\ntrying “to grope” her and then tried to touch Gardner’s left breast while she\nwas bent over. When she tried to move out of the way, J.S. punched her on the\n 4\n\f Case: 17-60072 Document: 00514827002 Page: 5 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\nside of her breast. Gardner then laid him down on the bed and left the room\nto get help. Janice Watkins, another nursing assistant, joined Gardner and\nthe two again attempted to help J.S. out of bed and into a chair. At this point\nJ.S. punched Gardner a second time. Gardner removed herself from J.S’s\nimmediate area at which point he began to grab Watkins’ “private area.”\nGardner sought help from the nurse on duty, Judy Toche. Gardner, Toche, and\nWatkins were able to get J.S. into his wheelchair. Gardner then moved to\nmake the bed, but J.S. punched her a third time.\n What Gardner did in response is disputed. Gregg’s typed summary of\nevents, as well as the deposition testimony of Toche, and Toche’s “nurse’s\nnotes” from the day of the incident claim that Gardner “swung her own fist\nover [J.S.’s] head” and that her arm “brushed the top of his head.” Watkins,\non the other hand, asserts in both her deposition and her written witness\ninterview statement that Gardner “[went] up with her hand as if she was going\nto hit [patient]” but “didn’t hit [patient] at all.” Gardner says she did not swing\nat J.S. during the incident. Gardner also reportedly made two statements as\nshe was leaving J.S.’s room. Watkins testifies Gardner said, “I am not doing\nshit else for [patient] at all.” Gardner also reportedly said, “I guess I’m not the\nright color,” presumably because Toche, a white nurse, was able to calm J.S.\nwhereas Gardner, a black nursing assistant, could not. After the incident,\nGardner spoke with both Toche and Teri Reynolds, then the facility\nadministrator, about her assignment to care for J.S. Gardner refused to care\nfor him due to the continued harassment and asked to be reassigned. Her\nrequest was denied.\n Gardner then left work and went to the emergency room that evening\ndue to injuries she sustained. She did not return to work for three months\n\n\n\n\n 5\n\f Case: 17-60072 Document: 00514827002 Page: 6 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\nduring which time she received workers’ compensation. 3 Shortly after\nreturning from leave, Gardner was fired. Gregg, Gardner’s supervisor at the\ntime, says Gardner was fired for three reasons: (1) insubordination (refusing\nto care for J.S.); (2) violating J.S.’s resident rights (by swearing in front of him\nand making a “racist type statement[],” apparently the one about her not being\nthe “right color”); and (3) attacking J.S. (swinging over his head).\n As for J.S., nothing happened to him immediately after the incident with\nGardner. But another altercation later that same day with a resident resulted\nin his being sent for a psychiatric evaluation and then moved to an all-male\n“lockdown” unit in nearby Biloxi.\n Gardner sued, asserting multiple claims under Title VII. CLC moved for\nsummary judgment and to strike certain affidavit testimony. Gardner also\nmoved to strike portions of affidavit and deposition testimony. The district\ncourt denied Gardner’s motion to strike, and denied in part and granted in part\nCLC’s motion to strike. 4 The lower court then granted summary judgment in\nfavor of CLC on all claims. Gardner’s appeal pursues only her claims of hostile\nwork environment and retaliation. 5\n\n\n\n\n 3 Gregg and the contemporaneous incident report say that Gardner had been\nsuspended. But the report from CLC’s internal investigation contradicts that claim as it says\nthat Gardner’s “separation from her employment was held pending her completion of her\nworkmen’s compensation.” Gardner’s affidavit also asserts she was never informed she had\nbeen suspended. We assume for purposes of summary judgment that Gardner was not\nsuspended and was on workers’ compensation during her three-month absence.\n 4 Gardner appeals some of those evidentiary rulings. We conclude that the district\n\ncourt did not abuse its discretion striking portions of her affidavit as speculative. And we\nneed not decide whether the district court erred in considering Gregg’s testimony about the\nreasons for the termination as that issue does not affect our ruling.\n 5 While Gardner purports to appeal her sex discrimination claim based on disparate\n\ntreatment in addition to the one alleging hostile work environment, she has not sufficiently\nbriefed that claim.\n 6\n\f Case: 17-60072 Document: 00514827002 Page: 7 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\n II.\n The district court concluded that a hostile workplace did not exist. It\nexplained that it was “not clear to the Court that the harassing comments and\nattempts to grope and hit are beyond what a person in Gardner’s position\nshould expect of patients in a nursing home.” CLC defends the grant of\nsummary judgment on that ground as well as on one the district court did not\nreach: whether the company knew about the harassment and failed to take\nremedial action. The other elements of a Title VII hostile work environment\nclaim—that Gardner is a member of a protected class who was subject to some\nharassment on the basis of her sex—are not disputed. Royal v. CCC & R Tres\nArboles, L.L.C., 736 F.3d 396, 401 (5th Cir. 2013).\n A.\n Our de novo review of the grant of summary judgment leads us to a\ndifferent conclusion given that all inferences must be viewed in Gardner’s favor\nat this stage. See Williams v. Hampton, 797 F.3d 276, 282 (5th Cir. 2015);\nBurnett Ranches, Ltd. v. United States, 753 F.3d 143, 146 (5th Cir. 2014). To\nget past summary judgment, Gardner need not make it “clear” that she was\nsubject to actionable harassment; she of course only needs to show that a jury\ncould reach that conclusion based on its view of the evidence.\n Title VII does not prohibit all harassment. Meritor Sav. Bank, FSB v.\nVinson, 477 U.S. 57, 67 (1986). It makes harassing conduct unlawful when it\nresults in the employer “discriminat[ing] against any individual with respect\nto his compensation, terms, conditions, or privileges of employment, because of\nsuch individual’s race, color, religion, sex, or national origin.” 42 U.S.C.\n§ 2000e–2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–23 (1993); Meritor,\n477 U.S. at 64–67. This statutory language “is not limited to ‘economic’ or\n‘tangible’ discrimination.” Id. at 64. Instead, “the phrase ‘terms, conditions,\nor privileges of employment’ evinces a congressional intent ‘to strike at the\n 7\n\f Case: 17-60072 Document: 00514827002 Page: 8 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\nentire spectrum of disparate treatment of men and women’ in employment,\nwhich includes requiring people to work in a discriminatorily hostile or abusive\nenvironment.” Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 64). Title\nVII is violated “when the workplace is permeated with ‘discriminatory\nintimidation, ridicule, and insult,’ . . . that is ‘sufficiently severe or pervasive\nto alter the conditions of the victim’s employment and create an abusive\nworking environment. Id.; Shepherd v. Comptroller of Pub. Accounts, 168 F.3d\n871, 874 (5th Cir. 1999). The Supreme Court set the “severe or pervasive”\nstandard as a “middle path between making actionable any conduct that is\nmerely offensive and requiring the conduct to cause a tangible psychological\ninjury.” Harris, 510 U.S. at 21. A plaintiff “must subjectively perceive the\nharassment as sufficiently severe or pervasive, and this subjective perception\nmust be objectively reasonable.” Frank v. Xerox Corp., 347 F.3d 130, 138 (5th\nCir. 2003).\n As a starting point, the multiple years of unwanted sexual grabbing and\nexplicit comments Gardner endured could certainly be deemed severe and\npervasive harassment—only one of those is necessary, Lauderdale v. Tex. Dep’t\nof Criminal Justice, 512 F.3d 157, 163 (5th Cir. 2007)—if the harasser were\nsomeone without any mental impairments. Cherry v. Shaw Coastal, Inc., 668\nF.3d 182, 189 (5th Cir. 2012) (hostile work environment when plaintiff was\nsubject to multiple months of unwanted sexual grabbing and explicit\ncomments); Harvill, v. Westward Commc’ns, L.L.C., 433 F.3d 428, 435 (5th Cir.\n2005) (finding severe or pervasive harassment when, over seven months, a\ncoworker grabbed a female employee, fondled her breasts and patted her\nbuttocks “numerous times,” and rubbed his body against the plaintiff).\n The complication is the one we have already mentioned: the source of the\nharassment is the resident of an assisted living facility who suffers from\ndementia. We have twice confronted hostile work environment claims based\n 8\n\f Case: 17-60072 Document: 00514827002 Page: 9 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\non the behavior of patients towards caregivers. The first case involved home\nhealth services. We held that the verbal harassment, which included the\npatient repeatedly propositioning the plaintiff for sex and calling her\ndisparaging names, was not sufficiently severe or pervasive. Cain v. Blackwell,\n246 F.3d 758, 760–61 (5th Cir. 2001). We reached the same conclusion in the\nnext case when a nursing home patient repeatedly directed racial slurs at a\nnurse’s assistant. E.E.O.C. v. Nexion Health at Broadway, Inc., 199 F. App’x\n351, 353 (5th Cir. 2006). 6 Although the verbal harassment was “quite\noffensive,” the comments did not rise to the level of actionable conduct because\nthey were not “physically threatening or humiliating” and did not “pervade the\nwork experience of a reasonable nursing home employee, especially\nconsidering their source.” Id. at 353–54. We recognized, however, that there\nis not a categorical bar on hostile environment claims arising from harassment\nby patients. See id. at 353 (“Cain does not establish a bright-line rule that\nemployees who care for disabled, elderly patients can never succeed on a Title\nVII claim.”). 7 The “specific circumstances” of such claims “must be judged to\ndetermine whether a reasonable person would find the work environment\nhostile or abusive” taking due account of the “unique circumstances involved\nin caring for mentally diseased elderly patients.” Id.\n Other circuits have found triable hostile work environment claims when\npatients engaged in the physical harassment absent in Nexion and Cain. The\n\n\n 6 Although Nexion is not binding, we address it because the district court relied on it\nin granting summary judgment, and it illustrates the range of conduct courts have considered\nin this area.\n 7 The district court thought Nexion “indicates that the default is no viable Title VII\n\nclaim in such situations.” Nexion did not create a default presumption against Title VII\nliability when the harasser is suffering from mental disability. Its statement that there is no\n“bright-line rule” does the opposite of setting any hard and fast rule. The Nexion language\nemphasizes what is true of most areas of the law—the outcome will depend on the facts of\nindividual cases. So while a diminished mental condition of the harasser is an important\nconsideration, it does not preclude liability.\n 9\n\f Case: 17-60072 Document: 00514827002 Page: 10 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\nEighth Circuit reversed a grant of summary judgment when a mentally\nhandicapped, teenage resident of a care facility “pushed [a female caregiver]\nagainst a door, forced her right hand above her head, pulled open her jeans and\nher blouse, grabbed her left breast, and pushed his weight and erect penis\nagainst her stomach.” Crist v. Focus Homes, Inc., 122 F.3d 1107, 1108 (8th Cir.\n1997). The Tenth Circuit also rejected a district court’s granting judgment as\na matter of law for the hospital when a patient “knocked [a psychologist] to the\nground, undressed her and digitally penetrated her, bit and choked her, and\nrepeatedly threatened to kill her.” Turnbull v. Topeka State Hosp., 255 F.3d\n1238, 1242–43 (10th Cir. 2001).\n J.S.’s conduct is more severe than the nonphysical harassment held to\nbe insufficient in Cain and Nexion 8 but not as severe as the potentially life-\nthreatening sexual assaults in Crist or Turnbull. But the latter situation does\nnot set a floor for actionable conduct. Harris, 510 U.S. at 22 (explaining that\nTitle VII does not require harassment to “seriously affect employees’\npsychological well-being”). So the question remains whether the conduct here,\nwhich falls in the middle of this continuum, is enough. And that, as we have\nsaid, involves the difficult line-drawing problem of what separates legally\nactionable harassment from conduct that one should reasonably expect when\nassisting people suffering from dementia.\n We conclude that the evidence of persistent and often physical\nharassment by J.S. is enough to allow a jury to decide whether a reasonable\n\n\n\n\n 8 It is also more severe and pervasive than the conduct in an Illinois federal case the\ndistrict court relied on. Pickett v. Sheridan Health Care Ctr., 2008 WL 719224, at *4 (N.D.\nIll. Mar. 14, 2008), aff’d, 610 F.3d 434 (7th Cir. 2010). Pickett considered conduct from a\nresident that happened three times over eight months. More importantly, Pickett refrained\nfrom deciding whether the conduct was severe or pervasive, and instead granted summary\njudgment in favor of the defendant because it took several steps to mitigate the harassing\nbehavior. Id. at *5.\n 10\n\f Case: 17-60072 Document: 00514827002 Page: 11 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\ncaregiver on the receiving end of the harassment would have viewed it as\nsufficiently severe or pervasive even considering the medical condition of the\nharasser. The frequency and nature of the conduct, along with its effect on\nGardner’s employment, would allow (but not require) that finding. Id. at 23\n(finding that “the frequency of the discriminatory conduct; its severity;\nwhether it is physically threatening or humiliating, or a mere offensive\nutterance; and whether it unreasonably interferes with an employee’s work\nperformance” are factors that influence whether harassment can be described\nas “hostile” or “abusive”); see also Turner v. Baylor Richardson Med. Ctr., 476\nF.3d 337, 347–48 (5th Cir. 2007). J.S.’s inappropriate conduct occurred daily.\nHis conduct was far more severe than other residents’ and consisted of physical\nsexual assault and violent outbursts. J.S.’s physical assault on Gardner took\nhis behavior outside the realm of a “mere offensive utterance.” And his actions\ninterfered with her work performance, leaving Gardner unable to work for\nthree months. A jury could conclude that an objectively reasonable caregiver\nwould not expect a patient to grope her daily, injure her so badly she could not\nwork for three months, and have her complaints met with laughter and\ndismissal by the administration. Cf. Aguiar v. Bartlesville Care Ctr., 2011 WL\n1461541, at *5 (10th Cir. Apr. 18, 2011) (finding sufficient severity when a\npatient repeatedly engaged in unwanted touching of a nurse assistant,\n“interfered with her work, and eventually assaulted her” with a medicine cart).\n It is important to note that a finding that a patient’s harassment rises to\na level of severity or pervasiveness that affects the terms and conditions of\nemployment does not alone render the nursing home liable. As we mentioned\nat the outset, liability when such a claim is based on the behavior of someone\nother than a supervisor requires showing that the employer knew or should\nhave known of the hostile work environment but failed to take reasonable\nmeasures to try and stop it. Royal, 736 F.3d at 401. CLC did not argue in its\n 11\n\f Case: 17-60072 Document: 00514827002 Page: 12 Date Filed: 02/07/2019\n\n\n\n No. 17-60072\nsummary judgment motion that it was entitled to judgment as a matter of law\non this element of Gardner’s claim. We thus have no occasion to consider it.\n We reverse the entry of summary judgment on Gardner’s harassment\nclaim.\n III.\n Gardner also appeals the grant of summary judgment on her retaliation\nclaim. It requires her to show that “(1) she engaged in activity protected under\nTitle VII, (2) an adverse employment action occurred, and (3) there was a\ncausal connection between her protected activity and the adverse employment\ndecision.” Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992).\n The district court analyzed the retaliation issue under the McDonnell-\nDouglas burden shifting framework used for cases relying on circumstantial\nevidence. Gardner does not contest that ruling, so it is affirmed.\n Her position all along, however, has been that she can prove retaliation\nvia direct evidence. As the district court did not consider her argument based\non direct evidence, we will allow it to consider that argument in the first\ninstance on remand.\n * * *\n\n REVERSED IN PART, AFFIRMED IN PART, and REMANDED for\nfurther proceedings consistent with this opinion.\n\n\n\n\n 12", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365803/", "author_raw": "GREGG COSTA, Circuit Judge:"}]} | KING | DENNIS | COSTA | 1 | {"KING": ", Circuit", "DENNIS": ", Circuit", "COSTA": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588550/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,588,552 | ALASKA ELECTRICAL PENSION FUND, Lead Plaintiff, Plaintiff - Appellant v. FLOTEK INDUSTRIES, INCORPORATED; John W. Chisholm ; H. Richard Walton; Robert M. Schmitz, Defendants - Appellees | Alaska Elec. Pension Fund v. Flotek Indus., Inc. | 2019-02-07 | 17-20308 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Dennis, Clement, Engelhardt", "parties": "", "opinions": [{"author": "JAMES L. DENNIS, Circuit Judge:", "type": "010combined", "text": "Case: 17-20308 Document: 00514827066 Page: 1 Date Filed: 02/07/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 17-20308\n FILED\n February 7, 2019\n Lyle W. Cayce\nALASKA ELECTRICAL PENSION FUND, Lead Plaintiff, Clerk\n\n Plaintiff - Appellant\n\nv.\n\nFLOTEK INDUSTRIES, INCORPORATED; JOHN W. CHISHOLM; H.\nRICHARD WALTON; ROBERT M. SCHMITZ,\n\n Defendants - Appellees\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore DENNIS, CLEMENT, and ENGELHARDT, Circuit Judges.\nJAMES L. DENNIS, Circuit Judge:\n This appeal arises out of a putative class action filed on behalf of\npurchasers of Flotek Industries, Inc. common stock. Plaintiffs allege that\ndefendants, Flotek and three of its officers, exaggerated the usefulness of its\nproducts. They allege misrepresentations relating to a proprietary software\nFlotek developed to help market these products. The district court dismissed\nthe complaint, holding that plaintiffs had failed to plead facts giving rise to a\nstrong inference of fraudulent scienter. We AFFIRM.\n\f Case: 17-20308 Document: 00514827066 Page: 2 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\n I\n Plaintiffs filed this putative securities class action on behalf of investors\nwho purchased Flotek common stock between October 23, 2014, and November\n9, 2015. Defendants are Flotek Industries, Inc. and three of its officers: Chief\nExecutive Officer (CEO) and President John W. Chisholm and Chief Financial\nOfficers H. Richard Walton and Robert M. Schmitz. Flotek sells oilfield\nproducts called “Complex nano-Fluid technologies” (CnF), which are supposed\nto improve the productivity of oil and gas wells. According to the complaint,\nCnF is Flotek’s “hallmark” product, and “[b]y the beginning of the Class Period,\nthe Energy Chemistry Technologies segment [of Flotek] represented over 50%\nof the Company’s revenue due to sales of its CnF products.” This lawsuit\nconcerns representations made about a software application Flotek developed\nto help market CnF to exploration and production companies. The software,\ncalled “FracMax,” analyzes and presents data concerning hydraulically\nfractured wells to allow comparison of the productivity of oil and gas wells that\nuse CnF with those that do not.\n Flotek introduced FracMax to investors at a June 2014 investor\nconference. Over the next sixteen months, “[D]efendants attended at least 21\nconferences, including Flotek’s earning conference calls, analyst-hosted\nconferences and [c]ompany-hosted investor conferences, where they focused on\nand praised FracMax and its ability to conclusively validate the efficacy and\neconomic benefits of Flotek’s CnF products.” Defendants promoted FracMax\nas an integral component of Flotek’s sales strategy and as “key to ‘materially\nbroaden[ing] the reach of Flotek’s marketing efforts’ for its CnF products.”\n“[D]efendants reported that the FracMax database included production data\nfrom 80,000 wells across key U.S. basins and that based on this data, Flotek’s\nsales force could demonstrate to potential customers that the use of Flotek CnF\nchemistries added at least an estimated $8 billion in aggregate value for\n 2\n\f Case: 17-20308 Document: 00514827066 Page: 3 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\noperators when compared to those operators that had not adopted Flotek’s CnF\nproducts.” In a 2015 press release, Chisholm, Flotek’s President and CEO,\nstated, “Our FracMax software technology provides conclusive evidence that\nour [CnF] suite of completion chemistries provides compelling economic\nbenefits to production companies.” Flotek also represented in a quarterly\nearnings press release that sales of CnFs increased substantially because of\nFracMax.\n Although their complaint largely refers to Defendants generically,\nPlaintiffs’ references to specific representations, to the extent they specify,\nprimarily relate to statements made by Chisholm, who at various times\nemphasized FracMax’s empirical validity. During several conference calls\nwith investors, Chisholm explained that FracMax used publicly available data\nthat companies self-reported to state agencies to compare production from\nwells that used CnF and wells that did not, suggesting this made FracMax’s\noutput more reliable. In September 2015, Chisholm gave a presentation at an\ninvestor conference in which he explained that FracMax used data reported to\nthe Texas Railroad Commission, a state agency, and he suggested that the data\nwas “back check[ed] and validate[d].” In his PowerPoint presentation,\nChisholm presented an “About FracMax” slide stating that the data was\n“sourced from operator-provided completion data.” This slide further stated\nthat the data was “un-adjusted, providing for comparison and analysis of\noperators’ self-reported data sets.” Chisholm also presented images of the\nFracMax interface in order to compare the productivity of four Texas wells, one\nthat used CnF and three that did not, again emphasizing the difference in\nproduction levels.\n On November 9, 2015, online financial publication Bronte Capital\nreleased a blog post (the Bronte Report) contending that the data in Chisholm’s\npresentation was wrong and suggesting that the data had been intentionally\n 3\n\f Case: 17-20308 Document: 00514827066 Page: 4 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\naltered to make CnF look significantly more effective. Specifically, the Bronte\nReport alleged that, as compared with the numbers reported by the Texas\nRailroad Commission, “Flotek had reduced the production data for the [three]\nnon-CnF wells by 40% to 50% . . . , while leaving the production data for the\nCnF well unchanged.” After release of the Bronte Report, Flotek shares\ndeclined.\n The next day, Flotek issued a press release conceding that Bronte\nCapital’s analysis was correct, 1 and ascribing the error to data provided by a\nthird party, Drillinginfo, that “caused FracMax to identify the three non-CnF\nwells as contained in units with multiple wells (as opposed to single well units),\nwhich required FracMax to incorrectly apply an allocation algorithm to the\nproduction for the non-CnF wells.” According to Flotek, because Texas reports\noil and gas production by lease, rather than by well, FracMax used an\nalgorithm to apportion production within multiple-well lease units, leading to\nunwarranted adjustments of the non-CnF wells discussed at the September\nconference. Flotek also held a conference call, during which “Chisholm\nadmitted that the Company’s internal controls ‘did not catch’” the errors, and\n“that the Company had no internal controls in place to check the accuracy of\nthe third-party data from Drillinginfo.” He explained that they did not cross-\nreference the third-party data against the underlying state-agency data and\nthat the company “had, several months ago, evolved to a different allocation\nprogram” that would provide greater accuracy.\n According to Plaintiffs, a report issued by Iberia Capital Partners that\nsame day “stated that the four wells presented at the September 11, 2015\ninvestor conference were designated by Drillinginfo as being single well leases,\nnot multiple leases, therefore the Texas Railroad Commission data for those\n\n\n 1 Earlier, Flotek had denied the allegations contained in the Bronte Report.\n 4\n\f Case: 17-20308 Document: 00514827066 Page: 5 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\nwells did not require adjustment,” and Flotek shares fell further as a result.\nContrary to its earlier statements following the Bronte Report, Flotek then\nreported that an internal investigation concluded that the error originated in\nthe software, not the data set, as Chisholm had stated earlier, and “most likely\nresulted from the accidental inclusion of test code by the third-party software\ndeveloper . . . . who was hired to write code for FracMax.”\n Plaintiffs filed this lawsuit, alleging violations of Section 10(b) of the\nSecurities Exchange Act, 15 U.S.C. § 78j(b); Securities and Exchange\nCommission Rule 10b-5, 17 C.F.R. § 240.10b-5; and control person liability for\nthe individual defendants under Section 20(a) of the Securities Exchange Act,\n15 U.S.C. § 78t. Defendants filed a motion to dismiss the complaint for failure\nto state a claim. The district court dismissed the complaint, concluding that\nPlaintiffs had failed to sufficiently plead scienter. Plaintiffs timely appealed.\n II\n This court reviews the sufficiency of a complaint de novo. Ind. Elec.\nWorkers’ Pension Tr. Fund IBEW v. Shaw Grp., Inc., 537 F.3d 527, 533 (5th\nCir. 2008). Plaintiffs’ “well-pleaded facts are to be accepted as true and viewed\nin the light most favorable to [them].” Daugherty v. Convergent Outsourcing,\nInc., 836 F.3d 507, 510 (5th Cir. 2016). “[C]onclusory allegations, unwarranted\ndeductions, or legal conclusions” are not “well-pleaded facts” for purposes of\nevaluating a complaint. Southland Sec. Corp. v. INSpire Ins. Sols. Inc., 365\nF.3d 353, 361 (5th Cir. 2004). Where fraud is alleged, Federal “Rule [of Civil\nProcedure] 9(b) creates a heightened pleading requirement that ‘the\ncircumstances constituting fraud or mistake shall be stated with\nparticularity.’” U.S. ex rel. Rafizadeh v. Cont’l Common, Inc., 553 F.3d 869,\n872 (5th Cir. 2008) (quoting FED. R. CIV. P. 9(b)). A class-action complaint\nalleging a violation of Section 10(b) must allege fraud in accordance with the\nRule 9(b) heightened-pleading standard. See Southland, 365 F.3d at 362.\n 5\n\f Case: 17-20308 Document: 00514827066 Page: 6 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\n To state a viable securities-fraud claim under Section 10(b) and Rule\n10b-5, Plaintiffs must allege that (1) Defendants made a misrepresentation or\nomission relating to the purchase or sale of a security, (2) such representation\nor omission related to a material fact, (3) the representation or omission was\nmade with scienter, (4) Plaintiffs acted in reliance on Defendants’\nrepresentation or omission, and (5) the representation or omission proximately\ncaused Plaintiffs’ losses. Neiman v. Bulmahn, 854 F.3d 741, 746 (5th Cir. 2017)\n(quoting Nathenson v. Zonagen Inc., 267 F.3d 400, 406–07 (5th Cir. 2001)). At\nissue in this appeal is whether Plaintiffs have sufficiently pleaded scienter.\n III\n A\n The Private Securities Litigation Reform Act (PSLRA) specifically\nrequires that a complaint in a securities case support allegations of scienter\nwith “facts giving rise to a strong inference that the defendant acted with the\nrequired state of mind.” 15 U.S.C. § 78u-4(b)(2)(A). “‘Scienter’ is ‘a mental\nstate embracing intent to deceive, manipulate, or defraud.’” Goldstein v. MCI\nWorldCom, 340 F.3d 238, 245 (5th Cir. 2003) (quoting Ernst & Ernst v.\nHochfelder, 425 U.S. 185, 193 n.12 (1976)). For purposes of 10(b) liability, a\ndefendant must have acted with, at minimum, severe recklessness. Warren v.\nReserve Fund, Inc., 728 F.2d 741, 745 (5th Cir. 1984). “Severe recklessness,”\nis “limited to those highly unreasonable omissions or misrepresentations that\ninvolve not merely simple or even inexcusable negligence, but an extreme\ndeparture from the standards of ordinary care.” Rosenzweig v. Azurix Corp.,\n332 F.3d 854, 866 (5th Cir. 2003) (quoting Nathenson, 267 F.3d at 408). The\nomissions or misrepresentations at issue must also “present a danger of\nmisleading buyers or sellers which is either known to the defendant or is so\nobvious that the defendant must have been aware of it.” Id. (quoting\nNathenson, 267 F.3d at 408). Though not in themselves sufficient to support a\n 6\n\f Case: 17-20308 Document: 00514827066 Page: 7 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\nstrong inference of scienter, “[a]ppropriate motive and opportunity allegations\nmay . . . ‘meaningfully enhance the strength of the inference of scienter.’”\nShaw, 537 F.3d at 533 (quoting Southland, 365 F.3d at 368).\n To evaluate scienter in a securities-fraud case, a court must (1) take the\nwell-pleaded allegations as true; (2) evaluate the facts collectively, including\nfacts contained in “documents incorporated in the complaint by reference and\nmatters subject to judicial notice,” “to determine whether a strong inference of\nscienter has been pled”; and (3) “take into account plausible inferences\nopposing as well as supporting a strong inference of scienter.” Id. To\nwithstand a motion to dismiss, “an inference of scienter must be more than\nmerely plausible or reasonable—it must be cogent and at least as compelling\nas any opposing inference of nonfraudulent intent.” Tellabs, Inc. v. Makor\nIssues & Rights, Ltd., 551 U.S. 308, 314 (2007).\n Scienter must be alleged with respect to “the individual corporate official\nor officials who make or issue the statement (or order or approve it or its\nmaking or issuance, or who furnish information or language for inclusion\ntherein, or the like) rather than generally to the collective knowledge of all the\ncorporation’s officers and employees acquired in the course of their\nemployment.” Southland, 365 F.3d at 366; see also Shaw, 537 F.3d at 533\n(“[T]his court has rejected the group pleading approach to scienter and instead\nlooks to the state of mind of the individual corporate official or officials.”).\nFurthermore, such allegations ordinarily must be based on more than an\nindividual’s position within the company, absent special circumstances.\nNeiman, 854 F.3d at 749.\n B\n Plaintiffs identify several alleged misrepresentations they argue give\nrise to a sufficient inference of scienter, both because Defendants were severely\nreckless in making statements counter to information that should have been\n 7\n\f Case: 17-20308 Document: 00514827066 Page: 8 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\nobvious to them, and because, after learning of that contrary information, they\ncontinued to make those statements. The alleged misrepresentations are: (1)\nDefendants’ repeated use of the term “conclusive” in describing FracMax’s\neffect, which Plaintiffs characterize as tantamount to assuring that FracMax’s\ndata was irrefutable; (2) Defendants’ reference to FracMax data as “un-\nadjusted” when, in fact, FracMax used an algorithm to adjust certain data; (3)\nDefendant Chisholm’s presentation at the September 11, 2015, conference of\ndirect comparisons between several wells that used CnF versus several that\ndid not, which Defendants concede relied on incorrect data for the non-CnF\nwells; and (4) Chisholm’s representation at this same conference that this data\nwas “back check[ed] and validate[d],” when Defendants later admitted that\n“Flotek had no internal controls in place to ensure the integrity of the FracMax\ndatabase.” The district court determined that these representations failed to\ngenerate a strong inference of scienter. We consider each representation in\nturn, and ultimately agree with the district court’s conclusion that each fails\nto raise a strong inference of scienter. 2\n 1. Description of FracMax as “Conclusive”\n Plaintiffs suggest that Defendants’ use of the term “conclusive” to\ndescribe FracMax was obviously misleading because Flotek employed “no\ninternal controls” over the information used for FracMax provided by third-\nparty Drillinginfo, yet the term “conclusive” suggests the data is infallible.\nHowever, in context, Chisholm’s use of the term “conclusive” may have had\ninnocent intentions and may not have been inconsistent with a lack of internal\ncontrols. See Shaw, 537 F.3d at 538 (statements subject to “many\ninterpretations, including innocent ones,” do not “contribute to a strong\n\n\n 2Because we conclude that the alleged misrepresentations here do not reflect scienter\non the part of any Defendant, we need not reach Plaintiffs’ argument that FracMax’s\nimportance to the company permits an inference that Defendants had a motive to mislead.\n 8\n\f Case: 17-20308 Document: 00514827066 Page: 9 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\ninference of scienter” (cleaned up)). For example, Chisholm stated in a press\nrelease that the “FracMax software technology provides conclusive evidence\nthat our [CnF] suite of completion chemistries provides compelling economic\nbenefits to production companies.” Plaintiffs do not allege that CnF products\nprovide no economic benefit whatsoever, but instead allege the benefit was\noverstated. Therefore, Chisholm’s generalized endorsement of FracMax as\nevidencing the “compelling economic benefits” of CnF products is not\nunreasonable, given that CnF products undisputedly provided some economic\nbenefit. At the very least, such statements are not “highly unreasonable\nomissions or misrepresentations . . . involv[ing] . . . an extreme departure from\nthe standards of ordinary care.” Rosenzweig, 332 F.3d at 866 (quoting\nNathenson, 267 F.3d at 408). Plaintiffs argue that Flotek’s lack of internal\ncontrols should have made it obvious to Defendants that using the term\n“conclusive” was misleading. That argument also fails. Plaintiffs do not allege\nthat Defendants should have known the Drillinginfo data was unreliable.\nWhile it was perhaps unwise to rely completely on third-party data while\nreferring to the product using it as “conclusive,” it was not reckless to do so.\nSee MCI WorldCom, 340 F.3d at 254 (holding complaint presenting “what could\nbest be described as allegations of mismanagement,” or even “gross\nmismanagement,” failed to allege severe recklessness of any individual). At\nbottom, Plaintiffs’ allegations concerning Defendants’ characterization of\nFracMax data as conclusive fail to generate an inference of scienter that is “at\nleast as compelling as . . . opposing inference[s] of nonfraudulent intent.”\nTellabs, 551 U.S. at 314.\n 2. Characterization of FracMax-Provided Information as “Un-\n Adjusted”\n Plaintiffs also contend that a slide show Chisholm presented at least\nonce, which stated that FracMax “data is un-adjusted,” was misleading and\n\n 9\n\f Case: 17-20308 Document: 00514827066 Page: 10 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\nChisholm should have known it was incorrect, because FracMax used an\nallocation algorithm that necessarily made adjustments to Texas production\ndata. In response to the fallout from the Bronte Report, Flotek disclosed that\nit used an “allocation algorithm” for Texas data, because data provided by the\nTexas Railroad Commission was not broken down by well, but instead by lease,\nand a lease might contain multiple wells. Therefore, according to Plaintiffs,\nany statement positing that the data was not adjusted was patently false,\nsupporting an inference of scienter. However, there is no specific allegation\nthat Chisholm knew at the time he made the statement at issue that FracMax\nutilized an algorithm. Moreover, as the district court correctly pointed out, the\nuse of an algorithm does not make the claim that the data was “un-adjusted”\nmisleading. See Rosenzweig, 332 F.3d at 866 (danger of misleading buyers or\nsellers must be “either known to the defendant or is so obvious that the\ndefendant must have been aware of it” (cleaned up)).\n 3. Presentation of Incorrect Well Data\n The starkest example of Flotek’s provision of false information is that\nChisholm presented demonstrably false information at the September 2015\nconference in the form of incorrect well data. However, even these statements\nfail to support a strong inference of scienter, because Plaintiffs fail to plead\nthat any Defendant knew of these errors at the time, and the misstatements\nwere not sufficiently obvious that Defendants were severely reckless in\npresenting the information. As the district court pointed out, although\nPlaintiffs pleaded that the three non-CnF wells used in the September 2015\npresentation were downwardly adjusted, they “failed to plead facts\nestablishing this discrepancy is true throughout FracMax’s 80,000 well\ndatabase,” and “a trend as to six wells out of 80,000 is not sufficient on its own\nto establish a strong inference of scienter.” Plaintiffs contend that the fact that\nthe discrepancies inured to Flotek’s benefit weighs in favor of a finding of\n 10\n\f Case: 17-20308 Document: 00514827066 Page: 11 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\nscienter, as it suggests that Chisholm made intentional misrepresentations\nrather than mistakes. But the mere fact that an error favors the defendant is\ninsufficient to support a strong inference of scienter. Cf. Shaw, 537 F.3d at\n543 (characterizing allegations that defendants would benefit from\nrepresentations as supporting an inference of motive rather than going directly\nto severe recklessness, and noting that motive alone is insufficient for scienter).\n It does appear that it would have been very easy to check if this data was\ncorrect—Flotek verified the alleged errors and responded to the Bronte Report\nwithin a day. However, while this suggests negligence, there is no indication\nthat Defendants had reason to know of any deficiencies in quality control\nproblems before the data was made public. Cf. Abrams v. Baker Hughes Inc.,\n292 F.3d 424, 432 (5th Cir. 2002) (“Plaintiffs point to no allegations that the\ndefendants knew about the internal control problems, only that they should\nhave known or that their lack of knowledge based on their corporate positions\ndemonstrates recklessness.”). Plaintiffs rely on the fact that Flotek revised its\nallocation algorithm, which they claim implies that there was an issue with\nthe previous algorithm. However, we have previously declined to draw a\nsimilar inference, concluding in Abrams that “[t]he fact that Baker Hughes was\noverhauling its accounting system . . . does not command an inference that\ncompany officials should have anticipated finding a problem or assumed that\nfinancial data reported under [the] old system was inaccurate.” Abrams, 292\nF.3d at 433. Thus, Chisholm’s use of incorrect data at the September 2015\nconference also fails to give rise to a strong inference of scienter.\n 4. Statement that Data Was Back-Checked and Validated\n Finally, Plaintiffs claim that Chisholm represented that the data\npresented at the September 2015 conference was “back check[ed] and\nvalidate[d].” Plaintiffs allege that this was false, as “Flotek had no internal\ncontrols in place to ensure the integrity of the FracMax database.” Indeed, as\n 11\n\f Case: 17-20308 Document: 00514827066 Page: 12 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\nChisholm admitted, there was a failure in quality control, because Flotek did\nnot cross-reference “[the Drillinginfo data] with the [Texas] Railroad\nCommission data.” Despite Chisholm’s subsequent recognition that Flotek\n“should have had the quality control in place that could have validated [the\nDrillinginfo data] and it wasn’t,” Plaintiffs nonetheless fail to allege that\nChisholm knew of this lack of quality control at the time he made the\nstatement, or that it would have been so obvious that he should have known.\nCf. Abrams, 292 F.3d at 432 (“Plaintiffs point to no allegations that the\ndefendants knew about the internal control problems, only that they should\nhave known or that their lack of knowledge based on their corporate\npositions demonstrates recklessness.”). Further, the statement is ambiguous\nbecause Chisholm does not say whether Flotek itself back checks and validates\nthe data, or instead relies on a third party to do so, which Chisholm may well\nhave believed was a part of the process. See Shaw, 537 F.3d at 538 (analyzing\n“more likely, nonculpable inference, absent any other details” about the\nrepresentation). Accordingly, this allegation also fails to give rise to a strong\ninference of scienter.\n C\n In the absence of specific allegations that any Defendant knew of the\nfalsity of any of the statements discussed above at the time they were made or\nwere severely reckless with respect to the statements’ truth, Plaintiffs invoke\nChisholm’s position as an inventor of the FracMax technology as sufficient to\n“permit a plaintiff to plead scienter.” 3 Neiman, 854 F.3d at 749. Our case law\n\n\n\n 3Plaintiffs’ complaint repeatedly refers to Chisholm as “one of FracMax’s inventors\nand President and CEO of Flotek,” but does not specify what role Chisholm played in\ninventing FracMax. Although conceivable that Chisholm knew the intricacies of the software\ncode underpinning FracMax, the Plaintiffs have made no specific allegations from which we\ncould conclude such an inference is as likely as an opposing inference that Chisholm merely\nthought of the concept while others implemented it. The lack of specific facts leading to an\n 12\n\f Case: 17-20308 Document: 00514827066 Page: 13 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\nprovides that an inference of scienter may be drawn solely from “a defendant’s\nposition in the company” only if certain “special circumstances” are alleged. Id.\nWe have stated these “special circumstances” as follows: (1) “the smaller the\ncompany the more likely it is that corporate executives would be familiar with\nthe intricacies of day to day operations”; (2) “the transaction at issue may have\nbeen critical to the company’s continued vitality”; (3) “the misrepresented or\nomitted information at issue would have been readily apparent to the speaker”;\nand (4) “the defendant’s statements were internally inconsistent with one\nanother.” Id. at 749–50 (quoting Local 731 I.B. of T. Excavators & Pavers\nPension Tr. Fund v. Diodes, Inc., 810 F.3d 951, 959 (5th Cir. 2016)).\n Our “special circumstances” doctrine does not apply here, and therefore\nour analysis regarding the alleged misrepresentations, supra Part III.B, holds.\nPlaintiffs concede that they “do[] not contend Flotek is a small company,” and\ninstead ask us to find special circumstances based on Defendants’ knowledge\nof the FracMax product. However, we have never found special circumstances\npermitting an inference of scienter based solely on a defendant’s position when\nthe company was large. Compare Dorsey v. Portfolio Equities, Inc., 540 F.3d\n333, 342–43 (5th Cir. 2008) (finding special circumstances where defendant\ncompany had no employees itself and was managed by company with only eight\nemployees) and Nathenson, 267 F.3d at 425 (inference warranted where\ncompany had roughly thirty-five employees), with Neiman, 854 F.3d at 750\n(“[W]ith over 60 employees, [defendant] was approximately twice as large as\nthe companies in the cases where this court has found a ‘special\ncircumstance.’”).\n\n\n\ninference of knowledge or severe recklessness of FracMax’s flaws leaves only the possibility\nthat Chisholm’s title as “one of FracMax’s inventors and President and CEO of Flotek” might\nresult in such an inference, a possibility which we conclude also fails under our “special\ncircumstances” test.\n 13\n\f Case: 17-20308 Document: 00514827066 Page: 14 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\n The other special circumstances factors also cut against applying that\ndoctrine here. Although FracMax was important to Flotek’s sales of CnF, it\ncannot be said to be critical to its “continued vitality,” as required. 4 See Diodes,\n810 F.3d at 959 (finding omissions regarding a labor shortage not sufficiently\nimportant where the plaintiff did not allege that the labor shortage\n“jeopardized the company’s existence”). Nor would it have been “readily\napparent to the speaker”—primarily, Chisholm—that the statements were\nincorrect, as discussed above in analyzing each statement individually. See\nsupra Part III.B. Finally, despite Plaintiffs’ contrary contention, no internal\ninconsistency exists between the statements that well data was un-altered and\nthat FracMax data was conclusive, on the one hand, and the later revelations\nabout the accuracy of that data and the lack of internal controls, on the other.\nThe earlier statements do not directly contradict that later information. As\ndiscussed, the context of the use of these terms reveals that the term\n“conclusive” was used to tout the economic benefits of CnF products, and the\nterm “un-adjusted” was used in conjunction with references to FracMax as an\n“analytical model.” As such, these statements do not conflict with later\nrevelations that flaws existed in the data and that Flotek relied on a third\nparty to provide accurate information. See supra Part III.B.1–2.\n\n\n\n\n 4 We have concluded that, in order to constitute a special circumstance, the required\nlevel of importance to the company must be such that the company’s continued existence\ndepends on, or the company would be completely transformed by, the success of a product or\nbusiness line. See Dorsey, 540 F.3d at 342 (defendant company “was essentially a one-trick\npony”); Plotkin v. IP Axess Inc., Etc., 407 F.3d 690, 700 (5th Cir. 2005) (defendant “was a\nstruggling company that announced to the public that it had reached agreements . . . that\nwould bring them multimillion dollar revenues, which would amount to a thirty-fold\nincrease” in revenue); Nathenson, 267 F.3d at 425 (“Zonagen was essentially a one product\ncompany”).\n 14\n\f Case: 17-20308 Document: 00514827066 Page: 15 Date Filed: 02/07/2019\n\n\n\n No. 17-20308\n D\n Finally, we review the complaint holistically, as the district court did, to\ndetermine “whether all of the facts alleged, taken collectively, give rise to a\nstrong inference of scienter,” Tellabs, 551 U.S. at 323. The district court\ncorrectly pointed out that “Plaintiffs ask this Court to assume scienter based\nsolely on the importance of FracMax to Flotek’s business, Defendants’ positions\nwithin the company, and the fact that the alleged ‘mistake’ happened in a way\nthat made Flotek’s core product, CnF, look more profitable.” We agree that\nsuch allegations are insufficient to raise a strong inference of scienter and, at\nmost, indicate “simple or even inexcusable negligence,” a lesser showing than\nis required here. See Rosenzweig, 332 F.3d at 866. This conclusion is further\nbuttressed by Plaintiffs’ pervasive use of group pleading—referring generally\nto “Defendants” rather than specific individuals—a practice this court has\nexpressly rejected. See Shaw, 537 F.3d at 533 (“[T]his court has rejected the\ngroup pleading approach to scienter and instead looks to the state of mind of\nthe individual corporate official or officials.”). For these reasons, the district\ncourt’s holistic analysis was also correct.\n IV\n Plaintiffs contend that the district court erred by dismissing their\nSection 20(a) claims against the individual defendants for control-person\nliability. “Control person liability is secondary only and cannot exist in the\nabsence of a primary violation.” Southland, 365 F.3d at 383. Because Plaintiffs\nhave not established a primary violation, their Section 20(a) claims fail.\n ***\n For these reasons, the judgment of the district court is AFFIRMED.\n\n\n\n\n 15", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365805/", "author_raw": "JAMES L. DENNIS, Circuit Judge:"}]} | DENNIS | CLEMENT | ENGELHARDT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588552/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,588,860 | UNITED STATES of America, Plaintiff-Appellee, v. Terry KELLY, Also Known as T.K., Defendant-Appellant. | United States v. Terry Kelly | 2019-02-08 | 17-60133 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Smith, Duncan, Engelhardt", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 17-60133 Document: 00514827715 Page: 1 Date Filed: 02/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 17-60133 United States Court of Appeals\n Fifth Circuit\n\n FILED\n February 8, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n\n Plaintiff–Appellee,\n\nversus\n\nTERRY KELLY, Also Known as T.K.,\n\n Defendant–Appellant.\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Mississippi\n\n\n\n\nBefore SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n Terry Kelly pleaded guilty of being a felon in possession of a firearm, in\nviolation of 18 U.S.C. § 922(g)(1) and enhanced per the Armed Career Criminal\nAct (“ACCA”), 18 U.S.C. § 924(e) (2012). As part of his plea agreement, Kelly\nagreed to an appeal waiver, yet he appeals.\n\n Kelly raises two issues. First, he asserts that the district court plainly\nerred in applying the ACCA enhancement because he lacks the requisite\n\f Case: 17-60133 Document: 00514827715 Page: 2 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\nnumber of violent felony predicates. Second, he claims that he received in-\neffective assistance of counsel (“IAC”), resulting in an increased term of impris-\nonment. Because Kelly’s ACCA enhancement claim is barred by his appeal\nwaiver and his IAC claim is not ripe for review on direct appeal, we dismiss\nthe appeal as to both claims.\n\n I.\n Police searched Kelly’s house after receiving information that stolen\nproperty might be there. During the search, officers discovered that Kelly, a\nconvicted felon, was in possession of two rifles, hence the indictment. 1\n\n Kelly and his lawyer signed a plea agreement in which he agreed to plead\nguilty to the one-count indictment in exchange for the government’s agreement\n“not to charge [him] with any other offenses known by the [g]overnment arising\nfrom or related to the above charges.” As part of the deal, Kelly agreed to a\nwaiver of appeals and collateral attacks, which stated,\n WAIVER OF APPEALS AND COLLATERAL ATTACKS: Defen-\n dant hereby expressly waives any and all rights to appeal the con-\n viction in this case, on any ground whatsoever, including but not\n limited to the grounds set forth in 18 U.S.C. § 3742. Defendant\n also hereby expressly waives all rights to contest or collaterally at-\n tack the conviction in any post-conviction proceeding, including\n but not limited to a motion brought pursuant to 28 U.S.C. § 2255,\n excepting only allegations of ineffective assistance of counsel and\n prosecutorial misconduct. Defendant waives these rights in ex-\n change for the concessions and recommendations made by the\n United States in this plea agreement.\n The district court held a Rule 11 plea hearing. In addition to discussing\nthe charge and the related enhancement, the court emphasized Kelly’s appeal\n\n\n\n 1 See 18 U.S.C. §§ 922(g)(1), 924(e). The indictment listed three of Kelly’s previous\nfelony convictions, including burglary of a dwelling, burglary, and shooting into an occupied\ndwelling.\n 2\n\f Case: 17-60133 Document: 00514827715 Page: 3 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\nwaiver: “[D]o you, in particular, understand that by entering into the Plea\nAgreement and entering a guilty plea, you will waive all rights to appeal your\nconviction on any ground and to collaterally attack your conviction except for\nallegations of ineffective assistance of counsel and prosecutorial misconduct?”\nKelly answered in the affirmative (“Yes, ma’am.”), acknowledging that he\nunderstood his plea agreement and the related appeal waiver.\n\n After the guilty plea, the government filed a U.S.S.G. § 5K1.1 motion on\nbehalf of Kelly for his substantial assistance with a RICO investigation against\nthe Aryan Brotherhood of Mississippi. 2 The district court granted the § 5K1.1\nmotion and imposed a 100-month term of imprisonment plus five years of\nsupervised release. The sentence imposed was below both the ACCA minimum\nof fifteen years and the recommended guideline range of 180 to 188 months.\nAt sentencing, Kelly again affirmed that he “expressly waive[d] any and all\nrights” to appeal or collaterally attack “the conviction or sentence imposed\n. . . except [as] to claims relating to prosecutorial misconduct and ineffective\nassistance of counsel relating to the validity of the waiver of appeal or the\nvalidity of the guilty plea itself.”\n\n After sentencing, however, Kelly raised an IAC claim, which prompted\nhis trial counsel to withdraw. This court assigned the Federal Public Defender\nto represent Kelly on appeal and granted Kelly’s unopposed motion for leave\nto file an untimely notice of appeal.\n\n II.\n Kelly raises two issues on appeal. First, he asserts that the district court\n\n\n 2 In its § 5K1.1 motion, the government noted that, inter alia, “Kelly showed courage\nby sitting on the stand across from two individuals who had the authority within [the Aryan\nBrotherhood of Mississippi] to order that he be killed. And he testified truthfully and pro-\nvided the government with substantial assistance . . . in secur[ing] conviction at that trial for\nthe two defendants who [Kelly] testified against.”\n 3\n\f Case: 17-60133 Document: 00514827715 Page: 4 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\nplainly erred in applying the ACCA enhancement. Second, he claims IAC.\nBefore analyzing either claim, we must address the applicability and scope of\nthe appeal waiver.\n\n A.\n “This court reviews de novo whether an appeal waiver bars an appeal.”\nUnited States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). “A criminal defendant\nmay waive his statutory right to appeal in a valid plea agreement.” United\nStates v. Pleitez, 876 F.3d 150, 156 (5th Cir. 2017). When deciding “whether\nan appeal of a sentence is barred by an appeal waiver provision in a plea agree-\nment, we conduct a two-step inquiry: (1) whether the waiver was knowing and\nvoluntary and (2) whether the waiver applies to the circumstances at hand,\nbased on the plain language of the agreement.” United States v. Bond,\n414 F.3d 542, 544 (5th Cir. 2005).\n\n For a waiver to be knowing and voluntary, “[a] defendant must know\nthat he had a ‘right to appeal his sentence and that he was giving up that\nright.’” United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (quoting\nUnited States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992)). Moreover, “[a]\nwaiver is both knowing and voluntary if the defendant indicates that he read\nand understood the agreement and the agreement contains an ‘explicit, un-\nambiguous waiver of appeal.’” Keele, 755 F.3d at 754 (quoting United States v.\nMcKinney, 406 F.3d 744, 746 (5th Cir. 2005)). But, as acknowledged in the\nplea agreement, “a defendant may always avoid a waiver on the limited\ngrounds that the waiver of appeal itself was tainted by [IAC].” United States\nv. White, 307 F.3d 336, 339 (5th Cir. 2002).\n\n “We apply normal principles of contract interpretation when construing\n\n\n\n\n 4\n\f Case: 17-60133 Document: 00514827715 Page: 5 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\nplea agreements.” 3 When determining “whether an appeal waiver applies to\nthe issues presented, this [c]ourt ‘ascertain[s] the ordinary meaning of the\nwaiver provision,’” Pleitez, 876 F.3d at 156 (quoting United States v. Jacobs,\n635 F.3d 778, 781 (5th Cir. 2011)), and “construe[s] appeal waivers narrowly\n. . . against the government,” id. (quoting United States v. Palmer, 456 F.3d\n484, 488 (5th Cir. 2006)). Nonetheless, “[t]he government has a strong and\nlegitimate interest in both the finality of convictions and in the enforcement of\nplea bargains.” United States v. Dyer, 136 F.3d 417, 429 (5th Cir. 1998).\n\n B.\n With respect to his ACCA claim, Kelly concedes in his reply brief that\n“there is a strong presumption for finding the waiver enforceable, as he . . .\nknowingly and voluntarily plea[ded] guilty and the language in the plea is suf-\nficiently clear.” Kelly, however, tempers this admission by further asserting\nthat “he would not have [pleaded] guilty had he known there was a potential\nchallenge” to the ACCA enhancement under recent Supreme Court caselaw.\nAccordingly, Kelly contends that he “knowingly and voluntarily agreed to plead\nguilty, but only under the premise that there were no meritorious arguments\nto be made regarding the ACCA enhancement.”\n\n In response, the government asserts that the waiver (1) was knowing\nand voluntary and (2) bars the ACCA issue Kelly raises on appeal. The govern-\nment maintains that “[w]here the plea agreement contains an unambiguous\nwaiver signed by the defendant, and the defendant states during the Rule 11\nplea colloquy that he has read and understood [the] agreement, the waiver is\nconsidered knowing and voluntary.” The government further asserts that\n\n\n 3 McKinney, 406 F.3d at 746; see also United States v. Cantu, 185 F.3d 298, 304 (5th\nCir. 1999) (“[W]e apply general principles of contract law in order to interpret the terms of\nthe plea agreement.”).\n 5\n\f Case: 17-60133 Document: 00514827715 Page: 6 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\nKelly knew that “he had a right to appeal his sentence and that he was giving\nup that right” (quoting Portillo, 18 F.3d at 292). The government posits that\n“[i]t is plain, based on his signing the plea agreement and his two declarations\nto the district judge, that Kelly was well aware of his right to appeal and vol-\nuntarily waived that right.” 4\n\n Turning to the second prong, the government claims that “[Kelly’s] chal-\nlenge to the ACCA enhancement is clearly barred because it does not fall\nwithin the Fifth Circuit’s exceptions to enforcement of a validly executed\nwaiver.” 5 Consequently, the waiver is enforceable and bars Kelly’s appeal of\nthis issue.\n\n We must determine whether Kelly’s waiver was knowing and voluntary\nand “whether the waiver applies to the circumstances at hand, based on the\nplain language of the plea agreement.” McKinney, 406 F.3d at 746. The waiver\nsays that “[d]efendant hereby expressly waives any and all rights to appeal the\nconviction in this case, on any ground whatsoever . . . .” 6 At the plea hearing,\nthe court asked Kelly whether he “underst[ood] that by entering into the Plea\nAgreement and entering a guilty plea, [he] waive[d] all rights to appeal [his]\nconviction on any ground and to collaterally attack [his] conviction except for\nallegations of ineffective assistance of counsel and prosecutorial misconduct.” 7\nKelly replied, “Yes, ma’am.”\n\n\n\n 4 See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court\ncarry a strong presumption of verity.”).\n 5 The government concedes, however, that Kelly’s IAC claim is not barred by this\ncourt’s precedent, but “only to the extent that his claim challenges the validity of [the]\nwaiver.”\n 6The waiver further states that “[d]efendant waives these rights in exchange for the\nconcessions and recommendations made by the United States in this plea agreement.”\n 7 Kelly also answered affirmatively when asked whether he “underst[ood] the terms\nof the Plea Agreement and the Plea Supplement.”\n 6\n\f Case: 17-60133 Document: 00514827715 Page: 7 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\n At the sentencing hearing, the court again discussed, at some length, the\nscope and terms of Kelly’s appeal waiver, stating,\n The defendant expressly waives any and all rights to appeal the\n conviction or sentence imposed in this case, pursuant to his Plea\n Agreement, and the manner in which sentence was imposed on any\n ground whatsoever, including, but not limited to, the grounds set\n forth in [18 U.S.C. § 3742] except [as] to claims relating to prose-\n cutorial misconduct and [IAC] relating to the validity of the waiver\n of appeal or the validity of the guilty plea itself. The defendant\n also expressly waives all rights to contest or collaterally attack the\n conviction and/or sentence and the manner in which the sentence\n was imposed in any post-conviction proceeding, including, but not\n limited to, a motion brought pursuant to [28 U.S.C. § 2255] except\n [as] to claims relating to prosecutorial misconduct and [IAC]\n relating to the validity of the waiver of appeal or the validity of the\n guilty plea itself.\nThe district court next asked Kelly whether he understood his sentence as spe-\ncified by the court. Again, Kelly affirmatively acknowledged his understanding\nof the sentence (including the related terms of his plea agreement) by stating\n“Yes, ma’am.” 8\n\n Kelly’s waiver was both knowing and voluntary because the record dem-\nonstrates that “he [both] read and understood the agreement, which include[d]\nan explicit, unambiguous waiver of appeal.” Bond, 414 F.3d at 544; see also\nKeele, 755 F.3d at 754–56; McKinney, 406 F.3d at 746. Moreover, the waiver\napplies to all of Kelly’s potential claims—including a challenge to the applica-\ntion of the ACCA enhancement—except those concerning prosecutorial mis-\nconduct or IAC. Accordingly, although Kelly may not pursue his ACCA claim—\nit is barred by the clear terms of his appeal waiver—he may appeal his IAC\nclaim, under the terms of the plea agreement, and under this court’s precedent\n\n\n\n 8 Kelly also confirmed that he did not “have any questions about any matter related\nto [his] sentence or any part of [the sentencing] proceeding.”\n 7\n\f Case: 17-60133 Document: 00514827715 Page: 8 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\nthat “a defendant may always avoid a waiver on the limited grounds that the\nwaiver of appeal itself was tainted by [IAC].” White, 307 F.3d at 339; see also\nUnited States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995).\n\n III.\n A.\n In Strickland v. Washington, 466 U.S. 668, 687−96 (1984), the Court out-\nlined a two-pronged test for determining whether counsel’s performance was\nineffective. 9 First, “[w]hen a convicted defendant complains of [IAC], the\ndefendant must show that counsel’s representation fell below an objective stan-\ndard of reasonableness.” Id. at 687−88. Second, “any deficiencies in counsel’s\nperformance must be prejudicial to the defense in order to constitute [IAC]\nunder the Constitution.” Id. at 692. Nonetheless, “[b]ecause of the difficulties\ninherent in making the evaluation, a court must indulge a strong presumption\nthat counsel’s conduct falls within the wide range of reasonable professional\nassistance . . . .” Id. at 689. 10 A defendant’s right to effective assistance of\ncounsel extends to the plea-bargaining process. 11\n\n “[A] defendant may always avoid a waiver on the limited grounds that\nthe waiver of appeal itself was tainted by [IAC].” White, 307 F.3d at 339; see\nalso Henderson, 72 F.3d at 465. Nonetheless, “[t]he general rule in this circuit\n\n\n\n 9 See also Gulley, 526 F.3d 809, 821 (5th Cir. 2008) (“A defendant’s Sixth Amendment\nright to counsel is violated if: (1) his counsel’s performance was deficient; and (2) the deficient\nperformance prejudiced his defense.”).\n 10“A fair assessment of attorney performance requires that every effort be made to\neliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s\nchallenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”\nWashington, 466 U.S. at 689.\n 11 Lafler v. Cooper, 566 U.S. 156, 162 (2012) (“During plea negotiations defendants are\n‘entitled to the effective assistance of competent counsel.’” (quoting McMann v. Richardson,\n397 U.S. 759, 771 (1970))); see also Missouri v. Frye, 566 U.S. 134, 140–44 (2012).\n 8\n\f Case: 17-60133 Document: 00514827715 Page: 9 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\nis that a claim of [IAC] cannot be resolved on direct appeal when the claim has\nnot been raised before the district court since no opportunity existed to develop\nthe record on the merits of the allegations.” United States v. Higdon, 832 F.2d\n312, 313–14 (5th Cir. 1987); see also Gulley, 526 F.3d at 821. Consequently,\n“[o]nly in those rare occasions where the record is sufficiently developed will\n[this] court undertake to consider claims of inadequate representation on direct\nappeal.” Gulley, 526 F.3d at 821. Ultimately, unless we can “fairly evaluate\nthe claim from the record, we must decline to consider the issue without preju-\ndice to a defendant’s right to raise it in a subsequent proceeding.” Id. 12\n\n B.\n Kelly contends that “[t]his is one of those rare cases” in which the record\nis sufficiently developed to allow us to reach the merits of his IAC claim on\ndirect appeal. Turning to the Washington factors, Kelly asserts that “[t]he\nmere failure [of trial counsel] to challenge [his] prior convictions post-Johnson\nand Mathis was deficient performance and severely prejudiced [him].” Kelly\nfurther maintains that “[f]ailing to keep current on Supreme Court cases and\nrelevant circuit court precedent is deficient performance,” especially given that\nboth precedents “were easily accessible and gravely important to challenging\nthe ACCA enhancement.” 13 Accordingly, “[n]o sound trial strategy can be rea-\nsoned for not objecting to the [ACCA] enhancement at the infancy of the case\nor at sentencing,” and his trial counsel’s performance should be deemed defici-\nent because “it falls below an objective standard of reasonableness.”\n\n Kelly also asserts that he was prejudiced by his counsel’s deficient\n\n\n 12See also United States v. Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999) (“We\ndo not review a claim of [IAC] on direct appeal unless the district court has first addressed it\nor unless the record is sufficiently developed to allow us to evaluate the claim on its merits.”).\n 13Kelly notes that Johnson was released before both his change-of-plea hearing and\nsentencing, while Mathis was released before sentencing.\n 9\n\f Case: 17-60133 Document: 00514827715 Page: 10 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\nperformance. He acknowledges that he “bears the burden of demonstrating\n. . . ‘there is a reasonable probability that, but for counsel’s errors, he would\nnot have pleaded guilty and would have insisted on going to trial’” (quoting\nHill v. Lockhart, 474 U.S. 52, 59 (1985)). Kelly maintains that had the ACCA\nenhancement not been applied, “he would have faced a substantially lower\nguidelines range which would have led to a plea agreement without the ACCA\nenhancement.” Kelly claims that “[i]nstead of a fifteen-year mandatory mini-\nmum and a suggested [g]uidelines range of 180–188 months,” he would have\nfaced a range of 46–57 months even before the court granted the § 5K1.1\nmotion. 14 Moreover, had his trial counsel been effective, “Kelly would have\nbeen able to preserve his objection to the [ACCA] enhancement,” thereby also\nproviding the benefit of de novo, rather than plain error, review.\n\n In response, the government contends that the record in the district\ncourt is insufficient to determine whether trial counsel’s plea strategy was\nsound. Highlighting circuit precedent, the government maintains that “[i]f\n[this] [c]ourt cannot make the determination on the record before it, it should\ndismiss the claim without prejudice and allow the defendant to raise it in\nanother proceeding where the record can be developed.” “[F]ar from being a\nrare case ripe for direct review,” the government asserts that “Kelly’s [IAC]\nclaim begs for further factual development.”\n\n The government likewise challenges the assumption that “had [Kelly’s]\ncounsel raised the issues he now [raises] on appeal, he would have gotten a\nbetter result,” contending that such an approach “overlooks a variety of\n\n\n\n 14The government disputes this claim, maintaining that “[t]here are . . . uncertainties\nas to what Kelly’s guideline range would be if he was not a violent offender under the ACCA.\nKelly recalculates his guideline range assuming that both of his violent felonies should be\ndiscounted; however, if [only] one violent felony is discounted . . . then his guideline range\nwould be higher than he estimates.”\n 10\n\f Case: 17-60133 Document: 00514827715 Page: 11 Date Filed: 02/08/2019\n\n\n\n No. 17-60133\npractical considerations that may have affected his sentence.” Ultimately, the\ngovernment maintains that “the [c]ourt can only speculate as to why Kelly’s\ncounsel chose not to object to the ACCA enhancement” and urges that we “dis-\nmiss [the IAC] claim without prejudice [so that] Kelly [may] pursue it in the\ntrial court.”\n\n At bottom, Kelly’s IAC claim was not sufficiently developed. Although\nhe raised the issue in a pro se habeas corpus petition that he filed in the district\ncourt after sentencing, the court dismissed it without prejudice for lack of jur-\nisdiction because “Kelly’s direct appeal [was] pending.” The court did not hold\na hearing on the claim.\n\n Ultimately, much like the defendant in Gulley, Kelly’s “claim is not ripe\nfor review because ‘the district court did not hold a hearing and the record does\nnot provide sufficient detail about trial counsel’s conduct and motivations to\nallow this court to make a fair evaluation of the merits of [his] claim.’” Gulley,\n526 F.3d at 821 (quoting United States v. Aguilar, 503 F.3d 431, 436 (5th Cir.\n2007)). Here, as in Higdon, 832 F.3d at 314, we “can only speculate on the\nbasis for defense counsel’s actions” because there is no discussion in the record\nconcerning trial counsel’s rationale for making his strategic choices, including\nthe decision not to challenge the ACCA enhancement. Accordingly, Kelly’s IAC\nclaim is not ripe for review on direct appeal.\n\n In sum, because Kelly’s ACCA enhancement claim is barred by the\nappeal waiver, and his IAC claim is not ripe for review on direct appeal, the\nappeal is DISMISSED, but without prejudice to Kelly’s right to raise IAC on\ncollateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).\n\n\n\n\n 11", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366113/", "author_raw": "JERRY E. SMITH, Circuit Judge:"}]} | SMITH | DUNCAN | ENGELHARDT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588860/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,588,862 | UNITED STATES of America, Plaintiff - Appellee v. Jennifer Lynn RICHMOND, Defendant - Appellant | United States v. Jennifer Richmond | 2019-02-08 | 17-40299 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Graves, Costa, Bennett", "parties": "", "opinions": [{"author": "GREGG COSTA, Circuit Judge:", "type": "010combined", "text": "Case: 17-40299 Document: 00514827910 Page: 1 Date Filed: 02/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-40299 February 8, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n\n Plaintiff - Appellee\n\nv.\n\nJENNIFER LYNN RICHMOND,\n\n Defendant - Appellant\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore GRAVES and COSTA, Circuit Judges and BENNETT, District Judge.*\nGREGG COSTA, Circuit Judge:\n During a traffic stop, a state trooper pushed his fingers against the\nvehicle’s tire to try and confirm his suspicion that it contained more than just\nair. We conclude that the brief physical examination of the tire was subject to\nthe Fourth Amendment under the recently revived trespass test for deciding\nwhat is a search. The search was a reasonable one, however, because there\n\n\n\n\n * District Judge for the Southern District of Texas, sitting by designation.\n\f Case: 17-40299 Document: 00514827910 Page: 2 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\nwas probable cause to believe the loose tire posed a safety risk.\n I.\n A\n Texas State Trooper Manuel Gonzales was patrolling U.S. Highway 77\nin south Texas when he saw a blue pickup Jennifer Richmond was driving. He\ndrove alongside the truck and saw that the tires were “shaking,” “wobbly,” and\n“unbalanced.” He was concerned that the tires were a potential danger to the\npublic. After the truck drove across the fog line between the right lane and the\nshoulder of the highway, Gonzales initiated a traffic stop. When the vehicle\ncame to a stop, Gonzales saw that one of the truck’s brake lights was broken.\nHe ran the license plate and learned the truck was registered two days earlier\nin nearby Brownsville.\n When he approached the vehicle, Gonzales explained the reason for the\nstop—that Richmond crossed the fog line—and also told her about the brake\nlight. Richmond apologized and, without prompting, stated that she was from\nArizona. She avoided eye contact, and Gonzales noticed that her hands were\n“trembling,” her mouth was “dry,” and her lips had “a white coating.”\n In response to questioning, Richmond said that she was from Tucson but\nwas traveling to Brownsville, where she was moving with her husband.\nGonzales asked Richmond to exit the truck so that he could show her the\nbroken brake light. Richmond complied.\n As Gonzales walked to the rear of the truck, he looked at the passenger-\nside rear tire and observed that the bolts “had been stripped as [if] they had\nbeen taken off numerous times.”\n This is when the challenged conduct occurred. Gonzales pushed on the\ntire with his hand. The resulting sound was not what “a normal tire with air”\nwould produce; instead there was a “solid thumping noise” that indicated\nsomething besides air was inside. Gonzales, who already was concerned about\n 2\n\f Case: 17-40299 Document: 00514827910 Page: 3 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\nthe tires because he had seen them bouncing before the stop, became more\nsuspicious that they might contain drugs.\n After tapping the tire, Gonzales resumed asking Richmond about her\npersonal history and itinerary. She could not readily recall her age, date of\nbirth, or husband’s name. Richmond asserted that she was traveling to Dallas\nto visit a friend, but did not know the friend’s phone number or address.\nStranger still, she said she intended to use Google to learn the friend’s address\nand would return home if that search came up empty.\n When Gonzales went back to his car to check Richmond’s license and the\nvehicle’s registration, he discovered that, contrary to her story about driving\nfrom Arizona, the truck had entered Mexico the day before. It had crossed\nback into the United States only a few hours before the traffic stop.\n Gonzalez then obtained Richmond’s consent to search the truck. After\nfinding suspicious items inside the vehicle, Gonzales “let some air out [of the\ntires] and [ ] smelled some kind of chemical cleaning odor coming out of them.”\nAt least one of the tires did not release air. Gonzales checked beneath the\ntruck and saw “fingerprints [ ] on the inside of . . . the rims” and an atypical\namount of weight placed on the tires to try to balance them. When he removed\nthe tires, they seemed unusually heavy and solid.\n Gonzales decided to take the truck to a local car dealership and have the\ntires examined. Technicians at the dealership discovered secret compartments\nthat contained methamphetamine.\n B\n After being charged with trafficking that meth, Richmond tried to\nsuppress its discovery. She challenged the lawfulness of the stop and its\nlength. The district court rejected those arguments, concluding that\nreasonable suspicion of a traffic violation supported the stop and that\nRichmond’s suspicious statements and demeanor raised sufficient concerns\n 3\n\f Case: 17-40299 Document: 00514827910 Page: 4 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\nabout drug trafficking to support extending the stop for the additional time\nthat resulted in her consenting to the search.\n After the motion was denied, Richmond entered a guilty plea that\nallowed her to appeal the suppression ruling. Before sentencing, Richmond\nfiled an amended motion to suppress that argued for the first time that\nGonzales’s tap of her tire was a search not supported by probable cause. At\nthe sentencing hearing, the district court considered but rejected Richmond’s\namended motion because “as the law stands now, tapping tires is not a search.”\nThe district court noted that it would permit Richmond to appeal the tire tap\nissue along with her original Fourth Amendment claims in light of her\nconditional guilty plea.\n II.\n Richmond no longer challenges the initial stop or that there was\nreasonable suspicion of drug trafficking to extend the stop until the point when\nGonzales physically examined the tire. And in not challenging events after\nGonzales learned that the tire likely contained more than just air, Richmond\napparently acknowledges that discovery justified further investigation into the\ntrafficking up until when she consented to a full search. 1\n So the tap of the tire is the focus of this appeal. Richmond contends that\nit was a search within the meaning of the Fourth Amendment. That is the\ncase, she says, because touching the tire was a trespass which counts as a\nsearch under recent Supreme Court cases. See Florida v. Jardines, 569 U.S.\n1, 5 (2013); United States v. Jones, 565 U.S. 400, 404–07 & n.3 (2012).\n The government counters that we have previously held that similar law\nenforcement conduct is not a search. In United States v. Muniz-Melchor, 894\n\n\n\n 1 The government does not dispute Richmond’s premise that an unlawful search of the\ntire would have tainted the investigation that followed, including her consent.\n 4\n\f Case: 17-40299 Document: 00514827910 Page: 5 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\nF.2d 1430 (5th Cir. 1990), a border patrol agent used a pocket knife to tap the\nside of a propane tank mounted in the bed of a pickup. Id. at 1432. We\nacknowledged that the tapping “may have constituted a technical trespass,” id.\nat 1435, but explained that Katz v. United States, 389 U.S. 347 (1967), had\n“rejected the notion that what constitutes a trespass under various property\nlaws necessarily constitutes a search under the Fourth Amendment.” 894 F.2d\nat 1434. Instead, the then-prevailing Katz test—which came not from the\nmajority opinion but from Justice Harlan’s concurrence—asked whether the\nperson challenging a search had a reasonable expectation of privacy in the item\nbeing examined. 2 Id. (quoting Katz, 389 U.S. at 360–61 (Harlan, J.,\nconcurring)). The answer was “no” for the owner of the tapped propane tank\nbecause he “surely . . . must have reasonably expected that someone, such as a\ngasoline station attendant, might lean against the tank or touch it in some\nmanner.” Id at 1435.\n That expectation of contact is even greater for a vehicle’s tire as it is\nroutinely checked for air pressure. So Muniz-Melcher binds us on the\n“reasonable expectation of privacy” question. Richmond did not have a\nreasonable basis to believe that the tire would not be touched.\n But a precedent binds us only as far as it goes. See Brecht v. Abrahmson,\n507 U.S. 619, 631 (1993) (explaining that an opinion is not binding on a\nquestion it “never squarely addressed”). Richmond contends that Muniz-\nMelcher did not decide whether tapping part of a vehicle was a search under a\n\n\n\n\n 2Katz’s focus on privacy marked a reversal in allowing electronic eavesdropping to be\ntreated as a search even when it does not involve physical penetration into an individual’s\nproperty. 389 U.S. at 352–53 (overruling Goldman v. United States, 316 U.S. 129 (1942), and\nOlmstead v. United States, 277 U.S. 438 (1928)); see also Orin Kerr, The Curious History of\nFourth Amendment Searches, 2012 SUP. CT. REV. 67, 85 (recognizing that pre-Katz cases had\n“eventually focus[ed] on physical penetration into a protected space as the primary test for a\nFourth Amendment search” even if trespass was not the focus).\n 5\n\f Case: 17-40299 Document: 00514827910 Page: 6 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\ntrespass theory because, as the opinion recognized, at that time a physical\nintrusion did not on its own constitute a search.\n We agree. Katz held that “[t]he premise that property interests control\nthe right of the Government to search and seize has been discredited.” 389\nU.S. at 353 (quoting Warden v. Hayden, 387 U.S. 294, 304 (1967)). In the\ndecades that followed, a trespass did not automatically amount to a search.\nSee United States v. Karo, 468 U.S. 705, 713 (1984) (“[A]n actual trespass is\nneither necessary nor sufficient to establish a constitutional violation.”); Oliver\nv. United States, 466 U.S. 170, 183–84 (1984) (holding that narcotics agent\nsearching for marijuana in the open fields of a farm was not a search even\nthough it was a trespass). But in 2012, United States v. Jones revived the\nproperty approach that most, including our court, thought Katz had\njettisoned. 3 565 U.S. at 400. In explaining why a search occurred when law\nenforcement placed a GPS tracking device on the undercarriage of a car, the\nCourt relied on “the common-law trespassory test,” which it treated as a\nseparate basis for finding a search alongside the Katz “reasonable expectation\nof privacy” test. 565 U.S. at 409.\n Lower courts recognized Jones as a sea change. See, e.g., United States\nv. Ackerman, 831 F.3d 1292, 1307 (10th Cir. 2016) (Gorsuch, J.) (explaining\nthat that there is now “reason to wonder” about the vitality of a 1984 Supreme\nCourt decision after “Jones held that the Katz formula is but one way to\ndetermine if a . . . ‘search’ has taken place”); United States v. Sweeney, 821 F.3d\n893, 899 (7th Cir. 2016) (“In recent years, the Supreme Court has revived a\n‘property-based approach’ to identify unconstitutional searches.”); United\n\n\n 3A prominent Fourth Amendment scholar contends that Jones did not so much revive\nthe property-based approach as invent it. Kerr, supra note 2, at 68 (reaching “the surprising\nconclusion that no trespass test was used in the pre-Katz era”). That historical account is\neven more problematic for the government’s view that a trespass test has always governed\nFourth Amendment law, including when Muniz-Melcher was decided.\n 6\n\f Case: 17-40299 Document: 00514827910 Page: 7 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\nStates v. Katzin, 769 F.3d 163, 181 (3d Cir. 2014) (en banc) (explaining that\n“Jones fundamentally altered [the] legal landscape by reviving—after a forty-\nfive year hibernation—the Supreme Court’s trespass theory”). So did Fourth\nAmendment scholars. 4 The leading treatise on searches had to add a new\nchapter to its section on “Protected Areas and Interests.” The title of the\naddition? “Trespass as an alternate theory.” Compare Wayne R. LaFave et\nal., 1 SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 2.1(e) (5th\ned. 2012) (explaining that although Katz “seemed to sound the death knell for\nthe pre-Katz ‘trespass’ approach,” the “doctrine re-emerged as an alternate\ntheory to the Katz expectation-of-privacy test”), with id. § 2.1 (4th ed. 2004) (no\nsubsection on trespass). The most colorful description of Jones’s revival of the\ntrespass approach was the comment that “[i]t turns out that approach was not\ndead, just taking a really long nap.” John P. Elwood & Eric A. White, What\nWere They Thinking: The Supreme Court in Revue, October Term 2011, 15\nGREEN BAG 2D 405, 409 (2012).\n Jones thus requires us to consider the trespass test that Muniz-Melchor\ndid not think was sufficient to establish a search but now is. Even under Jones,\nhowever, a trespass does not get a defendant all the way to characterizing\npolice conduct as a search. Jones, 565 U.S. at 408 n.5. Consistent with the\nmeaning of “search,” a trespass “must be conjoined” with “an attempt to find\nsomething or obtain information.” Id.; see also id. at 404 (describing the\n\n\n 4 The notion that the trespass test had remained part of the post-Katz Fourth\nAmendment inquiry “came as a surprise to every student and scholar of the Fourth\nAmendment.” Kerr, supra note 2, at 68 n.5. The titles of numerous post-Jones articles reflect\nthis view that the decision restored a property-based approach that had been dormant since\nKatz. See, e.g., Arnold H. Loewy, United States v. Jones: Return To Trespass-Good News Or\nBad, 82 MISS. L.J. 879 (2013); Nancy Foster, Back to the Future: United States v. Jones\nResuscitates Property Law Concepts in Fourth American Jurisprudence, 42 U. BALT. L. REV.\n445 (2013); Herbert W. Titus & William J. Olson, United States v. Jones, Reviving the\nProperty Foundation of the Fourth Amendment, 3 CASE W. RESERVE L.J. TECH. & INTERNET\n243 (2012).\n 7\n\f Case: 17-40299 Document: 00514827910 Page: 8 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\ngovernment’s conduct as “physically occup[ying] private property for the\npurpose of obtaining information”). This prevents a mere physical touching,\nsuch as when an officer leans on the door of a car while questioning its driver,\nfrom being a search. Gonzales’s tapping of the tire was not that type of\nincidental conduct. He touched the tire in order to help find out what was\ninside. That satisfies the second Jones requirement.\n So whether the touching was a search comes down to whether it was a\ntrespass. Muniz-Melchor thought tapping a tank “may have constituted a\ntechnical trespass,” but did not decide if that was the case. 894 F.2d at 1435.\nIts “technical” qualifier may have come from the absence of damage to the tank,\nwhich modern tort law requires for trespass to chattel. See Jones, 565 U.S. at\n419 & n.2 (Alito, J., concurring) (quoting W. Keeton et al., PROSSER & KEETON\nON LAW OF TORTS § 14, at 87 (5th ed. 1984)). But in concluding that attaching\na GPS to the exterior of a vehicle was a trespass, Jones relied on its reading of\nthe common law of trespass as it existed in 1791 when the Fourth Amendment\nwas ratified. 5 Id. at 404–05 (tying the Fourth Amendment to common law\ntrespass and concluding that a “physical intrusion would have been considered\na ‘search’ within the meaning of the Fourth Amendment when it was adopted)\n(citing Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765)); id. at 419 & n.2\n(Alito, J., concurring) (characterizing the common law for trespass to chattels\nas requiring only a “violation of ‘the dignitary interest in the inviolability of\nchattels” (quoting W. Keeton et al., PROSSER & KEETON ON LAW OF TORTS § 14,\nat 87 (5th ed. 1984)). In terms of the physical intrusion, we see no difference\n\n\n\n\n 5 Professor Kerr also questions whether Jones got history right on this point. He\nobserves that installing a device on the exterior of a car “is not an obvious case for trespass,”\nas a “trespass usually implies some sort of invasion into property” beyond just touching it.\nKerr, supra note 2, at 91.\n 8\n\f Case: 17-40299 Document: 00514827910 Page: 9 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\nbetween the Jones device touching the car and an officer touching the tire. 6\nNor, apparently, does the government as it does not dispute that the tire tap\nwas a trespass. Of course, the GPS device remained attached for a longer\nperiod and gathered a lot more information compared to a tire tap, but Jones\nfound a trespass because of the physical contact the device made with the car\nat the moment it was affixed. Jones, 565 U.S. at 404 (focusing on the\n“installation of a GPS device”). Indeed, Justice Alito’s opinion in Jones\ncritiques the majority’s trespass approach because it “largely disregards what\nis really important (the use of a GPS for the purpose of long-term tracking) and\ninstead attaches great significance to something that most would view as\nrelatively minor (attaching to the bottom of a car a small, light object that does\nnot interfere in any way with the car’s operation).” Id. at 424–25 (Alito, J.,\nconcurring). The also “relatively minor” act of tapping tires is thus a trespass.\nBecause that trespass occurred to learn what was inside the tires, it qualifies\nas a search.\n This trespass analysis might seem simplistic. But proponents of the\nproperty-based approach view its bright line as a virtue over the less\npredictable expectation-of-privacy inquiry. 565 U.S. at 412–13 (noting the line-\ndrawing problems that would arise from applying the Katz test to the GPS\ntracking device); Erica Goldberg, How United States v. Jones Can Restore Our\nFaith in the Fourth Amendment, 110 MICH. L. REV. FIRST IMPRESSIONS 62, 68–\n69 (2011) (suggesting that a property-based test provides a “clearer, cleaner\n\n\n\n 6 Jones recognized this similarity in addressing Cardwell v. Jones, 417 U.S. 583\n(1974), a case that found no Fourth Amendment violation when law enforcement inspected\nthe tread of a tire and collected paint scrapings from the exterior of a car. In Jones, the\ngovernment argued that Cardwell supported its position that installation of the GPS tracker\nwas not a search. The Court disagreed on the ground that the plurality opinion in Cardwell\nwas “unclear” about whether it ruled that way because there was no search or because the\nsearch was a reasonable one supported by probable cause. Jones, 565 U.S. at n.7 (quoting\nCardwell, 417 U.S. at 591–92).\n 9\n\f Case: 17-40299 Document: 00514827910 Page: 10 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\nmetric of when the Fourth Amendment is implicated”). It may also seem\ntroubling that the brief touching of a tire reveals far less information than\nother lawful conduct, like a dog sniff, that is not considered a search. See\nIllinois v. Cabelles, 543 U.S. 405, 409 (2005). That critique, however, views the\nsearch question through the invasion-of-privacy mindset. Rightly or wrongly,\nJones held that a trespassory search implicates the Fourth Amendment even\nif it does not offend privacy interests. Under that property-based approach,\nGonzales’s tapping of the tire was a search regardless of how insignificant it\nmight seem.\n III.\n Although the limited nature of the intrusion does not affect whether the\nphysical examination of the tire is deemed a search, that is only the\npreliminary Fourth Amendment question. The ultimate question is whether\nthe government’s conduct was reasonable. Heien v. North Carolina, 135 S. Ct.\n530, 536 (2014). And in that analysis the extent of the intrusion on an\nindividual’s Fourth Amendment interests is relevant. See, e.g., United States\nv. Knights, 534 U.S. 112, 118–19 (2001) (explaining that the reasonableness of\na search depends on balancing the governmental interest in the search against\nthe degree of the intrusion on the individual). 7\n The government first argues that a search of the tire complied with the\nFourth Amendment because Gonzales had probable cause to believe drugs\nwere inside. Probable cause to believe a vehicle contains contraband allows a\nwarrantless search because of the car’s mobility. Maryland v. Dyson, 527 U.S.\n465, 467 (1999).\n\n\n 7 The district court held that Gonzalez did not search the tire, but we may consider\nthe reasonableness of the search because we may affirm the denial of a suppression ruling\non any basis supported by the record. United States v. El-Mezain, 664 F.3d 467, 540 (5th Cir.\n2011).\n\n 10\n\f Case: 17-40299 Document: 00514827910 Page: 11 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\n Did that probable cause exist before Gonzales tapped the tire? The\ninformation Gonzales had by that time—the wobbly tires, stripped bolts,\nRichmond’s nervousness, and the new registration on an older vehicle stopped\nin a trafficking corridor—certainly gave him the reasonable suspicion of drug\ntrafficking needed to justify extending the traffic stop to investigate further.\nUnited States v. Brigham, 382 F.3d 500, 507 (5th Cir. 2004) (en banc). But\nprobable cause is a higher rung on the probability ladder than reasonable\nsuspicion. See Navarette v. California, 572 U.S. 393, 397 (2014) (explaining\nthat the evidence required for reasonable suspicion “is obviously less than is\nnecessary for probable cause” (citation omitted)). Demonstrating the greater\nshowing required for probable cause, evidence rising to that level would be\nenough to have supported an arrest of Richmond for drug trafficking or a grand\njury indictment charging that crime. See United States v. Watson, 423 U.S.\n411 (1976) (holding that probable cause supports warrantless arrest of a\nsuspect); U.S. CONST. amend. V. We doubt the information Gonzales had prior\nto tapping the tire rose to that level.\n But if probable cause of drug trafficking did not yet exist, the government\nargues that the physical inspection of the tire served another interest:\n“ensuring that vehicles on the road are operated safely and responsibly.”\nIndeed, the wobbly tires, the truck veering outside its lane, and the stripped\nbolts gave a reasonable officer probable cause to believe that the tire posed a\nsafety risk. TEX. TRANSP. CODE § 547.004(a) (making it a misdemeanor to\noperate a vehicle that is “unsafe so as to endanger a person”). On that basis,\nthe tapping of the tire was justified. It does not matter that Gonzales also\n\n\n\n\n 11\n\f Case: 17-40299 Document: 00514827910 Page: 12 Date Filed: 02/08/2019\n\n\n\n No. 17-40299\nwanted to find out if drugs were in the tire. See Whren v. United States, 517\nU.S. 806, 813 (1996). 8\n Pulling back from the discrete Fourth Amendment doctrines we have\nexamined, finding no constitutional violation makes sense in terms of the\noverall Fourth Amendment balance. The government’s interest in making sure\nthat a loose tire does not pose a safety threat strongly outweighs the\nintrusiveness of an officer’s tapping the tire for a second or two.\n ***\n The judgement of the district court is AFFIRMED.\n\n\n\n\n 8 Richmond argues that public safety must be an officer’s sole motivation when that\nis the justification for the search, citing the pre-Whren cases of South Dakota v. Opperman,\n428 U.S. 364 (1976), and Cady v. Dombrowski, 413 U.S. 433 (1973). Both of those cases\ninvolved searches conducted as part of routine police procedures. Opperman, 482 U.S. at 369\n(postimpoundment inventory search); Dombrowski, 413 U.S. at 436 (post-tow search of trunk\nconsistent with department policy to retrieve officer’s weapon). Whatever role subjective\nmotivation plays in the context of regulatory searches, Whren says that intent does not\nmatter for searches based on individualized suspicion. See Hunsberger v. Wood, 570 F.3d\n546, 554 (4th Cir. 2009) (making this distinction between Whren and Dombrowski); cf.\nMichigan v. Fisher, 558 U.S. 45, 47 (2009) (explaining that the “emergency aid” exception to\nthe Fourth Amendment “does not depend on the officer’s subjective intent”). Suspicion\nparticular to Richmond—probable cause to believe the loose tires on her pickup posed a safety\nrisk—is the basis for finding the tap of the tire reasonable.\n 12", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366115/", "author_raw": "GREGG COSTA, Circuit Judge:"}]} | GRAVES | COSTA | BENNETT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588862/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,588,864 | I.F., Plaintiff-Appellant, v. LEWISVILLE INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee. | Paul Fletcher v. Lewisville Indep Sch Dist | 2019-02-08 | 17-40722 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Smith, Duncan, Engelhardt", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 17-40722 Document: 00514828083 Page: 1 Date Filed: 02/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-40722 February 8, 2019\n Lyle W. Cayce\n Clerk\n\n\nI.F.,\n\n Plaintiff–Appellant,\n\nversus\n\nLEWISVILLE INDEPENDENT SCHOOL DISTRICT,\n\n Defendant–Appellee.\n\n\n\n\n Appeal from the United States District Court\n for the Eastern District of Texas\n\n\n\n\nBefore SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n I.F., a former student, sued Lewisville Independent School District\n(“LISD”) for violating Title IX of the Education Amendments of 1972, 20 U.S.C.\n§§ 1681–1688 (2012), claiming that LISD was deliberately indifferent to her\nalleged sexual harassment and retaliated against her by withholding Title IX\nprotections. LISD moved for summary judgment, and I.F. moved for partial\nsummary judgment. The district court granted in part and denied in part\n\f Case: 17-40722 Document: 00514828083 Page: 2 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nLISD’s motion, finding that whereas the evidence did not establish a genuine\ndispute of material fact regarding whether LISD was deliberately indifferent\nto I.F.’s reports of sexual harassment and bullying, there was a genuine dis-\npute of material fact regarding the retaliation claim. The court also denied\nI.F.’s motion. I.F. appeals, challenging only the summary judgment on deliber-\nate indifference. We affirm.\n\n I.\n I.F. was a ninth-grade student at the Hebron High School Ninth Grade\nCampus (“Hebron”) in LISD during the 2012−13 school year. On Friday, Sep-\ntember 28, 2012, she attended a non-school-sponsored, non-school-affiliated\nparty at the private residence of fellow Hebron student S.S. at which no LISD\npersonnel were present. At the party, A.V. and I.G. engaged in sexual activity\nwith I.F., which she claims was rape.\n\n When I.F. returned to school on Monday, her classmates began to harass\nand bully her. According to the complaint, they called her a “whore” and a\n“slut,” asked whether she had sex with multiple people, and inquired “how did\nit feel to be fucked in every single hole of your body?” A.V. “wore the pants that\nhe raped [I.F.] in to school, which had [her] blood on them from intercourse,\nand stood on the lunch table and said, these are the pants that I took [I.F.’s]\nvirginity in.”\n\n I.F. informed her mother, Jaime Fletcher (“Fletcher”), that she was being\nbullied, and on October 10, Fletcher contacted Hebron counselor Debra\nDenson-Whitehead to report the bullying but said nothing about sexual active-\nity or assault. 1 Denson-Whitehead told Fletcher that she would speak with\n\n\n 1 Fletcher stated during her deposition that she told Denson-Whitehead that “there’s\nsomething . . . horribly wrong. Something happened. I don’t know what, but my daughter is\nbeing severely bullied, and it’s really bad.” Ms. Fletcher also told Denson-Whitehead that\n 2\n\f Case: 17-40722 Document: 00514828083 Page: 3 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nI.F. about the bullying when I.F. returned to school. But on Friday, October 12,\nwhen I.F. next attended school, before Denson-Whitehead could speak with\nI.F., Fletcher emailed Denson-Whitehead and told her not to speak with I.F.\nthat day about the bullying. Denson-Whitehead complied and informed Flet-\ncher that she would check in with I.F. the following week. Nevertheless, I.F.\nnever physically attended any LISD school after October 12.\n\n That same day, I.F.’s parents (“the Fletchers”) learned for the first time\nfrom other parents at a football game that I.F. allegedly had been sexually\nassaulted. The Fletchers reported the assault to the Carrollton Police Depart-\nment (“CPD”), which opened an investigation.\n\n On Monday, October 15, the Fletchers met with Denson-Whitehead to\ninform her that I.F. had been sexually assaulted at a party by two Hebron\nstudents and that they had reported the assault to CPD, which had opened an\ninvestigation. The Fletchers also gave Denson-Whitehead a list of students\nwho they believed were involved. This meeting was the first time that Denson-\nWhitehead learned of I.F.’s alleged sexual assault. Denson-Whitehead alleges\nthat she expressed her shock and sorrow to the Fletchers and advised them\nthat she would notify the administration. According to the Fletchers, Denson-\nWhitehead told them that “it was going to be very difficult going against the\nfootball team” and that “the best thing for [I.F.] would be to transfer schools.”\nAfter the meeting, Denson-Whitehead conveyed the information she had\nlearned regarding the sexual assault to Hebron Assistant Principal Amanda\nWerneke and Hebron School Resource Officer Cole Langston, who was also a\npolice officer at CPD.\n\n\n\n\nshe didn’t know whether the bullying was cheerleading bullying, and there was a senior who\nwas “saying something,” but she “didn’t have any names.”\n 3\n\f Case: 17-40722 Document: 00514828083 Page: 4 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\n On October 16, 2012, Denson-Whitehead reported the same information\nto Hebron Principal Mark Dalton. Dalton, Denson-Whitehead, and Werneke\nconsulted with Langston about the alleged assault. Langston confirmed that\nCPD had opened a case and was investigating the sexual assault. He requested\nthat Hebron refrain from investigating the matter until CPD informed LISD\nthat it could proceed because any LISD investigation could interfere with and\npotentially compromise the criminal investigation. Dalton interpreted that\nrequest to apply to both Fletcher’s complaint that I.F. was being bullied and\nI.F.’s alleged sexual assault. Furthermore, both Dalton’s and Denson-\nWhitehead’s concerns about I.F.’s alleged sexual assault took precedence over\nthe previously reported bullying. 2\n\n During this time, I.F. was not attending school, so LISD took steps to\nensure that she earned credit for the classes she was taking. First, Dalton and\nDenson-Whitehead worked together with I.F.’s teachers to get I.F. the work\nshe needed to complete her first-grading-period classes. Dalton also requested\nthat the teachers be flexible and informed them that I.F. need not complete all\nwork that was expected from students who were regularly attending class.\n\n Second, Denson-Whitehead informed the Fletchers of several options for\nI.F. to continue her education, including continuing to attend Hebron, enrolling\nin Texas Tech online/correspondence courses, or transferring to a charter\nschool. The Fletchers did not choose any of those options. Though they desired\nthat I.F. return to Hebron, this was not an option unless her alleged assailants\nwere removed from the school, and the online courses were outside their bud-\nget. Instead, after finding out about the LISD Homebound program from the\n\n\n 2Denson-Whitehead stated in her affidavit that “[w]hile not minimizing the purported\nbullying of I.F., she considered [the] report of an alleged rape to be much more serious . . .,\nparticularly given that Mrs. Fletcher had asked [her] . . . not to talk to I.F. about the\nbullying.”\n 4\n\f Case: 17-40722 Document: 00514828083 Page: 5 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nChildren’s Medical Center in Dallas, the Fletchers requested that LISD place\nI.F. into that program.\n\n LISD’s Homebound program allows students who are unable to attend\nschool for an extended period of time, for medical reasons, to work from home\nand receive credit. LISD requires a physician’s recommendation before a stu-\ndent may be placed into the program. The Fletchers obtained that recommen-\ndation, and LISD enrolled I.F. in the Homebound program by October 30,\nwhere she remained for the rest of the 2012−13 school year.\n\n In early October 2012, Brian Brazil, Hebron High School’s head football\ncoach and athletic coordinator, was informed by a freshman football coach that\nsome of the football players may have been involved in a party, where alcohol\nwas consumed, thrown by S.S., a member of the freshman team. Brazil held a\nmeeting with all the football players, where he discussed the rumor of alcohol\nconsumption at a party and reminded them that LISD’s Extra-Curricular Code\nof Conduct prohibited the consumption of alcohol.\n\n Following the meeting, he spoke with S.S. individually about the party,\nincluding asking about the presence of alcohol and drugs. S.S. admitted that\nhe had consumed alcohol at the party, but falsely stated that no other football\nplayers were present at the party. Brazil suspended S.S. for two games for\nviolating the alcohol consumption prohibition and spoke with S.S.’s father\nabout his meeting with S.S.\n\n During the team-wide meeting and the individual meeting with S.S.,\nBrazil discussed the party only in relation to alcohol and drugs. At that time,\nhe did not know anything about the alleged sexual assault. Before he could\ninterview other players, the Hebron administration advised him that the police\nwere conducting an investigation into the party and that he should not speak\nwith anyone else about the party.\n 5\n\f Case: 17-40722 Document: 00514828083 Page: 6 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\n At the end of October 2012, Langston informed LISD that CPD had suf-\nficiently progressed in its investigation of alcohol and drug consumption at the\nparty that LISD could proceed with its own investigation of alcohol and drug\nconsumption. Soon thereafter, at the beginning of November, Dalton in-\nstructed Brazil to investigate the alcohol consumption issue with the football\nplayers. Brazil interviewed several more players, including A.V. and I.G.; at\nno point during any of those meetings was there mention of an alleged sexual\nassault or alleged sexual misconduct by anyone at the party. After completing\nhis investigation, Brazil reported to Dalton that only one student had admitted\nto drinking and had been disciplined.\n\n In either early November or mid-December, the police authorized LISD\nto proceed with its investigation into I.F.’s allegation of sexual assault. 3 Dur-\ning that time, LISD schools were closed for both Thanksgiving break (Novem-\nber 20−25, 2012) and Christmas/New Years break (December 21, 2012, to Jan-\nuary 6, 2013). Beginning in early January 2013, Hebron conducted two simul-\ntaneous investigations regarding I.F.: one concerning the allegation of sexual\nassault and another concerning I.F.’s allegations of being cyberbullied.\n\n Werneke led both investigations. For the sexual assault investigation,\nduring the month of January 2013, LISD interviewed fourteen students,\nincluding A.V. and I.G. On February 19, LISD followed up with four students,\nagain including A.V. and I.G., interviewing them a second time. Throughout\nthe interviews, A.V. and I.G. were represented by counsel and did not answer\nall of LISD’s questions. Nevertheless, A.V. and I.G. insisted that the sexual\nactivity with I.F. was consensual. LISD also interviewed I.F., with her lawyer\n\n\n\n 3 The parties disagree regarding when CPD authorized LISD to proceed with its inves-\ntigation into sexual assault. LISD contends that the authorization occurred in mid-Decem-\nber; I.F. asserts that it occurred in early November.\n 6\n\f Case: 17-40722 Document: 00514828083 Page: 7 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\npresent, and she gave a written statement.\n\n LISD’s investigation revealed that no adults or LISD personnel wit-\nnessed the events at the September 28, 2012, party. Furthermore, the wit-\nnesses gave conflicting accounts regarding who was involved, precisely what\nhad occurred, how intoxicated the students were, and whether I.F.’s sexual\nactivity with A.V. and I.G. was consensual. LISD found that it did not have\nsufficient evidence that I.F. was sexually assaulted at the party. LISD con-\ncluded, therefore, that there was no basis for any discipline for sexual assault.\n\n For the cyberbullying investigation, Werneke first became aware that\nI.F. was being cyberbullied as she was beginning the sexual-assault investiga-\ntion when Fletcher explained the situation in person and provided Werneke a\nlist of names and the Twitter posting that had started the cyberbullying.\nAssisted by Dalton and Assistant Principals Michael Vargas and James Scott,\nWerneke interviewed nineteen students in early-to-mid-January and reviewed\nseveral social media posts and photographs that Fletcher had provided. The\ninvestigation revealed that the cyberbullying complaint stemmed from Twitter\ntweets and retweets by Hebron High School students on or around Decem-\nber 31, 2012, and January 1, 2013, and that appeared to be in response to a\ntweet by I.F. regarding Christianity. Many of the implicated students had not\nthemselves tweeted but had merely retweeted or liked a comment by another\nstudent.\n\n LISD concluded that those social media posts did not amount to “bully-\ning” as defined by LISD policy because there was no indication that they oc-\ncurred while the students were on school property or at a school-sponsored\nactivity, they did not threaten harm to I.F.’s person or property, and they were\nnot sufficiently pervasive to create a harassing environment. Nevertheless,\nLISD did consider the postings “improper and hurtful,” so LISD counseled the\n\n 7\n\f Case: 17-40722 Document: 00514828083 Page: 8 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\ninterviewed students about improper social media conduct, advised them not\nto engage in such behavior, and contacted their parents. Werneke received no\nfurther complaints from the Fletchers regarding cyberbullying by the individu-\nals involved in this phase of the cyberbullying investigation.\n\n On February 19, however, Fletcher informed Werneke of a different form\nof cyberbullying I.F. was experiencing, this time arising from photographs and\nharassing comments posted on two Instagram accounts. The next day, Wer-\nneke reported the complaint to Langston and Dalton, and CPD began an inves-\ntigation. Langston interviewed several Hebron students, including J.J.D., who\nlater admitted that he had created one of the Instagram accounts and was\nresponsible for all of the account’s posts. 4 The police charged J.J.D. with crim-\ninal harassment, and LISD suspended him for three days and then assigned\nhim to the Disciplinary Alternative Education Program for thirty days as pun-\nishment. After the Instagram cyberbullying complaint, the Fletchers made no\nother cyberbullying complaints.\n\n Once LISD had completed the sexual assault and cyberbullying investi-\ngations, it reported its findings to the Fletchers by letter dated April 5, 2013.\nI.F. completed her ninth-grade coursework through the Homebound program\nand advanced to the tenth grade at the end of the 2012−13 school year. There-\nafter, the Fletchers withdrew her from LISD, and she never returned there as\na student.\n\n II.\n I.F. sued LISD for violating Title IX, asserting that LISD was deliber-\nately indifferent to her alleged sexual harassment and retaliated against her\n\n\n\n 4 The other account was created by a former LISD student who had left LISD and was\nattending a private school in Carrollton.\n 8\n\f Case: 17-40722 Document: 00514828083 Page: 9 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nby withholding Title IX protections. LISD moved for summary judgment on\nall of I.F.’s claims, and I.F. moved for partial summary judgment to establish\nthat she had proved two essential elements of her claims: (1) that she was\nsexually assaulted by two classmates and (2) that she engaged in an activity\nprotected under Title IX. The magistrate judge (“MJ”) granted LISD’s motion\nand denied I.F.’s, determining that the alleged sexually harassing conduct was\nnot “severe, pervasive, or objectively unreasonable,” that LISD’s responses to\nI.F.’s allegations of sexual assault, bullying, and cyberbullying were not delib-\nerately indifferent, and that I.F. had failed to show any evidence of retaliatory\nactions by LISD.\n\n I.F. objected to the MJ’s order and report and recommendation in the\ndistrict court. Considering the parties’ motions de novo, the district court\ngranted in part and denied in part LISD’s motion, finding that whereas the\nevidence did not establish a genuine dispute of material fact regarding whether\nLISD was deliberately indifferent to I.F.’s reports of sexual harassment and\nbullying, 5 there was a genuine dispute of material fact regarding I.F.’s retali-\nation claim. The retaliation claim proceeded to trial, and a jury returned a\nverdict in favor of LISD.\n\n On appeal, I.F. challenges only the summary judgment for LISD on the\ndeliberate indifference claim. She asserts that summary judgment was inap-\npropriate because (1) the question of whether a school district acted with delib-\nerate indifference generally should be decided by a jury; (2) the summary judg-\nment evidence contained a factual dispute regarding when LISD should have\ncommenced its investigation into I.F.’s reports of sexual assault, harassment,\n\n\n\n 5 Though the district court agreed with the MJ on this point, it found that I.F.’s har-\nassment was sufficiently severe, pervasive, and objectively offensive so as to have had a con-\ncrete, negative effect on her access to education.\n 9\n\f Case: 17-40722 Document: 00514828083 Page: 10 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nand bullying; and (3) “allowing deliberate-indifference claims to be resolved by\njury deliberations . . . serves the underlying purpose of discouraging gender-\nbased 6 discrimination, which is the very purpose for which Title IX was enacted\nin the first place.”\n\n III.\n Title IX states that “[n]o person in the United States shall, on the basis\nof sex, be excluded from participation in, be denied the benefits of, or be sub-\njected to discrimination under any education program or activity receiving\nFederal financial assistance.” 20 U.S.C. § 1681(a). “A school district that\nreceives federal funds may be liable for student-on-student harassment if the\ndistrict (1) had actual knowledge of the harassment, (2) the harasser was\nunder the district’s control, (3) the harassment was based on the victim’s sex,\n(4) the harassment was so severe, pervasive, and objectively offensive that it\neffectively bar[red] the victim’s access to an educational opportunity or benefit,\nand (5) the district was deliberately indifferent to the harassment.” Sanches\nv. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir.\n2011) (citation and internal quotation marks omitted).\n\n For a school district to be liable under Title IX, it must have been delib-\nerately indifferent to student-on-student harassment. “Deliberate indifference\nis an extremely high standard to meet.” Domino v. Tex. Dep’t of Crim. Justice,\n239 F.3d 752, 756 (5th Cir. 2001). A school district’s “response to the harass-\nment or lack thereof [must be] clearly unreasonable in light of the known\ncircumstances.” Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ.,\n526 U.S. 629, 648 (1999). Because “deliberate indifference . . . is . . . a lesser\n\n\n 6I.F.’s reference to “gender” is entirely inappropriate. This case is about sex, not\ngender. Title IX addresses sex and never mentions gender. We will flexibly treat I.F.’s claims\nas regarding sex discrimination.\n 10\n\f Case: 17-40722 Document: 00514828083 Page: 11 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nform of intent rather than a heightened degree of negligence,” Leffall v. Dall.\nIndep. Sch. Dist., 28 F.3d 521, 531 (5th Cir. 1994) (citation and internal quo-\ntation marks omitted), neither negligent nor merely unreasonable responses\nare enough, Sanches, 647 F.3d at 167. 7 “Actions and decisions by officials that\nare merely inept, erroneous, ineffective, or negligent do not amount to deliber-\nate indifference . . . .” Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 153 F.3d 211,\n219 (5th Cir. 1998). 8 Indeed, as the district court noted, our precedent “makes\nit clear that negligent delays, botched investigations of complaints due to the\nineptitude of investigators, or responses that most reasonable persons could\nhave improved upon do not equate to deliberate indifference.” 9\n\n School districts enjoy flexibility in responding to student-on-student har-\nassment and “may tailor their responses to the circumstances.” Lance,\n743 F.3d at 1000. Title IX does not require school districts to purge themselves\nof harassment, take specific disciplinary actions, nor comply with parents’\nremedial demands. Davis, 526 U.S. at 648. Even a school district’s “failure to\ncomply with [its] regulations . . . does not establish the requisite . . . deliberate\nindifference.” Sanches, 647 F.3d at 169 (citation omitted). Given this flexibil-\nity, “courts should refrain from second-guessing the disciplinary decisions\nmade by school administrators.” Davis, 526 U.S. at 648.\n\n\n 7 See also Farmer v. Brennan, 511 U.S. 825, 835 (1994) (“[D]eliberate indifference\nentails something more than mere negligence . . . .”).\n 8 See also Sanches, 647 F.3d at 168 (“Ineffective responses . . . are not necessarily\nclearly unreasonable.”).\n 9 See Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 997 (5th Cir. 2014)\n(determining that the district’s response to complainant’s bullying, despite several instances\nof inaction, was not deliberately indifferent); Doe ex rel. Doe v. Dall. Indep. Sch. Dist.,\n220 F.3d 380, 388–89 (5th Cir. 2000) (holding that the district was not deliberately indifferent\ndespite its having erroneously concluded that the complainant had not been sexually as-\nsaulted); Leffall, 28 F.3d at 531–32 (finding that the district’s decision to hire two unarmed\nsecurity guards for a school dance where a student was fatally shot established a lack of\ndeliberate indifference despite awareness of the risk of violence).\n 11\n\f Case: 17-40722 Document: 00514828083 Page: 12 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\n Accordingly, the strict nature of the deliberate indifference standard and\nthe considerable flexibility school districts exercise in responding to harass-\nment counsel that “Title IX does not require flawless investigations or perfect\nsolutions.” Sanches, 647 F.3d at 170. Instead, school districts “must merely\nrespond to known peer harassment in a manner that is not clearly unreasona-\nble.” Davis, 526 U.S. at 649.\n\n IV.\n I.F. asserts that “generally,” “[t]he question of whether an action by a\nschool district is ‘clearly unreasonable,’” and therefore, that the school district\nwas deliberately indifferent, “should . . . be decided by juries.” Though she\nacknowledges that judgment as a matter of law (“JML”) on deliberate indiffer-\nence is permissible “[i]n an appropriate case,” id., she relies on principles from\ncivil rights jurisprudence and qualified immunity to contend that the\n“Supreme Court would prefer the deliberate-indifference issue to be resolved\nby juries rather than judges.”\n\n I.F. first maintains that because the Supreme Court adopted the delib-\nerate indifference standard from its civil rights jurisprudence, where the ques-\ntion of deliberate indifference is routinely placed before juries, the issue should\nbe decided by a jury in the Title IX context as well. Second, she states that\nbecause the public policy underlying qualified immunity for individual govern-\nmental employees does not apply to school districts, the question whether a\nschool district’s response to student-on-student harassment was not clearly\nunreasonable, and therefore not deliberately indifferent, should be a question\nof fact for a jury to decide. I.F. also attempts to distinguish Sanches by inter-\npreting it to have found, unlike in the current case, “that there was no evidence\nin the record of sexual-based harassment . . . and, therefore, as a matter of law,\nthe defendant school district could not have been deliberately indifferent to it.”\n\n 12\n\f Case: 17-40722 Document: 00514828083 Page: 13 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nI.F.’s assertions conflict with uncontroverted Supreme Court and Fifth Circuit\nprecedent, and her analogies to disparate areas of law are unavailing.\n\n First, the Supreme Court and this court recognize that in ruling on a\nmotion for summary judgment, a district court can determine, as a matter of\nlaw, that a party was not deliberately indifferent. “The deliberate-indifference\ninquiry does not transform every school disciplinary decision into a jury ques-\ntion.” Nevills v. Mart Indep. Sch. Dist., 608 F. App’x 217, 221 (5th Cir. 2015)\n(per curiam) (citation omitted). Instead, “[i]n an appropriate case, there is no\nreason why courts, on a motion . . . for summary judgment, . . . could not iden-\ntify a response as not ‘clearly unreasonable’ as a matter of law.” Davis,\n526 U.S. at 649. “Whether an official’s response to actual knowledge of dis-\ncrimination amounted to deliberate indifference . . . may appropriately be\ndetermined on summary judgment.” Doe, 220 F.3d at 387.\n\n Following these principles, we have repeatedly upheld summary judg-\nments after finding, as a matter of law, that a school district’s response to har-\nassment was not deliberately indifferent. 10 In the context of Title IX student-\non-student harassment claims, summary judgment remains an appropriate\ntool, and courts may grant summary judgment if there is no genuine dispute\nof material fact regarding deliberate indifference. See Doe, 153 F.3d at 220 n.8.\nTherefore, I.F.’s claim that courts should generally allow juries to decide the\nquestion of deliberate indifference is merely an advocacy position not grounded\nin the law. 11\n\n Second, I.F.’s attempt to rely on principles of qualified immunity is\n\n\n 10 See, e.g., Nevills, 608 F. App’x at 222; Lance, 743 F.3d at 997, 1000–01; Sanches,\n647 F.3d at 167–70; Doe, 220 F.3d at 387–89.\n 11 Moreover, I.F. concedes that we have “issued several opinions in recent years in\nwhich [we have] affirmed summary judgments on deliberate-indifference claims arising out\nof student-on-student harassment.”\n 13\n\f Case: 17-40722 Document: 00514828083 Page: 14 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nmeritless. Qualified immunity is not implicated in this appeal, and the doc-\ntrine does not speak to whether I.F. raised a genuine dispute of material fact\non deliberate indifference to avoid summary judgment. Therefore, the alleged\nfact that questions of qualified immunity are often resolved as a matter of law\nand that LISD cannot assert qualified immunity here, has no import in resolv-\ning whether a district court may decide deliberate indifference as a matter of\nlaw.\n\n Third, in attempting to distinguish Sanches, I.F. misconstrues its find-\nings. Contrary to I.F.’s assertion, Sanches held the opposite and explicitly\nstated that “the district was not deliberately indifferent.” Sanches, 647 F.3d\nat 170. Accordingly, I.F.’s claim—that the question whether an action by a\nschool district was clearly unreasonable, and, thus, that the district was delib-\nerately indifferent, should generally be decided by a jury—is meritless.\n\n V.\n I.F. claims that a district court’s finding, as a matter of law, that a school\ndistrict was not deliberately indifferent instead of allowing a jury to decide the\nquestion “dissuades . . . potential future victims from pursuing their legal rem-\nedies, thereby rewarding those who engage in the conduct that Title IX was\nenacted to deter.” She likens her case to those of black plaintiffs “50 years ago”\nand asserts that “this Court should not conclude today that Texans’ perceived\nlove of high-school football should eviscerate a young woman’s right to a jury\ntrial when her gender-discrimination claim potentially threatens the success\nof an all-male football team.” At its core, I.F.’s policy reasoning is that allowing\nclaims of Title IX student-on-student harassment to be decided by a court on\nsummary judgment is contrary to Title IX’s “purpose” and will “eviscerate the\nstatute[] that w[as] designed to prevent prejudice.” I.F.’s theory is\nunpersuasive.\n\n 14\n\f Case: 17-40722 Document: 00514828083 Page: 15 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\n The law on whether a district court can grant summary judgment on\nTitle IX student-on-student harassment claims is settled. Summary judgment\non Title IX claims is appropriate if there are no genuine disputes as to material\nfacts and the moving party is entitled to JML, and the Supreme Court agrees.\nDavis, 526 U.S. at 649. The district court did precisely that, granting summary\njudgment to LISD because “I.F. has not shown the existence of a material issue\nof fact under the objective standard applicable to review of a Title IX deliberate\nindifference claim.” Though I.F. attempts to alter this law by relying on asser-\ntions regarding the purpose of Title IX and the alleged consequences of grant-\ning summary judgment on these types of claims, her points are untenable.\nTheir logical endpoint is that a court would never be able to grant summary\njudgment against a claimant without essentially declaring that the movant’s\ninterests are more important than the claimant’s right to be free from Title IX\ndiscrimination. Consequently, I.F.’s points conflict with settled law.\n\n I.F. further supports her policy reasoning by misconstruing a statement\nby the district court regarding high school football. I.F. states that the court\n“tacitly” acknowledged that “jurors in the Eastern District of Texas will place\na greater emphasis on preserving a successful high-school football team than\non other conceivable public-policy goals,” such as preventing student-on-\nstudent harassment under Title IX. I.F. uses this interpretation to urge that\nthe district court should not be allowed to decide that jurors will favor high\nschool football as a matter of law, and, therefore, that the question of deliberate\nindifference should be decided by a jury. Understood in context, however, the\ndistrict court’s statement was merely an explanation of why Denson-\nWhitehead’s comment that I.F. would encounter difficulties if she “went\nagainst the football team” was a legitimate, if inartful, concern. Therefore, I.F.\ncannot use the district court’s observation to support her assertion that by\n\n 15\n\f Case: 17-40722 Document: 00514828083 Page: 16 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nallowing courts to grant summary judgment on Title IX claims, they would be\ncountenancing putting football above preventing Title IX harassment and\neviscerating the antidiscrimination protections afforded by the statute.\n\n VI.\n Liability for student-on-student harassment under Title IX requires the\nclaimant to prove each of five elements. Therefore, to prevail on summary\njudgment for a claim of student-on-student harassment, a defendant school\ndistrict, as the moving party, must demonstrate that there is no genuine dis-\npute as to any one of the following material facts and that it is therefore\nentitled to JML: “(1) [The district] had actual knowledge of the harassment,\n(2) the harasser was under the district’s control, (3) the harassment was based\non the victim’s sex, (4) the harassment was so severe, pervasive, and object-\ntively offensive that it effectively bar[red] the victim’s access to an educational\nopportunity or benefit, and (5) the district was deliberately indifferent to the\nharassment.” Sanches, 647 F.3d at 165 (citation and internal quotation marks\nomitted).\n\n I.F. and LISD do not dispute prong (2) or (3): I.F.’s harassers, as stu-\ndents, were under LISD’s control, and the harassment was based on I.F.’s sex.\nThe parties dispute the other elements. Based on a de novo review of the rec-\nord, viewing the evidence in the light most favorable to I.F., we determine that\nsummary judgment is appropriate in LISD’s favor because there is no genuine\ndispute that LISD was not deliberately indifferent to I.F.’s claims of\nharassment.\n\n A.\n The first material fact is whether LISD had actual knowledge of the\nharassment. I.F. asserts two distinct allegations of harassment: a sexual\n\n 16\n\f Case: 17-40722 Document: 00514828083 Page: 17 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nassault on September 28, 2012, and incidents of sexual harassment following\nthe alleged sexual assault in the form of bullying and cyberbullying. The bully-\ning consists of three episodes: (1) bullying and harassment by fellow students\nin the two weeks following the alleged sexual assault, (2) cyberbullying com-\nprising Twitter posts, retweets, and likes that occurred on or around Decem-\nber 31, 2012, and January 1, 2013, and (3) cyberbullying in the form of har-\nassing Instagram posts in February 2013.\n\n First, for the sexual assault allegation, LISD had actual knowledge of\nthe harassment on October 15, 2012, when the Fletchers reported it to Denson-\nWhitehead. By October 16, Denson-Whitehead had reported the information\nshe had learned regarding the sexual assault to Dalton and Werneke. Second,\nfor the bullying complaint, LISD had actual knowledge of the harassment on\nOctober 10, when Fletcher contacted Denson-Whitehead to report that I.F. was\nbeing bullied. Denson-Whitehead informed Dalton of the bullying complaint\nby October 16. Third, for the Twitter cyberbullying complaint, LISD had actual\nknowledge of the harassment on January 7, when Fletcher went to Hebron and\nprovided Werneke with a list of students who she claimed had been cyber-\nbullying I.F. on Twitter and a copy of the alleged post that had started the\nharassment. Fourth, for the Instagram cyberbullying complaint, LISD had\nactual knowledge of the harassment on February 19, when Fletcher contacted\nWerneke and told her about photographs and harassing comments posted by\ntwo Instagram accounts. The next day, Werneke reported the complaint to\nDalton.\n\n LISD does not dispute that it had actual knowledge of the sexual assault\nand two forms of cyberbullying on the dates set forth above, but it does assert\nthat it did not have actual knowledge of “any sex-based bullying in connection\nwith the October 10, 2012, report” because Fletcher’s complaint to Denson-\n\n 17\n\f Case: 17-40722 Document: 00514828083 Page: 18 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nWhitehead on that date did not implicate Title IX. LISD maintains that Flet-\ncher merely described that I.F. was being bullied generally, or at most, was\nexperiencing cheerleading bullying, but Fletcher did not give any information\nthat would lead Denson-Whitehead to believe the bullying was sex-based.\n\n Nevertheless, LISD’s contention is better directed at the question of\nLISD’s deliberate indifference, not whether it had actual knowledge of the\nbullying. Based on the evidence, it is indisputable that LISD had actual knowl-\nedge, through Denson-Whitehead, that I.F. was being bullied in some manner.\nThough the parties may dispute whether LISD’s response to that knowledge\nwas deliberately indifferent, the fact is that LISD knew of the harassment on\nthat day.\n\n B.\n The second material fact is whether the harassment was so severe, per-\nvasive, and objectively offensive that it effectively barred I.F.’s access to an\neducational opportunity or benefit. The MJ and the district court reached\ndifferent conclusions. The MJ determined that the harassing conduct I.F.\nendured “was not severe, pervasive, or objectively unreasonable,” nor did it\nhave a concrete, negative effect on her access to education. Conversely, the\ndistrict court found that there was a genuine dispute concerning this material\nelement. The court determined that I.F. had provided evidence that, “if\nbelieved by a jury, could be a basis for a jury finding that the sexual harass-\nment was so severe, pervasive, or objectively unreasonable so as to have had a\nconcrete, negative effect on I.F.’s access to education.” Although neither side\nchallenges this finding on appeal, we are not bound by the parties’ agreement\nbut must review the summary judgment de novo. Austin v. Kroger Tex., L.P.,\n864 F.3d 326, 328 (5th Cir. 2017) (per curiam). Based on that de novo review,\nviewing the evidence in the light most favorable to I.F., we determine that I.F.\n\n 18\n\f Case: 17-40722 Document: 00514828083 Page: 19 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nhas demonstrated a genuine dispute as to a material fact, namely, whether the\nharassment she endured was so severe, pervasive, and objectively offensive\nthat it effectively barred her access to an educational opportunity or benefit.\n\n First, I.F. has raised a genuine dispute as to whether the harassment\nshe endured was severe, pervasive, and objectively offensive. Her classmates\ncalled her a “whore” and a “slut.” They spread rumors about her, talked about\nher loudly in her presence, and excluded her during cheerleading. One student\nasked her the race of the baby she would be having. Others asked whether she\nhad sex with multiple people and “how did it feel to be fucked in every single\nhole of your body?” A.V., one of the students I.F. asserts raped her, “wore the\npants that he raped [I.F.] in to school, which had [her] blood on them from\nintercourse, and stood on the lunch table and said, these are the pants that\nI took [I.F.’s] virginity in.” Multiple football players called her a liar and told\nher that she was “going to ruin everything.” The harassment continued online,\nwith students commenting about I.F.’s alleged assault on Twitter and Insta-\ngram. As a result of the harassment, I.F. felt suicidal and depressed, began\ncutting herself, had nightmares, and experienced panic attacks. Therefore, she\nhas demonstrated a genuine dispute regarding whether the harassment was\nsevere, pervasive, and objectively offensive.\n\n Second, I.F. has raised a genuine dispute as to whether the harassment\neffectively barred her access to an educational opportunity or benefit because\nshe provided evidence that she felt that she could not return to Hebron on\naccount of the harassment. In her statement of events dated February 8, 2013,\nI.F. stated that “I asked [my parents] to pull me out of school because of the\nbullying, and that I didn’t want to be there with those two boys who raped me.”\n“I thought once the police and school heard about what happened to me that\nthey would arrest the boys and kick them out of school and I could go back to\n\n 19\n\f Case: 17-40722 Document: 00514828083 Page: 20 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nschool, but no!” I.F. also asserted during her deposition that Fletcher had\ninformed LISD that I.F. could not “be going to the same school as [her] rapists.”\nAccordingly, I.F. has presented sufficient evidence to raise a genuine dispute\nas to a material fact, namely, that the harassment she endured was so severe,\npervasive, and objectively offensive that it effectively barred her access to an\neducational opportunity or benefit.\n\n C.\n The third material fact is whether LISD was deliberately indifferent to\nthe harassment. The MJ and the district court agreed that “there is no issue\nof fact as to whether the district was deliberately indifferent.” Based on a de\nnovo review of the record, viewing the evidence in the light most favorable to\nI.F., we determine that I.F. has failed to demonstrate a genuine dispute of\nmaterial fact to show that LISD’s responses to I.F.’s alleged sexual assault on\nSeptember 28, 2012, and incidents of sexual harassment following the alleged\nsexual assault in the form of bullying and cyberbullying, were deliberately\nindifferent. Therefore, LISD is entitled to JML.\n\n 1.\n I.F. claims that LISD was deliberately indifferent to her alleged sexual\nassault because there was a “lengthy and unjustified delay” before it began its\ninvestigation. I.F. rejects LISD’s contention that it was not cleared to inves-\ntigate the sexual assault allegation until mid-December 2012 and asserts that\nalthough CPD “finished its criminal investigation on November 8, 2012, . . .\nLISD did not begin its investigation for nearly two months,” in January 2013.\nAside from generally averring that LISD should have initiated the investiga-\ntion soon after it received clearance from the police in early November 2012,\nI.F. proffers three reasons why LISD’s delay was unjustified.\n\n\n 20\n\f Case: 17-40722 Document: 00514828083 Page: 21 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\n First, I.F. contends that the delayed investigation contravened the “Dear\nColleague Letter,” sent to LISD and all other school districts in the United\nStates, by the U.S. Department of Education’s Office for Civil Rights in 2011,\nwhich states that “a school . . . must promptly investigate” potential harass-\nment and that “a law enforcement investigation does not relieve the school of\nits independent Title IX obligation to investigate the conduct.” 12 Second, she\nclaims the delay was motivated by LISD’s preference for its high school football\nprogram over the Title IX rights of its students. Third, I.F. asserts that the\ndistrict court mistakenly did not apply the reasoning of Williams v. Board of\nRegents of the University System of Georgia, 477 F.3d 1282 (11th Cir. 2007),\nwhich I.F. interprets as holding that a school may not delay its investigation\nin light of a pending criminal investigation where that investigation would not\naffect the school’s ability to institute its own procedures. Accepting I.F.’s ver-\nsion of when LISD received authorization from CPD to begin its investigation,\neach of I.F.’s claims nevertheless fails, and the evidence instead supports the\nconclusion that LISD was not deliberately indifferent to I.F.’s sexual assault\nallegation.\n\n I.F. misconstrues the Dear Colleague Letter by selectively quoting it.\nThough she claims that the letter states that a school district may not delay\nits investigation in light of a simultaneous criminal investigation, the letter\ncontains additional language regarding how a district should approach\ncoordinating its Title IX investigation with a criminal investigation:\n Although a school may need to delay temporarily the fact-finding\n portion of a Title IX investigation while the police are gathering\n evidence, once notified that the police department has completed\n\n\n\n 12 Dear Colleague Letter: Sexual Violence 4, Russlynn Ali, Assistant Sec’y for Civil\nRights, Office for Civil Rights, U.S. Dep’t of Educ. (Apr. 4, 2011),\nhttps://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.\n 21\n\f Case: 17-40722 Document: 00514828083 Page: 22 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\n its gathering of evidence (not the ultimate outcome of the investi-\n gation or the filing of any charges), the school must promptly re-\n sume and complete its fact-finding for the Title IX investiga-\n tion.[ 13]\n LISD first learned of I.F.’s sexual assault allegation on October 15, 2012.\nThe next day, Langston requested that LISD refrain from investigating the\nmatter until CPD informed LISD that it could proceed because any LISD inves-\ntigation could interfere with the criminal investigation. According to I.F.,\nLISD received that authorization on November 8, 2012, and, thus, should have\nbegun its investigation at that time. Therefore, because it was complying with\nthe police request not to investigate for approximately three weeks between\nOctober 15 and November 8, LISD was not violating the letter during that\ntime.\n\n Furthermore, though LISD did not begin its investigation until January,\naccepting I.F.’s version of events, LISD’s delay after the initial three-week per-\niod was not because it was waiting for police authorization. Consequently,\nI.F.’s attempt to use the Dear Colleague Letter’s statements about coordination\nwith criminal investigations—to demonstrate that LISD was deliberately\nindifferent during this period—fails. To the extent that I.F. contends that\nLISD violated the letter’s mandate that school districts promptly resume their\ninvestigations after a criminal investigation has been completed, that is\nexactly the inquiry we are engaging in when we analyze whether LISD’s delay\nin beginning its investigation was deliberately indifferent. 14\n\n Next, even accepting I.F.’s allegation of Denson-Whitehead’s statements\n\n\n 13 Id. at 10.\n The U.S. Department of Education’s Office for Civil Rights has since rescinded the\n 14\n\nDear Colleague Letter. Dear Colleague Letter, Candice Jackson, Acting Assistant Sec’y for\nCivil Rights, Office for Civil Rights, U.S. Dep’t of Educ. (Sept. 22, 2017),\nhttps://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.\n 22\n\f Case: 17-40722 Document: 00514828083 Page: 23 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nas true, I.F. has failed to raise a genuine dispute of material fact that Denson-\nWhitehead’s statements evidence LISD’s deliberate indifference because they\nwere motivated by an animus against I.F. for attempting to “go against the\nfootball team.” As the district court explained, at many high schools in Texas,\nthe football team and its games are a source of school and community pride.\nMany students are involved in the team or related organizations, such as the\ncheerleading squad or the band. Consequently, an individual who raises seri-\nous sexual assault allegations against members of the team may experience\nresistance.\n\n Denson-Whitehead’s statement that “it was going to be very difficult\ngoing against the football team” must be construed in this context as express-\ning her concern to I.F. and her parents about this potential resistance. Denson-\nWhitehead’s subsequent actions support this interpretation. She did not keep\nI.F.’s sexual assault allegation to herself or change details to make it seem less\nserious. Instead, the same day that she learned of the allegation, she informed\nWerneke and Langston, and the next day, she told Dalton. Though Denson-\nWhitehead’s comment was inartful and could have been more tactful, it is not\nobjective evidence of deliberate indifference.\n\n Finally, I.F.’s reliance on Williams, an out-of-circuit case, is misplaced.\nThe Eleventh Circuit found that the University of Georgia was deliberately\nindifferent because it waited eight months after receiving a full police report\nbefore conducting a disciplinary hearing regarding an alleged sexual assault.\nThough the university tried to justify the delay by averring to the pending\ncriminal trials against the alleged assailants, the court rejected its contentions\nas insufficient. Williams, 477 F.3d at 1296−97.\n\n I.F.’s case is readily distinguishable from Williams. LISD did not delay\nits investigation after receiving a full police report or because criminal trials\n\n 23\n\f Case: 17-40722 Document: 00514828083 Page: 24 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nwere pending. Instead, LISD delayed because of a specific directive from CPD.\nAccepting I.F.’s version of events as true, LISD then further delayed the inves-\ntigation for about two months, which included Thanksgiving break and the\nChristmas/New Years holidays. This delay was much shorter than the eight-\nmonth delay that the Williams court relied on, in part, in finding that the\nuniversity was deliberately indifferent.\n\n Contrary to I.F.’s theory that LISD’s delayed investigation shows delib-\nerate indifference, the evidence supports the conclusion that LISD performed\nan extensive investigation within a reasonable time. Accepting I.F.’s version\nof events that LISD received authorization to begin investigating the sexual\nassault allegation on November 8, 2012, LISD’s delay consisted of two periods:\nwaiting for police authorization from October 16, 2012, to November 8, 2012,\nand the November 8, 2012, to January 7, 2013, period. 15\n\n Though a delay in instituting remedial actions may constitute deliberate\nindifference under Title IX, 16 LISD’s twenty-eight school-day delay does not\nrise to that level. During that period, LISD was actively taking steps to provide\nrelief to I.F. It worked together with I.F.’s teachers to get her the work she\nwas missing during her absence and requested the teachers be flexible with\nI.F.’s workload, provided her with information regarding educational oppor-\ntunities outside of LISD, and assisted I.F. in enrolling in the Homebound\n\n\n\n\n 15Based on a 2012-year calendar and the dates for the vacation periods LISD provides,\nThanksgiving break and the Christmas/New Years holidays together consumed three full\nschool weeks.\n 16 See, e.g., Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 669–70 (2d Cir. 2012)\n(holding that a jury was within its power to find that a school district was deliberately indif-\nferent where it waited over a year to implement remedial action in response to a complaint);\nMatthews v. Nwankwo, 36 F. Supp. 3d 718, 725 (N.D. Miss. 2014) (holding that an unjustified\ndelay of two to three months in separating a complainant from the alleged assailant’s class\nwas deliberate indifference).\n 24\n\f Case: 17-40722 Document: 00514828083 Page: 25 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nprogram. 17 In light of these known circumstances, the delay was not clearly\nunreasonable and thus was not deliberately indifferent. See Davis, 526 U.S.\nat 648; Sanches, 647 F.3d at 167–68.\n\n Once it began its investigation, moreover, LISD’s response was not\ndeliberately indifferent. It interviewed fourteen students about the alleged\nsexual assault and followed up with four students, including the two alleged\nassailants. It interviewed I.F., with her lawyer present, and accepted her writ-\nten statement. After reviewing the evidence, LISD concluded that it could not\nestablish, with sufficient evidence, that I.F. had been sexually assaulted at the\nparty, so there was no basis for any LISD discipline for sexual assault. Title IX\ndid not require LISD to take specific disciplinary actions, comply with parents’\nremedial demands, or comply with its own regulations in investigating the\ncomplaint. Davis, 526 U.S. at 648; Sanches, 647 F.3d at 169. Instead of being\nclearly unreasonable, to the contrary, LISD’s investigation was thorough and\nappropriate. Therefore, LISD’s response to I.F.’s sexual assault allegation was\nnot deliberately indifferent.\n\n 2.\n I.F. contends that LISD was deliberately indifferent to her October 10,\n2012, bullying complaints because it “never undertook an investigation into”\nthem. Nevertheless, in light of the known circumstances, LISD’s response to\nthe harassment in the form of bullying was not deliberately indifferent.\n\n When Fletcher contacted Denson-Whitehead on October 10 to report that\nI.F. was being bullied, she did not give specific details. Fletcher stated that\nI.F. was being “severely bullied” and opined that it could be cheerleading\n\n\n\n 17 Furthermore, I.F. was separated from her alleged assailants by her absence from\nschool and subsequent enrollment in the Homebound program.\n 25\n\f Case: 17-40722 Document: 00514828083 Page: 26 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nbullying, but other than giving Denson-Whitehead the names of several stu-\ndents, who had bullied I.F. at her middle school, who Fletcher was unsure were\ninvolved, Fletcher “didn’t have any names” for this bullying complaint.\nDenson-Whitehead said that she would speak with I.F. about the bullying\nwhen I.F. next attended school. But when I.F. returned to school on Friday,\nOctober 12, for the first time since Denson-Whitehead and Fletcher’s conver-\nsation, before Denson-Whitehead could speak with I.F., Fletcher emailed\nDenson-Whitehead to request that she not speak with I.F., and Denson-\nWhitehead complied.\n\n The following Monday, October 15, LISD learned of I.F.’s alleged sexual\nassault and shifted its focus to investigating that claim. After that date, I.F.\nnever provided a statement to LISD regarding the bullying, nor did the Flet-\nchers give LISD further details to supplement their earlier complaint about\nthe bullying. Therefore, in light of the known circumstances, LISD’s response\nto the bullying complaint was not clearly unreasonable and thus was not\ndeliberately indifferent.\n\n 3.\n I.F. does not specifically allege that LISD was deliberately indifferent to\nher complaints of cyberbullying through Twitter and Instagram. Because,\nhowever, I.F. asserts that the cyberbullying was sexual harassment under\nTitle IX, if there is a genuine dispute regarding whether LISD was deliberately\nindifferent to these complaints, summary judgment was inappropriate. Never-\ntheless, LISD was not deliberately indifferent to the cyberbullying complaints.\n\n In response to I.F.’s first cyberbullying complaint on January 7, 2013,\nLISD promptly interviewed nineteen students in early-to-mid January and\nreviewed the alleged offending social media posts. Though LISD concluded\nthat the posts did not constitute “bullying” as defined by LISD policy, it still\n 26\n\f Case: 17-40722 Document: 00514828083 Page: 27 Date Filed: 02/08/2019\n\n\n\n No. 17-40722\nconsidered them improper and hurtful. LISD therefore counseled the impli-\ncated students about inappropriate social media behavior, advised them not to\nengage in such behavior in the future, and contacted their parents.\n\n In response to I.F.’s second cyberbullying complaint on February 19,\n2013, LISD promptly reported the matter to CPD, which began an investiga-\ntion. As a result, one Hebron student was charged with criminal harassment,\nand LISD suspended him for three days and assigned him to the Disciplinary\nAlternative Education Program for thirty days as punishment.\n\n LISD’s responses to both cyberbullying complaints were reasonable\ninvestigatory efforts aimed at discovering who was responsible, determining\nwhether Title IX sexual harassment had occurred, and remedying offending\nconduct. Consequently, LISD’s investigation was not clearly unreasonable,\nand it was not deliberately indifferent.\n\n There is no error. The summary judgment is AFFIRMED.\n\n\n\n\n 27", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366117/", "author_raw": "JERRY E. SMITH, Circuit Judge:"}]} | SMITH | DUNCAN | ENGELHARDT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588864/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,443,874 | Randy COLE Karen Cole Ryan Cole v. Carl CARSON, - Randy Cole Karen Cole Ryan Cole v. Michael Hunter Martin Cassidy | Cole v. Carson | 2019-02-08 | No. 14-10228; cons. w/ No. 15-10045 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415303/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443874/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||||
4,589,527 | Randy Cole v. Michael Hunter | 2019-02-11 | 14-10228 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n _____________________\n United States Court of Appeals\n Fifth Circuit\n\n No. 14-10228 FILED\n _____________________ February 8, 2019\n Lyle W. Cayce\n Clerk\nRANDY COLE; KAREN COLE; RYAN COLE,\n\n Plaintiffs - Appellees\nv.\n\nCARL CARSON,\n\n Defendant - Appellant\n\n----------------------------------------------------------------------------------------------------------\ncons. w/No. 15-10045\n\nRANDY COLE; KAREN COLE; RYAN COLE,\n\n Plaintiffs - Appellees\nv.\n\nMICHAEL HUNTER; MARTIN CASSIDY,\n\n Defendants - Appellants\n\n __________________________\n\n Appeals from the United States District Court\n for the Northern District of Texas\n __________________________\n\n ON PETITION FOR REHEARING EN BANC\n\n (Opinion September 25, 2015, 5 Cir., 2015, 802 F.3d 752)\n (Opinion on Remand from U.S. Sup.Ct. September 25, 2018,\n 5 Cir., 2018, 905 F.3d 334)\n\f No. 14-10228 c/w No. 15-10045\n\n\n\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD,\nSOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO,\nDUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.\n\nBY THE COURT:\n\n A member of the court having requested a poll on the petition for\nrehearing en banc, and a majority of the circuit judges in regular active\nservice and not disqualified having voted in favor,\n\n IT IS ORDERED that this cause shall be reheard by the court en banc\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\nbriefing schedule for the filing of supplemental briefs.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366780/", "author_raw": ""}]} | STEWART | JONES | SMITH | 2 | DENNIS; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; HO; DUNCAN; ENGELHARDT; OLDHAM | {"STEWART": ", Chief", "JONES": ", Circuit", "SMITH": ", Circuit", "DENNIS": ", Circuit", "OWEN": ", Circuit", "ELROD": ", Circuit", "SOUTHWICK": ", Circuit", "HAYNES": ", Circuit", "GRAVES": ", Circuit", "HIGGINSON": ", Circuit", "COSTA": ", Circuit", "WILLETT": ", Circuit", "HO": ", Circuit", "DUNCAN": ", Circuit", "ENGELHARDT": ", Circuit", "OLDHAM": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4589527/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
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